United Kingdom - Teh v Secretary of State for the Home Department

The Claimant was a British Overseas citizen and had renounced his Malaysian citizenship in 2006 on the basis of legal advice that this was necessary for him to obtain indefinite leave to remain in the UK, but was refused leave to remain. In 2017, after being refused leave to remain in the UK as a stateless person under paragraph 403 of the Immigration Rules, the Claimant sought judicial review of this decision. The Court confirmed that a BOC who is not a national of any other State is a stateless person for the purpose of paragraph 403(b) of the Immigration Rules, however the Claimant failed to show that he is not admissible to Malaysia or to any other country.

Case status
Decided
Case number
[2018] EWHC 1586 (Admin)
Date of decision
Court / UN Treaty Body
High Court of Justice (Administrative Court)
Language(s) the decision is available in
English
Applicant's country of birth
Malaysia
Applicant's country of residence
United Kingdom
Relevant Legislative Provisions
  • Article 1(1) of the 1954 Convention relating to the Status of Stateless Persons
  • Part 14 of the Immigration Rules
  • British Nationality Act 1981
Facts

Liew Teong Teh (the “Claimant”) was born on 1 December 1980 in Penang, of Malaysian parents. On 1 January 1983, the Claimant became a British Overseas citizen (“BOC”). The Claimant arrived in the UK on 7 February 2001 with entry clearance as a student. On 6 April 2005, the Claimant was issued with a British passport which gave his “nationality” as “British Overseas citizen”. That passport expired on 6 April 2015 and was not renewed. Both parties disavowed the previous position, accepted by the Tribunals, that a BOC who has not renewed a passport could have lost their BOC status (para. 18). The case therefore proceeded on the basis that the Claimant had BOC status.

In June 2006, the Claimant had renounced his Malaysian citizenship.

On 21 March 2016, the Claimant applied for leave to remain as a stateless person under Part 14 of the Immigration Rules. On 21 June 2017, the Secretary of State for the Home Department (the “Defendant”) refused the application, citing three reasons: (i) the Claimant’s BOC status meant he was not a stateless person for the purpose of paragraph 403(b) of the Immigration Rules; (ii) the Claimant had voluntarily renounced his Malaysian citizenship; and (iii) the Claimant was admissible to Malaysia.

Paragraph 403(b) of the Immigration Rules provides that the requirements for limited leave to remain in the UK as a stateless person are that the applicant, inter alia, is recognised as a stateless person by the Secretary of State in accordance with paragraph 401. Paragraph 401 of the Immigration Rules provide that a stateless person is a person who: (i) satisfies the requirements of Article (1) of the 1954 United Convention relating to the Status of Stateless Persons, as a person who is not considered as a national by any State under the operation of its law; (ii) is in the UK and; (iii) is not excluded as a stateless person under paragraph 402.

The Claimant sought an administrative review of the Defendant’s decision where he argued that (i) he was no longer a BOC and so was stateless: (ii) he had not renounced his Malaysian citizenship voluntarily but on legal advice that this was necessary for him to obtain indefinite leave to remain in the UK; and (iii) by reference to supporting material, he was not admissible to Malaysia.

On 29 August 2017, the administrative review upheld the refusal to grant leave to remain. The Defendant gave the following reasons for the refusal, tracking the requirements of paragraphs 403(b), (c) and (d) of the Immigration Rules: (i) the Claimant’s BOC status had expired with his passport but the Claimant could renew his BOC passport; (ii) if he did that, he would be admissible to Malaysia by seeking to regain Malaysian citizenship; and (iii) the Claimant had failed to obtain and submit all reasonably available evidence to enable the Defendant to determine whether he was stateless.

The Claimant challenged the decision by judicial review. The two live issues before the Administrative Court were: (i) does the Claimant’s BOC status mean that he is not a stateless person for the purpose of paragraph 403(b) of the Immigration Rules; and (ii) has the Claimant met the requirement of paragraph 403(c) that he is not admissible to Malaysia?

Decision & Reasoning

Paragraph 403(b) statelessness

On the question of what was meant by “national” under paragraph 401(a) and 403(b) of the Immigration Rules, the Administrative Court noted that the 1954 UN Convention did not contain any definition of “national”, nor did it lay down any minimum content of nationality. The Court therefore considered Paragraph 52 of the 2014 UNCHR Handbook on the Protection of Stateless Persons which provided that within a State there may be various categories of nationality with differing names and associated rights.

Turning then to the operation of English law, the Administrative Court noted BOCs were, for at least some purposes, nationals of the UK. BOC status was conferred by and under the British Nationality Act 1981 (the “1981 Act”). BOCs were entitled to UK passports and to UK consular services. BOCs could be deprived of their citizenship status under section 40 of the 1981 Act. Focussing on the Immigration Rules, the Court noted that section 3(2) of the Immigration Act 1971 required the Rules to lay down “practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter”. Those persons included BOCs. Section 3(2) also provided that “account may be taken of citizenship or nationality” although the Court was not provided with any evidence of the Immigration Rules making specific reference for BOCs.

The Administrative Court determined that “a British Overseas citizen who is not a national of any other State, and who is not under article 1(2) of the 1954 UN Convention a person to whom the Convention does not apply, is a stateless person for the purpose of paragraph 403(b) of the Immigration Rules” as “he has nowhere else to go”. The fundamental purpose of the Immigration Rules, identified in section 3(2) of the Immigration Act 1971, was to lay down who could come and stay in the UK. The Court confirmed that a BOC who had nowhere else to go, at the time the decision was being made, was in this context a stateless person.

Paragraph 403(c) admissibility

The Court noted that paragraph 403(c) of the Immigration Rules incorporated a requirement that the applicant take such steps as are reasonably open to him to secure his admissibility. It was not open to the applicant to sit on his hands and say that, without more, he would not be admitted to the country.

The Court reviewed the admissible material on which the Defendant was relying to show that the Claimant was admissible to Malaysia, namely, that the Malaysia would allow former Malaysian citizens who had renounced their citizenship in error to return to their country of origin and in doing so, reacquire citizenship under a process specified by the Malaysian government. The Court concluded that the material on which the Claimant was relying, even taken at its highest, contained nothing to suggest, let alone prove, that the process described in the Defendant’s documents was not actually working. On the contrary, it indicated that it was. The Court accepted that the reacquisition of Malaysian citizenship by persons in the position of the Claimant was not a formality but was subject to obtaining the approval of the Federal Government. However, that in itself did not mean that the Claimant and others similarly situation were not admissible to Malaysia.

Outcome

The Court upheld the Defendant’s decision that the Claimant had failed to satisfy paragraph 403(c) of the Immigration Rules. In the circumstances, it upheld the Defendant’s decision to refuse the Claimant leave to remain under paragraph 403 of the Immigration Rules. The Court would not however go beyond its judgment and make a declaration that the Claimant was a stateless person as an abstract declaration would be inappropriate.