Teh v Secretary of State for the Home Department

The claimant, Liew Teong Teh, was and is a British Overseas citizen. He was a citizen of Malaysia. However, in 2006 he renounced his Malaysian citizenship. He has been in the United Kingdom since 2001. On 21 March 2016 he applied for leave to remain as a stateless person under Part 14 of the Immigration Rules. On 21 June 2017 the defendant refused the application. The claimant exercised his right to seek an administrative review. On 29 August 2017 the administrative review upheld the refusal to grant leave to remain. The defendant gave three reasons for the refusal. One, the claimant was not stateless, because he holds British Overseas citizenship. Two, even if the claimant is stateless, he is admissible to Malaysia. Three, the claimant failed to obtain and submit all reasonably available evidence to enable the Secretary of State to determine whether he is stateless. Those three reasons track the respective requirements of paragraph 403(b), (c) and (d) of the Immigration Rules.

In this claim for judicial review the claimant challenges all three of those reasons.

Article 1 of the 1954 United Nations Convention relating to the Status of Stateless Persons (“the 1954 UN Convention”) includes the following.

1.

For the purpose of this Convention, the term “stateless person” means a person who is not considered as a national by any State under the operation of its law.

2.

This Convention shall not apply: … (ii) To persons who are recognized by the competent authorities of the country in which they have taken residence as having the rights and obligations which are attached to the possession of the nationality of that country; ….

The United Kingdom ratified this Convention on 16 April 1959. The UK made a number of reservations, but none is relevant to the present claim.

Part 14 (paragraphs 401-416) of the Immigration Rules is headed “stateless persons”. Paragraphs 401-405 state:

“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.

Exclusion from recognition as a stateless person

402.

A person is excluded from recognition as a stateless person if there are serious reasons for considering that they:

(a)

are at present receiving from organs or agencies of the United Nations, other than the United Nations High Commissioner for Refugees, protection or assistance, so long as they are receiving such protection or assistance;

(b)

are recognised by the competent authorities of the country of their former habitual residence as having the rights and obligation which are attached to the possession of the nationality of that country;

(c)

have committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provisions in respect of such crimes;

(d)

have committed a serious non-political crime outside the UK prior to their arrival in the UK;

(e)

have been guilty of acts contrary to the purposes and principles of the United Nations.

Requirements for limited leave to remain in the United Kingdom 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 remain as 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.

Grant of limited leave to remain in the United Kingdom

405.

Where an applicant meets the requirements of paragraph 403 they may be granted limited leave to remain in the United Kingdom for a period not exceeding 30 months.”

Paragraph 322, referred to in paragraph 404(c) is in Part 9 of the Immigration Rules, which contains general grounds for refusal. Paragraph 322(5) states that the undesirability of permitting the person concerned to remain in the United Kingdom in the light of, among other things, his conduct is a ground on which leave to remain should normally be refused.

Paragraphs 406-407 make provision for the grant of indefinite leave to remain as a stateless person after 5 years limited leave in that capacity.

The long title of the British Nationality Act 1981 (“BNA 1981”) is “An Act to make fresh provision about citizenship and nationality, and to amend the Immigration Act 1971 as regards the right of abode in the United Kingdom”. Part I (ss.1-14) of the Act is headed “British Citizenship”. Part III (ss.26-29) is headed “British Overseas citizenship”.

It is common ground that Mr Teh is a British Overseas citizen pursuant to s.26.

Section 4 of the BNA 1981 makes provision for, among others, a British Overseas citizen to register, as of right, as a British citizen if he meets the criteria in the section. Those criteria include five years residence in the UK without being in breach of the immigration laws, of which at least the final 12 months must be a period in which he was not subject to any period for which he might remain in the UK.

Mr Teh has been in the UK since 2001, until 2005 lawfully as a student. However, he has been an overstayer, and thus in breach of the immigration laws, since, at the latest, 19 August 2011 (the evidence before me was unclear as to the correct date).

Section 4B of the BNA 1981 is headed “Acquisition by registration: certain other persons without other citizenship”. It provides, so far as presently material:

“(1)

This section applies to a person who has the status of-

(a)

British Overseas citizen, …

(2)

A person to whom this section applies shall be entitled to be registered as a British citizen if-

(a)

he applies for registration under this section,

(b)

the Secretary of State is satisfied that the person does not have, apart from the status mentioned in subsection (1), any citizenship or nationality, and

(c)

the Secretary of State is satisfied that the person has not after the relevant day renounced, voluntarily relinquished or lost through action or inaction any citizenship or nationality.

(3)

For the purposes of subsection (2)(c), the “relevant day” means-

(a)

…

(b)

… 4 July 2002.”

Mr Teh renounced his Malaysian nationality in 2006, so he cannot avail himself of s.4B.

British citizens have the right of abode in the United Kingdom: Immigration Act 1971 s.2, as substituted by the BNA 1981 s.39. British Overseas citizens do not. Neither the Immigration Act 1971 nor the BNA 1981 sets out the rights of British Overseas citizens. The 14 July 2017 Home Office staff guidance on “British overseas citizens” says at p.4 simply that “British Overseas citizens are subject to UK immigration control, but are eligible for British passports and other consular services.”

Section 40 of the BNA 1981 makes provision for deprivation of citizenship. Section 40(2) enables the Secretary of State to deprive a person of a citizenship status (defined in subs.(1) and including (c) a British Overseas citizen) if satisfied that deprivation is conducive to the public good. Section 40(4) provides: “The Secretary of State shall not make an order under subsection (2) if he is satisfied that the order would make a person stateless.” Subsection (4A), inserted by the Immigration Act 2014, provides that that does not prevent the Secretary of State from making an order under subs.(2) to deprive a person of a citizenship status obtained by naturalisation and who, while having that citizenship status, has conducted himself in a manner which is seriously prejudicial to the vital interests of the UK, any of the Islands or any British Overseas territory, if the Secretary of State has reasonable grounds for believing that the person is able, under the law of a country or territory outside the United Kingdom, to become a national of such a country or territory.

The claimant was born on 1 December 1980 in Penang, of Malaysian parents. He was at birth a Malaysian citizen. He was also a Citizen of the United Kingdom and Colonies (“CUKC”) by descent from his father, who held that same citizenship by reason of his own birth in Malaysia before the country became independent on 31 August 1957. On 1 January 1983, the claimant, by the operation of s.26 of the BNA1981, ceased to be a CUKC and became instead a British Overseas citizen.

The claimant arrived in the UK on 7 February 2001 with entry clearance as a student. He was subsequently granted periods of leave to remain in that capacity until 30 June 2005. He made a number of representations seeking leave to remain on article 8 ECHR grounds, all of which were rejected, most recently on 19 August 2011.

On 6 April 2005 the claimant was issued with a British passport which gave his “nationality” as “British Overseas citizen”. That passport expired on 6 April 2015. The claimant has not renewed it. Before me, both parties disavowed the observations of the Upper Tribunal in Chin et al (former BOC/Malaysian national – deportation) [2017] UKUT 00015 at [24]-[27] that Mr Chin’s BOC status “expired” along with his BOC passport.

On 5 June 2006 at the Malaysian High Commission in London the claimant signed a “Declaration of Malaysian Citizenship Release”, stating (in translation) that “being of sound mind and also a *citizen/or will be a citizen BRITISH OVERSEAS hereby declare that I renounce my Malaysian citizenship”. The declaration was countersigned by a Malaysian official on 25 November 2006. A 28 August 2009 letter from the Main Office, National Registration Department of Malaysia to the claimant stated (in translation) at paragraph 2: “Referring to the department’s record your citizenship release was registered on 25^th November 2006 and you are no longer a citizen of Malaysia from that date.”

On 21 March 2016 the claimant made a valid application for leave to remain as a stateless person, enclosing a number of supporting documents.

On 21 June 2017 the defendant refused the claimant’s application. The decision gave three reasons for refusing the application. First, the claimant’s BOC status meant that he was not a stateless person for the purpose of paragraph 403(b) of the Immigration Rules. Second, he had voluntarily renounced his Malaysian citizenship. Third, he was admissible to Malaysia. The refusal letter stated that the supporting documents submitted by the applicant, other than those proving his identity, “have not been considered as they do not add anything to your application”.

On 5 July 2017 the claimant applied, under the Immigration Rules paragraph 34M and Appendix AR, for an administrative review. He made three points. One, relying (at that stage) on Chin, he was no longer a BOC and so was stateless. Two, he did not renounce his Malaysian citizenship voluntarily but on legal advice that this was necessary for him to obtain indefinite leave to remain in the UK. Three, referring to further supporting material, he was not admissible to Malaysia.

On 29 August 2017 the administrative review upheld the refusal decision. The review decision began by accepting, in light of Chin, that the claimant’s BOC status had expired with his passport. However, the claimant could renew his BOC passport. If he did that, he would be admissible to Malaysia, because there were procedures in place for former citizens of Malaysia holding BOC passports to enter that country and embark on a process to regain their Malaysian citizenship. The review decision expressly stated a supporting document submitted by the claimant had not been taken into account because “this [newspaper] article is not from an official source”. Accordingly, the claimant failed to satisfy paragraph 403(b), (c) and (d) of the Immigration Rules.

As mentioned above, it was common ground before me that the claimant is a British Overseas citizen and is no longer a Malaysian citizen. The two live issues before me are these. (i) Does the claimant’s British Overseas citizen status mean that he is not a stateless person for the purpose of paragraph 403(b) of the Immigration Rules? (ii) Has the claimant met the requirement of paragraph 403(c) that he is not admissible to Malaysia (there is no suggestion that he is admissible to any other country)?

Even if, which the claimant denies, he could reacquire Malaysian citizenship as of right, that would be irrelevant to paragraph 403(b). The question under both article 1 of the 1954 Convention and paragraphs 401(a) and 403(b) of the Immigration Rules is neither a historic nor a predictive exercise but falls to be answered as at the time of the decision (here 29 August 2017): Al-Jedda v Home Secretary [2013] UKSC 62 [2014] AC 253 at [32]-[34]; R (JM) v Home Secretary (Statelessness: Part 14 of HC 395) [2018] EWCA Civ 188 (“JM”) at [13]-[14], [25]-[26]. The question is whether a person “is” not considered a national by any State under the operation of its law. Accordingly, the paragraph 403(b) issue turns solely on the claimant’s status as a British Overseas citizen.

For the purposes of the 1954 UN Convention, and so for the purposes of paragraphs 401(a) and 403(b) of the Immigration Rules, “stateless person” is defined negatively as “a person who is not considered as a national by any State under the operation of its law”. The 1954 UN Convention does not contain any definition of “national”, nor does it lay down any minimum content of nationality.

Paragraph 52 of the 2014 UNHCR Handbook on Protection of Stateless Persons points out that different States use different terminology to describe “nationals”, and continues (footnotes omitted):

“…. Moreover, within a State there may be various categories of nationality with differing names and associated rights. The 1954 Convention is concerned with ameliorating the negative effect, in terms of dignity and security, of an individual not satisfying a fundamental aspect of the system for human rights protection; the existence of a national-State relationship. As such, the definition of stateless person in Article 1(1) incorporates a concept of national which reflects a formal link, of a political and legal character, between the individual and a particular State. …. As such, the treaty’s concept of national is consistent with the traditional understanding of this term under international law, that is persons over whom a State considers it has jurisdiction on the basis of nationality, including the right to bring claims against other States for their ill-treatment.

53.

Where States grant a legal status to certain groups of people over whom they consider to have jurisdiction on the basis of a nationality link rather than a form of residence, then a person belonging to this category will be a “national” for the purposes of the 1954 Convention. Generally, at a minimum, such status will be associated with the right of entry, re-entry and residence in the State’s territory but there may be situations where, for historical reasons, entry is only permitted to a non-metropolitan territory belonging to a State. The fact that different categories of nationality within a State have different rights associated with them does not prevent their holders from being treated as a “national” for the purposes of Article 1(1). Nor does the fact that in some countries the rights associated with nationality are fewer than those enjoyed by nationals of other States or indeed fall short of those required in terms of international human rights obligations. Although the issue of diminished rights may raise issues regarding the effectiveness of the nationality and violations of international human rights obligations, this is not pertinent to the application of the stateless person definition in the 1954 Convention. ”

The 2014 Introductory Note to the 1954 UN Convention by the Office of the United Nations High Commissioner for Refugees explains that:

“Since the 1954 Convention and the 1961 Convention on the Reduction of Statelessness entered into force, a series of General Assembly Resolutions and Conclusions adopted by the Executive Committee of the High Commissioner’s Programme have given UNHCR a leadership role in assisting non-refugee stateless persons as a distinct population of persons of concern. UNHCR is tasked to undertake measures to identify, prevent, and reduce statelessness, as well as to promote the protection of stateless persons.”

Turning to the operation of English law, British Overseas citizens are for at least some purposes nationals of the United Kingdom. BOC status is conferred by and under the British Nationality Act 1981. BOCs are entitled to UK passports and to UK consular services. BOCs may be deprived of their citizenship status under BNA 1981 s.40. Fransman’s British Nationality Law 3^rd Edition (2011), at section 3.5 discusses “Who are British nationals?” and concludes that BOCs are British nationals in domestic law.

However, in my judgment, the present inquiry needs to be more focussed. It may not be sufficient simply to ask whether a State (here the United Kingdom) considers a person (Mr Teh) a national by operation of its law. The answer may depend on the purpose for which the question is asked. All the more so once it is accepted that a State may by operation of its law create different categories of nationals with different rights. As Lord Hoffmann emphasised in Environment Agency v Empress Car Co (Abertillery) Ltd [1999] 2 AC 22 at 30e-g, it is always necessary to ask what is the meaning of the term in question in the specific legislative provision in question.

Here, the specific legislative provision in question is paragraph 403(b) of the Immigration Rules, in the context of Part 14 of the Rules and of the Immigration Rules as a whole. Section 3(2) of the Immigration Act 1971 requires the Rules to lay down “the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter”. Those persons include BOCs. Section 3(2) adds that “account may be taken of citizenship or nationality”. I was not shown anything in the Immigration Rules which makes specific provision for BOCs.

Part 14 of the Immigration Rules is concerned with applications for leave to remain in the United Kingdom as a stateless person. If an applicant meets the criteria in those rules, he will be granted leave to remain. This is because such a person has nowhere else to go: paragraph 403(c). Article 31 of the 1954 UN Convention states that the Contracting States shall not expel a stateless person lawfully in their territory save on grounds of national security or public order.

The 1961 UN Convention on the Reduction of Statelessness, which the United Kingdom ratified on 29 March 1966, includes a number of articles prohibiting, subject to certain exceptions, the Contracting States from rendering their own nationals stateless. In particular, article 7(1)(a) states: “If the law of a Contracting State permits renunciation of nationality, such renunciation shall not result in loss of nationality unless the person concerned possesses or acquires another nationality.” (Malaysia has ratified neither the 1954 nor the 1961 UN Conventions.)

The Immigration Acts reflect these considerations. British citizens have the right of abode: Immigration Act 1971 s.2. British Overseas citizens who have no other nationality can register as British citizens, but not if they have after the relevant day renounced, voluntarily relinquished or lost through action or inaction any citizenship or nationality: BNA 1981 s.4B. British citizens can renounce their citizenship, but only if they have, or will within 6 months acquire, some citizenship or nationality other than British citizenship: BNA 1981 s.12. The provisions of s.12 apply to British Overseas citizens as they apply in relation to British citizens: BNA 1981 s.29.

I was referred to the decision of the Australian High Court in Re Canavan et al [2017] HCA 45. This was the judgment on a number of questions referred to the Court by the Parliament on whether six senators and one member of the House of Representatives were caught by s.44 of the Australian Constitution, which provides that “any person who is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power, shall be incapable of being chosen or of sitting as a senator or member of the House of Representatives.” One of those referred was Senator Nick Xenophon, who was a British Overseas citizen. The High Court held that Senator Xenophon was not caught by s.44. The High Court, having considered expert evidence on UK law from Mr Fransman, described British citizenship under the BNA 1981 Part I as the “primary” ([118]) or “principal” ([125]) form of British nationality, and said at [131] that “under domestic British law British [O]verseas citizenship is treated as a form of nationality”. At [134] the High Court concluded (emphasis added):

“To observe that British Overseas citizenship is a juridical relationship between the individual and the United Kingdom, as Mr Fransman describes it is not to conclude that it is a relationship which for the purposes of s.44(i) renders the BOC a citizen of a foreign power. No party contended that the fact that the foreign power designates a status as that of “citizen” is determinative without consideration of the rights, privileges and obligations conferred under the law of the foreign power. The status of BOC distinctly does not confer the rights or privileges of a citizen as that term is generally understood: a BOC does not have the right to enter or reside in the United Kingdom. Critically, taking into account the purpose of s.44(i), which is to ensure that members of the Parliament do not have split allegiance, it does not appear that Senator Xenophon’s status as a BOC entailed any reciprocal obligation of allegiance to the United Kingdom per se or to Her Majesty the Queen in right of the United Kingdom.”

Mr Singh QC submits that the reasoning in [134] is also valid for paragraph 403 of the Immigration Rules: it is not sufficient simply to say that British Overseas citizenship is a form of British nationality; it is necessary also to consider the rights, privileges and obligations of a BOC. Mr Malik submits that the sentence I have italicised shows that the point was not argued and so Canavan cannot provide any support to the claimant. In my respectful view, the language of [134] indicates that the High Court was being careful to acknowledge that it had not heard the point argued out but nevertheless felt that it was safe to proceed on the premise that it was correct. Canavan is, at the least, consistent with the purposive approach which I have identified above as a canon of English statutory construction.

In my judgment, a British Overseas citizen who is not a national of any other State, and who is not under article 1(2) of the 1954 UN Convention a person to whom the Convention does not apply, is a stateless person for the purpose of paragraph 403(b) of the Immigration Rules. He has nowhere else to go. The fundamental purpose of the Immigration Rules, identified in s.3(2) of the Immigration Act 1971, is to set out who can come and stay here. A BOC who has nowhere else to go is in this context a stateless person. His BOC status is a “formal link of a political and legal character”. But that is not the test.

The other requirements of Part 14 of the Immigration Rules include paragraph 404(c), which cross-refers to paragraph 322, to which I referred at [6] above. The Secretary of State has not relied on paragraph 322 in this case. I express no opinion on whether a British Overseas citizen who renounces his only other nationality in the hope of obtaining leave to remain and ultimately settlement in the United Kingdom could lawfully be refused leave under paragraph 322(5).

On the day after the hearing of this case, the defendant filed an application to adduce additional evidence, comprising a witness statement dated 18 June 2018 from Colin Wells, a case reviewer in the Home Office Litigation Operations and Subject Access Directorate of the Home Office. This was in response to a direction that I made at the hearing, requiring the defendant to clarify the dates and current status of a number of the documents on which the defendant relies on this issue, as they were unclear from the material then before the court. To the extent that this additional evidence does that, I admit it under CPR 54.16(2)(a)(ii). However, the defendant’s application to rely on additional evidence went further than clarifying the dates and current status of the documents already before the court and included new material. Mr Singh QC objected to the admissibility of this new material. I uphold Mr Singh’s objection and refuse permission for the defendant to rely on this new material. I do so for the following reasons, which in substance reflect Mr Singh QC’s written submissions served, in compliance with my direction, on 20 June 2018.

Permission to apply for judicial review in this case was granted by Karon Monaghan QC, sitting as a deputy High Court judge, on 1 March 2018. She made the standard direction that the defendant serve her detailed grounds and any written evidence within 35 days of her order. The defendant filed her detailed grounds on 19 April 2018, and the court retrospectively granted her an extension of time for that. However, the defendant filed no written evidence.

CPR 54.16(2) provides that no written evidence may be relied on unless (a) it has been served in accordance with any (i) rule under this Section; or (ii) direction of the court; or (b) the court gives permission. Mr Singh QC submits that the relief from sanctions principles in CPR 3.9 and in Denton v TH White Ltd [2014] EWCA Civ 906 [2014] 1 3926 apply by analogy, relying on R (Hysaj) v Home Secretary [2014] EWCA Civ 1633 [2015] 1 WLR 2472. I am not sure about that. The wording of CPR 54.16(2)(b) is on its face neutral. I am reluctant to decide such a point raised only in post hearing submissions unless it is necessary to do so, and I do not think it is necessary to do so here. That is because in my view, even if the Denton principles do not apply, either directly or by analogy, the overriding objective in CPR 1.1 undoubtedly does. The new material (by which I mean the material that does beyond clarifying the dates and current status of documents already before the court) consists of evidence which the defendant served in the case of R (Ku) v Home Secretary [2013] EWHC 3881 (Admin), extracts from Hansard, correspondence between the UK and Malaysian authorities in 2011 and a Malaysian newspaper article dated 4 April 2014. This last item is, as Mr Singh points out, ironic, for it is the same newspaper article which the claimant submitted in support of his own application and which the defendant’s refusal letter said had not been taken into account because it did not emanate from an official source (paragraphs 23 above and 56(b) below refer). All this material has long been available to the defendant. There is no good reason why the defendant did not serve this new evidence earlier. To admit is now, would lead to cost and delay, for the claimant would need an opportunity to respond to it. The new material is far from decisive, not least because it is several years old. My refusal to admit this evidence in the present case does not prevent the defendant from adducing the material in another case, if she thinks that it is significant. In these circumstances, to admit it would in my judgment be contrary to each of paragraphs (b)-(f) of CPR 1.1(2).

I can now turn to the merits of the paragraph 403(c) issue. The claimant accepts that the onus is on him to satisfy the requirements of paragraph 403. Specifically, the onus is on him to show that he is not admissible to Malaysia or to any other country.

In JM the Court of Appeal held at [13]-[23] that, for the purpose of paragraph 403(c), an applicant was “admissible” to another county “if it lay within his power to obtain admission”. In other words, paragraph 403(c) incorporates a requirement that the applicant take such steps as are reasonably open to him to secure his admissibility. The applicant cannot sit on his hands and say that, without more, he will not be admitted to the country. Applied to the facts of that case, Mr JM was admissible to Zimbabwe because he could acquire Zimbabwean citizenship as of right by registration.

There was some debate before me as to whether this court’s review of the defendant’s decision under s.403(c) was a Wednesbury review or a question of precedent fact. In R (JM) v Home Secretary (Statelessness: Part 14 of HC 395) [2015] UKUT 676 (IAC) the Upper Tribunal held at [38] that the test was whether the decision was one open to the Secretary of State, bearing in mind the need for particularly close scrutiny. That was not a live issue when that case went to the Court of Appeal. The Upper Tribunal’s approach seems to me to be correct and in accordance with the decision of the Court of Appeal in R (Giri) v Home Secretary [2015] EWCA Civ 784 [2016] 1 WLR 4418.

As paragraph 403(c) requires the applicant to prove a negative, it is convenient to begin by looking at the admissible material on which the defendant relies to show that the claimant is admissible to Malaysia.

Attached to Mr Malik’s skeleton argument is an undated redacted document headed “Returns Logistics guide to travel documents for removal to Malaysia”. The unredacted portion reads:

“4.

British Overseas Citizen (BOC)

Many British Overseas citizens (BOCs) have renounced (given up) their Malaysian citizenship on the incorrect assumption that they would be able to remain in the UK. You must not attempt to remove a person to Malaysia on a BOC passport without consulting RL Country Liaison and Documentation Team 5.

The Malaysian authorities are accepting the voluntary returns of BOCs if the person is willing to regain their citizenship and has:

Voluntary BOC Criteria

•

Subject must be willing to return to Malaysia voluntarily

•

Subject possesses an original BOC passport which has a minimum of five years validity remaining

•

If the subject has less than five years validity on their BOC passport they must be willing to reapply and pay a fee for a new BOC passport to HMPO (Her Majesty’s Passport Office)

•

Subject must be willing to attend a face to face interview at the Malaysian High Commission in London

•

Upon arrival in Malaysia the subject must pay a fee of 600RM (£120) for the residence pass.”

(Mr Malik’s skeleton argument at paragraph 37 footnote 2 says “The Secretary of State’s Removal Unit will liaise on the applicant’s behalf with the Malaysian High Commission to set up the applicant’s interview with them to begin the procedure.”) Paragraph 5 of Mr Wells’ witness statement, and a screen shot from the Horizon Home Office intranet, state that this document is currently in force, and was so in August 2017, the date of the decision under challenge in these proceedings. I accept that the document is current. Mr Singh QC says that there is no evidence of anyone being successfully returned to Malaysia in reliance on the procedure it describes. That is true. But equally there is no evidence before me that the Malaysian authorities behave inconsistently with it.

This document needs to be read with a number of other documents.

First, a letter dated 15 July 2011 from the Senior Deputy Secretary General of the Malaysian Ministry of Home Affairs to the Deputy British High Commissioner to Malaysia, headed “Issues of Malaysian Nationals Holding British Overseas Citizen Status”, begins with an assurance of Malaysia’s “fullest cooperation towards resolving this longstanding issue”. The letter continues:

“…. We would ensure that every application received from BOC holders applying for Malaysian citizenship would be given serious consideration.

In this relation, I would like to reiterate that BOC holders who have applied for the citizenship status would have to go through the normal processes as stipulated in the Malaysian Federal Constitution.

The applications would need to be accompanied by solid documentary evidences as proof that they were previously Malaysian nationals.

With regards to the removal of BOC holders who have no right to remain in the UK, the Government of Malaysia would be in a position to accept the removal of such persons provided that they would be determined previously to be Malaysian nationals. In such cases, it is of paramount importance for the UK authorities to give ample prior notification as well as sufficient time frame to the Malaysian authorities.”

Next, a letter from the then Minister of Immigration, Damian Green MP, to Simon Hughes MP, headed “Former Malaysian Citizens (BOCs) now resident in the United Kingdom”. The copy in the court bundle is undated. However, Ex.7 to Mr Wells’ statement is a copy with the stamped date “01 Dec 2011”. I accept that this letter was sent on that date. The letter includes the sentence: “The process we will be finalising with the High Commission is in relation to specific visa arrangements for voluntary return to then enable reacquisition of citizenship from within Malaysia under a process specified by the Malaysian government.”

Next, a letter from the then Minister of Immigration, Mark Harper MP, to Lord Avebury, which included the following:

“Your first point concerns the lack of an agreed and established process by which Malaysian BOCs may return voluntarily to their homeland. As outlined in previous correspondence, written confirmation has been secured from the Malaysian Ministry of Foreign affairs [sic] whereby it has been agreed in principle that former Malaysian citizens who have renounced their citizenship in error, will be allowed to return to their country of origin. Furthermore, that agreement also extends to such Malaysians being able to take steps to resume their citizenship. The actual process to bring this agreement into effect is still the subject of ongoing discussions with the Malaysian authorities but is very close to completion. Indeed we expect to finalise this within the next few weeks, the only outstanding point being the document that would act in place of a BOC passport should the individual returning to Malaysia not have a valid one at the time of return. What is already agreed therefore is that a BOC, on return, will be able straightaway to apply for (and be granted) a 5 year Resident Pass which can then be renewed if Malaysian citizenship has not been granted during the period of its initial validity.”

Paragraph 17 of Mr Wells’ statement says that this letter was written in October 2012 but was not in fact sent. Mr Wells adds: “The contents of this letter, nevertheless, represent what was discussed face to face between the Immigration Minister and Lord Avebury on 5 February 2013.” It is, to put it mildly, unsatisfactory that this explanation should be given only at this late stage. However, the content is consistent with the other admissible documents on which the defendant relies, and to that extent I consider that I can place some weight on it.

In section 3 of his application for administrative review, the claimant said: “It is correct to suggest that BOC national can return to Malaysia and will be given residence pass. However, as mentioned above our client’s BOC status has already lapsed on 5^th April 2015 and therefore he will not be able to return and gain residence pass. …. Whilst it is the case that a BOC may be able to get into Malaysia they will not be able to obtain citizenship without trying to mount a legal challenge at considerable cost.” It will be recalled that the claimant was at that stage contending, in reliance on Chin, that his BOC status lapsed with the expiry of his BOC passport.

In the Parliamentary debates on the Bill that became the Immigration Act 2014, Lord Avebury said (Hansard 12 May 2014 col.1679) that he had been informed that very morning, in an email from the office of the then Immigration Minister, James Brokenshire MP, that there was no written agreement with the Malaysian authorities on this process, but only guidelines. A letter dated 11 June 2018 from the Home Office to the claimant in reply to his Freedom of Information Act 2000 request stated: “There is no written agreement between the UK and the Malaysian Government regarding British Overseas Citizens who no longer have Malaysian citizenship.”

The claimant submits that these documents simply do not show that he and persons similarly situated will be admitted to Malaysia. They provide no evidence that the process they describe actually works. The claimant further submits that, even if he would be allowed into Malaysia, he is unlikely to be able to reacquire Malaysian citizenship.

The claimant relies on the following material.

The claimant also relies, though it was not part of the supporting documentation submitted with his application, on a further passage from the speech of Lord Avebury to which I referred at [50] above, quoting the Malaysian Home Minister as saying on 11 April (the year is not given) that “the Government will not give automatic citizenship to any Malaysians who have renounced citizenship and as an alternative … they will have to be re-examined and may be granted resident pass only …. This is because among those people are some who ripped up their passport while abroad, who hold hatred towards this country …. Some of them stabbed our country in the back.”

In my judgment, the material on which the claimant relies, even taken at its highest, contains nothing to suggest, let alone prove, that the process described in the defendant’s documents is not actually working. On the contrary, it indicates that it is. The claimant’s material goes to a different point, namely the reacquisition of Malaysian citizenship. I am prepared to accept that the reacquisition of Malaysian citizenship by persons in the position of the claimant is not a formality but is subject to obtaining the approval of the Federal Government. But that does not mean that the claimant and others similarly situated are not admissible to Malaysia.

I therefore find that the defendant’s decision that the claimant has failed to satisfy paragraph 403(c) of the Immigration Rules was correct in law. That is my conclusion both on a Wednesbury basis and as a matter of precedent fact.

The defendant’s decision also found that the claimant failed to satisfy the criterion in paragraph 403(d). Paragraph 403(d) refers back to paragraph 403(b). The Court of Appeal in JM said at [24]:

“There is a further difficulty with the wording of 403. 403(d) requires a claimant to “[obtain and submit] all reasonable available evidence to enable the Secretary of State to determine whether they [sic] are stateless”. As regards the fulfilment of 403(b), well and good. But as [counsel for Mr JM] accepted it must also be open to a claimant (and indeed the Secretary of State – consistently with the 403 burden being always on the claimant) to adduce evidence, where it is required, in relation to 403(c). The point is not contentious, but it would be better if the Rule made the position clear.”

I respectfully agree. The Immigration Rules “are not to be construed with all the strictness applicable to the construction of a statute or a statutory instrument but, instead, sensibly according to the natural and ordinary meaning of the words used, recognising that they are statements of the Secretary of State administrative policy”: Mahad v Entry Clearance Officer [2009] UKSC 16 [2010] 1 WLR 48 at [11]. But that does not detract from the desirability of clear and accurate drafting.

This challenge to the defendant’s decision to refuse the claimant leave to remain under paragraph 403 of the Immigration Rules therefore fails.

Mr Singh QC submitted that I should nonetheless grant a declaration that the claimant is a stateless person. I decline to do so. Such a declaration would not add to what is contained in my judgment. And an abstract declaration as to status is particularly inappropriate when, as here, it is sought to be proof of a negative.