Mr Soo Thoon Chin v The Secretary of State for the Home Department
| Jurisdiction | UK Non-devolved |
| Judge | THE HON. MR JUSTICE MCCLOSKEY |
| Judgment Date | 08 May 2017 |
| Neutral Citation | [2017] UKUT 15 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 08 May 2017 |
[2017] UKUT 15 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
THE PRESIDENT, The Hon. Mr Justice McCloskey
For the Appellants: Mr G Davison, of counsel, instructed by The Chancery Partnership
For the Respondent: Mr P Deller, Senior Home Office Presenting Officer
Chin and Another (former BOC/Malaysian national — deportation)
The deportation of a former Malaysian national and former BOC is liable to be deemed unlawful where relevant Government Policies relating to inter-state arrangements with Malaysia have not been taken into account or given effect.
In the case management directions of Upper Tribunal Judge Bruce dated 13 September 2016 one finds the following useful synopsis of the framework of this appeal:
“The first Appellant Mr Chin resists his deportation to Malaysia inter alia on the grounds that he is not a national of that country. He asserts that he is stateless. The second Appellant is party to these proceedings as she is the wife of the first Appellant who faces deportation as his family member”.
In the various decisions and notices generated by the Secretary of State for the Home Department (“ the Secretary of State”) Mr Chin's date of birth is stated to be 12 April 1962 (now aged 54 years) and he is described as a “British Overseas Citizen” (“BOC”). Mr Chin is married to the second Appellant, Mrs Teng.
Both the underlying decision making process of the Secretary of State and the progress of these appeals have been regrettably sluggish. There are notices and decisions dating from November 2010. Quite how a period of six years has been permitted to elapse since then, without finality, is unclear. The gravest period of individual delay began on 25 November 2010, when the Secretary of State wrote to Mr Chin inviting his representations against deportation from the United Kingdom and 16 January 2014 when, by a further letter, Mr Chin was notified of a further decision that Section 32(5) of the UK Borders Act 2007 applies. This generated a right of appeal to the First-tier Tribunal (“FtT”) which Mr Chin duly exercised.
The following are the main milestones in Mr Chin's immigration history:
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(a) He resided lawfully in the United Kingdom between February and June 2001.
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(b) In August 2002 he was admitted to the United Kingdom as a visitor for a sojourn of six months. His wife had entered the United Kingdom two days previously with a visitor's visa valid for six months.
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(c) In November 2004 the couple's two children (both now of adult age) were granted leave to enter as visitors for six months.
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(d) On 18 July 2005 Mr Chin was granted a BOC passport with a period of validity expiring ten years later.
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(e) The two children and Mrs Teng resided unlawfully in the United Kingdom from May 2005 and March 2006 respectively.
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(f) In December 2004 Mr Chin's solicitors submitted an application for indefinite leave to remain in his behalf and, in April 2006, they included his spouse and two children, as dependants, in this application.
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(g) On 23 November 2006 Mr Chin relinquished his Malaysian nationality.
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(h) The aforementioned application was refused in June 2007 and Forms IS/151A were prepared in respect of all four persons – but, evidently, not served. A period of three years inertia followed.
At this point in the tale Mr Chin acquired a significant criminal record. On 17 June 2017 he was convicted upon indictment of customs and excise offences and, on 01 September 2010, was sentenced to 30 months' imprisonment. Next, on 25 November 2010, Mr Chin was invited via the usual form of notice to make representations against his possible deportation. This was followed by a reconsideration of the indefinite leave to remain on compassionate grounds application, yielding a further refusal decision based on Mr Chin's offending, under Rule 322(5A).
Following yet another hiatus a formal Home Office notice of decision dated 16 January 2014 was served on Mr Chin. This identified him as a “BOC”. In the text it is noted that deportation action is being pursued against Mrs Teng. Their case was considered under the Article 8 ECHR regime of the Rules, yielding the conclusion that neither of them satisfied the relevant Rules requirements or succeeded under the rubric of “exceptional circumstances”. The overarching conclusion expressed was that the public interest in their deportation should prevail. Deportation was based on the “conducive to the public good” ground.
By its decision dated 10 April 2014 the FtT allowed the Appellants' appeals. This brief decision contains no consideration whatsoever of the legal issues or the merits generally. While the judge professed to find that the Secretary of State's decision was “ not in accordance with the law”, and appeared to remit the case to the Secretary of State for s fresh decision, the sole basis for the tribunal's decision was that the Secretary of State had failed to comply with earlier case management directions. On 04 June 2014 the Upper Tribunal set this decision aside and remitted the appeals for a fresh decision by FtT.
This gave rise to a further decision of the FtT, dated 23 January 2015. The FtT decided as follows:
The appeal was dismissed accordingly.
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(a) Mr Chin was a “foreign criminal” within the meaning of the 2007 Act notwithstanding his BOC status.
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(b) Mr Chin relinquished his Malaysian nationality on 23 November 2006.
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(c) Mr Chin is not stateless: this part of the judgment is unreasoned and is followed by a long quotation from the Home Office Policy on BOCs, which is left in limbo without further analysis or consideration or findings.
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(d) The deportation decisions were harmonious with the Article 8 regime of the Rules.
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(e) Returning to the Home Office Policy in the penultimate section of the judgment, the Tribunal noted the following four matters: Mr Chin had never presented a letter from the Malaysian authorities indicating that he could not be returned to Malaysia; he had not applied for a visa to enter Malaysia; he has never attempted to enter Malaysia voluntarily; and, finally, the Malaysian government has provided written confirmation to the United Kingdom government that BOCs who have renounced their citizenship can return to Malaysia and begin steps to re-acquire their Malaysian nationality – and, specifically, could apply for a five year residence authorisation, designed to lead to citizenship, before leaving the United Kingdom.
By order of Upper Tribunal Judge Blum dated 08 September 2015 permission to appeal was granted in the following terms:
“It is arguable that the [FtT] failed to consider the possibility that a BOC may also be a stateless person and the legal impact that statelessness may have on an automatic deportation”.
Regrettably, the appeal has progressed laboriously through the Upper Tribunal system. Having been listed speedily, at a hearing on 03 November 2015 this Tribunal, in the light of certain submissions made on the Appellants' behalf, adjourned the appeal to enable the Appellants to make an application to the Secretary of State. As noted in our ruling dated 04 November 2015, the Secretary of State has not made any statelessness decision in the history of this case. The ruling stated:
“If the first Appellant considers that he is entitled to this status, he should make the appropriate application under the relevant regime of the Immigration Rules (paragraphs 401 – 403).”
The hearing of the appeal was adjourned accordingly.
The Appellants' representatives delayed in making this application until 21 June 2016. This elicited a decision on behalf of the Secretary of State, dated 21 July 2016, refusing the Appellants' application under paragraph 322(1B) of the Rules viz on the ground that he is the subject of a deportation order. Evidentially, the precise nature of the application made to the Secretary of State is unclear. However, what is clear is that the ensuing decision did not address the issue of statelessness at all. Given the appeal history, this was quite remarkable. This was followed by a case management review held on 13 September 2016 and, ultimately, the hearing of this appeal on 22 December 2016.
It is convenient at this juncture to highlight at this juncture two noteworthy pieces of evidence. The first is a letter dated 13 July 2015 from the High Commission of Malaysia. This describes Mr Chin as a BOC and indicates that he was born in Penang, Malaysia on 12 April 1962. The text continues:
“… the above-named is no longer a citizen of Malaysia from the date stated on Borang K registered 0000106146 at Malaysian High Commission on 23 November 2006. Therefore, he is not eligible to apply for a Malaysian passport”.
There is also a formal UKBA document (IS.151FCD), dated 23 November 2011, stating:
“We have applied to obtain an Emergency Travel Document (ETD) from the Malaysian authorities. Once this is obtained you will be made a subject of a deportation order and will be removable when all your appeal rights are exhausted”.
It is common case that no ETD has been issued in respect of Mr Chin.
This Tribunal had occasion to review the law on statelessness in R (on the application of Semeda) v Secretary of State for the Home Department (statelessness; Pham [2015] UKSC 19 applied) (IJR) [2015] UKUT 658 (IAC). Its decision drew attention to the test for statelessness enshrined in Article 1(1) of the United Nations Convention relating to the Status of Stateless Persons (the “1954 Convention”) namely where the person concerned is...
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Upper Tribunal (Immigration and asylum chamber), 2017-05-08, [2017] UKUT 15 (IAC) (Chin and Another (former BOC/Malaysian national – deportation))
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