Soo Thoon Chin & Anor v The Secretary of State for the Home Department

A deportation decision is unlawful where the Secretary of State fails to consider and give effect to relevant published policies governing removal to the proposed receiving state. This duty includes applying the Lumba principle and considering whether inter-state arrangements apply to the individual concerned.

A decision must also rest on an accurate and current assessment of the person’s nationality status. A bare assertion that a person is a British national, despite the absence of that status and without addressing whether the statutory definition of statelessness is met, cannot lawfully support deportation.

The first appellant, formerly a Malaysian national and a British Overseas Citizen, appealed against a decision to deport him to Malaysia following conviction and imprisonment. The second appellant was his wife.

The First-tier Tribunal initially allowed the appeals on a procedural basis. That decision was set aside and the appeals were remitted. A differently constituted First-tier Tribunal then dismissed them, finding that the first appellant was not stateless and that deportation was compatible with article 8.

Permission was granted because it was arguable that the tribunal had failed to address whether a British Overseas Citizen could be stateless and the effect of that issue on deportation. The central issue was whether the Secretary of State had lawfully assessed the appellant’s nationality, statelessness and the relevant arrangements with Malaysia.

1. Appeal allowed. The First-tier Tribunal’s decision was set aside because the Secretary of State’s deportation decision was unsustainable in law. No further fact-finding hearing was required.

2. The Secretary of State’s reliance on section 40 and Schedule 2 of the British Nationality Act 1981 was misconceived. This was neither a deprivation-of-citizenship case nor one in which place of birth and its statutory consequences formed part of the decision-making process.

3. The decision-maker had failed to address material changes and matters central to lawful deportation. The appellant had ceased to be a Malaysian national in 2006. His British Overseas Citizen passport and status had expired in 2015. The later assertion that he was a British national without a right of abode was legally unsustainable and did not properly assess statelessness under article 1(1) of the United Nations Convention relating to the Status of Stateless Persons.

4. Most importantly, the Secretary of State had not considered, still less applied, the relevant policies and governmental arrangements concerning former Malaysian nationals and British Overseas Citizens. Those arrangements potentially permitted a voluntary returner to obtain residence authorisation leading to reacquisition of Malaysian citizenship. There was no evidence that their applicability to the appellant, or the steps required under them, had been considered.

5. That failure breached the public-law duty to apply relevant policy consistently, in accordance with Lumba v SSHD [2011] UKSC 12. The Secretary of State must reconsider the history of decisions and position statements and make a fresh lawful decision guided by the Tribunal’s judgment. A whole fee award was made.

• Upper Tribunal (Immigration and Asylum Chamber): allowed the appeal, set aside the First-tier Tribunal’s dismissal, and held that the Secretary of State’s deportation decision was unlawful: [2017] UKUT 15 (IAC).
• First-tier Tribunal: on 23 January 2015 dismissed the appeals, finding that the first appellant was not stateless and that deportation was compatible with article 8.
• Upper Tribunal: on 4 June 2014 set aside an earlier First-tier Tribunal decision of 10 April 2014, which had allowed the appeals solely because of non-compliance with case-management directions, and remitted the appeals for a fresh hearing.