In Teh v Secretary of State for the Home Department [2018] EWHC 1586 (Admin) the High Court has found that a British Overseas Citizen (BOC) can be stateless under the Immigration Rules if he or she has no other nationality. This is an interesting and pragmatic finding which highlights the largely useless nature of BOC status. It comes as the latest in a slow-burning series of unsuccessful cases concerning Malaysian nationals with BOC status in which various notable judges have previously weighed in, including the former President Mr McCloskey and the Vice-President Mr Ockleton.

Who is a British Overseas Citizen and what does it mean?

British Overseas Citizenship is a relic of our colonial past. BOC status was acquired on 1 January 1983 if two conditions were met:

1. The person was a citizen of the United Kingdom and Colonies on 31 December 1982; and
2. The person did not become either a British citizen or a British overseas territories citizen on 1 January 1983

A British Oversea Citizen is entitled to hold a BOC passport and access consular assistance and protection from British diplomatic posts. Holders are Commonwealth citizens and eligible to vote in the UK if resident here.

Crucially, however, a British Overseas Citizen has no right of abode and therefore no automatic right to live or work in the UK. A BOC is subject to immigration control in the UK just like any other foreign national. For the purposes of European Union law, a BOC is not considered to be a UK national and does not enjoy any free movement rights.

This really makes BOC status fairly useless. And that is not just my own opinion. The Australian High Court agreed in Re Canavan et al [2017] HCA 4, a case about Australian parliamentarians holding dual citizenship. The relevant passage is as follows:

To observe that British Overseas citizenship is a juridical relationship between the individual and the United Kingdom, as Mr Fransman describes it is not to conclude that it is a relationship which for the purposes of s.44(i) renders the BOC a citizen of a foreign power. No party contended that the fact that the foreign power designates a status as that of “citizen” is determinative without consideration of the rights, privileges and obligations conferred under the law of the foreign power. The status of BOC distinctly does not confer the rights or privileges of a citizen as that term is generally understood: a BOC does not have the right to enter or reside in the United Kingdom. Critically, taking into account the purpose of s.44(i), which is to ensure that members of the Parliament do not have split allegiance, it does not appear that Senator Xenophon’s status as a BOC entailed any reciprocal obligation of allegiance to the United Kingdom per se or to Her Majesty the Queen in right of the United Kingdom.

The emphasis in the passage above is that added by the High Court in Teh, quoting Re Canavan.

Why do some Malaysians have British Overseas Citizenship?

Malaysia used to be a British colony. It is a very culturally diverse country (definitely worth a visit) made up of many different ethnic groups. The three largest are the Muslim Malays, the Chinese, and the Indians.

When the country gained independence in 1957, ethnic Chinese people in the former settlements of Penang and Malacca worried that they would be discriminated against by the newly politically dominant Malays. BOC status was made available to them to ameliorate some of those concerns. Many Malaysians connected with Penang and Malacca obtained BOC status and still have it today. Anyone interested in the history of this can find a very detailed summary in AL & Others (Malaysia BOCs) Malaysia [2009] UKAIT 26.

Renunciation of Malaysian citizenship and registration as full British citizens

Section 4B of the British Nationality Act 1981 allows British Overseas Citizens to register as British citizens if they have no other nationality.

A large number of dual Malaysian/British Overseas Citizens in the UK have renounced their Malaysian citizenship in the hope of being recognised as stateless and enabling their registration as full British citizens. This is exactly what the claimant Mr Teh did in 2006, having resided in the UK since 2001.

Since 2002, however, British Overseas Citizens seeking to register as British because they are stateless have had to fulfil the additional requirement that they have not voluntarily relinquished or renounced another citizenship. In other words, they must be stateless, but not by their own construction. The consequences for those, including Mr Teh, who gave up their Malaysian passports in ignorance of this crucial fact have often been devastating.

Mr Teh’s challenge

In 2016 Mr Teh applied under paragraphs 401-405 of the Immigration Rules to be registered as stateless. This application was refused. The Home Office said that

1. Mr Teh was not stateless –- he was a British Overseas Citizen
2. even if he were stateless, he remained admissible to Malaysia
3. he failed to obtain and submit all reasonably available evidence to enable the Secretary of State to determine whether he is stateless

Although his challenge failed in the round and was dismissed, the court’s finding that a British Overseas Citizen can be a stateless person is a glimmer of hope for Mr Teh and indeed others in his position. Steven Kovats QC, sitting as a deputy High Court judge, held that:

a British Overseas citizen who is not a national of any other State, and who is not under article 1(2) of the 1954 UN Convention a person to whom the Convention does not apply, is a stateless person for the purpose of paragraph 403(b) of the Immigration Rules. He has nowhere else to go. The fundamental purpose of the Immigration Rules, identified in s.3(2) of the Immigration Act 1971, is to set out who can come and stay here. A BOC who has nowhere else to go is in this context a stateless person. His BOC status is a “formal link of a political and legal character”. But that is not the test.

This will be seen as a positive ruling. But even if in principle a British Overseas Citizen can be deemed stateless under paragraph 403(b) of the Immigration Rules, subsections (c) and (d) must still be satisfied. These relate to the applicant’s admissibility to their country of former habitual residence or any other country, and to obtaining and submitting all reasonably available evidence to enable the Secretary of State to determine whether they are stateless.

This is where Mr Teh fell down. There is, according to the judgment, a process by which Malaysians who have renounced their citizenship can be returned to Malaysia and their admittance and eventual regaining of Malaysian citizenship will be facilitated. Mr Teh can therefore be admitted to Malaysia and his claim accordingly failed.

Interestingly, Kovats QC reserved his opinion on whether voluntary renunciation of Malaysian citizenship could result in refusal under the general grounds for refusal:

The Secretary of State has not relied on paragraph 322 in this case. I express no opinion on whether a British Overseas citizen who renounces his only other nationality in the hope of obtaining leave to remain and ultimately settlement in the United Kingdom could lawfully be refused leave under paragraph 322(5).

That question therefore remains very much live and it would not be surprising to see a future refusal blossoming out of this.

Chin departed from

The last point worth noting is the clear departure (recorded at paragraph 18) by all parties from Mr McCloskey’s bizarre observation in Chin and Another (former BOC/Malaysian national – deportation) [2017] UKUT 15 (IAC) that BOC status was somehow linked to possession of a valid BOC passport (and thus it would “expire” along with a passport unless “renewed”). I’m not entirely sure how that conclusion came about but it is trite law that a passport is merely a travel document confirmatory of a status, not the means by which a status itself is bestowed upon the holder.

Further appeal

I understand that Mr Teh is seeking to appeal against this decision, so it is worth keeping an eye out for this at the Court of Appeal to see whether more robust authority on the issue of BOCs and statelessness is in store. (Editor’s note: the author will be press-ganged into covering any appeal judgment for Free Movement, so keep an eye on the blog.)