JM, R (on the application of) v The Secretary of State for the Home Department

The requirements in paragraph 403 of HC 395 for leave to remain as a stateless person are cumulative. Recognition as stateless under paragraph 403(b), read with paragraph 401 and article 1(1) of the Stateless Persons Convention, does not by itself establish entitlement to leave.

For paragraph 403(c), a person may be admissible to a country if they are entitled under its law to acquire that country’s nationality by completing a required registration process. The provision is not confined to persons who already hold that nationality. A decision under the Immigration Rules is reviewable on public law principles. The context may require close scrutiny, but it does not convert the challenge into a statutory appeal or displace the Rules’ terms.

The applicant was a child born in the United Kingdom to a Zimbabwean mother and a Portuguese father. The Secretary of State refused his application for leave to remain as a stateless person under Part 14 of HC 395.

The applicant contended that he was not a national of any state at the date of decision. He relied on the requirement under the Constitution of Zimbabwe that the birth of a child born outside Zimbabwe be registered before citizenship by descent arose. The Secretary of State considered that the child could be registered as a Zimbabwean citizen and was therefore not stateless or, alternatively, was admissible to Zimbabwe.

The Upper Tribunal considered the correct intensity of judicial review and the meaning of recognition and admissibility in paragraph 403. The central issue was whether entitlement to acquire Zimbabwean nationality through registration meant that the child was admissible to Zimbabwe.

1. The application for judicial review was refused. The Secretary of State was entitled to conclude that the applicant had not met paragraph 403(c) of HC 395, because he was admissible to Zimbabwe.

2. A decision under the Immigration Rules remains subject to public law review. The Tribunal accepted that the subject matter justified closer scrutiny than might ordinarily be applied. That scrutiny nevertheless had to reflect that the impugned decision was made under administrative rules, rather than under a statutory provision conferring an appeal on the merits: Secretary of State for the Home Department v Al-Jedda [2013] UKSC 62 did not govern the construction or application of Part 14.

3. The Rules were to be construed sensibly and according to their natural and ordinary meaning, in their policy context. Paragraph 403(b) is closely connected to paragraph 401. Where a person clearly satisfies article 1(1) of the Stateless Persons Convention, the word recognised does not confer an arbitrary power to refuse recognition.

4. However, paragraph 403 imposes cumulative requirements. A person recognised as stateless must also show that they are not admissible to their country of former habitual residence or any other country. In paragraph 403(c), admissible extends to a person who is entitled to become a national of the country by taking the legally required step of registering their birth. It is not restricted to those already holding that nationality.

5. On the applicant’s own case, he was entitled to Zimbabwean nationality upon registration of his birth. It was therefore reasonably open to the Secretary of State to find that he was admissible to Zimbabwe. The Tribunal considered that he had obtained and supplied the reasonably available evidence for paragraph 403(d), but that conclusion could not overcome his failure under paragraph 403(c).

• Upper Tribunal (Immigration and Asylum Chamber): Judicial review of the Secretary of State’s refusal dated 27 May 2014 was refused in [2015] UKUT 676 (IAC).

• Permission to apply for judicial review was initially refused on the papers and granted on oral renewal by Judges Allen and Arfon-Jones.