R (on the application of Semeda) v Home Secretary
| Jurisdiction | UK Non-devolved |
| Judge | McCloskey J,The Honourable Mr Justice McCloskey |
| Judgment Date | 21 October 2015 |
| Neutral Citation | [2015] UKUT 658 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 21 October 2015 |
[2015] UKUT 658 (IAC)
The Honourable Mr Justice McCloskey, President
Upper Tribunal Judge Reeds
Upper Tribunal
Immigration and Asylum Chamber
R (on the application of Semeda) v Secretary of State for the Home Department (statelessness; Pham [2015] UKSC 19 applied) IJR
(i) Paragraph 403 of the Immigration Rules co-exists, and must be given effect in tandem, with the United Nations Convention Relating To The Status Of Stateless Persons and the Secretary of State's policy instruction.
(ii) In every statelessness case, the four interlocking components of the governing test are whether the person concerned is considered as … a national … by any state … under the operation of its law: Pham v Secretary of State for the Home Department [2015] UKSC 19 applied.
(iii) Given that statelessness applications and decisions are made within the realm of public law, the governing principles include the Tameside (Secretary of State for Education and Science v Metropolitan Borough Council of Tameside [1977] AC 1014 ) and theBritish Oxygen (British Oxygen v Minister of Technology [1971] AC 610) principles.
(iv) The policies of public authorities are not merely material considerations to be taken into account by the decision maker. Rather, they trigger a duty to give effect to their terms, absent good reason for departure.
(v) In some cases it may be necessary to consider the practice of the government of a foreign state as well as its nationality laws.
On this substantive application for judicial review and following consideration of the documents lodged by the parties and having heard Mr M Karnik (of Counsel), instructed by Amelius Solicitors on behalf of the Applicant and Mr S Murray (of Counsel), instructed by the Government Legal Department on behalf of the Respondent, at a hearing conducted at Field House, London on 07 September 2015.
This judgment determines the Applicant's substantive application for judicial review, permission having been granted by order of His Honour Judge Russell QC dated 27 June 2014.
The impugned decision of the Respondent, the Secretary of State for the Home Department (the “ Secretary of State”), dated 29 October 2013, is a rejection of the Applicant's application for limited leave to remain in the United Kingdom as a stateless person under paragraph 403 of the Immigration Rules. It is appropriate, at this juncture, to rehearse their material provisions. By paragraph 401, a stateless person is defined as someone who –
Where the outcome of the decision making process yields a statelessness conclusion a grant of leave to remain in the United Kingdom for a period of 30 months is the normal consequence.
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(a) satisfies the requirements of Article 1 of the United Nations Convention Relating to the Status of Stateless Persons (“ the 1954 Convention”), namely who is a person not considered to be a national by any state under the operation of its law;
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(b) is in the United kingdom; and
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(c) is not excluded from recognition as a stateless person under paragraph 402.
The fourfold requirements for securing leave to remain in the United Kingdom as a stateless person are, per paragraph 403 of the Immigration Rules:
“……………………………… 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.”
The decision letter rehearses the information provided by the Applicant in support of his application. This includes information provided during interview. This digest discloses that the Applicant has been in the United Kingdom for approximately seven years and applied unsuccessfully for asylum at an early stage. His application for leave to remain as a stateless person was made on 17 June 2013. It is based on his claim that he is “ an undocumented Kuwaiti Bidoon”. It is suggested that when the Applicant underwent his stateless person interview on 09 July 2013, upon being asked to participate in language analysis as part of the decision making process he refused. By the terms of the decision the Secretary of State accepts that the Applicant is indeed Kuwaiti Bidoon. The critical issue is formulated as being whether he was “ documented or undocumented”. The decision notes that during interview the Applicant confirmed that he had been issued with a birth certificate. The decision further records that in previous Tribunal determinations, while it was accepted that the Applicant is a Kuwaiti Bidoon there was no finding on the “ documented or not” issue. Continuing, the decision notes that during the asylum screening interview the Applicant stated that he had a Kuwaiti identity card and that his subsequent attempt to retract this statement was later rejected by Immigration Judge Dickinson. On this basis, the decision maker concluded that the Applicant is a documented Kuwaiti Bidoon.
Next, the Secretary of State's decision addresses the interview of the Applicant at the Libyan Embassy in London on 06 July 2009, highlighting that subsequently the Acting Consul disclosed the following:
“ … The detainee has stated that he has visited Libya in 1999 with his mother for one year, but was not able to provide any places or names of locations that he may have visited, or lived in. The detainee would have been approximately 16 years old. This has led the Libyan Acting Consul to deem that the detainee lacks any credibility and that he is not Libyan.”
While the Applicant disputes this account of the interview, the decision maker notes that he has adduced no supporting evidence. Next, the decision highlights the discrepancy in the Applicant's stateless person interview, arising out of his statement that he was in Libya from 1999 to 2007 (rather than one year, from 1999). The decision maker then suggests a contradiction between the Applicant's earlier statement that his mother is Libyan and his claim not to have Libyan nationality. The decision also draws on a Country of Information Report relating to Libya, dated March 2012, indicating that any child born of a Libyan mother thereby acquires Libyan citizenship. The gist of the Respondent's decision is formulated in these terms:
“ Based upon the objective information and the negative credibility findings previously cited, it is not accepted that you are not entitled to some form of Libyan nationality or residence based upon your mother's nationality …..
As you have not submitted any fresh evidence to demonstrate that you are not entitled to Libyan nationality and you have refused to undergo language analysis, notwithstanding that you may be a Kuwaiti Bidoon, it is considered that you have a claim to Libyan nationality ….
You have provided no evidence to substantiate your claim that you are an undocumented Bidoon. Furthermore, it is considered that you have a claim to Libyan nationality …..
Therefore you do not qualify for leave to remain as a stateless person.”
The Applicant's claim was, therefore, refused under paragraph 404 of the Immigration Rules.
The grant of permission to apply for judicial review ( supra) was formulated in the following terms:
“ The uncertainty as to the Applicant's nationality, referred to by the Respondent in the Acknowledgement of Service as ‘ambiguous’, indicates that there is an arguable case that the Applicant may be stateless.”
I observe, with deference to the Judge, that the issue in these judicial review proceedings cannot be the question of whether the Applicant is stateless. Rather, the issue is whether the Secretary of State's determination that the Applicant is not stateless is contaminated by any recognised public law misdemeanour canvassed in the Applicant's grounds of challenge. In this respect, I make the immediate observation that the formulation in [4] of the grounds, summarising the Applicant's case, does not readily satisfy this test:
“ ….. The Defendant's refusal to grant the Claimant leave to remain as a stateless person is unlawful as the Defendant has failed to adequately and properly consider the facts of [the] application.”
This is opaque at best. In the passages which follow, the case is made that the Respondent had a duty of enquiry; that such duty required further investigation/interaction with the Libyan Embassy; and that the Respondent unlawfully failed to undertake same. The grounds also appear to formulate the contention that the impugned decision is vitiated by Wednesbury irrationality.
The analysis that the original grounds of challenge are vague, diffuse and non-compliant with SN v SSHD (striking out – principles) IJR [2015] UKUT 227 (IAC) at [29]–[32] is, I consider, unavoidable. However, some measure of coherence was restored by the amendment authorised at an intermediate stage of the proceedings and the ensuing written and oral submissions of Mr Karnik on behalf of the Applicant. His disentangling of the less than felicitous pleading reduced the Applicant's grounds of challenge to the following two basic contentions:
The Applicant also seeks to re-open, if permitted, a ground upon which permission to apply for judicial review was refused. The gist of this ground is that the impugned decision is infected by error of law on the basis that the...
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