Post
by ben_scaro » Fri Nov 28, 2008 3:29 pm
They reject citizenship claims where one has caused oneself to become stateless after 4 July 2002. That’s clear under s.4B, British Nationality Act 1981.
On ILR, it’s more complex. There’s no provision allowing BOCs to apply for ILR; they applied outside the Rules for discretionary leave to remain, and this was often granted after 4 July 2002, until late 2004.
However, in November 2004, presumably after an increase in applications, IDI Ch22 was drafted to deal with the matter. Cl 9 says that caseworkers have to draw a distinction:
. . . between those who genuinely find themselves with nowhere to go and those seeking to circumvent the Immigration Rules.
The test laid out in the IDI, while not actually saying one is to be rejected if one makes oneself stateless, has that effect when read with the Cl 9 distinction in mind.
The first limb of the test is clear evidence of compassionate circumstances, the second is the applicant has the onus to prove evidence of non-returnability, ie, a letter refusing a re-rentry visa to the country in question.
Further down, they say that what is meant by a re-entry visa is a ‘returning resident’ or ‘settlement visa’.
The trouble ex-Malaysian BOCs have is that the Malaysian government won't supply such a letter, but will not issue settlement visas to returned BOCs.
I do not think anyone wants to go to KL, be refused settlement, then find they are denied a letter proving it, and have to return to Heathrow. What would be their chance of getting back into the UK ?
However, in reality, HO has not rejected ILR claims by so-called stateless BOCs. Since the IDI came in, Nov 2004, they have held onto a vast number of cases (and BOC passports) and done nothing with them.
This leads me to think that either the IDI or some other provision is flawed and HO know a rejection will not stand up in the AIT.
Via a convoluted arrangement, these cases are now the subject of some agreement which envisages the unresolved cases being treated akin to three BOC test cases currently before the AIT.
Interestingly, I have a Refusal Notice obtained via SAR, drafted sometime in 2007, which was never sent. It says nothing about making oneself stateless or non returnability, though it mentions lack of compassionate circumstances. But the bulk of the notice is an attempt to say that the applicant’s period of s.3C ‘in time’ was not lawful and so the applicant had not accumulated five years lawful residence.
Ben