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Stateless child denied leave to remain


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In JM (Zimbabwe), R (on the application of) v Secretary of State for the Home Department [2018] EWCA Civ 188 the Court of Appeal grappled with an interesting point on the proper interpretation of paragraph 403(c) of the Immigration Rules. Paragraph 403 deals with the grant of leave to stateless people. The decision establishes that someone who cannot immediately be admitted to any other country but could be if they took certain steps — in this case, registering for Zimbabwean citizenship — is not entitled to leave to remain as stateless.

The appellant was a child born in the UK in March 2013 to a Zimbabwean mother and a Portuguese father. The father wanted nothing to do with the child and would not assist in JM obtaining Portuguese citizenship.

In order to be recognised as a Zimbabwean citizen by descent, a child born to a Zimbabwean parent outside Zimbabwe is required to register with the relevant authorities. In this case, the JM’s mother had not registered her child’s birth so that he would acquire Zimbabwean citizenship, but it was entirely open to her to do so.

By the time the case reached the courts, the expert evidence confirmed that JM was stateless as he was not considered a national by any state under operation of its law (Article 1(1) of the UN Convention relating to the Status of Stateless Persons).

Thus, the key issue become paragraph 403(c) and whether the appellant was admissible to Zimbabwe:

The requirements for leave to remain in the United Kingdom as a stateless person are that the applicant… is not admissible to their country of former habitual residence or any other country.

JM’s counsel argued that “admissible” is purely a practical question about whether a person presenting themselves at the border would be allowed entry. It was submitted that the appellant is not Zimbabwean, would not be allowed in to Zimbabwe, and thus is not “admissible”.

This argument was rejected by the Court of Appeal. The drafting deficiencies of the whole of paragraph 403 was criticised in a postscript, but the court decided that the meaning of 403(c) was clear:

If it lies within a claimant’s power to obtain admission (here by registration of the appellant’s birth which would confer Zimbabwean citizenship) then absent any evidence to the contrary he is admissible under 403(c).

Therefore, despite being stateless, the appellant did not satisfy paragraph 403 of the Immigration Rules and so could not be granted leave to remain.

This would appear to be a more purposive than literal interpretation of paragraph 403(c). The court accepted the Secretary of State’s argument that the appellant’s interpretation would allow a claimant like JM to obtain leave to remain through their own inactivity, deciding that to rule otherwise would amount to “no more nor less than an entitlement to manipulate the Rule so as to obtain a limited leave to remain”. Sir John Laws and his colleagues on the bench court were having none of that and so reached the conclusion they did.

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Sharp-eyed practitioners may well have noticed a potential reprieve for this particular appellant. By the end of March 2018 JM will have lived in the United Kingdom for more than five years. Therefore, assuming that he has not been absent from United Kingdom for more than 450 days in that five years (which seems highly unlikely), then he is entitled to be registered as a British citizen under paragraph 3 of Schedule 2 to the British Nationality Act 1981. For more detail see the decision of Mr Ockelton in MK (A Child By Her Litigation Friend CAE), R (On the Application Of) v Secretary of State for the Home Department [2017] EWHC 1365 (Admin), discussed on Free Movement in this post.

There is an element of irony in the fact that this appellant has been denied limited leave to remain as the court felt he should not benefit from his mother’s inactivity, whereas it would seem that very inactivity will now entitle him to become a British citizen.


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Christopher Cole

Christopher is a consultant solicitor at at Parker Rhodes Hickmotts. Recommended in Chambers UK as a leading immigration practitioner and commended for a “prepared and professional...frank and to-the-point” approach and “sharp intellect and inspiring level of knowledge and commitment.”