Lindsey, Re Application for Judicial Review
| Jurisdiction | Scotland |
| Judge | Lady Carmichael |
| Judgment Date | 09 February 2023 |
| Court | Court of Session (Outer House) |
Lady Carmichael
COURT OF SESSION
Immigration — leave to remain — stateless person — paragraph 403 of the Immigration Rules — failure to establish nationality with relevant authorities — AS (Guinea) [2018] EWCA Civ 2234 applied
The Petitioner arrived in the United Kingdom in 1996. He claimed that he used a Barbadian passport which he obtained by irregular means. His visa expired in 1997 and he did not acquire any further leave to remain thereafter. In 2007 he was convicted of using a false document and sentenced to eight months' imprisonment. He was removed to Barbados in January 2008. The Barbadian authorities refused him entry and returned him to the United Kingdom.
In February 2008, the Secretary of State for the Home Department contacted the Barbados High Commission and arranged a face-to-face interview for the Petitioner to confirm his nationality. The High Commission later cancelled the interview on the basis that immigration officers in Barbados had already interviewed the Petitioner and concluded he might be Jamaican.
In 2008 and 2009, the Petitioner applied to the Barbadian authorities, including the Barbados Supreme Court, for a birth certificate. A letter signed by a Registrar of the Supreme Court in Barbados, dated 5 November 2009, stated that no birth records were found. The letter also requested that the Petitioner submit any other information that might assist the authorities in locating a certificate for him. Several efforts were made by the Secretary of State to secure a travel document for the Petitioner via the High Commission without success.
In October 2020, the Petitioner made an application for limited leave to remain in the United Kingdom as a stateless person. It was refused in May 2021 and an application for administrative review was unsuccessful. The Secretary of State concluded that the Petitioner had supplied insufficient evidence to demonstrate that he was not a Barbadian national. On his own account he was a Barbadian citizen at birth. He had provided ‘no evidence’ that he had made an attempt to clarify his nationality with the Barbadian authorities and had failed to obtain and submit all reasonable available evidence to the Secretary of State to enable her to decide whether he was stateless. He had failed to satisfy the requirements of paragraph 403(b), (c) and (d) of the Immigration Rules HC 395 (as amended).
On judicial review, the Court considered whether the Secretary of State erred in her refusal to recognise the Petitioner as stateless and whether her decision was wrong in law.
Held, refusing the application:
(1) It was difficult to understand why the Petitioner's application had been refused without explicit reference to paragraph 403(e) of the Immigration Rules. The decision-maker clearly had in mind that the Petitioner had not pursued the matter of his nationality with the Barbadian authorities. The fact he claimed to have been bom in Barbados was likely to be significant to the question of his nationality. Contrary to the Petitioner's submissions, the Secretary of State's reliance on his failure to apply for nationality was not a new reason for refusal. She had clearly considered the Petitioner's inaction. Although it had not been analysed with reference to paragraph 403(e) of the Rules, his failure to make an application for nationality meant he did not satisfy the requirements in AS (Guinea) v Secretary of State for the Home Department[2018] EWCA Civ 2234. His application was bound to fail (paras 30 – 32).
(2) Although the Secretary of State's decision letter was poorly drafted and open to several well-founded criticisms, there was no material error of law in the decision. The burden of proving statelessness was on the Petitioner. A person in his position had to make an application for nationality with the state to which he had the closest connections. Nothing that the Petitioner or the Secretary of State had done with his cooperation met the requirements identified in AS (Guinea). The evidence on the Home Office file suggested a failure on the part of the Barbadian authorities to respond to the applications for a travel document rather than outright refusal. There was nothing about the case that made it unreasonable for the Secretary of State to require the Petitioner to make an application for nationality. Unsuccessful travel document applications and failed attempts to remove him did not have that result. It was relevant to note that the only application that had a result was the Petitioner's application to the Barbados Supreme Court for a birth certificate. The response invited further information to be produced. The Petitioner had not come up against a ‘brick wall’ and there had been no clear determination by the Barbadian authorities that he was not a citizen of Barbados (paras 33 – 37).
(3) There would be cases where, as the Home Office guidance recognised, the demands placed on an applicant by the state receiving an application for nationality would become obviously unreasonable, or where the delay on the part of the state dealing with the application became so pronounced that there had been a de facto refusal to recognise the individual as a national. That was not the situation in the Petitioner's case. No single application to the Barbadian authorities contained all the information that had been gathered over the years (paras 38 – 39).
(4) It was not incumbent on the Secretary of State to call the Petitioner for interview. Paragraph 403(d) required the applicant to obtain and submit all reasonable available evidence to enable the Secretary of State to determine the question of statelessness. While the decision-maker's reference to ‘corroboration’ was inept, it was used to convey that the evidence did not satisfactorily establish that the Petitioner was stateless rather than establishing a formal requirement for corroboration (para 40).
AS (Guinea) v Secretary of State for the Home Department [2018] EWCA Civ 2234; [2018] Imm AR 341; [2019] INLR 157
R v Secretary of State for the Home Department ex parte Bradshaw [1994] Imm AR 359
R (on the application of JM (Zimbabwe)) v Secretary of State for the Home Department [2018] EWCA Civ 188; [2018] 1 WLR 4318
R (on the application of Nhamo) v Secretary of State for the Home Department [2012] EWHC 422 (Admin)
RM (Sierra Leone) v Secretary of State for the Home Department [2015] EWCA Civ 541
Walumba Lumba (previously referred to as WL (Congo)) v Secretary of State for the Home Department; Kadian Mighty (previously referred to as KM (Jamaica)) v Secretary of State for the Home Department[2011] UKSC 12; [2012] 1 AC 245; [2011] 2 WLR 671; [2011] 4 All ER 1; [2011] UKHRR 437
Immigration Rules HC 395 (as amended), paragraphs 401 & 403
Mr Way instructed by Drummond Miller for Katani and Co, for the Petitioner;
Mr Massaro instructed by the Office of the Advocate General, for the Secretary of State.
Lady Carmichael:
[1] Mr Lindsey seeks judicial review of a decision of the Secretary of State for the Home Department to refuse him limited leave to remain in the United Kingdom as a stateless person.
[2] The matter has a long history. Mr Lindsey arrived in the United Kingdom in 1996. He claims to have done so on a Barbadian passport which he obtained by irregular means. His visa expired in 1997 and he has not held further leave to remain since then. In 2007 he was found to be using a false document. He was convicted of doing that and sentenced to 8 months' imprisonment. He was removed to Barbados on 29 January 2008. Barbados refused him entry because he did not have an EU Letter, and returned him to the United Kingdom. On arrival in the United Kingdom on 30 January 2008, he was given an EU Letter and was again removed to Barbados on the same day. He was again returned to the United Kingdom. There is no dispute that he was interviewed by officials in Barbados before he was returned. He applied unsuccessfully for asylum in 2012.
[3] Mr Lindsey's representatives made a subject access request in respect of the records about him held by the Secretary of State. The information that follows derives in part from those records.
[4] Shortly after the second return from Barbados, Home Department officials contacted the Barbados High Commission and arranged for a...
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