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Court of Appeal in Northern Ireland Decisions |
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You are here: BAILII >> Databases >> Court of Appeal in Northern Ireland Decisions >> Fedorovski, Re Judicial Review [2008] NICA 21 (31 January 2008) URL: http://www.bailii.org/nie/cases/NICA/2008/21.html Cite as: [2008] NICA 21 |
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| Neutral Citation No. [2008] NICA 21 | Ref: | KERL4832.T |
| Judgment: approved by the Court for handing down | Delivered: | 31/01/2008 |
| (subject to editorial corrections)* |
KERR LCJ
[1] This is an appeal by Oleg Fedorovski from a judgment of McLaughlin J given on 23 November 2007 whereby he dismissed Mr Fedorovski's application for leave to apply for judicial review. It is not necessary to rehearse the history of proceedings that preceded the delivery of the judge's judgment save to say that Weatherup J had refused the applicant's application for leave to apply for judicial review on 14 May 2007 and an appeal to the Court of Appeal resulted in leave being granted. This was confined to a single ground, namely, that the respondent had erred in law in concluding that the applicant's birth in the territory of the former Soviet Republic of the Ukraine in 1960 gave reason to believe (pursuant to paragraph 8 of Schedule 2 to the Immigration Act 1971) that the applicant could be admitted to the state of the Ukraine as a Ukrainian National under the Ukrainian law of citizenship.
[2] As McLaughlin J, in his extremely careful and well reasoned judgment made clear, this is the single issue on which the matter came before him. It is also the single issue which comes before this court. It is worthy of emphatic repetition that the issue in this case is not whether Mr Fedorovski is a Ukrainian national or indeed even whether he will be granted Ukrainian nationality if he were to apply for it. This is obviously not an issue for the prosaic reason that Mr Fedorovski has made it clear that he does not intend to apply for citizenship. The issue in the appeal, therefore, is (in the words of paragraph 8(1)(C)(4) of schedule 2 to the Immigration Act), 'is he a person who can be removed to a country or territory to which there is reason to believe that he will be admitted'. As Mr McGleenan on behalf of the respondent has pointed out, an imperative test is to be applied. 'Is there a reason?' - Not whether the belief is based on reasonable grounds, simply, is there a reason for that conclusion?
[3] In McLaughlin J's judgment he referred to an affidavit sworn by Ms Kavita Khanna, an immigration official, in which she deposed that she can state that,
"… the Ukrainian Parliament adopted the Law on Introduction of Amendments to the Citizenship Law of Ukraine on 16th June 2005. Article 6 of the Amended Law of 2005 outlines grounds for the acquisition of citizenship of Ukraine by birth. It provides that a person whose parents, or one of whose parents, were (was) the citizen(s) of Ukraine at the date of that person's birth, shall be treated as the citizen of Ukraine. A person that was born in the territory of Ukraine from any stateless person, lawfully residing at the territory of Ukraine, shall be treated as the citizen of Ukraine."
[4] On the basis of that summary which, incidentally, has never been challenged by the appellant, McLaughlin J concluded that since he was a person who was born before the 24 August 1991 in a territory which later became the territory of Ukraine that he had, to borrow the words of McLaughlin J 'an avenue to citizenship'. That in turn led him to conclude (as in our judgment he was bound to conclude) that there was a reason to believe that Mr Fedorovski would be admitted to the Ukraine if he was returned there.
[5] Again, at the risk of unnecessary repetition, we consider it necessary to emphasise that it is not incumbent on the Home Office to reach any conclusion as to whether or not Mr Fedorovski is a Ukrainian national or whether he would be granted citizenship. All that they must do is to have a reason to believe that he would be admitted. All of the evidence - and I say that advisedly - all of the evidence in this case points clearly to the conclusion that he would be admitted and we therefore have no hesitation in dismissing this appeal. Indeed it seems to us that no reason has been advanced on behalf of the appellant which would lead to a conclusion other that he will be admitted if he is returned there.
[6] We were invited to adjourn this case because of inquiries being made by Dr Alistair McDonnell on behalf of the appellant to the Ukrainian immigration officials. We do not consider that the outcome of those inquiries bears on the issue that we had to determine, namely whether at this moment the Home Office has reason to believe that Mr Fedorovski would be admitted to the Ukraine. We therefore concluded that it would not be appropriate to adjourn the application. If indeed the outcome of Dr McDonnell's inquiries is that the appellant will not be admitted, then that information would of course, as Mr McGleenan accepts, have to be considered by the Home Office. In those circumstances they may well reach a different conclusion but they are entitled to reach a view on whether he would be admitted on the basis on the material that is currently available. The view that they have reached in our judgment is unimpeachable.
[7] Before leaving the case I wish to refer to the fact that this matter was adjourned on a previous occasion when Mr Fedorovski represented to us that at a review hearing before Gillen J, Mr McGleenan on behalf of the respondent undertook to make inquires from the Ukrainian authorities as to the whether Mr Fedorovski would be admitted. We required a transcript of those proceedings to be prepared and we have considered it extremely carefully. It is abundantly clear that Mr McGleenan's denial that he had made such a statement to the court has been fully vindicated by that transcript and it is right that we should record that he was correct in his submission on that particular point, as indeed he has been on the principal issue in the appeal. The appeal is therefore dismissed.
