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Cite as:  UKAIT 26,  UKAIT 00026
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AL & Others (Malaysia BOCs) Malaysia  UKAIT 00026
ASYLUM AND IMMIGRATION TRIBUNAL
Date of hearing: 29 April 2008
Date Determination notified: 03 July 2008
Senior Immigration Judge Spencer
|Secretary of State for the Home Department||RESPONDENT|
DETERMINATION AND REASONS
1. Malaysian British Overseas Citizens (BOCs) who have (or have had) Malaysian nationality cannot derive from their status as BOCs a right to enter or reside in the UK.
2. The refusal to recognise such a right is not a breach of Arts 3, 8 or 14 of the ECHR.
3. A Malaysian BOC does not lose Malaysian nationality by a unilateral voluntary act of applying for a BOC passport or of purported renunciation of nationality. Deprival of nationality and acceptance of renunciation require a formal act of the Federal Government and are not automatic or irreversible.
The basis of the Appellants' claims
"48. It is submitted on behalf of all three appellants that as they are British overseas citizens, they are entitled not to be removed from United Kingdom as their removal will mean that the United Kingdom is in breach of its obligations under Article 3 of the Human Rights Convention. It is also argued that the respondent who has to establish that the appellants can be removed to Malaysia for purposes of settlement and on whom the burden falls of establishing this fact has not done so. Two of the appellants have been granted British overseas citizen's passports which mean that they lose their Malaysian nationality and would not be readmitted. It is argued that the appellant's position is that of "flying Dutchmen." The second and third appellant have acquired BOC passports and there is no issue as to their BOC status. The third appellant however still has his Malaysian passport in his possession and has not been taken away from him by the Malaysian authorities. The first appellant has not been issued with a BOC passport as yet. The evidence produced by the appellants' legal representatives clearly show that the Malaysian High Court came to its decision [Lee Thean Hock] by way of consent order and it is not a precedent as such. It does not create a legal principle. On the evidence before me I do not consider that the Malaysian High Court's decision in the case of the Lee is an authority or a precedent. I agree with the submission in the case of the second appellant, whose passport has been retained by the Malaysian High Commission that he would be left in state of limbo. I find on the evidence before me that this will give rise to a violation of his Article 3 rights in that he is in a position that he cannot travel back to Malaysia. In the case of the first appellant, the respondent has set removal directions without actually deciding the appellant's BOC status. He has been refused indefinite leave to remain on a discretionary basis as the other two appellants. I find on the evidence that the first appellant has established family and private life in the United Kingdom with his partner. The fact that he has not been issued with BOC status has little bearing on my decision. The third appellant has his passport in his possession. Again I accept that the Malaysian authorities will take this away from him whilst they discover that he has been issued with a British overseas citizen status. I hold all three appellants to be in a state of limbo in relation to their return ability to Malaysia. For these reasons I find that there will be a violation of all three appellant's rights under Article 3 as a result of the respondent's decision to remove them."
Grounds for reconsideration and reply
The Appellants' arguments summarised
"a) The Appellants are BOCs from Malaysia, members of a class of British nationals who have been historically deprived of their rights of residence in this country in a racially discriminatory and degrading manner.
Their status as BOCs arises as a matter of law. In other words, there is no discretion to hold that such persons are not BOCs if the facts establish that they are BOCs. Whether or not the Respondent therefore grants a passport to any particular person in recognition of that legal status is therefore not the issue. Where no inquiries have been completed as to whether or not that Appellant is a BOC, it would not be in accordance with the law to proceed to a removal decision prior to the resolution of the question of BOC status which is clearly a highly important consideration in deciding whether or not to remove. No such issue arises in LT or ST's cases as their BOC status is undisputed and they have been granted BOC passports. In LM's case, the Secretary of State has been guilty of much delay in deciding the BOC application. As such, it must be submitted in LM's case the removal decision is premature.
c) As British nationals, who are already in the UK, the Appellant are entitled not to be removed from the UK. To remove them would violate the UK obligations in international law to their own nationals [see under heading of Further Submissions below.]
d) Furthermore, the Respondent cannot establish that the Appellants can be removed to Malaysia, at least not for the purposes of settlement (and, of course, everybody is entitled to the right to settle in their country of nationality, see under heading of Further Submissions below). It is true that the Appellants each also held a Malaysian passport but that has now been taken back by the Malaysian High Commission. However, Malaysia does not permit persons who assert or apply for or recognise some other nationality to continue to remain Malaysian nationals. The Appellants therefore either already have or inevitably will lose their Malaysian nationality and will not be re-admitted to Malaysia for the purposes of settlement. This is because they have claimed and/or asserted their rights as BOCs: art 24 of the Malaysian Constitution as currently interpreted and applied by the Malaysian Govt. In each such case the Malaysian High Commission has repeatedly adopted this position and has sought the return of the Malaysian passports. Nothing has therefore changed in the practice of Malaysian authorities.
e) The Secretary of State is required to demonstrate that he is in a position to carry out a removal to Malaysia. It is not lawful for him to seek to do so in circumstances where he has made no effort at all to resolve this question. The Appellants have tried long and hard to obtain information from the Malaysian High Commission to the effect that the Appellants can be re-admitted for settlement purposes to Malaysia. The Malaysian High Commission has refused or failed to indicate that readmission is a possibility. All the indications are that it is not possible.
[para 3(f) is set out at para 81 below]
g) Removal would breach art 3 in that it would place the Appellants in a position similar to the East African Asians who, like the Appellants, were also British nationals denied the right of abode in the UK and who could not remain or re-enter East Africa and to whom the UK denied rights of residence on racially discriminatory grounds (which led ECmHR to hold the denial of the right of residence amounted to a breach or art 3). The Appellants would be left in the degrading and inhuman "Flying Dutchman" situation with no country in which they could settle.
h) Further or alternatively, the removal would also breach art 8 and also art 8 read with art 14 for obvious reasons which are amplified later below. In brief terms, the argument is as follows. The Appellants each have at least a private life, if not a family life, in the UK. The decision to refuse discretionary leave to remain was not taken in accordance with the law, and the decision to remove would not now be in accordance with the law for the reasons briefly set out above i.e. BOCs are entitled in law not to be removed; this is all the more so where the Respondent cannot establish that the Appellants are to be removed to a place where they would be entitled to be settle; further or alternatively the decision is unlawful because the Respondent has failed to treat like cases in a like manner and acted arbitrarily and irrationally and, in the further alternative, has unlawfully defeated a legitimate expectation that the Secretary of State would apply to the Appellant his policy and/or practice of granting some form of leave to remain to BOCs; in the further alternative the decision has been made prematurely as a lawful removal decision cannot be made until their has been proper consideration given to questions such as: is the applicant a BOC? Has the applicant's position been lawfully considered by taking all relevant factors into account under any relevant policy and has he been given full opportunity to make representations by reference to those policies? Have all relevant inquiries which the UK ought to make been made? etc. And even if the decision is in accordance with the law and does pursue a legitimate aim, is it proportionate? The AIT will have to consider the position as to the date of the hearing when assessing the human rights arguments. "
We summarise the Appellants' arguments as follows. We have added references to the relevant paragraphs of Mr Gill's skeleton argument and to the remainder of this determination.
|Argument||Para No of Skeleton Argument||Para No of Determination|
|The burden of proving that the Appellants can be returned to Malaysia is on the Respondent.||2(ii), 3(d), 3(e),3(h),17,29(b),29(c)||52-56|
|By obtaining a BOC passport the Appellants have lost their Malaysian nationality. Refusing to allow them to be in the UK is a breach of Art 3 because they have nowhere else to go.||3(d),3(g),14,16,19,21,25,26,29(b)||59-72|
|The Appellants have renounced their Malaysian nationality, with similar results.||73-75|
|The Appellants as BOCs are nationals of the UK and, independently of immunity from removal, have a right as such nationals to be in the UK.||2(i),7-12,20,21,26,28(b), 28(c),29(a),29(b),29(h)||44-51|
|The Appellants have a legitimate expectation of being, or a human right to be, granted indefinite leave to remain in accordance with the Secretary of State's uniform practice in similar cases.||2(iii)(1),2(iii)(2),3(f),3(h),5,16(b),18-19,22-25,26(c),29(d),29(i),29(j)||81-87|
|The Government's declared view is that the Appellants are the victims of a historic wrong that needs to be put right.||15,16(e),26(c)||37-41,80|
|The Secretary of State's IDIs give the Appellants an entitlement to leave to remain or an expectation of it.||2(iii)(3),4,6,22,24||88-92|
|If the Appellants are thought not to have a right to be in the UK that is because they have been deprived of it on a racially discriminatory basis; and refusal to allow them to be in the UK perpetuate that discrimination and so is illegal.||3(a),3(c),3(g),7,12,15,26(c),26(e),29(e),31||94-99|
|The Appellants have rights under Arts 3 and 8 of the ECHR overriding the provisions of UK law because refusing them what they seek is unlawful.||2(iii)(5),3(h),20,25||102|
|Refusing the Appellants what they seek is a disproportionate interference with their private and/or family life and so is contrary to Art 8.||26,28(a),29||100-101|
|Refusing the first Appellant what he seeks is a breach of Art 8 if he is returned to Malaysia because of the Malaysian Government's view of homosexuals.||2(iv)||103-106|
The Historical Context
British Overseas Citizens
"Prior to the passing of the Commonwealth Immigrants Act 1962, the respondent as a British subject had the right of common law to enter the United Kingdom without let or hindrance when and where he pleased and to remain here as long as he liked."
The colonial history of the Malayan Peninsula
Malaysians and British Nationality
"Many of the present citizens of the Federation have that citizenship of the Federation because they are citizens of the United Kingdom and Colonies by birth. They are mostly people from the Settlements of Penang and Malacca. These people, who are British subjects by birth, and value it very much indeed, as well as having Malayan citizenship which they value also, have been most anxious that they should not be required to give up their status as citizens of the United Kingdom and Colonies in order to continue to be Malayan citizens after independence. On the other hand, Malayans have been opposed to the retention by any of their citizens of a second citizenship on the grounds that dual nationality of this kind might mean a divided loyalty.
The problem has been met in the following way. The Constitution recognises that all citizens of the Federation will, after independence, be Commonwealth citizens. That is, they will have the common status enjoyed by all persons who are citizens of any Commonwealth country. Secondly, no one is required to give up a second citizenship in order to continue to be a citizen of the Federation. Thirdly, they can, however, lose their federal citizenship if of their own will they adopt another citizenship or if they exercise rights in a foreign country which could only be exercised by citizens of that country, or if they exercise rights in a Commonwealth country which are not available to Commonwealth citizens as a whole.
The effect of this last provision is wholly to preserve the rights of those who are citizens of the United Kingdom and Colonies, as well as federal citizens, since in the United Kingdom no distinction is drawn between citizens of the United Kingdom and the Colonies and citizens of other Commonwealth countries. Such distinctions as are drawn here are between Commonwealth citizens and aliens.
At the same time, these arrangements, we have agreed, make it clear that the retention of their citizenship of the United Kingdom and the Colonies for certain citizens of the Federation does not give them any special privileges vis-α-vis other Malayan citizens, since the latter, as Commonwealth citizens, enjoy the same rights in the United Kingdom as do citizens of the United Kingdom and Colonies. Thus, the interests of the inhabitants of the Settlements have been preserved in a way fully compatible with the desire of the Federation Government that one section of the population should not have any special privileges vis-α-vis the remainder."
BOCs with no nationality
"At present, some citizens of our former colonies in East Africa have a British passport but not the right to live and work in the UK. Now, if they do not have any other nationality and have never given up another nationality, they will be able to acquire these rights.
We are righting a historical wrong which has left a number of overseas citizens without any right of abode either in the UK or elsewhere.
BOC status is a legacy of decolonisation, when some overseas citizens were treated unfairly, which was then compounded by the 1968 Immigration Act and the 1981 British Nationality Act. The Government is acting to put that right.
We have a moral obligation to these people going back a long way. We are now meeting that obligation and doing the right thing by those citizens of former British colonies who would otherwise have no right of abode in any country.
The number who would want to live in the UK is likely to be small, less than 500 BOCs a year have applied to live in the UK in recent times. They are likely to view it as an insurance policy in case those circumstances change in the future. I am pleased to be able to offer them that added security.
BOCs that have come to the UK recently have done so because they want to work. We are developing routes for people to come and work here legally in ways which boost our economy, and welcome those BOCs who want to be productive members of our society and add to the wealth and prosperity of the nation. "
"4B. Acquisition by registration: certain persons without other citizenship
(1) This section applies to a person who has the status of
(a) British Overseas Citizen,
(b) British Subject under this Act, or
(c) British Protected Person.
(2) A person to whom this section applies shall be entitled to be registered as a British Citizen if
(a) he applies for registration under this section,
(b) the Secretary of State is satisfied that the person does not have, apart from the status mentioned in subsection 1, any citizenship or nationality, and
(c) the Secretary of State is satisfied that the person has not after 4 July 2002 renounced, voluntarily relinquished or lost through action or inaction any citizenship or nationality."
General observation on Malaysian BOCs and the Appellants
Malaysian BOCs as "British Nationals"
"No one shall be deprived of the right to enter the territory of the State of which he is a national".
Burden of proof
"any country being
(i) a country of which he is a national or citizen; or
(ii) a country or territory in which he has obtained a passport or other document of identity; or
(iii) a country or territory in which he embarked for the United Kingdom".
"28) As to art 3, the Appellants contend as follows:-
(a) Any decision which forms the basis of refusal of leave and the consequential exposure to an expulsion and which is in itself challenged on the basis that it violates art 3 must be made in accordance with the domestic law. An unlawful decision cannot be relied by the respondent to support an art 3 deportation. For the various reasons set out in this skeleton argument, the challenged decision is not in accordance with the law and therefore violates art 3 (including the procedural protection giving by art 3).
(b) Further or alternatively, as stated above, the appellant is within the class of British nationals known as British Overseas Citizens. The appellant's father was a CUKC (as was he) and remained as such until that status was converted to BOC status by the BNA in 1991 as from 1.1.83 the progressive development of immigration control in the 1960s leading to the conversion of status in the 1981 act has, taken together, deprived such CUKCs of the full rights of residence in the UK.
(c) In particular, the Commonwealth Secretary, George Thompson, is minuted on 15th February 1968, as saying:-
"although he recognised the problems that will be created by continued influx of a large number of Asians from Kenya, to pass such legislation would be wrong in principle, clearly discriminatory on grounds of colour and contrary to every thing we stood for . We should effectively deprive large numbers of people of any citizenship at all or, at best, turn them into second class citizens".
Despite these concerns, the Home Secretary, James Callaghan, wrote in a memo dated 21st February, ends:
"we must bear in mind that the problem is potentially much wider than East Africa. There are another one and a quarter million people not subject to our immigration control . At some future time we may be faced with an influx from Aden or Malaysia".
On the following day he said:-
"We shall legislate so as to deprive citizens of the UK and colonies who did not belong to this country, not of their citizenship but of the automatic right to enter this country ."
These were shameful statements, which the Govt now recognises has given rise "to a historical wrong" which needs to be "righted": (see Beverley Hughes' statement when announcing the changes to be made by s.12 Nationality, Immigration and Asylum Act 2002.
(d) At the time of Malaysian independence, it was never intended that persons such as the appellant or his father should lose their rights as CUKCs: see the government statement during the Hansard debate on the issue in 1957. This was a unique pledge given to those CUKCs from Penang and Malacca. The CIA68 represented a going-back on those promises designed to protect the "unique" situation of the Penang and Malacca CUKCs.
(e) Each of the appellants submits that at the very least the continuation of such a deprivation of the rights of citizenship in the present circumstances where he has no right to settle in Malaysia will mean that he will be left in the flying Dutchman situation of not having any country in the world which will take him on a permanent basis. This is degrading treatment which violates art 3 (see the East African Asians case  where the EComnHR held that refusal of entry to East African Asians who had not been allowed to remain in East Africa and who had no where else to go violated art 3 as the reason for taking away their rights to full residence in the UK were simply racially discriminatory). Indeed, the violation is all the more gross in that it subjects the appellant to the flying Dutchman scenario on a racially discriminatory basis (the deprivation of full resident's rights having been on a racially discriminatory basis). At the same time the Govt has continued to make exception for persons of a "white" background eg Falkland islanders.
Loss of Malaysian citizenship: the law
"Renunciation of Citizenship
1. Any citizen of or over the age of twenty-one years and of sound mind who is also or is about to become a citizen of another country may renounce his citizenship of the Federation by declaration registered by the Federal Government, and shall thereupon cease to be a citizen.
2. A declaration made under this Article during any war in which the Federation is engaged shall not be registered except with the approval of the Federal Government.
3. This Article applies to a woman under the age of twenty-one years who has been married as it applies to a person of or over that age.
1. If the Federal Government is satisfied that any citizen has acquired by registration, naturalization or other voluntary and formal act (other than marriage) the citizenship of any country outside the Federation, the Federal Government may by order deprive that person of his citizenship.
2. If the Federal Government is satisfied that any citizen has voluntarily claimed and exercised rights in any country outside the Federation any rights available to him under the law of that country, being rights accorded exclusively to its citizens, the Federal Government may by order deprive that person of his citizenship.
3A. Without prejudice to the generality of Clause (2), the exercise of a vote in any political election in a place outside the Federation shall be deemed to be the voluntary claim and exercise of a right available under the law of that place; and for the purposes of Clause (2), a person who, after such date as the Yang di-Pertuan Agong may by order appoint for the purposes of this Clause-
(a) applies to the authorities of a place outside the Federation for the issue or renewal of a passport; or
(b) uses a passport issued by such authorities as a travel document
shall be deemed voluntarily to claim and exercise a right available under the law of that place, being a right accorded exclusively to the citizens of that place.
4. If the Federal Government is satisfied that any woman who is a citizen by registration under Clause (1) of Art 15 has acquired the citizenship of any country outside the Federation by virtue of her marriage to a person who is not a citizen, the Federal Government may by order deprive her of her citizenship."
[Arts 25 and 26 contain provisions for deprivation of citizenship obtained by registration in certain cases, and other provisions relating to deprivation of citizenship, none of which is relevant to these appeals.]
Procedure for Deprivation
1. Before making an order under Arts 24, 25 or 26, the Federal Government shall give to the person against whom the order is proposed to be made notice in writing informing him of the ground on which the order is proposed to be made and of his right to have the case referred to a committee of inquiry under this Article.
2. If any person to whom such notice is given applies to have the case referred as aforesaid the Federal Government may, refer the case to a committee of inquiry consisting of a chairman (being a person possessing judicial experience) and two other members appointed by that Government for the purpose.
3. In the case of any such reference, the committee shall hold an inquiry in such manner as the Federal Government may direct, and submit its report to that Government: and the Federal Government shall have regard to the report in determining whether to make the order."
"We would like to inform that the Malaysian Government does not recognise "dual nationality". In Mr Leong's case, if he has already been issued with a British Overseas Citizen passport and has been enjoying the facilities as a British Overseas citizen, Mr Leong has automatically loses his Malaysian nationality. He is no longer entitle to get any privilege or facilities as is given to Malaysian citizens. Mr Leong is advised to renounce his Malaysian citizenship at our Office.
However, though Mr Leong is a British Overseas Citizen, he is still allowed to enter Malaysia as a tourist for a certain duration of stay in the country. British Overseas Citizen does not require to apply for a visa to Malaysia for stay not longer than (1) month."
"Re: Holding Dual Nationality
I wish to refer to your letter of 20th September 2007 with regards to two of your clients who has applied for renunciation and pertaining to the above matter.
For your information under Constitution of Malaysia - Article 24 Termination of Citizenship; (3)(a) "uses a passport issued by such authorities as a travel document, shall be deemed voluntarily to claim and exercise a right available under the law of that place, being a right accorded exclusively to citizens of that place."
Upon your client acquiring the British Overseas Citizen and enjoying the facilities given by us to the British Government, the Government of Malaysia considers that your client is holding dual nationality. As such they are required to renounce their Malaysian Citizenship as per the above law. British Overseas Citizen is only allowed to the enter Malaysia as a visitor and up to a maximum stay of 30 days. They are subjected to immigration control.
Our National Registration Department is the competent authority with regards to nationality. For further advice, kindly contact them directly."
"APPLICATION FOR RESTORATION OF MALAYSIAN CITIZENSHIP
1. I respectfully refer to your letter regarding the above matter.
2. For your information the procedures for refusal or renunciation and deprivation of citizenship are subject to the Constitution of the Federation of Malaysia. (Here after referred to as the Constitution), as provided under Articles 23, 24, 25, 26, 26A and 27 of the Constitution.
3. In this connection this Ministry is pleased to inform you as follows concerning the questions submitted relating to the citizenship matters of your clients.
[i] Whether British Overseas Citizens (BOC) citizens are considered as British nationals?
BOC is a citizenship category given by the British government to foreign nationals and they are considered to hold dual nationalities. So the Federal Government (referring to the Government of Malaysia) will take action to deprive them of their citizenship if they hold BOC citizenship at the same time.
[ii] Whether requests for restoration of Malaysian citizenship are allowed for BOC citizens?
For your information, the Federal Government can, under the relevant provisions, issue an order for deprivation of the Malaysian citizenship of any citizen of Malaysia who contravenes the conditions for citizenship provided for in the Constitution of Malaysia.
In this case, Article 24 (1) of the Constitution provides that the Federal Government can take away the citizenship of any citizen of Malaysia who acquires the citizenship of another state.
Any citizen of Malaysia who is found to claim and exercise any right given only to citizens of any other country, can be deprived of citizenship by order of the Malaysian Government as provided under Art 24 (2) of the Constitution.
Thus also, as provided under para 3 (a) of Art 24 of the Constitution, any citizen of Malaysia who acquires and uses a passport issued by another country can also be deprived of citizenship by order of the Federal Government.
Nevertheless, before an order for deprivation is issued by the Federal Government, based on Art 27 of the Constitution, a notice of deprivation shall be given to the person who has contravened the applicable conditions of citizenship as provided in the Federal Constitution. If an appeal is to be lodged against the notice of deprivation, a Committee of Inquiry (CI) will be formed to conduct an investigation based on the appeal made. After the appeal has been referred to the CI and an investigation carried out, a report will be submitted by the CI to the Federal Government to decide whether an order of deprivation should be issued to that person or not. The CI report will not bind the Federal Government in giving a decision concerning the said appeal.
Provided that, based on Art 18 (2) of the Constitution, no one who has renounced or been deprived of his citizenship under the Constitution, will be registered as a citizen of Malaysia except where permitted by the Federal Government.
[iii] If request [ii] above is approved, what procedures and types of documents are needed to reapply for Malaysian citizenship?
Those who have already renounced and been deprived of their Malaysian citizenship will be considered as foreign nationals, and to reapply for Malaysian citizenship they are required to first acquire the status of Permanent Residents of Malaysia and to fulfil the conditions for citizenship applications.
To apply for citizenship in writing those born in the Federation before Independence Day (i.e. 31 August 1957) should have had, under Art 16 of the Constitution, the status of Permanent Resident of Malaysia for a period of seven (7) years before the date of the application, and there should be not less than five years in total in the said period and with intention to permanently reside in the Federation, and of good behaviour and having a basic knowledge of the Malaysian Language.
Where as those who are applying for citizenship by entry under Art 19 (1) of the Constitution should not be less than twenty-one (21) years of age and have had the status of permanent resident for not less than twelve (12) years prior to the date of the application and with the intention to permanently reside in the Federation and of good behaviour and having a satisfactory knowledge of the Malaysian Language.
Applications are, nevertheless, subject to approval by the Federal Government under Art 18 (2) of the Constitution.
[iv] If they [your clients] wish to reapply for Malaysian citizenship, are they required to first relinquish BOC citizenship before an appeal is submitted to this Ministry?
In the case of your clients, if their application for citizenship has been approved by the Federal Government based on the provisions of the Constitution, they are required to renounce their BOC Citizenship again.
4. In this connection, it is advised that anyone wishing to renounce their citizenship should think carefully so that there is no implication for them in the future as regards the special rights relinquished. For your information also, the Federal Government will no longer consider applications for citizenship from those who have renounced their Malaysian citizenship. The award of Malaysian citizenship to foreign nationals is the Government of Malaysia's highest award and it is necessary to remind Malaysian citizens of this so that they will take care before renouncing their citizenship."
"The government will not reinstate the citizenship of Malaysians who have given up their citizenship of this country, Prime Minister Datuk Seri Abdullah Ahmad Badawi said Tuesday. He said Malaysians, who have surrendered their citizenship, also cannot reapply for citizen-hood. All those who had opted to surrender their citizenship officially wrote into the authorities informing that they are giving up citizenship of this country. (Acting on their letters), the Home Affairs Ministry has granted permission to the applicants to surrender their citizenships. Surely, there must be specific reasons for the Ministry to approve their requests. But one thing that I want to stress and explain is that Malaysians who have surrendered their citizenships to the Government cannot have their citizenships reinstated later, suddenly they want to become a Malaysian citizen again, he said after attending the Internal Security Monthly Assembly."
Discussion and conclusions on loss of Malaysian Citizenship
The claim arising from history and policy
Government practice and policy
(a) The position in 1957
(b) The Statement of 4 July 2002
(c) The Government's practice
"3) Further or alternatively, the Secretary of State has in a large number of cases accepted that Malaysian BOCs who recognise or assert their BOC status (which is their right under English law) should be granted leave to remain, usually indefinite leave to remain. This appears to be on the basis that he accepts that they are not deportable as they are not going to be admitted to Malaysia. In this way, many have been granted indefinite leave to remain: See Fransman's British Nationality Law [LT p.69] for a summary of the Secretary of State's practice; numerous examples are cited of the Secretary of State's practice in this regard [see Bundle A in LM's case pp. 139-153 and the whole of Bundle B in LM's case]. The Appellants seeks like treatment on a non-discriminatory basis. Further or alternatively, they assert that they have a legitimate expectation to be treated in accordance with the policy or practice that was apparently applied to those others."
"The established policy and practice of the UK to grant leave to remain to such persons; the obligation to treat like case alike; legitimate expectation
In any event, the Secretary of State operates a policy or practice where by he has himself granted leave to remain on this basis on many occasions: see Fransman. This is in fact confirmed by the Secretary of State' own IDIs and letters and the limbo policy.
There is also the voluminous evidence of similar cases in the bundle. The Secretary of State may assert that each case has to be treated on its own merits. That is no answer where the appellant has provided detailed evidence which demands an answer as to why the other cases are different in any legally relevant way. No answer has been provided.
It is clear from the Secretary of State's constant practice [(footnote (in original) Note the evidence that he has granted leave to remain to large numbers of persons who are in a similar position to the appellant [13-99])] that he is pursuing a policy [footnote (in original) this is probably the "limbo" policy referred to in Ooi v SSHD at para 23] to the effect that he will not remove such persons and will give them some form of leave to remain. The officially articulated policy says that leave to remain should normally be refused unless there is compelling evidence of non-returnability. This also refers to the "limbo policy". The manner in which this is applied is displayed by the practice. The reality is that the practice actually pursued shows that the respondent grants leave to remain in cases such as the present.
The appellants therefore submit that denial of indefinite leave to remain and consequential removal would not be in accordance with the domestic law and practice on this matter. It is unlawful in that it is arbitrary, it fails to treat like case alike, and it goes against established practice as set out in Fransman and is therefore irrational, and furthermore, it unlawfully fails to honour a legitimate expectation, particularly where all the indications are that the appellant's will not be readmitted to Malaysia (certainly not for settlement purposes) and/or the Secretary of State has failed to establish that he can lawfully remove them there and that he has carried out all relevant inquiries to enable him to do so."
"Currently, any BOC who recognises [BOC] citizenship by obtaining a British passport will not be a Malaysian citizen and will be relieved of his Malaysian passport. In this way, such persons situated in the UK have been granted indefinite leave to remain for the reason that they are British nationals and not deportable to any place. In 1981 there were estimated to be 1,300,000 CUKCs in Malaysia with Malaysian citizenship and 130,000 without any other citizenship."
(d) Present published policy
"9. DISCRETIONARY LEAVE AND "LIMBO"
In some cases a BOC will claim that his nationality obliges the UK to allow him to remain. In considering such cases we must be aware that no country routinely accepts non-citizens and that we cannot force a BOC to go somewhere else. There is a balance between those who genuinely find themselves with nowhere to go and those seeking to circumvent the Immigration Rules.
UKPH applicants who make an application for exceptional LTR/ILR and have no claim to remain under the Rules are to be refused unless there are compelling compassionate circumstances present or there is clear evidence of non-returnability. (See paragraph 9.1).
Applications made for a purpose not covered by the Rules should be refused under paragraph 322 (1). This will attract the right of appeal if the application is in time:
Granting discretionary leave
Discretionary leave for a period of 6 years (3 years followed by 3 years) may be granted to British Overseas citizens and other UKPHs only if one of the following factors are present:-
There is clear evidence of compassionate circumstances. This should be assessed according to the individual merits of the case but direction would normally only be granted in wholly exceptional circumstances. Cases should not be agreed below Senior Caseworker level.
There is clear evidence of the persons non-returnability. This should take the form of a letter from the appropriate authorities of the country of normal residence confirming the person's non-returnability, e.g. a refusal to issue a re-entry visa. The applicant should also be asked for a copy of his/her application to those authorities if available. Cases should not be agreed below Senior Caseworker level.
Subsequent grants, of exceptional leave, including the grant of ILR, may be approved at EO level if the circumstances remain the same.
In all cases the onus is on the applicant to provide the necessary evidence. Prolonged enquiries are to be avoided. All relevant questions should be asked in a single letter of enquiry. Failure to reply to such a letter within 4 weeks should trigger the usual reminder followed by a refusal if there is still no reply after a further 28 days.
A person who refuses to apply for a re-entry visa to the country in which he is normally resident should not be given discretionary leave. The expectation must be that UKPHs will apply for the equivalent of returning resident or settlement visas and those who manage to obtain these should not be granted discretionary leave.
There will be cases where a visit visa is issued to enable a compassionate or other visit to take place. In these circumstances it would be wrong to withhold discretionary leave, providing they are able to produce evidence as set out above to satisfactorily demonstrate that they are not returnable to their country of origin for the purpose of settlement. This applies equally to first time applicants and those who have already had XLTR for a number of years, and have since been issued with a visit visa. Where a person has held XLTR for a number of years the evidence of the refused settlement visa should be recent. All cases where a visit visa has been issued should be referred to at least Senior Caseworker level.
ILR may be granted after 6 years have been spent in this category assuming the circumstances remain the same. The initial grant of discretionary leave should be for 3 years, followed by a further 3 years and, after 6 years, ILR.
No right of appeal and dismissed appeals
In cases where UKPHs fail to embark after refusal where there is no right of appeal or where there is a right of appeal and the appeal has been dismissed, the usual warning letter should be sent and the file should be passed speedily to EPU for deportation consideration.
Applying the limbo policy
The so-called limbo policy is applicable only after the exhaustion of all the usual administrative processes, including deportation. Only after EPU have decided that further deportation action is not appropriate or feasible, or illegal entry action has been abandoned, should consideration be given to applying the limbo policy.
If it is decided that the status of the UKPH should not be regularised, the applicant should be notified in writing of their position under the limbo policy. ANNEX C provides a copy of a stock letter which may be used for this purpose. The applicant has no right of appeal against the decision not to regularise their stay.
Colonial history and discrimination
"7. There are many classes of British nationals. The Appellants are not "full" British citizens. Accordingly they do not currently have a right of abode, (this has historically been taken away from persons like the Appellants on a racially discriminatory basis.) But they are nonetheless British nationals and are of course within the class of British nationals known as British Overseas Citizens. The fact that in domestic law the UK chooses to call its nationals by a range of different names and to discriminate against some of them (often on racial lines) does not affect the point that the Appellants are and are accepted by the Respondent to be British nationals to whom (as to any other British national) the UK owes obligations including obligations of protection.
12. The Appellants are British nationals and as such are entitled in international law to enter the UK. The fact that the UK has passed domestic laws which, on a racially discriminatory basis, have stripped a category of persons (who are now labelled BOCs) of the right to enter or remain in the UK does not make that legislation effective in international law. Domestic laws cannot be used to deny international responsibilities.
14. Not all states permit dual nationality. They are not obliged to do so. The UK does; Malaysia does not. The effect is that if Malaysian and British dual nationals assert their British nationality they will lose their Malaysian nationality. The UK is then obliged to take them in.
15. That is the price to be paid for a colonial past and the shameful deprivation of rights of abode to certain classes of British nationals on racial grounds. This historical wrong has been belatedly recognised by the British Govt (only when the cabinet papers relating to the Commonwealth Immigrants Act 1968 were going to be released under the 30 years rule and because of the Manjit Kaur case.) Thus, the Govt now recognises that this deprivation was 'wrong' and should never have happened and the limited attempt to 'right this historical wrong' was made in s.12 of the Nationality, Immigration and Asylum Act 2002. But that only provides persons with a right to register as full British citizens if they have not renounced, voluntarily relinquished or lost through action or inaction another nationality after 4.7.02.
20. The question therefore arises whether denial to the Appellants of the right to remain in this country (a country of which they remain nationals for international law purposes although without the right of abode) violates human rights and has been made not in accordance with the law.
21. It should be noted that the Appellants are not even seeking the right to enter this country; they have already entered lawfully and are seeking the right not to be expelled. The Appellants submit that as British nationals, they are entitled to freedom from expulsion from the country of which they are nationals. This right arises irrespective of whether or not the Appellant has rights of settlement in any another country. However, it is in this case reinforced by the fact that the Appellants are already in this country and there appears to be no other country to which there is reason to believe that they can be admitted for settlements purposes (at most Malaysia may admit them occasionally as short term visitors but it seems inevitable that it will not permit them to settle there.) Thus, the Appellants can not therefore be lawfully required to leave or be removed from the UK and are entitled to the grant of indefinite leave to remain."
The first Appellant's Art 8 claim
C M G OCKELTON