Emma Harris, led by Sarabjit Singh QC of 1 Crown Office Row and instructed by Barnes, Harrild & Dyer Solicitors, appeared in the recently reported case of Teh v Secretary of State for the Home Department [2018] EWHC 1586 (Admin) in which it was successfully argued that British Overseas Citizens (“BOCs”) holding no other nationality are stateless for the purposes of Article 1(1) of the 1954 Convention relating to the Status of Stateless Persons and paragraph 401 of the Immigration Rules.
British Overseas Citizenship is a relic of Colonialism held by many individuals whose parents were born in former British Colonies before those countries gained their independence. The status does entitle its holder to a British passport but it gives a person no right to live in the UK or in any other country. In 2002, those who held only BOC passports became entitled to register as full British Citizens (by the operation of the Nationality, Immigration and Asylum Act 2002 which introduced s.4B to the British Nationality Act 1981). However, any person who renounced or voluntarily lost another nationality after July 2002 was excluded from registering for full British Citizenship. Unfortunately, a large number of BOCs who also held Malaysian Citizenship upon arriving in the UK, received poor legal advice and were encouraged by their advisers to renounce their Malaysian Citizenship even after July 2002 in the mistaken belief that this was still a route open to them to obtain full British Citizenship. Those who did so, however, found themselves in legal limbo; unable to complete the transition to full British Citizenship, with no legal right to remain in the UK despite their British passports and, having renounced their Malaysian Citizenship, with no explicit right to return to Malaysia either.
In Teh it was held that such persons, because their BOC passports do not entitle them to live anywhere in the world, are stateless for the purposes of the 1954 Convention as they are not considered as nationals by any State under the operation of its law.
In order to obtain limited leave to remain in the UK as a stateless person, however, a person must also satisfy the other requirements set out in paragraph 403 of the Immigration Rules which includes a requirement to demonstrate that the Claimant is not “admissible” to any other country.
Although it was conceded by the Defendant that there is no written agreement in place between the UK government and the Malaysian Authorities, and that the agreed policy that has been in place since 2014 has yet to be made public, the Judge found that the Claimant had failed to demonstrate that this policy is not operational and that former-Malaysian BOCs are not “admissible” to Malaysia for the purposes of paragraph 403(c) of the Immigration Rules. This aspect of the claim will now form the basis of further challenge to the Court of Appeal.
