In JM v the Secretary of State for the Home Department, the UK Court of Appeal has upheld an Upper Tribunal decision that a child without a state would not be granted leave to remain in the UK after failing to meet the requirements set down in Paragraph 403 of the Immigration Rules.
The appellant, JM, was born in March 2013 in the UK to a Zimbabwean mother and a Portuguese father. His father wished to have the pregnancy aborted but his mother did not, with his father subsequently declaring that he did not wish to be in any way involved in the child’s life and he refused to assist the child in registering to become a Portuguese citizen.
Under the Zimbabwean Constitution, in order to become a Zimbabwean citizen, a child born to a Zimbabwean parent outside of Zimbabwe is required to register so as to become a Zimbabwean citizen by descent. The appellant’s mother had not registered her child’s birth and therefore he had not received Zimbabwean citizenship. In principle, it was entirely open to the mother of the child to register him on his behalf but no steps had been taken to do so.
The appellant was adjudged to be stateless under the definition set out in Article 1 of the 1954 UN Convention relating to the Status of Stateless Persons, which provides that a stateless person is one who is not considered as a national by any state under the operation of its law. In the UK, under the Immigration Rules, in order to qualify for leave to remain, a person, upon satisfying the aforementioned definition, must make a valid application to the Secretary of State, they must be inadmissible to any other country and they must have obtained and submitted all reasonably available evidence to then enable the Secretary of State to determine whether or not they are in fact stateless.
While the appellant was deemed to meet the criteria provided for under the 1954 UN Convention, the Court upheld the ruling of the Upper Tribunal that he had not met the requirements to be granted leave to remain as a stateless person in the UK under Paragraph 403 due to the issue of his admissibility to Zimbabwe. The appellant is entitled to become a citizen of Zimbabwe subject to fulfilling the registration requirement laid down in the Zimbabwean Constitution.
The counsel for the appellant argued that as the child is stateless and not Zimbabwean, he would not be granted entry into Zimbabwe and therefore he is not admissible to another country. The Court dismissed this argument on the grounds that although the child does qualify as a stateless person, it is within their power to obtain admission to another country, in this case Zimbabwe. Therefore, despite being stateless, the child could not be granted leave to remain as it did not meet the requirements as set out in Paragraph 403 of the Immigration Rules.
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