JM, R (on the application of) v Secretary of State for the Home Department (Statelessness: Part 14 of HC 395) (IJR)

Factual and Procedural Background

This opinion concerns an application for judicial review of a decision dated 27 May 2014 by the Respondent refusing to recognise the Applicant, a child born in the United Kingdom on 20 March 2013 to a Zimbabwean mother and a Portuguese father, as a stateless person under Part 14 of the Immigration Rules (HC 395). The father refused to assist in registering the child as a Portuguese citizen. The Applicant’s representatives argued that the child was stateless because registration was required under Zimbabwean and Portuguese law to obtain citizenship by descent, but the father’s refusal and the mother’s immigration status prevented this. The Respondent decided that the child was not stateless, reasoning that the child was entitled to Zimbabwean nationality upon registration of birth and that the mother could return to Zimbabwe with the child. Permission for judicial review was initially refused on the papers but subsequently granted on oral renewal.

Legal Issues Presented

1. Whether the Respondent’s decision that the Applicant is not stateless was lawful and consistent with the definition of statelessness under Article 1(1) of the 1954 United Nations Convention relating to the Status of Stateless Persons and Part 14 of the Immigration Rules (HC 395).
2. The proper interpretation of the requirement in paragraph 403(b) of HC 395 that an applicant must be "recognised" as stateless by the Secretary of State.
3. The meaning and application of the requirement in paragraph 403(c) that the applicant is "not admissible" to any other country.
4. The appropriate standard and intensity of judicial review applicable to decisions under the Immigration Rules in the context of statelessness claims.
5. The evidential obligations placed on applicants under paragraph 403(d) to submit all reasonably available evidence to enable the Secretary of State to determine statelessness.

Arguments of the Parties

Appellant's Arguments

• The Applicant is stateless because, although entitled to citizenship by descent under Zimbabwean and Portuguese law, registration is a mandatory constitutional requirement that had not been fulfilled, and the father refused to assist with Portuguese registration.
• The determination of nationality must be made at the time of decision, not prospectively, consistent with UNHCR guidance and domestic Home Office guidance, both incorporated into the Immigration Rules and cited in the Supreme Court decision in Secretary of State for the Home Department v Al-Jedda.
• The term "recognised" in paragraph 403(b) should be interpreted objectively and consistently with the ordinary meaning, not as a subjective discretion allowing the Secretary of State to deny recognition arbitrarily.
• A greater intensity of judicial review is appropriate given the Tribunal’s institutional expertise and the constitutional importance of compliance with international obligations regarding stateless persons.
• The requirement that the Applicant be "not admissible" under paragraph 403(c) should not be conflated with the acquisition of nationality; admissibility refers to returnability to another country, and there was no evidence that the Applicant was admissible to Zimbabwe given the registration requirement and the mother’s undocumented status.
• The Applicant had made reasonable efforts to obtain evidence from the Zimbabwean authorities, fulfilling the obligation under paragraph 403(d).
• The Secretary of State’s refusal to recognise the Applicant as stateless was legally flawed and inconsistent with the statutory and international framework.

Respondent's Arguments

• The Respondent’s decision is subject to Wednesbury rationality review, limiting the scope of challenge to whether the decision was irrational on the material before the decision-maker.
• The Applicant had to satisfy not only that he was stateless but also that there were good reasons to be recognised as such for the grant of leave, as set out in Mahad and the Immigration Rules.
• The use of the word "recognised" in paragraph 403(b) implies a discretionary judgment by the Secretary of State, distinguishing it from asylum provisions and preventing abuse of the Rules.
• Paragraph 403(c) requires the Applicant to be not admissible to any other country, which includes the right to be admitted to Zimbabwe upon registration, thus the Applicant was admissible.
• Paragraph 403(d) imposes a burden on the Applicant to provide all relevant evidence, which was not sufficiently met as the expert report was not before the decision-maker.
• The refusal was correct on the cumulative effect of the provisions of Part 14 of the Immigration Rules and the evidence before the Respondent.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by setting out the relevant provisions of the Immigration Rules (Part 14), the 1954 Stateless Persons Convention, and the Zimbabwean Constitution regarding citizenship by descent and registration requirements. It acknowledged the international and domestic legal framework governing statelessness and the importance of compliance with the Convention.

The court distinguished the statutory context of the Supreme Court decision in Al-Jedda, which concerned deprivation of citizenship under section 40 of the British Nationality Act 1981, from the judicial review context of decisions under the Immigration Rules. It noted that the Immigration Rules provide an administrative mechanism for statelessness claims, which the Secretary of State is empowered to apply.

Regarding the standard of review, the court agreed that a greater intensity of scrutiny is appropriate in statelessness cases due to the Tribunal’s expertise and the constitutional importance of the issues, but this must be balanced against the Wednesbury standard applicable to decisions under the Immigration Rules.

The court analysed the meaning of "recognised" in paragraph 403(b) and concluded that it is tied closely to the definition of statelessness in paragraph 401 and Article 1(1) of the Convention. It rejected the notion that the Secretary of State has unfettered discretion to refuse recognition where the person is clearly stateless under the law.

However, the court found that the requirements in paragraph 403 are cumulative. Even if the Applicant is recognised as stateless, paragraph 403(c) requires that the Applicant must not be admissible to any other country. The court interpreted "admissible" as including entitlement to nationality, not just physical presence or visa status. Since the Applicant is entitled to Zimbabwean nationality upon registration of birth, he is considered admissible to Zimbabwe.

The court acknowledged the obligation under paragraph 403(d) for the Applicant to provide all reasonably available evidence. It found that the Applicant had fulfilled this by contacting the Zimbabwean authorities and attempting to ascertain the position under the Constitution.

Balancing these factors, the court concluded that the Respondent was entitled to refuse leave under paragraph 403(c) because the Applicant was admissible to Zimbabwe. The decision was lawful and consistent with the Immigration Rules and the Convention.

Holding and Implications

The court REFUSED the application for judicial review, upholding the Respondent’s decision to refuse to recognise the Applicant as a stateless person for the purposes of limited leave to remain under Part 14 of the Immigration Rules.

The direct effect is that the Applicant’s claim to statelessness status is denied, and no limited leave to remain as a stateless person is granted. The court did not establish any new legal precedent but clarified the interpretation of the Immigration Rules in the context of statelessness claims, particularly the cumulative nature of the requirements and the meaning of "recognised" and "admissible".