The appellant, a child born to a Zimbabwean mother and Portuguese father, was not a recognised national of any country and consequently applied for limited leave to remain in the United Kingdom through paragraph 405 of the Immigration Rules. However, for paragraph 405 of the Immigration Rules to apply, individuals must also satisfy the conditions of paragraph 403, which include a requirement that individuals be inadmissible to any country other than the UK. The Court of Appeal affirmed the Upper Tribunal’s decision that JM was admissible to Zimbabwe and therefore did not qualify for limited leave to remain in the country under paragraph 405.
Immigration Rules, Paragraphs 401, 403 and 405
1954 Convention relating to the Status of Stateless Persons, Article 1(1)
The appellant was born in the UK in March 2013 to a Zimbabwean mother and a Portuguese father. The appellant’s father decided not to be involved in the child’s life and refused to help the appellant obtain Portuguese nationality. This left him unable to acquire Portuguese nationality.
To acquire Zimbabwean nationality by descent, the birth must be registered in Zimbabwe in accordance with the country’s birth registration laws. This involves beginning the process at a Zimbabwean embassy or consular office, at which point the documents must be processed in Zimbabwe before the benefits of nationality are conferred. It is not clear if the appellant, his mother, or a representative needs to be physically in Zimbabwe to complete this process, but there is no affirmative, insurmountable barrier to the appellant acquiring Zimbabwean nationality.
The appellant originally brought a case to the Upper Tribunal (Immigration and Asylum Chambers  UKUT 676 (IAC)) alleging that he was a stateless person and therefore entitled to stay in the UK for up to 30 months pursuant to paragraph 405 of the Immigration Rules. The Upper Tribunal found that the appellant, while technically a stateless person, could not be granted permission to remain in the UK on that basis, as his status was contrary to the requirement set out in paragraph 403(c) of the Immigration Rules, specifically, the language that the applicant must not be “admissible” to any state outside of the UK. The Upper Tribunal took a broad understanding of the rule and held that a person was admissible to a state when they had the technical capacity to gain admittance to a state outside of the UK. Since in this case there was no technical impediment to the appellant acquiring Zimbabwean nationality, the Upper Tribunal held that the appellant was, in fact, admissible to Zimbabwe and therefore was not entitled to the protection of paragraph 405 of the Immigration Rules.
The appellant appealed this decision and the Court of Appeal (Civil Division), in the present case, indicated that the central question was whether paragraph 403(c) of the Immigration Rules required that an individual be merely unable to gain admittance to any other country in their current status, or whether the paragraph required that gaining admittance to any other country was categorically impossible.
The appellant alleged that according to the plain meaning approach employed by the Upper Tribunal and Court of Appeal, the meaning of ‘admissible’ in paragraph 403(c) of the Immigration Rules is purely practical. That is, an individual should be understood to be admissible to a country if they could, in their present status, present themselves at the border of a country and gain admittance. Since the appellant was not, at the relevant time, a citizen of Zimbabwe, he could not gain admittance to the country if he presented himself at its border. As a result, he was inadmissible to Zimbabwe (and every other country) according to this construction of paragraph 403(c).
The appellant went on to argue that even if this was not the correct construction of paragraph 403(c), paragraph 405 of the Immigration Rules directed the Home Office to make helpful inquiries on the appellant’s behalf. Paragraph 405 also permitted the Secretary of State for the Home Department (SSDH) to grant leave to remain in the country for less than the full 30 months prescribed in the exact language of the paragraph.
The appellant argued further that the circumstances of this case fulfill the requirements of paragraphs 403(b) and 403(d) of the Immigration Rules, which require, respectively, that the appellant be a stateless person recognised by the SSDH and that all relevant evidence in making this determination had been submitted.
The SSDH argued that the meaning of ‘admissible’ in paragraph 403(c) could not be - as the appellant claimed - purely practical, since this construction would allow claimants in his position to remain in the UK simply by virtue of their parents’ choice not to register children as nationals by descent of their respective countries.
The respondent also answered the appellant’s arguments concerning paragraphs 403(b) and 403(d). The respondent maintained that the appellant was not recognised as a stateless person by the SSDH, which cut against the requirement of paragraph 403(b), and insisted that paragraph 403(d) had not been met as more evidence was required from the appellant.
The Court of Appeal affirmed the Upper Tribunal’s decision and dismissed the appeal. The court ruled that because the appellant was technically able to acquire Zimbabwean nationality, he was “admissible” to Zimbabwe and therefore not a stateless person for the purposes of paragraph 403(c).
The court understood paragraph 403(c) to implicate an individual’s ability to acquire permission to enter a country, rather than that individual’s current capacity to enter a country. The court’s reasoning reaffirmed the respondent’s policy concern that if this case were to be decided in the appellant’s favor, any child in his position could acquire leave to remain in the UK simply on the basis of its parents' choice to not secure nationality for their child.
Though the court was sympathetic to the appellant’s arguments regarding paragraphs 403(b) and 403(d) of the Immigration Rules, the court found that these provisions were not dispositive to the central question, which was only about the meaning of paragraph 403(c). As a result, the fact that the appellant might be recognised as a stateless person and had submitted enough relevant evidence to that effect did not change the final outcome of the case.
The appeal was dismissed.
Mahad (previously referred to as AM) (Ethiopia) v Entry Clearance Officer  UKSC 16 (16 December 2009)
Secretary of State for the Home Department v Al -Jedda  UKSC 62 (9 October 2013)
JM v Secretary of State for the Home Department  UKUT 676 (IAC)