Case No. UKUT-00015-(IAC)

[PCIJ, Series B, Number 4 1923] the International Court of Justice was requested by the Council of the League of Nations to provide an advisory opinion in a dispute between Britain and France over French nationality decrees which had the effect of giving French nationality to the children of certain British subjects. The Court declared (at page 24) that – “ …. The question of whether a certain matter is or is not solely within the jurisdiction of a state is an essentially relative question, it depends upon the development of international relations. Thus, in the present state of international law, questions of nationality are, in the opinion of this Court, in principle within this reserved domain. ” 13. This principle was stated even more emphatically by the ICJ in the Nottebohn case (ICJ Reports 1955, at 4 and 23). It was restated in Article 1 of the Hague Convention on the Conflict of Nationality Laws (1930): “ It is for each state to determine under its own law who are its nationals. ” As the next succeeding sentence demonstrates, this rule is not absolute: “ This law shall be recognised by other states insofar as it is consistent with international conventions, international custom and the principles of law generally recognised with regard to nationality. ” 14. While nationality provides the vital nexus between the individual and the state concerned, it has an important broader dimension. It is well established that via nationality the individual can have recourse to the benefits of international law (Shaw, International law, 6 th ed, pp 659-660). This, however, is not available in limbo. Rather, it is accessible only through the medium of the state, which means state conferral of the status of nationality. 15. The status of BOC is regulated by Part III of the British Nationality Act 1981 (the “1981 Act”). This operates in tandem with the British Nationality (General) Regulations 2003. The general rule devised is that BOC status can be acquired only be registration. On 01 January 1983 a substantial group of persons – around 1.5 million former Commonwealth citizens – attained the status of BOC by automatic reclassification. Since then, the policy underpinning the 1981 Act has been to limit the number of new BOCs and the design of the legislation itself is to gradually phase out this category. 16. Malaysia is an Independent Commonwealth Country. It secured its independence, under the guise of the Federation of Malaya, in 1957. At this time many Malaysians had the status of Commonwealth Citizen which they retained and, in due course, on 01 January 1983 those belonging to this class were reclassified BOCs. In Fransman’s British Nationality Law (3 rd Edition) one finds the following passage of note at page 1085: “ Malaysia does not permit multiple nationality, but the exact state of Malaysian law in this regard has been unclear for years and is still unclear. There have been times …. when any BOCs who relied upon their British overseas citizenship by obtaining a BOC passport were relieved of their Malaysian passports (by the Malaysian authorities) on the ground that they were no longer Malaysian (having automatically lost Malaysian nationality by acting as BOCs). ” The author continues: “ …. Such people in the UK at the time of these events have been granted indefinite leave, as BOCs who could not be removed to Malaysian or elsewhere. But that is not to say that all such BOCs were regularised in this way or that such regularisation was pursuant to any general Home Office policy or practice. ” At this juncture, it is appropriate to observe that no Home Office policy relating to BOCs who formerly held Malaysian nationality features in either the Secretary of State’s decisions or arguments this appeal. I shall comment further on this infra. 17. The operation of Malaysian law and practice in this sphere is given some colour by the facts in