More Difficulties for Stateless Children in Obtaining Leave to Remain
In JM (Zimbabwe), R (on the application of) v Secretary of State for the Home Department [2018] EWCA Civ 188 the Court of Appeal interpreted paragraph 403(c) of the Immigration Rules in favour of the Secretary of State.
The requirement for leave to remain under this paragraph as a stateless person are that the applicant is not admissible to their country of former habitual residence or any other country.
This case involves a child born to a Zimbabwean mother. The Zimbabwean law required her to register the child with Zimbabwean embassy in order to obtain Zimbabwean citizenship for the child. JM’s mother had not registered her child’s birth but it was entirely open to her to do so.
JM’s Lawyer argues that the word “admissible” should be given a practical meaning to decide whether a person would be allowed to enter the country or not.
Thus, the key issue becomes paragraph 403(c) and whether the appellant was admissible to Zimbabwe:
Unfortunately, Judges did not agree with this argument and decided that even if someone who cannot immediately be admitted to any other country as a citizen but could be if they took certain steps, is not entitled to leave to remain as a stateless person.
The irony of the fact JM is denied limited leave to remain on the basis that he should not benefit from his mother’s inactivity, but at the same time he will now be entitled to register as a British citizen, provided other requirements are met, based on the same inactivity under paragraph 3 of Schedule 2 to the British Nationality Act 1981 under last years’ case of MK[2017] EWHC 1365 (Admin),
Is there still hope for the applicants?
I think the clue lies in the following paragraph of the judgement:
“If it lies within a claimant’s power to obtain admission (hereby registration of the appellant’s birth which would confer Zimbabwean citizenship) then absent any evidence to the contrary he is admissible under 403(c)”.
It will become a question of fact whether it is “within the applicant’s power” to register for/obtain alternative citizenship. It is not clear at this stage that what type of evidence will satisfy the SSHD and/or the courts.
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