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The meaning of “admissible” in statelessness cases


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In R (AZ) v Secretary of State for the Home Department (statelessness “admissible”) [2021] UKUT 284 (IAC), the Upper Tribunal addressed the issue of admissibility to the country of former habitual residence in the context of statelessness applications under Part 14 of the Immigration Rules. In particular, it considered whether the word “admissible” in paragraph 403(c) of the Rules means having the right to reside permanently rather than just temporarily. The tribunal concluded that it does not, the headnote reading:

1. The word “admissible” must mean in the context of paragraph 403(c) the ability to enter lawfully and reside lawfully. “Admissible” does not incorporate the concept of “permanent residence”.

2. The Statelessness Convention does not impose a requirement on contracting parties to grant either permanent residence or citizenship.

The tribunal’s decision deals with the old version of paragraph 403, which stated:

403. The requirements for leave to remain in the United Kingdom as a stateless person are that the applicant:

(a) has made a valid application to the Secretary of State for limited leave to remain as a stateless person;

(b) is recognised as a stateless person by the Secretary of State in accordance with paragraph 401;

(c) is not admissible to their country of former habitual residence or any other country; and

(d) has obtained and submitted all reasonably available evidence to enable the Secretary of State to determine whether they are stateless.

The current version came into effect on 6 April 2019, after AZ made her statelessness application but before she received a decision. The word “admissible” no longer appears in paragraph 403(c); the relevant section now reads:

403. The requirements for leave to remain in the United Kingdom as a stateless person are that the applicant…

(c) has taken reasonable steps to facilitate admission to their country of former habitual residence or any other country but has been unable to secure the right of admission; and

(d) has obtained and submitted all reasonably available evidence to enable the Secretary of State to determine whether they are stateless or whether they are admissible to another country under the meaning of paragraph 403(c)…

Although the tribunal was dealing with different wording, the concept of admissibility is still just as relevant under the new Rules.

Background: application to stay in the UK as stateless person

AZ was born in Kuwait. The Home Office accepts that she is stateless. However, the Kuwaiti government had issued her an “Article 17” travel document, on which she travelled to the UK having been granted a visit visa. Article 17 documents can be issued to the stateless population of Kuwait (known as the Bidoon) but do not confer citizenship.  

AZ applied for permission to stay in the UK as a stateless person in January 2018. Her application was refused in July 2019 on the ground that her travel document enabled her to return to Kuwait.

She challenged the refusal, arguing that she could only be regarded as “admissible” to her country of former habitual residence if she were able to be admitted for the purposes of lawful and permanent residence.

Does “admissible” mean allowed to stay permanently?

The Home Office argued that the meaning of “admissible” had been settled in JM (Zimbabwe) v SSHD [2018] EWCA Civ 188. In that case, the Court of Appeal held that admissible means that “it lies within a claimant’s power to obtain admission”. The government’s case was that this was binding on the Upper Tribunal. 

The tribunal noted that JM (Zimbabwe) related to a child of Zimbabwean origins who was born in the UK and had a right to apply for Zimbabwean citizenship but whose mother had not applied for it. In this context, the Court of Appeal found the child was entitled to be admitted because he could apply for citizenship. It therefore did not need to consider whether admissibility included the right to enter for the purpose of lawful permanent residence.

The tribunal also distinguished the High Court’s decision in Teh v SSHD [2018] EWHC 1586 (Admin), which related to a former Malaysian national who had voluntarily renounced his citizenship and declined to apply to get it back. Because the issue was whether he was able to obtain admission to Malaysia in order to regain his citizenship, the court was not required to consider the general question of what admissibility means.   

Having decided that the meaning of “admissible” was not settled, the tribunal proceed to consider the issue for itself.

It decided that admissibility means the ability to both enter and reside lawfully, taking into account the natural and ordinary meaning of the word. Someone can be “admissible” without having the right to reside permanently.

The word “admissible” plainly does not incorporate the concept of “permanent residence”. The wording of the rule makes no mention of this, and this is not the natural and sensible meaning of the words. Had the Secretary of State intended the rule to have meant this, the Secretary of State would have drafted the rule accordingly.

Doesn’t the Home Office have guidance on this?

Home Office policy does address this issue. Policy guidance cannot generally be used to interpret the Immigration Rules, but because of the ambiguity of paragraph 403(c) — which had also been highlighted by the Court of Appeal in JM (Zimbabwe) — Upper Tribunal Judge Owens decided it was legitimate to consider it.

He looked at both the policy guidance dated 18 February 2016 (applicable at the date of decision) and the explanatory memorandum accompanying the latest changes to the stateslessness Rules dated 7 March 2019. Unfortunately, he found that both were also ambiguous, referring to both “residence” and “permanent residence” at different points. The documents therefore did not support the contention that admission should be for the purpose of permanent residence. 

As noted by the tribunal, the policy guidance has since been updated. It now refers repeatedly to the right to permanent residence. This is consistent with the way in which the Home Office approached AZ’s case in practice: at the administrative review stage, officials gave explicit consideration to her entitlement to return to take up permanent residence, rather than basing its refusal on her right to go back temporarily. 

Notwithstanding the finding that admissibility does not require the right to permanent residence, it is clear that more than simply being able to gain entry is required, and detailed consideration should be given to the quality and length of residence. And given that the tribunal was dealing with the old version of the Rules and the policy guidance, it may be that this issue will be revisited. 

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Communicating important legal concepts in an approachable way, this is an essential guide for students, lawyers and non-specialists alike.

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Philippa Roffey

Philippa is a solicitor at Elder Rahimi. She is interested in all aspects of asylum, immigration and nationality law.