R JM (Zimbabwe) (by his parent and litigation friend SM) v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Sir John Laws,Lady Justice Sharp,Lord Justice McFarlane |
| Judgment Date | 15 February 2018 |
| Neutral Citation | [2018] EWCA Civ 188 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C2/2015/4302/JRTRF |
| Date | 15 February 2018 |
[2018] EWCA Civ 188
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice McFarlane
Lady Justice Sharp
and
Sir John Laws
Case No: C2/2015/4302/JRTRF
Adrian Berry (instructed by Turpin Miller Solicitors) for the Appellant
Joanne Clement (instructed by Government Legal Department) for the Respondent
Hearing dates: 1 February 2018
Introduction
This is an appeal, with permission granted by Vos LJ on 4 May 2016, against the decision of the Upper Tribunal (the UT) of 18 November 2015. The UT dismissed the appellant's claim for judicial review of the decision of the Secretary of State to refuse his application for leave to remain in the United Kingdom as a stateless person under paragraph 403 of the Immigration Rules. The UT's decision is reported at [2015] UKUT 676 (IAC). The issue in the case concerns the proper interpretation of paragraph 403(c) of the Rules which I will set out shortly.
After the grant of permission by Vos LJ the decision under challenge was withdrawn by the Secretary of State, who proposes to redetermine the case. At paragraph 6 of the replacement skeleton argument the respondent “recognises that the decision under challenge… was made on the (erroneous) basis that the appellant was a Zimbabwean citizen…” In the light of the first decision's withdrawal Singh LJ was asked to give directions. He indicated that the case should proceed “subject to any contrary view that may be taken by the Full Court”. The Secretary of State (replacement skeleton argument paragraph 8) is neutral as to whether this court should now proceed to hear the appeal. The appellant desires that we should indeed proceed, as was made clear in representations of 27 November 2017 which were before Singh LJ as they are before us. It is there submitted, first, that we should do so in order that the appellant may understand the basis on which the Secretary of State will reconsider the case, and secondly and in any event, that the public interest requires that the appeal be heard: Ex parte Salem [1999] 2 AER 42. For my part I am sceptical as to the first of these points but my Lord, my Lady and I are agreed that the appeal should go forward on the footing that there is a degree of public importance in the issue relating to paragraph 403(c) of the Immigration Rules. It is unnecessary to recite the reasoning in the Salem case.
The Facts
The essential history is succinctly described by the UT as follows:
“2. The applicant is a child, born on 20 March 2013 in the United Kingdom. His mother is a Zimbabwean national. His father is a Portuguese citizen, a Mr F. When Mr F learnt that the applicant's mother was pregnant with the applicant he wished the pregnancy to be terminated but she did not agree and this led to a breakdown in the relationship. He is said to have made it clear that he does not wish to be involved in his son's life and will not assist in obtaining his registration as a Portuguese citizen.
3. The application under paragraph 403 of HC 395 was made under cover of a letter of 6 December 2013. Reference was made to the terms of the Zimbabwean Constitution, noting that a child born to a Zimbabwean parent outside Zimbabwe was required to register in order to be a Zimbabwean citizen by descent. The writer of the letter said that they had contacted the Zimbabwean High Commission to request confirmation of the terms of the Constitution but had received no response. It was said that it was clear that the applicant was not a Zimbabwean national, and nor did he have any right to Portuguese nationality as under the Portuguese Constitution registration was a requirement for nationality and as set out above the father refused to assist in making any application to the Portuguese authorities and without his consent the applicant could not register as a Portuguese national. It was said that as the applicant was not entitled to any nationality there was no prospect that he would be admitted to another country if removed from the United Kingdom.”
An expert witness statement made by Dr Alex Magaisa was put before the UT by the appellant, though it had not been produced to the Secretary of State before she made her decision. Dr Magaisa is a law lecturer at the University of Kent. He has practised law in Zimbabwe and conducts research and writes on Zimbabwean law, in particular its constitutional and administrative law. He describes the process by which a person may acquire citizenship by descent (the category applicable to the appellant as he was born outside Zimbabwe and his mother is a Zimbabwean citizen):
“4.3.1…[H]is or her birth must be registered in Zimbabwe in accordance with the country's birth registration laws…
4.3.3…[T]his administrative process involves certain steps taken at the country's embassy/consular service in a foreign country and completed at the national offices in Zimbabwe. Once these steps are fulfilled and the birth is duly registered, one becomes entitled to the benefits of citizenship…”
Mr Berry for the appellant was inclined to submit that his client's mother (or someone acting for him) would have to travel to Zimbabwe to complete the registration process. But Dr Magaisa does not say as much, and it is not vouched by any other evidence. As a matter of fact it may or may not be the case. At all events there is no contest but that in principle it is entirely open to the appellant's mother to register her son's birth so that he would acquire Zimbabwean citizenship. It is however common ground that no steps have been taken on the appellant's behalf to do so. Moreover at paragraph 9 of the respondent's skeleton, in the context of the Secretary of State's withdrawal of the earlier decision, it is said (and again I understand there is no dispute) that “[t]he appellant has been invited to present any further evidence he wishes in support of his application. On 15 January 2018 the appellant's mother provided permission for contact to be made with the Zimbabwean authorities, but confirmed that no further information would be submitted in support of the application”. References to the relevant documents are given.
The Rules
I should cite paragraphs 401, 403 and 405 of the Immigration Rules:
“401. For the purposes of this Part a stateless person is a person who:
(a) satisfies the requirements of Article 1(1) of the 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…
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 recognized by the Secretary of State as a stateless person 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.
405. Where an applicant meets the requirements of paragraph 403 they [ sic] may be granted limited leave to remain in the United Kingdom for a period not exceeding 30 months.”
Mr Berry for the appellant rightly accepted that the burden – the “legal burden” as he called it – was on his client to demonstrate that paragraph 403 applied in his favour.
The Secretary of State's decision
I may take the Secretary of State's decision from the summary provided by the UT at paragraph 5. She concluded that the appellant
“had failed to demonstrate that he was a person who was not considered as a national by any state under the operation of its law and had failed to satisfy the requirements of Article 1(1) of the 1954 United Nations Convention relating to the Status of Stateless Persons and paragraphs 403(b), (c) and (d) of HC 395. It was not accepted that he was a stateless person as defined within the Rules and he had not met the requirements to be granted limited leave to remain as a stateless person.”
The issues
Granting permission to appeal Vos LJ said this:
“There is a real prospect of success in this appeal on two grounds only, namely (i) as to the proper meaning of [paragraph] 403(c) imposing the requirement...
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