MK (A Child By Her Litigation Friend CAE), R (On the Application Of) v The Secretary of State for the Home Department

For the purposes of paragraph 3 of Schedule 2 to the British Nationality Act 1981, statelessness concerns whether a person actually has a nationality. The mere ability to acquire nationality by application does not prevent a person from being stateless. A child born outside India to an Indian parent does not acquire Indian nationality through entitlement alone where Indian law requires registration of the birth. Procedural requirements for proving entitlement to British citizenship must remain flexible. The Secretary of State cannot insist on evidence which is practically impossible to obtain where alternative evidence may establish the statutory conditions.

The claimant, a child born in the United Kingdom to Indian parents, applied for registration as a British citizen under paragraph 3 of Schedule 2 to the British Nationality Act 1981. The Secretary of State refused the application. The claim was issued initially in the Upper Tribunal and transferred to the Administrative Court. The principal issue was whether the claimant was, or had always been, stateless, including whether she was an Indian national under Indian law. A further issue concerned the lawfulness of requiring confirmation from Indian authorities that her birth had not been registered.

1. The claim was allowed and the refusal decision was quashed. The claimant was entitled to registration if she established the requirements of paragraph 3 of Schedule 2 to the British Nationality Act 1981.

2. Indian law was a matter of fact requiring evidence. The court could consider non-expert evidence about the operation of Indian nationality law where the statutory text was agreed, the evidence was unchallenged and the material was sufficient to support factual findings.

3. For the statutory provisions in issue, stateless meant having no nationality. The ability to acquire nationality by application was irrelevant. The court treated Al-Jeddah v SSHD [2013] UKSC 62 as binding on the meaning and operation of statelessness under the 1981 Act, and applied its reasoning across the relevant provisions.

4. Under the Indian law established on the evidence, a child born outside India after 3 December 2004 to an Indian parent did not become an Indian national unless the birth was registered at an Indian consulate. Permission for late registration was, in practice, routine and administrative rather than discretionary. Thus, potential acquisition of Indian nationality did not prevent the claimant from being stateless.

5. The Secretary of State could require an applicant to prove the facts establishing statutory entitlement, with an appropriate degree of certainty. However, she could not impose an inflexible requirement for confirmation from Indian authorities where that evidence might be impossible or practically impossible to obtain. Alternative evidence, including sworn parental statements and consular material, had to be considered. The refusal to allow such flexibility was unreasonable and unlawful.

6. Submissions based on article 8 of the ECHR and the best interests of the child would separately have failed. They were general, unsupported by evidence of individual circumstances, and did not establish that citizenship, rather than immigration status, was required.

The proceedings were commenced in the Upper Tribunal on 17 August 2016 and transferred to the High Court on 14 September 2016. Permission was granted and the Administrative Court allowed the claim, quashing the Secretary of State’s decision.