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

For the purposes of paragraph 403(c) of the Immigration Rules, a person is not admissible to another country only where admission cannot be obtained. Where admission lies within the claimant’s power, for example through a registration process conferring nationality, the claimant is admissible unless evidence shows otherwise. The requirement is assessed at the date of decision and operates cumulatively with recognition as a stateless person under paragraph 403(b). A claimant cannot obtain leave to remain by deliberately declining an available step which would secure admission to another country.

The appellant, a child born in the United Kingdom to a Zimbabwean mother and Portuguese father, applied for leave to remain as a stateless person under paragraph 403 of the Immigration Rules. His birth had not been registered in Zimbabwe, although registration was in principle available and would confer Zimbabwean citizenship. The Secretary of State refused the application, treating him as Zimbabwean. The Upper Tribunal dismissed his judicial-review claim: [2015] UKUT 676 (IAC).

After the decision was withdrawn and a redetermination proposed, the Court of Appeal proceeded because the interpretation of paragraph 403(c) raised an issue of public importance. The central questions were whether the appellant was admissible to Zimbabwe and whether the Secretary of State had properly approached paragraphs 403(b) and (d).

1. Appeal dismissed. The court proceeded to determine the issue notwithstanding withdrawal of the decision under challenge, because the proper interpretation of paragraph 403(c) was of public importance.
2. Paragraph 403(b) substantially reflects paragraph 401 and the definition in article 1(1) of the 1954 United Nations Convention relating to the Status of Stateless Persons. Recognition is not a matter of unrestricted choice where it is clear that the applicant is not considered a national by any state under the operation of its law. On the evidence available by the time of the Upper Tribunal hearing, the appellant should have been recognised as stateless. The respondent’s argument under paragraph 403(d) also fell away so far as it concerned the position before the Upper Tribunal.
3. The requirements in paragraph 403 are cumulative. A person who satisfies paragraph 403(b) must still show that he is not admissible to his former habitual-residence country or any other country.
4. Paragraph 403(c) is satisfied by the approach adopted by the Upper Tribunal and the respondent. If it lies within the claimant’s power to obtain admission, here by registering the birth so as to acquire Zimbabwean citizenship, the claimant is admissible in the absence of evidence to the contrary. The rule does not permit a claimant to create eligibility through inactivity or refusal to complete an available registration process.
5. The question is assessed at the date of decision. The Secretary of State may postpone a decision, or the Upper Tribunal may adjourn proceedings, to clarify the position. Paragraph 405 does not permit a different construction by granting a shorter period of leave in a supposedly fragile case.
6. The Supreme Court’s decision in Al-Jedda [2014] AC 253 did not assist and played no part in the oral argument. The court also noted drafting deficiencies in paragraphs 403(c) and (d), including the need for paragraph 403(d) to make clear that reasonably available evidence may concern admissibility as well as statelessness.

• Court of Appeal (Civil Division): Appeal from the Upper Tribunal’s decision of 18 November 2015. The appeal was dismissed.
• Upper Tribunal (Immigration and Asylum Chamber): Judicial-review claim dismissed: [2015] UKUT 676 (IAC).
• Secretary of State: The original refusal was withdrawn after permission to appeal, with a redetermination proposed.