Post
by ben_scaro » Mon Jun 22, 2009 12:38 am
This is my summary of the BOC decision in the AIT.
I have dealt with the case by listing the findings of the Deputy President in relation to the main arguments made by the appellants (the BOCs). There were ten main arguments made by Manjit Gill QC.
Every argument is rejected.
We do occasionally get Malaysians on this forum who are eligible for the BOC passport, enquiring about their 'rights' as BOCs in the UK, or whether you can get ILR or citizenship.
In short . . . don't waste your time and money, and certainly don't be silly enough to renounce Malaysian citizenship.
1. IA/08131/2006/ Lim
2. IA/09419/2006/ Ting
3. IA/08613/2006/Teh
and the
Secretary of State for the Home Department
1. In this case, which is not an appeal against removal directions, the burden of proving that the Appellants cannot be returned to Malaysia or that their return would breach Art. 3 of the European Convention on Human Rights (ECHR) rests with them.
A decision by the Secretary of State to issue removal directions to Malaysia under para 8 (i). (ii) or (iii) (provided the Appellants are removable at all) would be 'unimpeachable'. There was nothing in the case that caused the burden of proof to be reversed.
In short, if a BOC alleges he cannot return to Malaysia, it is up to him to prove it by attempting to return !
2. By obtaining a BOC passport the Appellants had not lost their Malaysian nationality. Refusing to allow them to be in the UK is therefore not a breach of art 3 of the ECHR.
The case of Lee Thean Hock can be regarded as throwing doubt upon the claims made on the Appellants' behalf.
Neither art 24 or 27 of the Malaysian Constitution gives reasons for concluding that a BOC loses Malaysian nationality by acquiring or using a BOC passport, there having been no order of the government, no notice of intended deprivation of citizenship received by the Appellants and no recourse to a committee of inquiry given.
The appellants cannot succeed under Art 3 ECHR on this ground as the basis of their claim under that head has proved illusory.
3. The Appellants claim to have executed what they consider to be renunciations of their Malaysian nationality are not to be taken into account.
(i) Voluntary acts of the Appellants long after the hearing before the Immigration judge cannot show that his determination contained a material error of law.
(ii) If the claimed renunciation went to reduce further the returnability of the Appellants, it would tend to demonstrate that any error was not material.
(iii)The Appellants had not argued this matter in full, but even so, there is not material on which the AIT could reach a view on the effectiveness of what the Appellants have now done.
Renunciation is only possible by a person who 'is or is about to become a citizen of another country'. It is clear that the intention is that a Malaysian cannot renounce his citizenship if by doing so he becomes stateless.
The AIT did not know the basis on which Malaysian law would decide whether a person who has only Malaysian citizenship and BOC status would be regarded as a person is 'is . . . a citizen of another country' if BOC status is not that of being 'a citizen of another country, the Malaysian citizen cannot renounce his citizenship.
The AIT did not pronounce on this, but noted that Malaysian BOCs are BOCs from birth or from the coming into force of the 1981 BNA and not by obtaining a BOC passport. It therefore follows that if art 23 allows renunciation by the Appellants in the UK, then it must also allow renunciation by Malaysian BOCs whist they remain on Malaysian territory.
Art 23 requires registration by the Federal government before renunciation can take effect. No such registrations were submitted.
It is unlikely that any act of renunciation by the Appellants is entitled to any recognition in UK law.
If the Appellants could by renouncing, prevent their return to Malaysia, the same is likely to be true of nationals of most other countries.
4. The Appellants as BOCs are not nationals of the UK, and derive no rights as nationals to be in the UK.
Despite Art 15 (1) of the Universal Declaration of Human Rights and art 3.2 of the ECHR (which the UK has not ratified) this argument was misconceived in relation to the applicants as they are BOCs who have nationality of another country.
The argument that BOCs are to be treated as some sort of 'citizen' which in turn gives them a right to be treated as some kind of 'national' and therefore as being given rights despite what is laid down in the BNA 1981- the act which formulates their status – is absurd.
BOCs are identified in the BNA 1981 by reference to their status as individuals who had no right to reside in the United Kingdom.
The word 'British' in the BNA is not to be interpreted as creating nationality and residence rights, eg, there is no country called 'Britain', just as the phrase in that act 'Commonwealth citizen' cannot be construed as creating citizens of a country called 'the Commonwealth', as there is no such country.
Rights to enter and remain in the UK derive from being a British subject, not from citizenship or nationality.
The provisions of the BNA and other acts had the effect that people who were previously British subjects lost that right, in exchange for the right to live in some part of the former colonial territory.
5. The Appellants have no legitimate expectation of being, or a human right to be, granted indefinite leave to remain in accordance what was said to be the Secretary of State's uniform practice in similar cases. No such practice of the Secretary of State existed.
The clear position is that the Secretary of State's current practice is not one of regularly or constantly granting leave to remain to people in the Appellants' position.
While the Secretary of State has in some cases responded to an application for a BOC passport from a Malaysian citizen with a letter setting out the view that acquisition of a BOC passport will ipso facto, deprive a Malaysian national of his Malaysian nationality, this view was not correct.
Further, where letters from the Secretary of State have stated this, it is evidence that the grant of leave may have been on the basis of a misapprehension. Even if the Appellants could show a general practice, they could not rely on it and demand a similar decision if it was based on a mistake.
6. The Appellants are not the victims of 'a historic wrong' that needs to be put right.
Beverley Hughes statement of 4 July 2002 on 'righting a historic wrong' was not intended to refer to all BOCs but only citizens of former East African colonies who had no right to live anywhere in the world.
7. The Secretary of State's IDIs do not give the Appellants either an entitlement to remain or any expectation that they will be allowed to remain.
The policy does not indicate that indefinite leave to remain will be granted in the first instance, even to a person who has nowhere else to go. The initial grant is of limited leave. An application for ILR could not succeed under the Secretary of State's policy.
In order for the 'limbo policy' to apply, a claimant must demonstrate that he has nowhere else to go. That must be done by evidence demonstrating that the individual has been refused re-entry to his country of nationality or former nationality for residence or settlement. None of the Appellants has demonstrated an individual inability to return to Malaysia.
Even the retention of the Malaysian passport by the Malaysian High Commission in the UK does not amount to an individual indication that the Appellants cannot return to Malaysia, as taking up a BOC passport does not in Malaysia law lead to a loss of citizenship.
8. The Appellants have not been deprived of any right to be in the UK on a racially discriminatory basis; and refusal to allow them to be in the UK does not therefore perpetuate any discrimination.
The submission that the grant of BOC status was itself discriminatory is mistaken. It was merely a change of name.
The Appellants form part of a class of BOCs who have an advantage not possessed by all BOCs, ie the right to live in another country, and an additional status not possessed by all Malaysian citizens. The Appellants have undergone no change in their immigration status.
They were born as CUKCs without a right of abode in the United Kingdom; this has not changed.
They belonged to Malaysia and are legally and naturally, citizens of Malaysia. They do not have a right to reside in a country other than that to which they naturally belong, but that is the position of most of the world's people.
The Appellants were not British nationals with a right in international law to enter the UK. They were not deprived of a right to lived in the UK by immigration legislation or the BNA 1981, nor were they given any right to suppose that they would be allowed to live in the UK. They were not in the class of person to whom Beverly Hughes referred. There was no assurance that the rights the Appellants fathers had on Malaysian independence would remain unchanged or be transmissible by descent.
The British government of 1957 could not bind its successors, and if governmental statements of that time are to have force today, full attention ought be paid to Mr Lennox-Boyd's speech which states that Malaysian CUKCs were to have no privileges that other Malaysian citizens did not have.
To treat nationals of Malaysia as nationals of Malaysia is not degrading to them.
9. The Appellants do not have rights under Arts 3 and 8 of the ECHR overriding the provisions of UK law such as to make refusing them what they seek unlawful.
There is nothing in the Appellants circumstances that gives them and others a right under Art 8 that transcends UK immigration law. The basis of the case, that they cannot return to Malaysia, and that they ought be granted indefinite leave to remain for historical reasons, both fail.
Therefore there is no proper ground to say that removal from the UK, where they have no right in immigration law to be, to the country of which they are nationals, and where their roots are, and where there is no reason to suppose they will suffer any difficulties, breaches Art.8.
10. Refusing the Appellants what they seek is not a disproportionate interference with their private and/or family life and is not contrary to Art.8.
There is no evidence of relationships or contacts such that their removal would be unlawful as a breach of Art.8.
DECISION: The appeals of the 2nd and 3rd Appellants dismissed.
In the 1st Appellant's case, reconsideration adjourned to a further hearing solely directed to a personal, additional Art.8 claim.
