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Statelessness - British Citizenship - Interesting Decision in the High Court

03 July 2017

In a recent case in the High Court called "MK" a child had applied (via a "litigation friend", ie an appropriate adult) for judicial review of the Home Office’s decision not to grant her British citizenship. Judicial review is a remedy that enables the reviewing court to quash (ie strike down) a Government decision if it is deemed to be unlawful or otherwise flawed.

The child had been born in the UK, of Indian parents, in 2010 and had lived in the UK ever since. Her parents did not hold any immigration leave, as they were overstayers. The child’s lawyers maintained that, irrespective of her parents’ situation, the child was entitled to British citizenship under a provision of the British Nationality Act 1981 because (a) she had lived in the UK for at least five years and (b) she was stateless.

If the law were read literally this might seem a good argument, but there was one very important fact: the only reason that the child could be described as stateless was that her parents had not registered her as an Indian citizen with the Indian Government authorities in the UK. Under the relevant Indian law, until this were done she was not an Indian citizen. It would have been a straightforward matter for the parents to register the child as an Indian citizen but they had not done so.

And the child was not entitled to any citizenship other than Indian, and thus it was claimed on her behalf that she was stateless.

A crucial question for the court was: what is the appropriate legal meaning of "statelessness"? Does it mean what it would ordinarily appear to mean - ie simply that a person does not hold any nationality - or does it mean something more complicated? Does it mean, for example, that a person does not hold any nationality and that they are not entitled to any other nationality?

If it is the former then the child could succeed in her case but if it is the latter then of course she could not, because she clearly was entitled to Indian nationality, even if she had not acquired it.

As the court explained, there is legal authority for both positions. But the court ultimately decided that the former, simpler, definition was the appropriate one. It is a simple question of fact whether the person holds any nationality or not. If they do not - and whatever the surrounding facts - that satisfies the legal requirement. Thus the court made an Order quashing the Home Office’s decision and required it to re-take the decision: and thus, presumably, to grant the child British citizenship.

The court’s decision seems, in a sense, a very generous one. Both of the parents are in the UK illegally, but if their child acquires British citizenship then the parents’ immigration situation must surely become stronger. But this was an aspect of the case that was not lost on the court. As the Judge (Mr Ockleton) put it, the child’s right to British citizenship would "immeasurably improve" their prospects of being allowed to stay in the UK.

He was also rather scathing about the effect of his own judgement, which we might infer he reached reluctantly: "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, as he also said: "But the Secretary of State’s [ie the Home Office’s] position in this case on the one hand, and the authorities on the other, necessarily lead to this result."

This is a very good example of where the law makes prisoners: the judge felt that he had no proper choice other than to allow the application because in his view the law dictated no other course. (It is, one supposes, one of the occasional hazards of having due legal process rather than an arbitrary one.)

In any event, in this case there are some remarkable and interesting facts. If the child acquires British citizenship then she will not be entitled to Indian citizenship, as Indian law does not permit dual nationality. And the law requires Home Office decision-makers to bear in mind the best interests of a child as a prominent consideration; in this case presumably to the effect of not causing the child to be split up from her parents.

So it might seem difficult to imagine that, if the child does indeed acquire British citizenship, the Home Office would try and deport the parents back to India, particularly bearing in mind that it is not legally possible to deport a British citizen anywhere, and so the child could not be deported with the parents. The Home Office would surely find itself in a very difficult position.

This decision was a decision of the High Court, and the Home Office may challenge the decision in the Court of Appeal or Supreme Court. Or the Government may try and change the law in Parliament so as to close this apparent "loophole". Either way, the Home Office is surely likely to fight this decision, which they cannot have liked.




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