AL & Others (Malaysia BOCs)
| Jurisdiction | England & Wales |
| Judge | or,C M G OCKELTON,DEPUTY PRESIDENT |
| Judgment Date | 29 April 2008 |
| Neutral Citation | [2009] UKAIT 26 |
| Court | Asylum and Immigration Tribunal |
| Date | 29 April 2008 |
[2009] UKAIT 26
Mr C M G Ockelton, Deputy President of the Asylum and Immigration Tribunal
Senior Immigration Judge Spencer
ASYLUM AND IMMIGRATION TRIBUNAL
THE IMMIGRATION ACTS
AL & Others (Malaysia BOCs) Malaysia
1. Malaysian British Overseas Citizens (BOCs) who have (or have had) Malaysian nationality cannot derive from their status as BOCs a right to enter or reside in the UK.
2. The refusal to recognise such a right is not a breach of Arts 3, 8 or 14 of the ECHR.
3. A Malaysian BOC does not lose Malaysian nationality by a unilateral voluntary act of applying for a BOC passport or of purported renuncitation of nationality. Deprival of nationality and acceptance of renuncitation require a formal act of the Federal Government and are not automatic or irreversible.
For the Appellant: Mr M S Gill QC, instructed by Christine Lee & Co Solicitors
For the Respondent: Mr R Palmer, instructed by the Treasury Solicitor
The Appellants are nationals of Malaysia and are British Overseas Citizens (BOCs). They appealed to the Tribunal against decisions of the Secretary of State to give directions for their removal as overstayers. An Immigration Judge allowed their appeals on human rights grounds. The Secretary of State sought and obtained orders for reconsideration. Thus the matter comes before us.
The basis of the Appellants' claim is that their status as BOCs entitles them to remain in the United Kingdom now that they have arrived here and sought BOC passports. That claim is a very complex one, made at a number of different levels. There is considerable scope for confusion, and we have to say that those working on behalf of the Appellants have done little to minimize the possibilities of confusion. As we shall explain below, it appears to us that the Appellants' claim is partially based partly on unmerited assumptions, partly on misstated facts and partly on an apparent interweaving of two entirely different arguments. In the circumstances we have done our best to extract from the documents and the submissions put before us on the Appellants' behalf such material as might have assisted them in the claims which they make. In doing so we have done our best to adhere to the principle that the Tribunal is concerned with legal rights, rather than political arguments, and the Appellants should succeed if the law is on their side, but that we have no jurisdiction to change the law on the grounds of sympathy either for the Appellants or for their ancestors. On the Appellants' behalf it is said that that the Respondent's treatment of BOCs both generally and from Malaysia has not been entirely consistent. That may be right: it is certainly right to say that it has not been easy to discern any complete consistency in the Respondent's practices, despite a claim of transparency made on her behalf before us.
These appeals are test cases intended to deal in general with BOCs from Malaysia. The Immigration Judge treated the first Appellant's case separately, as do we. That is because, in addition to the claim based on his nationality and status, he claims that that the homosexual relationship into which he has entered here means that his removal would disrupt his family life and that he would suffer problems in Malaysia. We shall deal in general with the overarching claims made by the Appellants as BOCs before looking separately at the additional features of the first Appellant's claim.
These appeals have a considerable history before the Tribunal. Following the orders for reconsideration there were directions hearings. It was said on behalf of the Appellants that the Respondent was thought to be in the course of formulating a comprehensive policy on BOCs. Whether or not that was right, no new policy has emerged, and it took a very long time for it to be clear that there was to be none. Following the oral hearing we delayed writing our determination in case there was further material, either by way of expert evidence on Malaysian law, or further information about Lee Thean Hock, whose Judicial Review proceedings in Malaysia we shall also mention below. The production of this determination has also been further delayed by illness in the Tribunal and, finally, by the fire at Field House. The Appellants and the Respondent, by letters to the Tribunal dated 9 December 2008 and 2 December 2008 respectively, confirmed that there were no further submissions that they wish to make based on any developments since the date of the hearing.
In addition, the construction of this determination has been rendered exceptionally difficult by the way in which the case on behalf of the Appellants was presented. We do our best in what follows to identify the strands in the Appellants' arguments and deal with each in turn. But even then the process is not unproblematic, because of the partial way in which material was put before us. Mr Gill QC based submissions on the effect of Malaysian law on part only of the Malaysian Constitution, to the exclusion of other parts of the Constitution, which he did not cite. He based submissions on the UK Government's present position on part only of a ministerial statement, to the exclusion of the rest of the statement, which he did not cite. He based submissions on the Government's practice on anecdotal material that he knew to be incomplete. He raised much of his case on the use of the word ‘citizen’ in the British Nationality Act 1981 without any reference to the context in which that word is used. He argued racial discrimination without identifying any relevant disadvantage suffered by those against whom the discrimination is alleged. It might be thought that a case that has to be put in that way is unlikely to have very much merit: but as this is supposed to be a test case we have felt obliged to look at the material as comprehensively as we could even without Mr Gill's assistance. We have had to supply much of the contexts ourselves.
The first Appellant was born on 19 August 1970. He came to the United Kingdom on 25 January 1999 and was granted leave to enter as a visitor until 26 July 1999. He left, apparently during the currency of that leave. He returned to the United Kingdom on 2 December 2000 with entry clearance as a student expiring on 31 October 2002. He made an in-time application for an extension of his leave. He was granted leave until 31 January 2004. He made an application for further leave out of time. That was refused, and he then applied on 22 April 2005 for indefinite leave to remain outside the Immigration Rules. That application was refused and the decision against which the first Appellant appeals is a decision to give directions for his removal as an overstayer dated 30 June 2006.
The first Appellant also applied for a BOC passport. At the date of hearing before the Immigration Judge (8 September 2006) no such passport had been issued, but we have seen photocopies of a BOC passport issued to him on 30 October 2006.
As we have indicated, the first Appellant's claim is based in part on a homosexual relationship. We will set out the evidence relating to that part of the claim when we come to deal with it, later in this determination. No enquires about return to Malaysia have been made specifically on his behalf. So far as we know, he retains his Malaysian passport.
The second Appellant was born on 19 December 1977. He came to the United Kingdom on 11 July 2001 and was granted six months leave to enter as a visitor. He overstayed. On 21 November 2003 he applied for indefinite leave to remain in the United Kingdom on the basis that, having applied for and received a BOC passport, he was no longer entitled to Malaysian citizenship, had no right to live in Malaysia and could not return there. The second Appellant also applied for British citizenship on 13 February 2004: that application was refused on 2 March 2005. His application for indefinite leave to remain was refused on 14 July 2006 and on that date the Respondent gave notice of a decision to direct his removal as an overstayer. It is against that decision that the second Appellant appeals.
There has been correspondence on the second Appellant's behalf between his solicitors and the High Commission of Malaysia in London, which has produced a response to which we shall refer in due course. It appears that his Malaysian passport was sent to the Malaysian High Commission in connection with these enquiries and has not been returned to him.
The third Appellant was born on 23 April 1978. He came to the United Kingdom on 19 June 2000 and was granted leave to enter for six months. He made an in-time application for leave to remain as a student. That application was refused on 2 July 2001. He appealed unsuccessfully against that decision. He then on 19 May 2002 applied for indefinite leave to remain in the United Kingdom as a BOC. He obtained a BOC passport, after that application, on 28 June 2002. On 28 July 2006 his application for indefinite leave to remain in the United Kingdom was refused, and he was served with notice of intention to direct his removal as an overstayer. It is against that decision that he appeals. In his case, like that of the first Appellant, there have been no specific enquiries made in relation to the possibility of his returning to Malaysia. His evidence before the Immigration Judge was that he still had his Malaysian passport.
The Appellants claim that, as BOCs who have since arriving in the United Kingdom applied for and obtained BOC passports, they have ceased to enjoy the benefits of Malaysian citizenship and are therefore not returnable to Malaysia. The arguments supporting that claim, are, as we have...
To continue reading
Request your trial
-
Indran Murugason v Secretary of State for the Home Department
...position of Penang after independence. The historical background is set out in AL & Others v Sectrtary of State for the Home Department [2009] UKAIT 00026, starting at paragraph [33], and also in Fransman's British Nationality Law at B.132. In general, residents of newly independent countri......
-
Upper Tribunal (Immigration and asylum chamber), 2008-07-03, [2009] UKAIT 26 (AL and Others (Malaysia BOCs))
...12pt } p.ctl { font-family: "Times New Roman", serif; font-size: 12pt; so-language: ar-SA } AL & Others (Malaysia BOCs) Malaysia [2009] UKAIT 00026 ASYLUM AND IMMIGRATION TRIBUNAL THE IMMIGRATION ACTS Heard at: Field House Date of Hearing: 29 April 2008 Before: Mr C M G Ockelton, Deputy Pre......