Under the British Nationality Act 1981, a child who is born in the UK and is (and always has been) stateless is entitled to register as a British citizen. See Schedule 2, Paragraph 3:

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.

In MK (A Child By Her Litigation Friend CAE), R (On the Application Of) v SSHD [2017] EWHC 1365 (Admin) (14 June 2017), the High Court considered whether the definition of ‘stateless’ in this context includes those who do not automatically acquire nationality by the operation of their own national law, but to whom it is open to acquire such nationality by registration or similar process should they chose to do so.

Are those individuals ‘stateless’ for the purposes of the British Nationality Act, unless and until they register for citizenship of their own country?

Facts

The claimant in these judicial review proceedings was a 7 year old girl. She was born in the UK to her Indian national parents and has lived here all of her life.

By operation of Indian law, the claimant was not automatically an Indian national. The Citizenship (Amendment) Act 2003 (India) means that an Indian national born abroad on or after 3 December 2004 is not a citizen unless the birth is registered at an Indian consulate ‘in such a form and in such a manner as may be prescribed’ [9].

The claimant – or rather the claimant’s parents – had not embarked upon this registration process, although Ockleton J, presiding, found that there was ‘no evidence … of any actual difficulty in registering a child whom the parents wanted to register’.

Statelessness

The definition in Art 1(1) of the 1954 Convention relating to the Status of Stateless Persons is as follows:

“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.”

The High Court in this case considered this definition through the prism of two leading Supreme Court cases on statelessness, Al-Jeddah v SSHD [2013] UKSC 62 and Pham v SSHD[2015] UKSC 19, both of which concerned appeals against the revocation of citizenship on the grounds that to do so would leave the individuals in those cases ‘stateless’.

A key issue in both Al-Jeddah and Pham was whether an individual’s British citizenship could be revoked where that person would be able to apply for, or be registered, as a citizen of another country in due course, after the decision to strip them of British nationality had been taken.

In both cases the Supreme Court held that this was not enough, leaving those individuals (as it would have) stateless unless and until they acquired the citizenship to which they might be entitled, and contrary to the 1954 Convention.

Findings

The claimant in this case argued that the same reasoning should apply in her case: she had not been registered as an Indian citizen, and was therefore a citizen of no state. The same meaning of ‘stateless’ should be adopted for paragraph 3 schedule 2 British Nationality Act 1981 applications as for appeals against s.40(4) revocation decisions.

The Secretary of State, defending the claim, argued that ‘stateless’ for these purposes had some other meaning, not including those who would have the theoretical legal ability to acquire some other nationality. However, like it had been in the Supreme Court cases referred to above, this argument was rejected. Ockleton J concluded 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… 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

It was recognised that these findings created ‘an obvious route to abuse’, and Ockleton J criticised C’s parents for effectively leaving their child ‘stateless’ for the first several years of her life, and attempting to improve their own chances of remaining in the UK following unsuccessful applications to extend leave for themselves.

Evidence required

The judgment also considers the evidence that would need to be adduced in order to succeed in an application on this basis. The Secretary of State had required in the decision under challenge ‘confirmation from the Indian authorities (in one version it is ‘the authorities in India’) that [the Claimant’s] birth has not been registered in accordance with Indian law and that she is not a national of India’.

However, the court heard ‘copious evidence’ relating to the ‘difficulty, perhaps the impossibility, of providing such evidence’ given the absence of a central register for citizens of India [39]. Ockleton J found that, while strong evidence would be required to prove this non-nationality, the Secretary of State could not expect the impossible, and her stance in the present case was criticised as unreasonable.

The court gives some tentative guidance on what might be expected in support of such an assertion: sworn statements from both parents ‘ought to be regarded as having some value’, and evidence from the relevant Consulate ‘might in many cases be of great assistance’. The process was also underpinned by the ability of the SSHD to revoke citizenship status under s.40(3) if fraud was later discovered. This should encourage the SSHD to be a little more flexible.

The final outcome of the case was that the Claimant succeeded in her application for an order to quash the decision to refuse her registration as a British citizen. The Claimant was entitled to registration on proof she was stateless at the time of the relevant decision, and the SSHD was not entitled to place the evidential bar too high, which she had in this case.

What next?

Subject to any application by the Secretary of State for permission to appeal, this is obviously a good result for the claimant and her family, who now have a better chance of remaining in the UK. The obstacles placed between children entitled to register as British citizens and the actual realisation of that entitlement – mainly exorbitant fees – have, in this instance, been overcome.

However, one worries about legislative blowback.

Even on a generous view, the drafters of the British Nationality Act 1981 almost certainly did not have in mind those in the position of MK when it was decided that stateless persons should be entitled to register as British citizens.

Following the interpretation adopted by the Supreme Court in Al-Jedda and Pham mentioned above, the government introduced an amendment (s.40(4A)) via the Immigration Act 2014 where ‘statelessness’ would be no bar to an order for deprivation if there were ‘reasonable grounds for believing’ that the individual would be able to become a national of another country.

It is not difficult to envisage a similar amendment being tabled following the decision in this case.

We must hope that the entitlement to British citizenship for those who are stateless – not simply because they haven’t got around to making an application or have chosen not to, but because they are not legally entitled to nationality of any state – will not be affected by any changes to legislation made subsequent to this decision.