In AS (Guinea) v Secretary of State for the Home Department [2018] EWCA Civ 2234, the Court of Appeal has in effect rebuffed an attempt by the UN High Commissioner for Refugees to make it easier to establish statelessness. The court ruled that the standard of proof for determining a statelessness application is the normal civil standard, i.e. the balance of probabilities.
The appellant had argued that the “real risk” standard of proof, which is used for determining refugee status, should be applied. That lower standard is recommended by the UNHCR in a 2014 handbook on how to apply the 1954 Statelessness Convention. Instead, the Court of Appeal chose to follow a line of domestic authority supporting the use of the ordinary civil standard and noted that, of the states which are party to the Convention, only six use a standard of proof below the balance of probabilities.
Background: resisting deportation by arguing statelessness
It is important to note when reading this judgment that the Convention definition of statelessness is that no country accepts the individual as a citizen “under the operation of its law”. This means that simply being unable to get a travel document issued by your country of origin is not enough. It is about demonstrating that you do not meet the legal requirements for nationality in any country.
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The appellant is originally from Guinea and entered the UK using a false passport in 2004. He became addicted to drugs and committed offences to fund his habit, which led to a deportation order being made against him in February 2009.
The Guinean embassy stated that it would not provide AS with a travel document unless he submitted further evidence. In 2014 the appellant made an application for revocation of the deportation order based on his statelessness being an exceptional circumstance sufficient to justify revocation under the Immigration Rules. This was refused and AS appealed.
Both the First-tier Tribunal and the Upper Tribunal refused his appeal by applying the normal civil standard of proof, although both noted that even using a Refugee Convention “real risk” approach the appellant would not have succeeded in his appeal.
UN refugee agency argued for lower standard of proof
In the Court of Appeal, the UNHCR intervened to support the appellant’s case that the tribunals should have applied the “real risk” test in accordance with its 2014 Handbook on Protection of Stateless Persons. The court rejected that approach because statelessness determination does not require speculation about what might happen in the future. An applicant (or the Home Office, if the applicant is unable to do so) can approach the governments of countries which might accept them to ask if they are entitled to nationality. By contrast, the refugees cannot easily obtain any evidence about what will happen them on return.
Lord Justice Kitchin (now on the Supreme Court) stated:
The steps necessary to establish statelessness will usually be steps that an applicant can readily take without any risk of harm. The applicant can gather together all reasonably available evidence about his or her identity and residence in the state in issue. Further, the applicant may make an application to the embassy or other representatives of that state for formal recognition of his or her status and may request the necessary documents to enable his or her return. If an applicant has made all reasonable efforts to gather the available evidence and has made an appropriate application which has been rebuffed or refused then the tribunal may draw appropriate inferences about the applicant’s status. If an applicant is unable to take the necessary steps for good reason then, as the Secretary of State has made clear in his own policy instruction, he will assist the applicant and undertake research on his or her behalf and, if necessary, make the necessary enquiries with the relevant authorities. There is therefore no need to speculate as to whether a person is or is not stateless; that person’s status can be ascertained.
In addition, it was clear from the outset that the standard of proof would make little difference in this case. AS had not taken reasonable steps to convince the Guinean government that he is a Guinean national. The Home Office Country Returns Guide states that there is “no established timescale” for obtaining a travel document from Guinea, so the delay in this case is not necessarily unusual.
“De facto” statelessness should recognised where migrants left in limbo
The real problem illustrated by this case is not that the burden of proof should be lower, but that the definition of statelessness should be widened to include “de facto” statelessness to avoid people being left in limbo. Someone in the position of AS can be stuck in the UK without being removed for decades because their country of origin will not issue a travel document, but they will never meet the Convention definition of statelessness because they legally remain a national of that country.
The UNHCR has made a valiant attempt to circumvent the narrow terms of the Convention by recommending the use of a lower standard of proof, but the Court of Appeal was correct in law to refuse to apply it. The agency should focus its efforts on convincing states to amend the 1954 Statelessness Convention to include de facto stateless people.
