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

For paragraph 403(c) of the Immigration Rules HC 395, a stateless person is admissible to another country where they may lawfully enter and lawfully reside there. The term requires more than physical entry, but it does not require lawful permanent residence.

Immigration Rules are construed according to their natural and ordinary meaning in their relevant policy context. Published guidance may assist only where there is genuine ambiguity; it cannot displace the Rules. The Statelessness Convention informs paragraph 403, but does not require a contracting state to grant permanent residence or citizenship. On judicial review, the Secretary of State may lawfully address a contention in administrative review, and a rational finding that the claimant may lawfully and permanently reside abroad defeats the claim in any event.

The applicant, a stateless person born in Kuwait, applied for leave to remain as a stateless person. She relied on the loss of Kuwaiti nationality, difficulties accessing civil rights, and her asserted inability to return safely and lawfully to Kuwait.

The Secretary of State refused the application on 24 July 2019. Although the applicant was accepted to be stateless, the Secretary of State found that her valid Kuwaiti Article 17 travel document and travel history showed that she remained admissible to Kuwait. The refusal was upheld on administrative review.

In this judicial review, the applicant contended that paragraph 403(c) required admission for lawful and permanent residence, rather than merely entry. The central issue was the meaning of admissible in paragraph 403(c) of the Immigration Rules HC 395.

1. The claim was dismissed. Paragraph 403(c) requires an applicant to show that they are not admissible to their country of former habitual residence or another country. Construed sensibly and in its ordinary meaning, admissibility means the ability to enter and reside lawfully. It is more than physical arrival or unlawful entry, because admission depends on permission from the relevant authorities.

2. The word does not, however, incorporate a requirement for permanent residence. Neither the wording nor the natural meaning of paragraph 403(c) supports that additional condition. The earlier nationality cases, including JM (Zimbabwe) v SSHD [2018] EWCA Civ 188, did not settle that distinct question. They concerned applicants able to obtain nationality, with the accompanying rights of nationals.

3. The Tribunal applied the ordinary approach to construction stated in Mahad v ECO [2009] UKSC 16. Guidance cannot ordinarily determine the meaning of the Rules, although it may assist where there is genuine ambiguity. The contemporaneous policy guidance was itself inconsistent in referring variously to residence and permanent residence. The explanatory memorandum did not show that paragraph 403(c) meant admission for permanent residence.

4. Paragraph 403 must give effect to the Convention relating to the Status of Stateless Persons 1954, consistently with R (on the application of Semeda) v SSHD [2015] UKUT 00658 (IAC). But the Convention establishes minimum standards and core rights. It does not oblige contracting states to grant permanent residence or citizenship. Paragraph 403(c), so construed, was not contrary to international law.

5. The administrative-review decision expressly addressed whether the applicant could return to take up permanent residence. It could lawfully provide that reason in response to the grounds advanced, in accordance with R v SSHD, ex p Turgut [2000] EWCA Civ 22. On the unchallenged evidence of the travel document, repeated travel, long residence, education and employment, the Secretary of State was rationally entitled to find that the applicant could lawfully and permanently reside in Kuwait. Thus, even if permanent residence were required, any interpretative error would not have been material.

Upper Tribunal (Immigration and Asylum Chamber): Judicial review of the Secretary of State’s refusal of leave to remain as a stateless person, upheld on administrative review. The claim was dismissed.