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What are the UK Immigration Rules on statelessness?

What are the UK Immigration Rules on statelessness?

People who do not have citizenship of any country in the world — the “stateless” — can get leave to remain in the UK because they have nowhere else to go. The criteria for this leave are found at Part 14 of the Immigration Rules. The Home Office also has guidance on Statelessness and applications for leave to remain.

In addition, practitioners should refer to the 1954 Convention Relating to the Status of Stateless Persons, and the UNHCR Handbook on Protection of Stateless Persons. The Home Office guidance states that, when there are differences between the Handbook and the guidance, the guidance will take precedence.

The guidance is likely to be updated soon to reflect changes in the Immigration Rules due to come into force on 6 April 2019. This post looks at statelessness in light of the amended Immigration Rules.

Who is stateless?

Paragraph 401 of the Immigration Rules adopts the definition of the 1954 Convention. A stateless person is defined as a “person who is not considered as a national by any State under the operation of its law”.

State

The guidance says that “a ‘State’ will be one recognised as such by the UK. This is regardless of the effectiveness of its government”.

Example

Kosovo is not recognised as a state by Spain, but it is recognised as a state by the UK. Therefore, a national of Kosovo, who is recognised as a citizen by Kosovo, will not be considered stateless by the UK.

Venezuela is currently facing such an economic crisis that many Venezuelan nationals have been unable to get passports, because of a shortage of papers. Venezuela does, however, continue to be considered a state. A Venezuelan national will not be considered stateless, even if they cannot obtain a passport confirming their nationality.

Under operation of the law

Even if someone seems to be a citizen under the law of a particular state, they may still be considered stateless if they are not treated as a citizen in practice. The Home Office recognises that:

Where the national authorities have in practice treated an individual as a non-national even though: 

the applicant appears to meet the criteria for automatic acquisition of nationality under the operation of a country’s laws 

the applicant has cooperated with reasonable requests from the State 

it is the position of the national authorities rather than the letter of the law that is likely to be decisive in concluding that a State does not consider such an individual as a national. For example, this may occur where discrimination against a particular group is widespread in government departments or where, in practice, the law governing automatic acquisition at birth is systematically ignored and individuals are required instead to prove additional ties to a State.

The requirements of the Rules

In summary, for someone to be granted leave on the basis of statelessness, they must:

  • not be “excluded” from recognition as a stateless person
  • meet the definition of statelessness
  • make a valid application 
  • not be admissible to another country
  • have obtained and submitted all reasonable evidence
  • not fall for refusal on the grounds of being a danger to the security or public order of the UK; or on grounds set out at paragraph 322 of the Immigration Rules

In addition, for applications made on or after 6 April 2019, applications will need to show that:

  • they have sought and failed to obtain or re-establish their nationality with the authorities of the relevant country
  • if they are a child born in the UK, they have provided evidence that they have attempted to register their birth with the relevant authorities but have been refused. 

1. Meeting the definition

The first requirement to be granted leave on the basis of statelessness is to meet the definition in the previous section: not being considered a citizen by any country in the world.

However, that is not the end of the game. Applicants must meet additional requirements set out below.

2. No reason for exclusion

Paragraph 402 of the Immigration Rules set out the reasons why a person may be excluded from recognition as a stateless person. 

Click for full text of Paragraph 402

402. A person is excluded from recognition as a stateless person if there are serious reasons for considering that they:

(a) are at present receiving from organs or agencies of the United Nations, other than the United Nations High Commissioner for Refugees, protection or assistance, so long as they are receiving such protection or assistance;

(b) are recognised by the competent authorities of the country of their former habitual residence as having the rights and obligations which are attached to the possession of the nationality of that country;

(c) have committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provisions in respect of such crimes;

(d) have committed a serious non-political crime outside the UK prior to their arrival in the UK;

(e) have been guilty of acts contrary to the purposes and principles of the United Nations.

In summary, a person will not be recognised as stateless where 

  1. they have alternative protection, i.e. they are assisted by UNRWA or the country where they used to live is giving them legal rights as though they were a citizen of that country, or
  2. they are “undeserving” due to their own actions, such as having committed war crimes, serious non-political crimes, or acts contrary to the purposes and principles of the United Nations

3. Making a valid application

Applications are made online, and there is no fee. Applicants will need to enrol their biometric information (i.e. fingerprints and a photograph).

Some applicants will be called for interviews.

4. Passing the non-admissibility test

If the applicant is admissible to another country, their application for leave will be rejected.

The Home Office guidance confirms that admissibility must be “for purposes of permanent residence”. Being able to enter another country for a short-term visit, for example, will not count as being admissible for the purposes of this application.

Admissibility is to any country, not only the presumed country of origin or former habitual residence. The Home Office guidance states, for example, that

As part of the consideration of the application, caseworkers must consider any explanations provided by the applicant as to why they cannot seek entry for the purpose of residence to the State that their family member (for example, a spouse) is from.

For applications made after 6 April 2019, applicants will not just need to show that they are not admissible to another country, but that they have “taken reasonable steps to facilitate admission to their country of former habitual residence or any other country but has been unable to secure the right of admission”.

5. Submitting enough evidence

Paragraph 403 (d) of the Rules states that an applicant must have “obtained and submitted all reasonably available evidence to enable the Secretary of State to determine whether they are stateless”.

According to the Home Office, therefore, the burden of proof rests with the applicant to show that they are stateless, although the Home Office guidance states that some allowances will be made:

caseworkers must make a distinction between applicants who show no interest in genuinely co-operating or providing supporting information and those who may be unable to submit much evidence or information because, for example, they do not have the resources or knowledge to obtain information about the laws of a given State. In such circumstances, where the available information is lacking or inconclusive, the caseworker must assist the applicant by interviewing them, undertaking relevant research and, if necessary, making enquiries with the relevant authorities and organisations.

Arguably, the Home Office is wrong in stating that the burden of proof rests with the applicant to show that they are stateless. In the case of Hoti v Croatia, the European Court of Human Rights criticised Croatia for not proactively determining the applicant to be stateless, indicating that it is indeed a shared burden.

The standard of proof is the “balance of probabilities”. That is, an applicant must show that it is more likely than not that they are stateless.

The Home Office guidance provides a non-exhaustive list of evidence which can be provided:

  • testimony of the applicant (written application and/or oral evidence at interview) 
  • responses from foreign authorities to an enquiry regarding nationality status of an individual  
  • identity documents (for example, birth certificate, extract from civil register, national identity card, voter registration document), passports  or other travel documents (including expired ones) 
  • documents regarding applications to acquire, or obtain proof of, nationality 
  • certificate of naturalisation or certificate of renunciation of nationality 
  • previous responses by States to enquiries on the nationality of the applicant 
  • marriage certificate, military service record/discharge certificate, school certificates, medical certificates/records (for example, attestations issued from hospital on birth, vaccination booklets etc) 
  • identity and travel documents of parents, spouse and children, immigration documents, such as residence permits of their country or countries of habitual residence 
  • other documents pertaining to countries of residence, for example, employment documents, property deeds, tenancy agreements, school records, baptismal certificates and record of sworn oral testimony of neighbours and community members

6. Avoiding refusal on security grounds

Even if an applicant meets all of the requirements above, an application will be refused if

there are reasonable grounds for considering that they are:

(i) A danger to the security of the UK

(ii) A danger to the public order of the UK

Or if

Their application would be refused under the grounds set out in paragraph 322 of the Immigration Rules 

Applicants should familiarise themselves with paragraph 322, but grounds for refusal include having made false representations or submitted false information; failure to attend an interview when requested (this is particularly relevant for statelessness applications as applicants can be called for interviews); and litigation and NHS debts.

7. Don’t forget the new requirements

Applicants applying after 6 April 2019 will need to show not only that they are stateless and not admissible to any other country, but that they have made every effort to acquire a nationality or right of admissibility to another country. In particular, they will need to show that they:

  • Sought and failed to obtain or re-establish their nationality with the appropriate authorities of the relevant country; and 
  • In the case of a child born in the UK, provided evidence that they have attempted to register their birth with the relevant authorities but have been refused.

This is strikingly different from the position in nationality law, where a child is entitled to register as a British citizen after five years’ residence in the UK on the basis that they are stateless, independently of whether or not they could register to become a national of another country.

Other considerations when making an application 

Statelessness applications are complex and should be well-prepared and evidenced. Wherever possible, applicants should seek legal advice. Cynthia Orchard of Asylum Aid has written an excellent piece on securing legal aid for these applications. 

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Legal advisers should bear in mind, for example, that an application will not automatically attract a right of appeal, but instead a right to administrative review. Is there another application that the applicant can make, which will attract a right of appeal; or can the application be presented to make it clear that it is also a human right claim and therefore does attract a right of appeal?

In addition, applicants should ensure that they have requested and reviewed any evidence or applications previously submitted to the Home Office by the applicant, and gotten their hands on the Home Office file. This is because it might contain useful information (for example if the Home Office already made a finding that the applicant is stateless) but may also contain damaging information which must be explained (for example if the applicant previously said that they were a citizen of country X). Similarly to asylum claims, the Home Office will review all of the evidence submitted with the current and previous applications and will use any inconsistencies to refuse the applications.

What leave is granted?

At present, a successful applicant will be granted leave valid for 30 months, which is renewable. Starting from 6 April 2019, successful applicants will instead be granted leave valid for five years.
Under current rules applicants are eligible for indefinite leave to remain after five years’ continuous lawful residence in the UK, where the latest leave is as a stateless person (but the whole five years do not necessarily need to be with leave as a stateless person, just the most recent leave).
The changes to the Rules however mean that, from 6 April 2019, applications will need to have had stateless leave for five years before being eligible for indefinite leave to remain.

Example

Doria had leave as the spouse of a British citizen valid from 2 March 2013 to 2 September 2015. On 15 August 2015, she applied for leave on the basis of statelessness, which was granted from 15 August 2016 to 15 February 2019. Under current rules, Doria could apply for indefinite leave to remain on 2 March 2018, on the five-year anniversary of her lawful residence in the UK, even though she was only granted leave on the basis of statelessness in August 2016.
Under the new rules, however, Doria would need to wait until she has lived in the UK for five years with statlessness leave, that is until August 2021, to apply for indefinite leave to remain.

Successful applicants have the right to work and access public funds. They can also apply for a Home Office Travel Document. 

Family members  

Requirements for family members are set out at paragraph 410-413 of the Immigration Rules. In short, spouses, civil partners and children under 18 who are not leading independent lives can apply for leave to remain in line with the main applicant. Family members can also apply for family reunion from abroad. This is not a recognition that they are themselves stateless, and it may be that some family members would benefit from making their own application on the basis of statelessness.

This post has been revised and updated following helpful comments by Cynthia Orchard. We also recommend reading the Best Practice Guide on Statelessness applications produced by the University of Liverpool Law Clinic, which is in the process of being updated.

Nath Gbikpi

Nath is a solicitor and has worked with Wesley Gryk Solicitors since June 2014. Nath read Development Studies and Politics at the School of Oriental and African Studies (SOAS), before obtaining an MSc in Refugee and Forced Migration Studies at the University of Oxford and an LLB at the University of London.

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