Teh v Secretary of State for the Home Department

For the purposes of paragraph 403(b) of the Immigration Rules, a British Overseas citizen who holds no other nationality may be a stateless person. The question is assessed at the date of the Secretary of State’s decision and in the context and purpose of Part 14. A formal nationality link with the United Kingdom is not conclusive where the person has no right of abode and nowhere else to go. Under paragraph 403(c), admissibility includes the practical ability to obtain admission. An applicant must take reasonably available steps to secure admission and bears the burden of proving that he is not admissible. Whether the Secretary of State’s decision is lawful may be examined on a heightened Wednesbury basis or as a question of precedent fact.

The claimant was a British Overseas citizen who had renounced his Malaysian citizenship. He applied for limited leave to remain as a stateless person under Part 14 of the Immigration Rules. The Secretary of State refused the application on the grounds that he remained a British Overseas citizen, was admissible to Malaysia, and had not submitted all reasonably available evidence.

Following administrative review, the claimant sought judicial review. The live issues were whether his British Overseas citizenship prevented him from being stateless for paragraph 403(b), and whether he was admissible to Malaysia for paragraph 403(c).

1. Judicial review claim dismissed. The claimant was not entitled to a declaration of statelessness. An abstract declaration would add nothing to the judgment and was particularly inappropriate where it was sought to prove a negative.
2. Whether a person is stateless under Article 1(1) of the 1954 United Nations Convention relating to the Status of Stateless Persons, and paragraphs 401(a) and 403(b) of the Immigration Rules, is determined at the date of the decision. It is neither a historic nor a predictive inquiry: Al-Jedda v Home Secretary [2013] UKSC 62; R (JM) v Home Secretary (Statelessness: Part 14 of HC 395) [2018] EWCA Civ 188.
3. Although British Overseas citizenship is a formal political and legal link with the United Kingdom, the meaning of nationality must be assessed in the particular statutory and rule-based context. Part 14 concerns persons who have nowhere else to go. A British Overseas citizen without another nationality is therefore a stateless person for paragraph 403(b), provided that Article 1(2) does not exclude him.
4. For paragraph 403(c), the applicant bears the burden of proving that he is not admissible to any country. A person is admissible where it lies within his power to obtain admission, including by taking reasonably available steps to secure it. The claimant’s reacquisition of Malaysian citizenship was not a formality, but the evidence showed that he could enter Malaysia through the procedure available to British Overseas citizens and obtain a residence pass while pursuing reacquisition. He was therefore admissible to Malaysia.
5. The court accepted the defendant’s additional evidence only so far as it clarified the dates and current status of documents already before the court. New material available long before the proceedings was excluded. Even if the principles in Denton v TH White Ltd [2014] EWCA Civ 906 did not apply directly or by analogy to CPR 54.16(2), the overriding objective in CPR 1.1 applied and favoured exclusion.
6. Paragraph 403(d) requires evidence enabling the Secretary of State to determine both statelessness and, where necessary, admissibility. The claim nevertheless failed because the claimant had not satisfied paragraph 403(c).

Not stated in the judgment. The decision was a first-instance judicial review determination in the Administrative Court.