R. v. A. J. Klosser, Crim. Rev. 17 “B” – D – 68, 11/4/69, Hamlyn J.

R. v. A. J. Klosser, Crim. Rev. 17 “B” – D – 68, 11/4/69, Hamlyn J.

This was an application on revision of a conviction of the applicant by the Resident Magistrate Court on a charge of failing to comply as a prohibited immigrant with the lawful requirement of the Principal Immigration Officer to leave Tanganyika, c/s 23(1) (j) of the Immigration Act, Cap. 534. No punishment was imposed. The applicant was born a British subject of British parents in Karachi (British India) in 1918. He then moved with his parents to Zanzibar and later, in 1929, the family moved to Dar es Salaam where he schooled for sometime and then left for England for further studies. At the outbreak of World War 11, he was conscripted into the British Army and at the end of hostilities he lived in Greece for some time before returning to Zanzibar. In 1953, the applicant registered himself in Zanzibar as a citizen of the

U.K. and colonies and lived there till after April 6, 1964, when he left on being declared a prohibited immigrant in Zanzibar. He entered Tanganyika under a visitor’s licence and has remained here till when he was served with the notice to leave by the Principal Immigration Officer on November 25, 1967. It is failure to comply with this notice that led to the current proceedings.

            Held: (1) “The first [question] arises from the evidence of the Principal Immigration Officer of Tanzania who informed the court that the accused, according to his records, is a British subject. This opinion, which the Principal Immigration Officer states he held, was based on the accused’s own declarations. Nationality and citizenship are of course matters of fact and neither the opinion of the Immigration authorities nor the claim of the accused himself can have any bearing on these questions and it is for this court to determine from the evidence on the record, the true status of the applicant.  (2) “The second question which arises is one of an indirect nature and is set out in the applicant’s petition. That petition complains that the finding of the learned Resident Magistrate was wrong and that the trial court should have found the applicant to be a person who had lost his citizenship of the United Kingdom and Colonies and was consequently stateless. If such is the finding of this court, then the Notice of the Principal Immigration Officer (so the argument goes) should never have been issued and the “lawful requirement” issued by him was no lawful requirement at all. The Notice was invalid and the applicant therefore claims that no offence was committed by him, despite the issue of the Notice. The 1948 Act provides for certain transitional measures for which the most relevant is section 13. That section (and I omit parts of it which have no reference to the instant case) reads: (1) “A person who was a British subject immediately before the date of the commencement of this Act, and is at that date potentially a citizen of any country mentioned in subsection (3) of section I of this Act, but is not t that date a citizen of the United Kingdom and Colonies or of any country mentioned in that subsection ……. Shall as from that date remain a British subject without citizenship until he becomes a citizen of the United Kingdom and Colonies or of any country mentioned in Section 1 (1) of the British Nationality Act, 1948.” The latter section reads as follow: “I (1) Every person who under this Act is a citizen of the United Kingdom and Colonies or who under any enactment for the time being in force in any country mentioned in sub-section (3) of this section is a citizen of that country shall by virtue of that citizenship have the status of a British subject.” Sub-section 3 of section I sets out a list of countries, among which are India and Pakistan. Prior to this legislation the applicant would appear to have been a natural born British subject under the British Nationality and Status of Aliens Act, 1914 and the succeeding Acts of like title in 1918, 1922, 1933 and 1943. Sub-section (3) of section 1 of this Act, and the provisions of the Third Schedule to this Act, shall have effect in relation to a person who remains a British Subject without citizenship by virtue of this section. (2) “A person remaining a British subject without citizenship as aforesaid shall become a citizen of the United Kingdom and Colonies on the day on which a citizenship law has taken effect in each of the countries mentioned in sub-section (3) of Section I of this Act of which he is potentially a citizen unless he 

then becomes or has previously become a citizen of any country mentioned in subsection (3) of section 1 of this Act or has previously become a citizen of the United Kingdom and Colonies …….” Section 32 (7) of the Act deals with “potential citizenship” and is also relevant to the present investigation. It is common ground that the applicant registered in Zanzibar on 18^th August, 1953. What then was the effect of such registration?....... under the 1948 English Act the applicant had automatically been vested with citizenship of the United Kingdom and colonies upon registration and under section 9 of the Zanzibar Constitution he became a Zanzibar subject. Section 9 of the Constitution of the State of Zanzibar reads thus: “Any person who on 10^th December, 1963, is a citizen of the United Kingdom and Colonies, having become such a citizen by virtue of his having been naturalized or registered in Zanzibar under the British Nationality Act, 1948, shall, by virtue of that status, have the status of a Zanzibar subject.” By reason of acquiring this latter status he ceased to be a citizen of the United Kingdom and colonies. It seems clear then that at this stage the applicant had lost his original status and was then a Zanzibar subject. On 6^th April 1964 – the date is highly relevant to the whole question under examination – the applicant was deported from Zanzibar. That date was some three weeks before Union Day and, while the fourth Schedule to the Extension of Law (No. 5) Decree provides (Section 2(1) (a)) that every Zanzibar subject who held the status of Zanzibar subject on 11^th January, 1964, should be deemed to have become a citizen of the United Republic on Union Day, a provision is made that this shall not apply to any person deported from Zanzibar. It seems patent therefore that the applicant because of this restriction, did not become a citizen of the United Republic on Union day. As the learned Resident Magistrate correctly remarks, “He was in effect one of a class of Zanzibar subjects on which citizenship of the United Republic was no conferred.” I further agree that by virtue of the deportation he had then also lost his status as a Zanzibar subject.” (3) “The trial court at this point considered the question of the applicant’s status as a British subject. It reviewed the life history of the accused and concluded that he had acquired “the additional status” of citizenship of the United Kingdom and colonies in 1953. The learned magistrate considered that there was some kind of status of British Subject which still remained and lingered on unaffected by what had taken place. With respect I cannot agree with this theory of “residual nationality”, nor can I accept the contention of learned counsel for the Republic that any dual nationality existed in this case. The effect of the 1948 Act, coupled with the fact of the applicant’s registration in Zanzibar, had a decisive effect upon his status. The old status vanished completely and gave place to the new and no vestige of his former “national self” remained. Nor do I think that the provisions of the Third Schedule to the British Nationality Cat, 1948 assist in this respect. That refers to persons who remain British subjects without citizenship. The applicant (prior to his deportation) had citizenship but it was citizenship of Zanzibar, and this he subsequently lost. He had already lost the status of citizenship of the United Kingdom and Colonies by virtue of his having acquired citizenship of Zanzibar in terms of section 9 of the Zanzibar Constitution section 2(2) Acts 1963. He was excluded from obtaining Tanzanian citizenship as already

noted above, and it seems clear he thus became stateless.” (4) “The learned Resident Magistrate, in the course of his judgment, has quoted from Article 15 of the Universal Declaration of Human Rights. I do not think that the Declaration has any bearing upon the question of the statelessness or otherwise of the applicant; the maxim that “everyone has the right to a nationality” and that “no one shall be arbitrarily deprived of his naturality nor denied the right to change his nationality”, cannot affect the matter as the learned trial magistrate envisaged. The applicant has, by virtue of his own deed, involved himself in a number of legislative enactments which together have resulted in a consequence which he neither envisaged nor sought.” (5) “In seeking to reach a decision on this application, it is necessary I think to distinguish between the right of residence and the question of nationality. While loss of nationality has a purely circumscribed and personal effect only, the right of residence has greater consequences. The loss of this latter right may involve expulsion from the country of residence (as indeed took place in this case) and a resultant infringement of the right of other states. As has been said: “There are no desert islands to which refugees may go,” and it is this aspect of the matter which may have repercussions upon other stated which the deported person may seek to enter. The applicant was charged with an offence under section 23(J) of the Immigration Act, 1963 – That is, failing to comply with a lawful order, and it is his contention that the Order made by the Principal Immigration Officer was unlawful and invalid, he being a stateless person. Learned counsel for the applicant argued that his client, being stateless, could not properly be said to have “failed to comply,” for there is an obligation by international law on the country of his residence to retain him. In this, I consider that learned counsel overemphasized this “obligation.”  There is certainly a right residing in every state to deprive of nationality, nor do I think that the applicant sought to raise an issue on this matter. But I have been unable to find the existence of a rule of international law prohibiting expulsion. There are ma dicta that loss of nationality by denationalization should not, by itself, entail the loss of the right of sojourn; but these dicta are not as yet considered as having crystallized into a rule of existing international law. It is however generally held that the duty to permit continued residence persist, though there seems to be no specific rule to such effect. And it is equally regrettable that the doctrine that it is the duty o f a state of former nationality to admit a denationalized person to its territory still remains to be adopted by the comity of nations. In the result therefore, it is impossible to find that the act of the Principal Immigration Officer was anything but lawful in issuing the Notice to the applicant. There was consequently an obligation upon him to comply with the terms of it. I am fully aware that this ruling will leave the applicant with no real remedy at all and that he will thus become a person with no abode. These implications however may be for consideration elsewhere.” (6) Application dismissed.