QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
(SITTING AS A DEPUTY HIGH COURT JUDGE)
| The Queen on the application of MK
(a child by her litigation friend CAE)
|- and -
|The Secretary of State for the Home Department
Mr E Brown (instructed by Government Legal Department) for the Defendant
Hearing date: 28 February 2017
Crown Copyright ©
C. M. G. Ockelton :
The Issue and the procedural history
"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."
English law: statelessness
"For the purpose of this Convention, the term 'stateless person' means a person who is not considered as a national by any State under the operation of its law."
"82. In summary, for the purposes of the Refugee Convention, where a person already has a nationality (even if he has no documents to that effect) that is the end of the matter: he is a national of the country concerned. If he is entitled to nationality, subject only to his making an application for it, he is also to be regarded as a national of the country concerned. But if he is not a national and may be refused nationality, he is not to be treated as being a national of the country concerned. Subject to questions as to the "effectiveness" of nationality, the same principle applies to entitlement to a second nationality as to entitlement to a first.
83. We should say that we regard that summary as consistent with authority, including Bradshaw  Imm AR 359, and MA. In both of those cases there is more than a suggestion (in Bradshaw it is stated as a rule) that in order to establish a claim not to have a particular nationality, a person ought to apply, using his or her best endeavours, to obtain nationality of a country with which he or she is associated. But it seems to us that that must be a matter of evidence rather than of legal principle. For example, if the evidence is that nationality will be acquired on application, a decision maker ought to be entitled without more to treat the person as a national of the country in question, for the purposes of the Refugee Convention. If, on the other hand, there is evidence that the grant of nationality is a matter of discretion, it is not easy to see why a refugee claimant should be regarded, to his disadvantage, as having a nationality that he does not possess and may never possess. There may be borderline cases, and we would with respect strongly endorse what was said by Stanley Burnton LJ in MA at , as set out above."
"Refugee status is not a matter of choice. A person cannot be entitled to refugee status solely because he or she refuses to make an application to her Embassy, or refuses or fails to take reasonable steps to obtain recognition and evidence of her nationality."
"[I]t seems to me that before a person can be said to be stateless in terms of the definition in the  Convention, he or she would have had to apply to those states which might consider her to be and might accept her as a national. … I was left with the suspicion … that the petitioner did not wish to attempt to obtain the nationality of either [Russia or Ukraine] lest that diminished her chances of remaining within the United Kingdom. … [M]y view, looking at the definition in the Convention, [is] that before a person can be regarded as stateless she must have made application to those countries with which she has closest connection. In the result, I am not prepared on such meagre information as I was provided with, to find that the petitioner is a stateless person."
"The Secretary of State may not make an order under subsection (2) if he is satisfied that the order would make a person stateless."
"120. I am prepared to assume that if an application were made for the restoration of the appellant's Iraqi nationality it would be bound to succeed, though the point is by no means free from doubt. ….
121. I would reject the Secretary of State's argument for the straightforward reason that section 40(4) requires the Secretary of State (and, on appeal, the court) to consider the effect of the order made under section 40(2): would the order make the person stateless? If Iraqi nationality was not restored to the appellant automatically under the Iraqi legislation considered above, he was not an Iraqi national at the time of the order: his only nationality at that time was British nationality. The effect of the order would therefore be to make him stateless. That would be the effect of the order irrespective of whether he could previously have acquired another nationality had he chosen to do so, or whether he could do so in the future."
"32. I reject this argument. Section 40(4) does not permit, still less require, analysis of the relative potency of causative factors. In principle, at any rate, the inquiry is a straightforward exercise both for the Secretary of State and on appeal: it is whether the person holds another nationality at the date of the order. Even that inquiry may prove complex, as the history of these proceedings demonstrates. But a facility for the Secretary of State to make an alternative assertion that, albeit not holding another nationality at the date of the order, the person could, with whatever degree of ease and speed, re-acquire another nationality would mire the application of the subsection in deeper complexity. In order to make his argument less unpalatable to its audience, Mr Swift, as already noted, limited it to the re-acquisition of a former nationality, as opposed to the acquisition of a fresh nationality. But, with respect, the limitation is illogical; if valid, his argument would need to extend to the acquisition of a fresh nationality. Yet a person might have good reason for not wishing to acquire a nationality available to him (or possibly even to re-acquire a nationality previously held by him)."
"34. On 20 February 2012 the United Nations High Commissioner for Refugees issued "Guidelines on Statelessness No 1", HCR/GS/12/01, in which he addressed some of the effects of the authoritative definition of a stateless person in article 1(1) of the 1954 Convention. Para 43 of his guidelines, entitled "Temporal Issues", has been incorporated, word for word, into the Home Office guidance on "Applications for leave to remain as a stateless person" dated 1 May 2013, referred to at para 13 above. The guidance provides:
"3.4 ... An individual's nationality is to be assessed as at the time of determination of eligibility under the 1954 Convention. It is neither a historic nor a predictive exercise. The question to be answered is whether, at the point of making an Article 1(1) determination, an individual is a national of the country or countries in question. Therefore, if an individual is partway through a process for acquiring nationality but those procedures have not been completed, he or she cannot be considered as a national for the purposes of Article 1(1) of the 1954 Convention. Similarly, where requirements or procedures for loss, deprivation or renunciation of nationality have not been completed, the individual is still a national for the purposes of the stateless person definition."
The Secretary of State's own guidance eloquently exposes the fallacy behind her appeal."
"101. I agree that this appeal should be dismissed. I am not convinced that practice can stand for law in article 1(1) of the 1954 Convention, nor that any relevant practice was proved in this case. But I think that the answer to this appeal is simpler than that. Under section 40(4) of the British Nationality Act the Home Secretary was precluded from withdrawing Mr Pham's British nationality only if he would thereby have been rendered stateless. That depends on whether he had Vietnamese nationality on 22 December 2011 when his British nationality was withdrawn. Since Mr Pham unquestionably had Vietnamese citizenship at the time of his birth in Vietnam, he must still have had it on 22 December 2011 unless something had happened to take it away. The government of Vietnam was entitled to withdraw his nationality, but no one suggests that they had done so, at any rate by the relevant date. In those circumstances, Mr Pham's case on appeal depends upon the proposition that the statements of Vietnamese officials to British diplomats after 22 December 2011 (when the British government was hoping to deport him to Vietnam) were tantamount to a legally definitive declaration about his status on that date, with substantially the same effect as if it had been a declaration pronounced by a court of law. There is, however, a world of difference between saying that no court of law was in a position to control the Vietnamese government's statements or acts, and saying that the Vietnamese government was a court of law or was like one. There is some evidence for the former proposition but not for the latter. The statements did not purport to do anything other than state the Vietnamese government's position. They amounted to a refusal to treat Mr Pham as a Vietnamese citizen. Even if one were to assume that these statements conclusively determined Mr Pham's nationality at the time that they were made, there is no basis on which they could relate back to an earlier date when the Vietnamese government knew nothing about Mr Pham and had no position one way or the other about his status. The judge may well have been right to say that they are good evidence of what the Vietnamese government's position would have been on 22 December 2011 if they had been asked on that date. But if they were not a court of law or like a court of law, and it is clear that they were not, that is irrelevant. It follows that if anyone has rendered Mr Pham stateless, it is not the Home Secretary on 22 December 2011 but the Vietnamese government thereafter."
Conclusion on the meaning and effect of paragraph 3 of Schedule 2 to the 1981 Act.
The Secretary of State's procedure.
Article 8 and the best interests of the child.