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As a direct access immigration barrister it is rare to be able to report good news from the lower Courts, however there has been a fantastic case out on the 14 June 2017 called MK (India) Statelessness EWHC [2017] 1365 (Admin).

The short point in this case is that even if you are illegal and in the UK if you are Indian and have a child that you have not yet registered as British then you can qualify for leave to remain and your child by virtue of the statutory scheme British citizenship.

The Administrative Court has identified a loophole in the law. The Court has identified that it is a loophole and open to abuse, there is the possibility therefore that the Home Office will seek to change the law to shut the door on this loophole.

However, I would urge anyone with an Indian child who has not yet registered the child as Indian to get in touch with me or alternatively another reputable lawyer as soon as possible to take advice on this issue. This is a potentially life changing case.

Given its importance I have set out a fair amount of detail from the case and law below.

As noted above, if you are Indian, have a child born to you in the UK and you have not yet registered the child, for example you do not have a passport (its with the Home Office for example, or lost or expired) and you have not yet got round to it, your child may well be stateless.

The relevant extracts from the case and therefore the law are as follows:

The relevant law is identified in the first two paragraphs as is the background in that particular case:

  • Paragraph 3 of Schedule 2 to the British Nationality Act 1981 is as follows:
  1. “3. (1) A person born in the United Kingdom or a British overseas territory after commencement shall be entitled, on an application for his registration under this paragraph, to be so registered if the following requirements are satisfied in his case, namely (a) that he is and always has been stateless; and


(b) that on the date of the application he was under the age of twenty-two; and


(c) that he was in the united Kingdom or a British overseas territory (no matter which) at the beginning of the period of five years ending with that date and that (subject to paragraph 6) the number of days on which he was absent from both the United Kingdom and the British overseas territories in that period does not exceed 450.


(2) A person entitled to registration under this paragraph –

(a) shall be registered under it as a British citizen if, in the period of five years mentioned in sub-paragraph (1), the number of days wholly or partly spent by him in the United Kingdom exceeds the number of days wholly or partly spent by him in the British overseas territories;


(b) in any other case, shall be registered under it as a British overseas territories citizen.”
    1. The claimant (“C”) was born in the United Kingdom on 14 November 2010. Her father (“F”) and her mother (“M”) are both nationals of India. On 8 March 2016 she submitted an application for registration as a British Citizen under the provisions I have just set out. On 18 May 2016 the Secretary of State refused the application. The present proceedings were begun on 17 August 2016, the last day of the succeeding three months, in the Upper Tribunal, the wrong forum. They were transferred to this Court on 14 September 2016. Sitting as a Deputy Judge, Amanda Yip QC ordered the application for permission into court for an oral hearing with consideration of the substantive claim to follow immediately if permission be granted.”

 

In the case there was a discussion as to what the relevant provisions are in respect of the Claimants and their child.

 

The Court considered the effect of S.3 of the British Nationality Act 1981 (“BNA 1981”) and concluded that while it was open for abuse that as the law stands if a child has not been registered as Indian, nationality not being automatically confirmed, say as per the principle of ius sanguinis.

 

The Court went onto consider whether the child was entitled to registration as British. The Court made the following findings, that are, save for the age analogous with the Applicant in this case at paragraphs 32 – 36 of the determination:

  • “32. I am afraid that will not do. The guidance, in ‘Asylum Policy Instruction: Statelessness and applications for leave to remain’ (the current edition is 18 February 2016) indeed is not specifically on point, as it is concerned with the application of Part 14 (paragraphs 401 and following) of the Immigration Rules and not of either of the statutory provisions I am looking at. But, as I have already noted, paragraph 401 expressly incorporates the 1954 Convention’s definition into the Rules, and this guidance is on how to apply the Rules. It is necessarily implicit that this guidance is guidance on the meaning of ‘statelessness’ within the Rules, and furthermore, because of paragraph 401, is the Secretary of State’s understanding of the meaning of statelessness under art 1(1) of the 1954 Convention.
  • 33 The point being made by Lord Wilson is that it is the UNHCR’s guidance on the meaning of statelessness for the purposes of art 1(1) of the 1954 Convention that has been adopted into the Secretary of State’s own guidance. The date of the guidance excluded it from consideration in relation to the decision-making in Al-Jeddah But the Court makes its own decision on the meaning of statelessness at that time within the context of s 40(4) and does so as a matter of statutory interpretation against the background of the Conventions. It then notes that the UNHCR Guidance produces the same result, and has been adopted by the Secretary of State.
  • 34 Now it is clearly open to the Secretary of State and indeed 4the purposes of the Refugee Convention is different from that of statelessness for the purposes of the Statelessness Conventions and any associated national legislation. The terms are different, and the context is different: in the Refugee Convention the essential context is the threat of expulsion and issues of destination are crucial, whereas the statelessness issue is in essence static. It would also have been open to the Secretary of State to say in the course of either the Al-Jeddah litigation or this case that for the purposes of the legislation respectively under consideration the meaning of statelessness within art 1(1) was neither determinative nor directly relevant. Our law is a dualist system, and neither the 1954 nor the 1961 Convention has as such been incorporated, so the Conventions are not part of the law, and the UNHCR guidance is not a source of English (or United Kingdom) law.
  1. What the Secretary of State is not entitled in my judgment to do is to say that in both s 40(4) of, and paragraph 3 of Schedule 2 to, the 1981 Act, and in Part 14 of the Immigration Rules, the notion of statelessness is to be determined in accordance with its meaning in art 1(1) of the 1954 Convention, but that it has different meanings in those different provisions. But that is what she seeks to do. In Al-Jeddah there is no sign, so far as I can see, that the Secretary of State argued that ‘stateless’ in s 40(4) should not have the same meaning as in the 1954 Convention: the crux of the argument was on surrounding issues, that is to say the procedure of determining the issue and the cause of the statelessness. The Secretary of State’s guidance on Part 14 of the Rules, which needs to follow the meaning of the term in the 1954 Convention, makes it clear that she applies the UNHCR guidance on the meaning of ‘stateless’. In the present case, as noted above, it is specifically conceded that the meaning of statelessness is to be determined in the same way. There is no room for applying a different meaning. ‘Stateless’ means, in the provisions with which I am concerned, the same as it means in the provisions with which the Supreme Court was concerned in Al-Jeddah. What it means in those provisions is determined by the Supreme Court in Al-Jeddah, which is obviously binding on me. The Secretary of State has made the matter even plainer by her adoption of the UNHCR guidance in relation to decisions made in under the Rules. The same meaning must apply to all the cases in which the matter is to be determined in accordance with the meaning in the Convention.
  • Conclusion on the meaning and effect of paragraph 3 of Schedule 2 to the 1981 Act.
  1. The conclusions from what is set out above are as follows. For the purposes of the statutory provisions in issue, a person is stateless if he has no nationality. Ability to acquire a nationality is irrelevant for these purposes. A child born on or after 3 December 2004, outside India, of parents at least one of whom is an Indian national, and who has not been to India, is not an Indian national unless registration of the birth has taken place in accordance with the provisions of the Citizenship Act 1955 (India) as amended. If the child has no other nationality, the child is stateless for the purposes of paragraph 3 of Schedule 2 to the British Nationality Act 1981 and, if the other requirements of that paragraph are met, is entitled to be registered as a British citizen. If, therefore, C’s birth had on the date of the decision under challenge not been registered, she is entitled to British Citizenship.”

 

The case raises a number of interesting questions, what if the child has not acquired the age of 5. However this should not mean that she suffer from having no status and that the Secretary of State ought to give consideration to and following such consideration grant either indicate that she is prepared to register the child as British in which case the parents will comply with any procedural issues, or grant a period of discretionary leave until the child does qualify as British.

 

It is submitted that it is not simply enough for the Secretary of State to do nothing and not to grant nationality or some form of leave to remain to an Applicant and her family in circumstances where the child is stateless, if the Secretary of State chooses not to register the then she can grant discretionary leave and the family can apply for a travel document for the child to travel until she is of an age whereby they can qualify.

 

There is a second limb to this case law and this relates to the interplay between nationality and articles 8 and 14 of the ECHR. In the alternative, it is submitted that the Applicant ought to be granted leave to remain on the basis of his and his family’s protected rights outside of the Immigration Rules.

 

Failure to grant status breach of articles 8 and 14

In order for a decision to be lawful, it must, in respect of Article 8 apply the step-by-step approach proposed in R(Razgar) v SSHD [2004] UKHL 27 (para. 17):

  1. Will the proposed removal be an interference by a public authority with the exercise of the applicant’s right to respect for his private or (as the case may be) family life?
  2. If so, will such interference have consequences of such gravity as potentially to engage the operation of article 8?
  3. If so, is such interference in accordance with the law?
  4. If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others?
  5. If so, is such interference proportionate to the legitimate public end sought to be achieved?

Question (2) above does not posit a especially high threshold for art.8(1). It simply reflects the fact that more than a technical or inconsequential interference with one of the protected rights is needed if art. 8(1) is to be engaged (VW(Uganda & AB (Somalia) v SSHD [2009] EWCA Civ 5; cf AG (Eritrea) [2007] EWCA Civ 801, paras.26-28).

In AS (Pakistan) v SSHD [2008] EWCA Civ 1118 the Court of Appeal considered that the fact of removal to Pakistan would itself interfere to some extent with private and family rights, and the degree of interference was likely to depend more on the disruptive effect of relocation itself, rather than the likely social and political conditions encountered on return. (para. 15).

It is submitted that the question is whether the refusal of leave to remain constitutes an interference.

It is clear that to refuse leave to remain in the United Kingdom would breach their protected rights under Article 8 of the ECHR. In line with the House of Lords’ decision in the case of Beoku-Betts v The Secretary of State for the Home Department [2008] UKHL 39, there is a duty to consider the impact not only on the Applicant but also on the Dependants.

Turning to the issue of proportionality, unless a particular decision is necessary for the maintenance of immigration control it will not be proportionate.  There is no prior test of necessity.  What is not proportionate will not be necessary (VW (Uganda) & AB (Somalia), para. 23).

The terms of a rule or policy are strong evidence of the limits of the needs of immigration control, and therefore as to what action is proportionate (R(Tozlukaya) v SSHD [2006] EWCA Civ 379, para. 79, MB (Huang – proportionality – Bulletins) Croatia [2005] UKIAT 00092, para. 30; AG (Kosovo) [2007] UKAIT 00082 paras. 40-3). The proportionality of any practice or policy must also be assessed by reference to its underlying rationale (cf Chikwamba v SSHD [2008] UKHL 40, paras. 40-2; KL (Serbia & Montenegro) [2007] UKAIT 00044, para. 46).

It is submitted that it is clear that it was and remains incumbent on the Secretary of State to have properly considered the case under Article 8 as well as the immigration rules particularly since the Administrative Court in the case of R on the application of Sunassee v the Upper Tribunal [2015] EWHC 1604 (Admin) which finally laid the case of Gulshan to rest by finding that it was wrongly decided. In this regard the Applicant relies upon the following paragraphs of Sunassee:

“27. The finding at (b) above in Gulshan appears to be a restatement of the “slight modification” of Sales J in Nagre which is set out at paragraph 22 above. With great respect to the Upper Tribunal which decided Gulshan it seems to me to go a little further than the source from it purports to be derived. It is the origin of the problem with paragraph 55 of the decision in the present case, and I have already averted to the difficulty with it. It is unclear to me how a Tribunal could decide whether it was arguable that there may be good grounds for granting leave to remain outside the Rules without first considering whether there may be compelling circumstances not sufficiently recognised under them. Moreover, a Tribunal exercising statutory powers and bound by the Human Rights Act 1998 is traversing dangerous ground if it circumscribes its ability to consider the facts of the particular case before it in the round by a procedural filter. It may be that it is really a matter of how the decision is expressed, rather than how it is taken but the present case is an illustration, as I shall seek to explain, of how a proper decision may seem mystifying if expressed in unsuitable language.

47… That would be an accurate description of what he had done. I have examined the authorities available to the Judge above to show where the Judge’s formulation came from, and made some observations about the decision in Gulshan. Paragraph 55 suggests that where there are no arguable grounds for granting leave to remain, it is not necessary to consider whether there are any compelling circumstances not sufficiently recognised under the Rules to move on to the second stage and consider the Article 8 proportionality exercise. This is a misstatement of the law, which I have tried to state accurately above. The Tribunal cannot consider whether there are arguable grounds for granting leave to remain outside the Rules without deciding whether or not there are such “compelling circumstances”. The absence of such circumstances may abbreviate the second stage, and the way in which the decision is expressed, but does not eliminate it. In this case, the FTT Judge did not decline to weigh the circumstances of the case on the ground that they were not exceptional. He found that they did not weigh heavily enough in favour of the claimant.

56… First, he says that it is important to establish the status of Gulshan. I consider that the Court of Appeal Civil Division has done this already, in a way which means that sub-paragraph (b) of the judicial headnote in Gulshan should not be followed. I have made some further remarks on that subject which may assist. It is unnecessary to quash the decision of UTIAC in order to achieve this degree of clarification. Secondly, he says that if this case is remitted to UTIAC, the claimant will be able to raise his 10 years residence here, which is now completed, and will be entitled to indefinite leave to remain. I have dealt with this above when considering whether there was any “other compelling reason” in December 2014 which should have caused UTIAC to grant permission to appeal. I reject the submission that it is a proper reason for giving permission to bring judicial review proceedings and granting relief that it will place the claimant in a better position than he could have been in at the date of the decision which is impugned (which is, in substance, that of the FTT in July 2014).

It is submitted that the factors stated above render any refusal of leave to remain disproportionate. The following factors are also highlighted.

 

I would contend that leaving a child statelessness engages both article 8 and also article 14 read in line with article 8.

 

It is submitted that nationality is plainly within the ambit of article 14 when read in the light of article 8.

 

In Johnson [2016] UKSC 56 it was found that illegitimacy was capable of engaging article 14 / 8 discrimination. It follows that if illegitimacy is capable of engaging article 14/8 then having a child who is stateless must be capable of engaging the ECHR. This you will recall if you read my blog is a case that I was involved in and ultimately we won in the Supreme Court.

 

In Johnson the Court found the following

At paragraph [27]:

“27.              It is clear, therefore, that the denial of citizenship, having such an important effect upon a person’s social identity, is sufficiently within the ambit of article 8 to trigger the application of the prohibition of discrimination in article 14.”

At paragraph 29 in respect of article 14:

“29.              It is not in dispute that birth outside wedlock is a “status” for the purpose of article 14. It has been so regarded at the very least since the landmark case of Marckx v Belgium (1979) 2 EHRR 330. It is no co-incidence that the laws of both Scotland and England and Wales were changed within a few years of that decision. Nor can it be seriously disputed that there is here a difference in treatment between people who are otherwise in an analogous situation on the ground of that birth status: had the appellant’s parents been married to one another he would automatically have become a British citizen and not been liable to deportation no matter how badly he had behaved.”

 

At paragraph 34 in whether such a claim, again based on legitimacy not statelessness which must require a higher threshold to be met:

“34.              But in this case what needs to be justified is the current liability of the appellant, and others whose parents were not married to one another when they were born or at any time thereafter, to be deported when they would not be so liable had their parents been married to one another at any time after their birth. That is a present distinction which is based solely on the accident of birth outside wedlock, for which the appellant is not responsible, and no justification has been suggested for it. It is impossible to say that his claim that Exception 1 applies, based on article 14 read with article 8, is “clearly unfounded”.

 

It is submitted therefore that an Applicant child and their parents should be granted leave to remain if not having their child registered as British.

 

Discretionary leave? A viable alternative to be argued?

I would also contend that the Home Office should exercise discretion in making their decision given the above factors.

Exceptional circumstances outside the Rules

The Home Office has published guidelines as to what amounts to exceptional circumstances. These are set out below.

“3.2.8 Exceptional circumstances

Where an applicant does not meet the requirements of the rules under Appendix FM and/or Appendix FM-SE, refusal of the application will normally be appropriate. However, leave can be granted outside the rules where exceptional circumstances apply. Where an applicant fails to meet the requirements of the rules, caseworkers must go on to consider whether there are exceptional circumstances.

Exceptional” does not mean “unusual” or “unique”. Whilst all cases are to some extent unique, those unique factors do not generally render them exceptional. For example, a case is not exceptional just because the criteria set out in EX.1 of Appendix FM have been missed by a small margin. Instead, “exceptional” means circumstances in which refusal would result in unjustifiably harsh consequences for the individual or their family such that refusal of the application would not be proportionate. That is likely to be the case only very rarely.

In determining whether there are exceptional circumstances, the decision-maker must consider all relevant factors, such as:

  1. a) The circumstances around the applicant’s entry to the UK and the proportion of the time they have been in the UK legally as opposed to illegally. Did they form their relationship with their partner at a time when they had no immigration status or this was precarious? Family life which involves the applicant putting down roots in the UK in the full knowledge that their stay here is unlawful or precarious, should be given less weight, when balanced against the factors weighing in favour of removal, than family life formed by a person lawfully present in the UK.
  2. b) Cumulative factors should be considered. For example, where the applicant has family members in the UK but their family life does not provide a basis for stay and they have a significant private life in the UK. Although under the rules family life and private life are considered separately, when considering whether there are exceptional circumstances private and family life can be taken into account.

If the applicant falls to be granted because exceptional circumstances apply in their case, they may be granted leave outside the rules for a period of 30 months and on a 10-year route to settlement. For asylum cases see Discretionary Leave guidance at: Horizon > Asylum Related Links > Discretionary leave

The consideration of exceptional circumstances must include consideration of any factors relevant to the best interests of a child in the UK. For further guidance on how to undertake this consideration please see the children’s best interests guidance.

If, following a full consideration, it is judged that there are no exceptional circumstances, this must be explained in the refusal notice.

Further guidance on refusal wordings for exceptional circumstances can be found at section 3.2.16c”

This type of case is one which clearly falls into the exceptional category, a stateless child, casewlaw in the child and by extension the child’s parents.

Best interest of the child – clearly not in remaining stateless

It is submitted that the best interests of Krisha/the Applicant are served by either her Registration or the grant of leave to remain. Leaving her stateless is not in her best interests (see LD (Zimbabwe) [2010] UKUT 278 (IAC), Zoumbas [2013] UKSC 72 at [11 – 13] and ZH (Tanzania) [2011] UKSC 8 at [20 – 33] among other cases.

Conclusion

I have spent a considerable time on this piece. I consider that it touches upon wider issues that merely those raised in the case of MK (India).

I would urge all those who have stateless children, ie those who are not deemed to have passed on their nationality by their mere birth, to read the case carefully, or alternatively to get in touch for a conference.

However, this is a case that reaches out to and touches Indians who have children that are not registered. It is hard to overstate the importance of this case. I cannot. This is a case that has wide ranging implications. It is of course open to the Secretary of State to shut the door on this loophole and those who have followed my blogs and the law in general will recognise that the Secretary of State often acts swiftly.

If you or a family member thinks that you might benefit please get in touch for a conference and I will be happy to advise you. Should you be working I am happy to have conferences in the early evening or by phone. I recognise the importance that this is to you and your family and would be extremely disappointed if an opportunity was missed, particularly where it appears as clear cut as it does now.