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Public law and Regulation

Case reports and guidance on public law and professional regulation issues

27 JAN 2014

R (On the Application of Ku) v The Secretary of State for the Home Department [2013] EWHC 3881 (Admin); (2014) PLLR 006

Immigration - Deportation - Citizenship

Despite having voluntarily renounced his Malaysian citizenship, the Claimant could not demonstrate that he could not return to Malaysia and regain that citizenship. The decisions not to grant him discretionary leave to remain and to deport him were rational and lawful.

9 December 2013

Administrative Court

Timothy Brennan QC

i.           The Claimant, a British Overseas Citizen (‘BOC') without the right to reside in the UK was once Malaysian citizen. He renounced that citizenship and when deported from the UK was refused entry to Malaysia. The Claimant had been an overstayer since October 2005, after the expiry of his leave to remain as a student. As a BOC, there is an entitlement to be registered as a British citizen (pursuant to section 4B of the British Nationality Act 1981). However, this is not available to those who have voluntarily relinquished any citizenship or nationality after 4 July 2002, as the Claimant had done.

ii.          The Immigration Directorates Instructions provides that a total period of discretionary leave to remain may be granted to BOCs in wholly exceptional compassionate circumstances or where there is clear evidence of non-returnability. It was noted that a balance was to be struck between those genuinely with no-where else to go, and those seeking to circumvent the Immigration Rules. The burden was thus on the Claimant to demonstrate that he genuinely could not return to Malaysia.

iii.         The Claimant was one of a number of Malaysian citizens who had renounced their citizenship in order to take advantage of their status as BOCs. The Malaysian authorities in 2011 indicated that where it could be shown that a person formerly had Malaysian citizenship, Malaysia would be willing to accept their return. The individual would also be required to apply for reinstatement of their citizenship. In light of this, the Defendant argued that the Claimant had not shown clear evidence of non-returnability, nor exceptional compassionate circumstances as to justify the application of the limbo policy.

iv.        The Claimant argued that the Defendant could not have held a rational belief that if he was deported, he would be admitted to Malaysia. He also challenged the lawfulness of the decision to remove him.

v.         HELD: The Court held that at the time of the removal directions, and when the Claimant was removed, the Defendant had reason to believe that he would be admitted to Malaysia. There had been no indication to the contrary from the Malaysia authorities, who had been given notification that the Claimant was going to be removed from the UK to Malaysia. Neither the decision to remove the Claimant, nor the removal itself were held to be unlawful. This ground of challenge was held to have failed.

vi.        The information available at the time of the Claimant's deportation, and immediately after the failed attempt at his removal, justified the conclusion that the Claimant was not attempting to have his Malaysian citizenship reinstated, but was content with it having been renounced. The Claimant had not shown that he could not be returned to Malaysia, and had not attempted to return voluntarily. The Claimant was found not to have demonstrated that it was irrational or unlawful for the Defendant to conclude that he should not be granted discretionary leave to remain.

vii.       The claim was thus dismissed.

Claim dismissed

Key paragraphs

[9] - Burden on Claimant.

[31] - Reason to believe.

[33] - Removal decision lawful.

[40] - Content renounced citizenship.

[42] - Conclusion.   

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