Statelessness – right to British citizenship – rather confusing

Regular readers will know that we have on occasion explained that UK immigration law can be prodigiously complicated – and had a good moan about it.

The venerable tradition of complexity, or perhaps confusion, has recently been upheld in a case in the High Court called “MK”. The presiding Judge was Mr CMG Ockleton – who is also Vice-President of the Immigration Upper Tribunal and is thus heavily involved in judicial immigration decision-making.

The basic facts of the case seem at first glance very curious. A child was born in the UK in 2010 of Indian parents. Both the parents had overstayed their leave and were thus in the UK illegally. The child had lived in the UK for over five years continuously. The parents had not registered the child as an Indian citizen with the Indian authorities in the UK. The child’s legal representatives had applied to the Home Office for British citizenship for the child on this basis. The Home Office had refused this application, and then the child’s legal representatives had applied to the High Court for Judicial Review of the Home Office’s decision, which they argued was wrong. They said that the relevant part of the British Nationality Act 1981 meant that the child was so entitled.

A crucial point was that it was claimed that the child was “stateless”. This was technically true, because the parents had not registered the child as an Indian citizen with the Indian authorities in the UK, as they could easily have done. According to the relevant Indian law a child born outside India does not become an Indian citizen until they have been registered as such. This is, as far as we know, very unusual. The normal rule is that a child born in the UK of a foreign mother takes the mother’s nationality at birth.

In any event, the court reviewed the authorities – ie looked at decisions in previous, relevant, cases. In previous cases it had been decided that simply not having a nationality was not enough to make someone “stateless” in the legal meaning. A person not only had to not have a nationality; they must also not be entitled to any nationality. Otherwise – and as common sense might dictate – a person could intentionally not apply for a nationality they were entitled to and thus deviously avail themselves of any immigration benefits of being “stateless”.

The Judge Mr Ockleton referred to various judgements to this effect – including one of his own when sitting in the Upper Immigration Tribunal. So, surely an open and shut case? The child could surely not claim to be “stateless” in the legal meaning?

Well, not so simple. At the beginning of paragraph 21 of the court’s judgement come the ominous words “That, however, is not the end of the matter,” which indicates that something strange is going to happen.

Mr Ockleton then referred to some other decisions on the subject from the Supreme Court – which is of course supreme, ie the highest court in the land. And these decisions went in the other direction: ie that someone could claim to be “stateless” on the basis of the simple fact that they had no nationality, irrespective of whether they might be entitled to some nationality or other.

So the Supreme Court had disagreed with these other decisions, including his own (which one supposes may have been rather upsetting for him). But things work in the English legal system in a certain way. Decisions of higher courts are binding on lower courts. As he put it, a Supreme Court decision is “obviously binding on me” – sitting as he was in the High Court, which is a couple of stages lower than the Supreme Court.

Mr Ockleton also developed another theme: that the Home Office’s interpretation of the term “stateless” was in any case inconsistent, and that this was harmful to their position in the case before him. Whether this on its own was a crucial factor is not clear; probably the Supreme Court authority was sufficient. Anyway, his conclusion was that “… the Secretary of State’s position in this case on the one hand, and the authorities on the other, necessarily lead to this result.” So, in his view, the child was entitled to British citizenship.

He also made some interesting obiter remarks (keen students of the law will know that obiterremarks are not core or crucial to the principle behind the judgement). He said “I recognise of course that this conclusion opens an obvious route to abuse. Indeed, the facts of the present case might be said to be an example of abuse.

But the decision is the decision. Will the Home Office challenge this or try to change the law? Very likely. They must surely think that this looks like rather a legal “loophole”. And, who knows, maybe there are other countries with unusual nationality laws?

But, to borrow a phrase, “That, however, is not the end of the matter”. If the definition of “stateless” really is what the High Court says it is, this could affect other legal provisions about statelessness in a powerful way.

We will wait to see what happens with this with great interest.

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