Ku, R (On the Application Of) v The Secretary of State for the Home Department

Removal directions for a person who is not a national of the destination country are lawful under regulation 4(2)(ii) of the Immigration (Removal Directions) Regulations 2000 where the Secretary of State has a rational basis for believing that the person will be admitted. A formal assurance from the destination government may provide that basis, even though the detailed mechanism for admission or restoration of nationality remains unresolved. Administrative policies must be assessed by reference to the material available when the decision was made. Under the “limbo policy”, the applicant bears the practical burden of providing clear evidence of non-returnability and of taking reasonable steps to test returnability.

The claimant was a British Overseas Citizen who had renounced his Malaysian citizenship. The Secretary of State directed his removal to Malaysia after receiving a Malaysian government assurance that former Malaysian nationals holding British Overseas Citizen status could be accepted, subject to prior notification and sufficient time. Malaysia nevertheless refused the claimant entry and returned him to the United Kingdom.

The claimant challenged the lawfulness of his removal and the Secretary of State’s decisions under the “limbo policy”, which concerned discretionary leave for persons who genuinely had nowhere to go. The central issues were whether there was reason to believe that the claimant would be admitted to Malaysia and whether the later evidence established clear non-returnability.

1. Removal. The removal directions were governed by regulation 4(2)(ii) of the Immigration (Removal Directions) Regulations 2000, because the claimant was no longer a Malaysian citizen. The Secretary of State had to have reason to believe that he would be admitted to Malaysia.
2. The Malaysian government’s letter of 15 July 2011 gave an unqualified assurance that Malaysia would accept the removal of former Malaysian nationals holding British Overseas Citizen status, provided that prior notification and sufficient time were given. That assurance supplied a rational basis for the required belief. Later correspondence about the practical process for restoring citizenship did not dilute it.
3. The relevant enforcement guidance did not require an application for entry clearance where the Malaysian High Commission was not authorised to issue it and the case was covered by a formal assurance from the Malaysian government. The removal was therefore lawful.
4. Limbo policy. The legality of the Secretary of State’s decisions had to be assessed on the material available when they were made. The Administrative Court should not conduct a rolling review by relying on later, untested evidence.
5. The claimant had produced no letter confirming non-returnability, had not applied for a Malaysian visa, had not attempted voluntary entry, and had not made a formal attempt to regain Malaysian citizenship. The available evidence instead confirmed that former Malaysian citizens could return and begin that process. The Secretary of State was therefore entitled to conclude that the claimant had not established clear non-returnability and should not receive discretionary leave.
6. The judicial review claim was dismissed. The lawfulness of detention did not arise because the challenge to removal failed.

The judgment was a first-instance judicial review decision. The claimant had previously obtained permission to challenge the removal and the application of the “limbo policy”; no appeal decision is stated.