Upper Tribunal (Immigration and asylum chamber), 2021-09-22, [2021] UKUT 284 (IAC) (R (on the application of AZ) v Secretary of State for the Home Department (statelessness “admissible”))
| Jurisdiction | UK Non-devolved |
| Judge | Upper Tribunal Judge R J Owens |
| Status | Reported |
| Date | 22 September 2021 |
| Published date | 16 November 2021 |
| Hearing Date | 25 March 2021 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Subject Matter | statelessness “admissible” |
| Appeal Number | [2021] UKUT 284 (IAC) |
IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
R (on the application of AZ) v Secretary of State for the Home Department (statelessness “admissible”) [2021] UKUT 00284 (IAC)
Field House,
Breams Buildings
London
EC4A 1WR
25 March 2021
The QUEEN
(ON The application OF AZ)
(ANONYMITY ORDER MADE)
Applicant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Before
UPPER TRIBUNAL JUDGE OWENS
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Mr A Chakmakjian, instructed by Healys LLP appeared on behalf of the Applicant.
Mr Z Malik Q.C, instructed by the Government Legal Department appeared on behalf of the Respondent.
‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑
ON AN APPLICATION FOR JUDICIAL REVIEW
APPROVED JUDGMENT
‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑
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The word “admissible” must mean in the context of paragraph 403(c) the ability to enter lawfully and reside lawfully. “Admissible” does not incorporate the concept of “permanent residence”.
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The Statelessness Convention does not impose a requirement on contracting parties to grant either permanent residence or citizenship.
JUDGE OWENS: This is an application for judicial review of the respondent’s decision of 24 July 2019 refusing the applicant’s application for leave to remain in the United Kingdom as a stateless person. The decision was upheld on administrative review by the respondent on 20 August 2019. The issue in this review concerns the proper interpretation of paragraph 403(c) of the Immigration Rules in respect of admissibility of a stateless person to their country of former habitual residence or any other country. The single ground of judicial review is that the respondent’s definition of “admissible” in the context of paragraph 403(c) is unlawful, irrational and/or inconsistent with her own policy.
Immigration history
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The applicant was born in Kuwait and is stateless.
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The applicant entered the United Kingdom on a visit visa using a valid “Article 17” travel document issued by the Kuwaiti government. On 9 January 2018 she applied for leave to remain in the United Kingdom as a stateless person pursuant to paragraph 403 of the Immigration Rules.
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The basis of her application was that she had provided evidence that her nationality had been withdrawn and she had unsuccessfully attempted to obtain Kuwaiti nationality. It had been problematic for her to continue to reside in Kuwait without nationality because of the denial of her civil rights such as education, healthcare and employment. She does not have any form of civil identity documentation in Kuwait. She claims to have used a false identity in order to attend school and drive and that this has now come to the attention of the Kuwaiti government. Every time she travels out of Kuwait her travel document is retained and she is provided with a letter which she must use to re-enter Kuwait.
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The focus of the supporting representations was in relation to the applicant’s status as a stateless person in Kuwait. The applicant has not claimed asylum or lodged a human rights claim.
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After she lodged her application, the respondent requested more information in respect of the applicant’s admissibility to Kuwait. In response on 17 April 2019, the appellant’s representative AMZ Law stated that “the question of admissibility is not relevant to the issues in our client’s case because our client is a refugee because her situation is analogous to an undocumented Bidoon”.
The Secretary of State’s Decision
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In the decision dated 24 July 2019 it is not accepted by the respondent that the applicant is not admissible to Kuwait because the applicant provided a valid Kuwaiti “Article 17” travel document that expired on 20 March 2020. The applicant has previously used this document to travel to and from Kuwait. She has failed to provide sufficient evidence that she is no longer admissible to Kuwait.
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Further the respondent does not accept that the applicant is not able to return to Kuwait because she does not have access to other basic rights because she provided to the respondent an educational certificate and a document confirming her lack of Kuwaiti citizenship provided by the Kuwaiti authorities. Both documents were in her own name.
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The application also initially fell for refusal under paragraph 403(b) and (d), however on administrative review these reasons for refusal fell away because it is accepted that the applicant is stateless and her “Article 17” travel document was accepted as genuine.
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On review, the respondent reiterated that the applicant holds an “Article 17” travel document which allows the applicant to re-enter Kuwait and referred to the Home Office Country Information and Guidance on Kuwait in this respect. It is said that the applicant’s county of former habitual residence is Kuwait and that she is entitled to return there to take up permanent residence.
Permission to appeal
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Permission to appeal for judicial review was granted by Upper Tribunal Judge Kopieczek on oral renewal on 16 December 2019. The grant of permission is in the following terms:
“It is arguable that the respondent’s decision unlawfully interprets ‘admissible’ in paragraph 403(c) of the Immigration Rules as meaning simply ‘permitted to enter’ (in this case Kuwait), whereas arguably that interpretation is inconsistent with international instruments dealing with statelessness and with the respondent’s own guidance”.
Issue
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The issue in this appeal is the proper interpretation of the word “admissible” in paragraph 403(c) of the Immigration Rules and whether the respondent has lawfully applied that term to the applicant’s application.
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It is submitted by the applicant that the Secretary of State’s failure to adopt the correct interpretation when considering the applicant’s application renders the decision unlawful. It is said that the respondent’s interpretation is contrary to the principles and the objectives of the Convention. Further, reliance is placed on R (on the application of Semeda) v SSHD (statelessness; Pham [2015] UKSC 10 applied) IJR [2015] UKUT 00658 (IAC). The respondent has straightforwardly failed to apply her policy which is a public law error.
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I begin by setting out the relevant provisions of the current version of the Immigration Rules HC 395 Part 14 Stateless persons. The version in force at the date of the application and original decision has now been amended but this has no bearing on this application in relation to paragraph 403(c) which remains the same.
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Definition of a stateless person;
“401. For the purposes of this Part a stateless person is a person who;
(a) satisfies the requirements of Article 1(1) of the 1954 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, and
(c) is not excluded from recognition as a stateless person under paragraph 402”.
Requirements for limited leave to remain as a stateless person;
“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 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”.
Refusal of limited leave to a stateless person;
“404. An applicant will be refused leave to remain in the United Kingdom as a stateless person if;
(a) they do not meet the requirements of paragraph 403;
(b) there are reasonable grounds for considering that they are:
(i) a danger to the security of the United Kingdom,
(ii) a danger to the public order of the United Kingdom, or
(c) their application would fall to be refused under any of the grounds set out in paragraph 322 of these Rules”.
Intensity of review
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Mr Chakmakjian for the applicant submitted that the level of scrutiny in a case involving the United Kingdom’s international obligations should be exacting and intense. He referred me to paragraphs [10] and [30] of R (on the application of JM) v Secretary of State for the Home Department (Statelessness; Part 14 of HC 395) IJR [2015] UKUT 00676 (hereinafter known as “JM (statelessness)”) in this respect. The Upper Tribunal endorses the approach that it is appropriate to impose an exacting and intense standard of review in a case which involved a question of whether the United Kingdom was complying with its international obligations. Mr Malik agreed with this analysis of the level of scrutiny required and I see no need to depart from this principle.
Meaning of the word “admissible”
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Mr Chakmakjian submitted that the proper interpretation of paragraph 403(c) of the Immigration Rules is that an applicant can only be regarded as admissible to her country of former habitual residence if she can be admitted for the purposes of lawful and permanent residence. His submission is that admissible does not mean “able to obtain entry” but in...
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