Upper Tribunal (Immigration and asylum chamber), 2019-08-08, HU/00490/2019 & Others
| Jurisdiction | UK Non-devolved |
| Date | 08 August 2019 |
| Published date | 25 September 2019 |
| Hearing Date | 19 July 2019 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | HU/00490/2019 & Others |
Appeal Numbers: HU/00490/2019
HU/00498/2019
HU/00507/2019
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: HU/00490/2019
HU/00507/2019
HU/00498/2019
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 19 July 2019 |
On 8 August 2019 |
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Before
DR H H STOREY
JUDGE OF THE UPPER TRIBUNAL
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
mr G S
mrs H K
MISS A K
(ANONYMITY DIRECTION MADE IN RESPECT OF THIRD RESPONDENT)
Respondent
Representation:
For the Appellant: Ms A Everett, Home Office Presenting Officer
For the Respondent: Mr J Tramboo, Counsel, instructed by Shireen Tramboo Solicitors
DECISION AND REASONS
1. This case concerns the issue of whether in order to be accepted in an appeal as stateless a person must show they have taken reasonable steps to show they have sought to acquire a nationality to which they have an entitlement dependent upon making an application.
2. The appellant (hereafter the Secretary of State or SSHD) has permission to challenge the decision of Judge Havard of the First-tier Tribunal (FtT) sent on 3 April 2019 allowing on human rights grounds the appeal of the claimants, the first and second being citizens of India, against the decision of the SSHD made on 18 December 2018 refusing leave to remain. Although finding that the first and second claimants lacked credibility and had not shown there would be very significant obstacles to their return to India, the judge allowed the appeal of all three because he was satisfied the third claimant, Miss A K, born in the UK in July 2016, was stateless. In their application for leave to remain of 3 July 2018 the claimants had not raised the statelessness issue and correspondingly the SSHD’s refusal decision made no mention of it. It was first raised in the claimants’ grounds of appeal against the SSHD’s decision. The judge (before whom the claimants were appellants) reasoned at paragraphs 155-162:
“155. I am satisfied that, had it not been for the birth of the Third Appellant on […] July 2016, there are no exceptional circumstances which would mean that it would be proportionate to allow the appeals of the First and Second Appellants outside of the Immigration Rules and I would have dismissed their appeals. I repeat, in particular, paragraphs 122 to 125 above.
156. However, in the absence of any evidence to the contrary, I must approach this matter on the basis that the Third Appellant, whom I have found to be stateless, would not be permitted entry into India. This means that if I were to dismiss the appeals of the First and Second Appellants, it may lead to circumstances in which, without any other family support in the UK, the Third Appellant, who will be three years old in July 2019, would be taken into the care of the local authority.
157. Ms Arnesen submitted that there must be someone in a position to care for the Third Appellant whilst the First and Second Appellant return to India in order to regularise the position. However, without any evidence to support such a submission, this is far too speculative when considering the welfare of the child.
158. Whilst I have already commented on my assessment of the conduct of the First and Second Appellants, it is clearly not in the best interests of the Third Appellant to be separated from her parents. Despite the decisions they made with regard to their elder daughter, there is no evidence to suggest there are concerns with regard to their parenting of their younger daughter.
159. In considering the question of proportionality in a democratic society when assessing the legitimate aim to be achieved, I have considered the public interest considerations which are set out in the Immigration Act 2014 and, in particular, Sections 117A and B of the Act as set out above.
160. I am satisfied on the facts that the proposed removal of the First and Second Appellants would amount to an interference in the family life of the Third Appellant which would have consequences of such gravity as to engage the operation of Article 8 and would be in breach of Section 55 of the 2009 Act.
161. In my judgement, when considering all the circumstances in the round, in assessing proportionality, I find that, in carrying out a balancing exercise, the public interest in the maintenance of effective immigration control is outweighed by the Appellants’ rights to a family life and this is based primarily on the assessment of what is in the best interests of the Third Appellant.
162. For these reasons, I find that, taken as whole, it is disproportionate to remove the Appellants from the United Kingdom. To refuse this appeal would cause the United Kingdom to be in breach of Section 6 of the Human Rights Act 1986 and the Appellants succeed in their appeal under Article 8 ECHR.”
3. The SSHD’s grounds are confined to the contention that the judge misdirected himself in law in respect of his finding regarding the third appellant’s statelessness. Having found (i) that the first and second claimants had not taken reasonable steps to try and register the birth of their daughter with the Indian High Commission and (ii) that indeed they acted in bad faith, the grounds assert that the judge should not have made a finding that the third claimant was stateless. The judge’s finding of statelessness was said to be contrary to the ‘Bradshaw principle and the guidance given by Kitchin LJ in AS (Guinea) [2018] EWCA Civ 2234 at [57]:
“57. These authorities reveal a consistent line of reasoning. A person claiming to be stateless must take all reasonably practicable steps to gather together and submit all documents and other materials which evidence his or her identity and residence in the state or states in issue, and which otherwise bear upon his or her nationality. The applicant ought also to apply for nationality of the state or states with which he or she has the closest connection. Generally, these are steps that can be taken without any risk. If, in the words of Elias LJ, the applicant comes up against a brick wall, then, depending on the reasons given, the adjudicator will decide whether the applicant has established statelessness, and will do so on the balance of probabilities. Of course, from time to time, there may be cases where it would not be reasonable to expect the applicant to take this course, and in those cases the Secretary of State will assist the applicant by making enquiries on his or her behalf but again there is no reason why the issue of statelessness cannot be decided on the balance of probabilities. By contrast, in refugee cases, it is necessary to make an assessment of what may happen in the future in another country, and whether the applicant faces a real risk of persecution there. This is a very different kind of assessment and it is one which, by its nature, justifies the adoption of a different and lower standard of proof. I recognise that, as the appellant and UNHCR contend in their sixth submission, many of the cases to which I have referred were decided before the promulgation by UNHCR of the guidance in 2012 and the Handbook in 2014 but in my judgment the reasoning in these decisions remains robust and authoritative.”
4. In AS(Guinea) Kitchin LJ at [48] summarised the case of R v Secretary of State for the Home Department Ex parte Valentina Bradshaw [1994] Imm Ar 359 (hereafter Bradshaw) as follows:
“[M]s Bradshaw, a citizen of the former USSR, had been granted indefinite leave to remain in the United Kingdom as a result of her fraudulent misrepresentations but asserted that she was stateless and so could not be removed. Lord MacLean, sitting in the Outer House of the Court of Session, found that she had failed to establish that she was a stateless person and that before she could be said to be stateless within the meaning of Article 1 of the 1954 Convention, she would have had to apply to those states which might consider her to be and might accept her as a national, and that she had not done.”
At [49] Kitchin LJ went on to cite the description given of the ‘Bradshaw principle’ by Henriques J in R (on the application of Tewolde) v Immigration Appeal Tribunal [2004] EWHC 162: “namely, that a person who claims to be stateless must apply for the citizenship of any country with which she has a close connection and must be refused before he can be entitled to reside in this country.”
Analysis
5. Before proceeding to evaluate the SSHD’s ground, it is necessary to set out certain agreed matters.
6. It is not in dispute before me that the issue of whether the third claimant is stateless falls to be decided by reference to the meaning of a “stateless person” as set out in Article 1(1) of the 1954 UN Convention Relating to the Status of Stateless Persons, namely “a person who is not considered as a national by any state under the operation of its law”: see paragraph 401 of the Immigration Rules.
7. It is also not in dispute before me that if the third claimant had any nationality at the date of hearing it could only be Indian: she was not eligible for British nationality (or any other nationality) at that point in time (nor still).
8. Nor does Ms Everett before me take any issue with the analysis...
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