Liew Teong Teh v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Steven Kovats |
| Judgment Date | 22 June 2018 |
| Neutral Citation | [2018] EWHC 1586 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/5861/2017 |
| Date | 22 June 2018 |
[2018] EWHC 1586 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Steven Kovats QC
Case No: CO/5861/2017
Sarabjit Singh QC and Emma Harris (instructed by Barnes, Harrid & Dyer) for the claimant
Zane Malik (instructed by Government Legal Department) for the defendant
Hearing dates: 14 June 2018
Judgment Approved
Steven Kovats QC sitting as a deputy High Court judge:
Introduction
The claimant, Liew Teong Teh, was and is a British Overseas citizen. He was a citizen of Malaysia. However, in 2006 he renounced his Malaysian citizenship. He has been in the United Kingdom since 2001. On 21 March 2016 he applied for leave to remain as a stateless person under Part 14 of the Immigration Rules. On 21 June 2017 the defendant refused the application. The claimant exercised his right to seek an administrative review. On 29 August 2017 the administrative review upheld the refusal to grant leave to remain. The defendant gave three reasons for the refusal. One, the claimant was not stateless, because he holds British Overseas citizenship. Two, even if the claimant is stateless, he is admissible to Malaysia. Three, the claimant failed to obtain and submit all reasonably available evidence to enable the Secretary of State to determine whether he is stateless. Those three reasons track the respective requirements of paragraph 403(b), (c) and (d) of the Immigration Rules.
In this claim for judicial review the claimant challenges all three of those reasons.
The legal framework
Article 1 of the 1954 United Nations Convention relating to the Status of Stateless Persons (“the 1954 UN Convention”) includes the following.
1. For the purpose of this Convention, the term “stateless person” means a person who is not considered as a national by any State under the operation of its law.
2. This Convention shall not apply: … (ii) To persons who are recognized by the competent authorities of the country in which they have taken residence as having the rights and obligations which are attached to the possession of the nationality of that country; ….
The United Kingdom ratified this Convention on 16 April 1959. The UK made a number of reservations, but none is relevant to the present claim.
Part 14 (paragraphs 401–416) of the Immigration Rules is headed “stateless persons”. Paragraphs 401–405 state:
“Definition of a stateless person
401. For the purposes of this Part a stateless person is a person who:
(a) satisfies the requirements of Article 1(1) of the 1954 United Nations 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;
(b) is in the United Kingdom; and
(c) is not excluded from recognition as a Stateless person under paragraph 402.
Exclusion from recognition as a stateless person
402. A person is excluded from recognition as a stateless person if there are serious reasons for considering that they:
(a) are at present receiving from organs or agencies of the United Nations, other than the United Nations High Commissioner for Refugees, protection or assistance, so long as they are receiving such protection or assistance;
(b) are recognised by the competent authorities of the country of their former habitual residence as having the rights and obligation which are attached to the possession of the nationality of that country;
(c) have committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provisions in respect of such crimes;
(d) have committed a serious non-political crime outside the UK prior to their arrival in the UK;
(e) have been guilty of acts contrary to the purposes and principles of the United Nations.
Requirements for limited leave to remain in the United Kingdom as a stateless person
403. The requirements for leave to remain in the United Kingdom as a stateless person are that the applicant:
(a) has made a valid application to the Secretary of State for limited leave to remain as a stateless person;
(b) is recognised as a stateless person by the Secretary of State in accordance with paragraph 401;
(c) is not admissible to their country of former habitual residence or any other country; and
(d) has obtained and submitted all reasonably available evidence to enable the Secretary of State to determine whether they are stateless.
Refusal of limited leave to remain as a stateless person
404. An applicant will be refused leave to remain in the United Kingdom as [a] stateless person if:
(a) they do not meet the requirements of paragraph 403;
(b) there are reasonable grounds for considering that they are: (i) a danger to the security of the United Kingdom; (ii) a danger to the public order of the United Kingdom; or
(c) their application would fall to be refused under any of the grounds set out in paragraph 322 of these Rules.
Grant of limited leave to remain in the United Kingdom
405. Where an applicant meets the requirements of paragraph 403 they may be granted limited leave to remain in the United Kingdom for a period not exceeding 30 months.”
Paragraph 322, referred to in paragraph 404(c) is in Part 9 of the Immigration Rules, which contains general grounds for refusal. Paragraph 322(5) states that the undesirability of permitting the person concerned to remain in the United Kingdom in the light of, among other things, his conduct is a ground on which leave to remain should normally be refused.
Paragraphs 406–407 make provision for the grant of indefinite leave to remain as a stateless person after 5 years limited leave in that capacity.
The long title of the British Nationality Act 1981 (“BNA 1981”) is “An Act to make fresh provision about citizenship and nationality, and to amend the Immigration Act 1971 as regards the right of abode in the United Kingdom”. Part I (ss.1–14) of the Act is headed “British Citizenship”. Part III (ss.26–29) is headed “British Overseas citizenship”.
It is common ground that Mr Teh is a British Overseas citizen pursuant to s.26.
Section 4 of the BNA 1981 makes provision for, among others, a British Overseas citizen to register, as of right, as a British citizen if he meets the criteria in the section. Those criteria include five years residence in the UK without being in breach of the immigration laws, of which at least the final 12 months must be a period in which he was not subject to any period for which he might remain in the UK.
Mr Teh has been in the UK since 2001, until 2005 lawfully as a student. However, he has been an overstayer, and thus in breach of the immigration laws, since, at the latest, 19 August 2011 (the evidence before me was unclear as to the correct date).
Section 4B of the BNA 1981 is headed “Acquisition by registration: certain other persons without other citizenship”. It provides, so far as presently material:
“(1) This section applies to a person who has the status of—
(a) British Overseas citizen, …
(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 the relevant day renounced, voluntarily relinquished or lost through action or inaction any citizenship or nationality.
(3) For the purposes of subsection (2)(c), the “relevant day” means—
(a) …
(b) … 4 July 2002.”
Mr Teh renounced his Malaysian nationality in 2006, so he cannot avail himself of s.4B.
British citizens have the right of abode in the United Kingdom: Immigration Act 1971 s.2, as substituted by the BNA 1981 s.39. British Overseas citizens do not. Neither the Immigration Act 1971 nor the BNA 1981 sets out the rights of British Overseas citizens. The 14 July 2017 Home Office staff guidance on “British overseas citizens” says at p.4 simply that “British Overseas citizens are subject to UK immigration control, but are eligible for British passports and other consular services.”
Section 40 of the BNA 1981 makes provision for deprivation of citizenship. Section 40(2) enables the Secretary of State to deprive a person of a citizenship status (defined in subs.(1) and including (c) a British Overseas citizen) if satisfied that deprivation is conducive to the public good. Section 40(4) provides: “The Secretary of State shall not make an order under subsection (2) if he is satisfied that the order would make a person stateless.” Subsection (4A), inserted by the Immigration Act 2014, provides that that does not prevent the Secretary of State from making an order under subs.(2) to deprive a person of a citizenship status obtained by naturalisation and who, while having that citizenship status, has conducted himself in a manner which is seriously prejudicial to the vital interests of the UK, any of the Islands or any British Overseas territory, if the Secretary of State has reasonable grounds for believing that the person is able, under the law of a country or territory outside the United Kingdom, to become a national of such a country or territory.
The facts
The claimant was born on 1 December 1980 in Penang, of Malaysian parents. He was at birth a Malaysian citizen. He was also a Citizen of the United Kingdom and Colonies (“CUKC”) by descent from his father, who held that same citizenship by reason of his own birth in Malaysia before the country became independent on 31 August 1957. On 1 January 1983, the claimant, by the operation of s.26 of the BNA1981, ceased to be a CUKC and became instead a British...
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