The appellant requested the revocation of a deportation order on the grounds that he was stateless. The appeal raises two points of principle: first, the standard of proof applicable to the determination of whether a person qualifies for the status of a stateless person as defined in the 1954 Convention; and secondly, the relevance of a finding that a person is stateless for the purposes of revocation of a deportation order. The court determined that a person claiming to be stateless must provide evidence satisfying the standard of balance of probabilities.
- Article 1(1) and Art 31(1) 1954 Convention on the Status of Stateless Persons
- Article 31(3)(b) of the 1969 Vienna Convention on the Law of Treaties
- Part 13 UK Immigration Rules, paras 391A, 398, 399, 399A (intended to give effect to UK obligations under Article 8 European Convention on Human Rights)
- Part 14 UK Immigration Rules (para 401 definition; para 404, by referring to para 322, provides that a residence permit will not be granted to a stateless person who is subject to a deportation order)
The appellant was born in Guinea in 1986 and entered the UK as an asylum seeker in 2004. He committed some offences and was sentenced to imprisonment for two years. A deportation order was made against him and he did not appeal in 2014. He approached the Guinean embassy, without any documents, to request return to Guinea and was refused. He requested revocation of the deportation order on the basis that he was stateless, and that was refused. He appealed that decision.
On the facts, the Secretary of State for the Home Department ("SSHD") maintained that he had provided no evidence to suggest that he had been deprived of Guinean nationality and it seemed that the only reason the authorities had not issued him with an emergency travel document was because, in the absence of the necessary documents, they had been unable to verify his true identity (paragraph 22).
The appellant argued that he had met the standard of proof by approaching the embassy and was not required to do more, e.g. by trying to obtain evidence from Guinea as to birth, residence, education etc. He relied on seven arguments, which were supported by the UNHCR as Intervenor, that the lower standard of proof, as applied in refugee cases, should also apply to statelessness cases:
1. the Handbook should be afforded considerable weight, just as the UNHCR Refugee Convention Handbook is
2. the 1954 Convention must be interpreted in the light of its intentions which include protection of stateless persons as a vulnerable group
3. to avoid persons being left in limbo, being neither nationals nor stateless, due to evidential problems, the lower standard of proof must be applied
4. the difficulty of proving a negative, often from outside the country where evidence is most likely to be found. The burden of proof should be shared because states have better resources
5. the practice of other states should be taken into account - of 25 states with statelessness determination procedures, six apply the lower standard of proof
6. authorities dealing with the standard of proof in cases where a person seeks to establish that he or she is unable to return to a particular state are of limited or no assistance, and were decided without reference to or consideration of the 1954 Convention
7. the SSHD guidance to Part 14 of the Immigration Rules refers to a shared burden of proof - at least once the applicant has made his own efforts
The argument was then made that a finding of statelessness is material to a decision on whether to revoke a deportation order.
The SSHD relied on the decisions already made by the lower courts, namely that the Handbook was 'advisory' and that the appellant, on the facts, had not met the standard of proof.
In brief, the court determined that a person claiming to be stateless must provide evidence satisfying the standard of balance of probabilities and must apply for nationality as part of that evidence. It did not have to determine whether statelessness was relevant to the revocation of a deportation order because the appellant had not established that he was stateless. Details below.
Regarding the authority of the Handbook:
"In light of the foregoing I have no doubt that it is permissible and appropriate for a court to consider the guidance in the Handbook as to how the 1954 Convention is to be applied, and to have regard to the explanation given by UNHCR as to how and why that guidance has been formulated in the way that it has. But that, so it seems to me, is precisely what the Upper Tribunal did. It observed, correctly in my judgment, that the guidance should be accorded considerable weight but that it remained advisory. It made no error in proceeding in this way." (para 44)
Regarding the 2nd and 4th arguments:
"I accept without question that the 1954 Convention must be interpreted in light of its objectives and that the consequences of an error in the assessment of whether a person is or is not stateless may be serious. But it seems to me that the nature of the issue facing the adjudicator and the steps that an applicant needs to take in order to establish statelessness are generally very different from those that arise in relation to an application for recognition of refugee status. 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.
The position of someone seeking to establish that he or she is a refugee within the meaning of the Refugee Convention is, in my judgment, very different. It will generally be very hard for such a person to establish anything more than a reasonable degree of likelihood that he or she will be persecuted if returned to the country of his or her nationality, and the consequences of an error may be very severe indeed." (paras 46 and 47)
In paragraphs 48 to 57 the court examined the line of case law which was all decided without reference to the 1954 Convention, ignoring almost entirely the case law on statelessness in the UK, made under the 1954 Convention or the Immigration Rules. It concluded:
"These authorities reveal a consistent line of reasoning. A person claiming to be stateless must take all reasonably practicable steps to gather together and submit all documents and other materials which evidence his or her identity and residence in the state or states in issue, and which otherwise bear upon his or her nationality. The applicant ought also to apply for nationality of the state or states with which he or she has the closest connection. Generally, these are steps that can be taken without any risk. If, in the words of Elias LJ, the applicant comes up against a brick wall, then, depending on the reasons given, the adjudicator will decide whether the applicant has established statelessness, and will do so on the balance of probabilities. Of course, from time to time, there may be cases where it would not be reasonable to expect the applicant to take this course, and in those cases the Secretary of State will assist the applicant by making enquiries on his or her behalf but again there is no reason why the issue of statelessness cannot be decided on the balance of probabilities. By contrast, in refugee cases, it is necessary to make an assessment of what may happen in the future in another country, and whether the applicant faces a real risk of persecution there. This is a very different kind of assessment and it is one which, by its nature, justifies the adoption of a different and lower standard of proof. I recognise that, as the appellant and UNHCR contend in their sixth submission, many of the cases to which I have referred were decided before the promulgation by UNHCR of the guidance in 2012 and the Handbook in 2014 but in my judgment the reasoning in these decisions remains robust and authoritative." (para 57)
Regarding the other arguments, the court decided:
"I accept that the 1954 Convention contemplates that a person is either stateless or a national of a state and that it is undesirable that persons should be left in limbo but I am not persuaded that the conventional balance of probabilities test has created a material problem in this regard. I also accept that it is appropriate to take into account the practice of other states in interpreting and applying the Convention but I do not consider this to be a particularly persuasive factor in light of the fact that, as of February 2018, fewer than 25 signatory states had statelessness procedures and only six had adopted a standard of proof which is lower than the balance of probabilities. We have been provided with no information as to the position in the others. Finally and as I have mentioned, the Secretary of State has indeed indicated that, where necessary and appropriate, he will assist an applicant by undertaking relevant research and making enquiries on the applicant's behalf, but I do not accept this points to a lower standard of proof than the balance of probabilities."
The appeal was dismissed. The Court agreed with the SSHD that the higher standard of proof applies. The decision was not the subject of an appeal.
Further updates
The Immigration Rules were amended in April 2019 to add a requirement to have "sought and failed to obtain or re-establish their nationality with the appropriate authorities of the relevant country".
In January 2021, in a different case, the Home Office revoked a deportation order and granted discretionary leave to remain to a man who was recognised to be stateless. Since there were no other factors in his case, it appears that the Home Office now considers that statelessness is a "very compelling circumstance" under para 398(c) of the Immigration Rules (source: Liverpool Law Clinic).
Carter, J. (2019). 'AS (Guinea) v Secretary of State for the Home Department [2018] EWCA Civ 2234', The Statelessness and Citizenship Review, 1(2), 336–342, accessible at: https://statelessnessandcitizenshipreview.com/index.php/journal/article…
Statelessness Index, 'UK Court of Appeal says statelessness must be proved on balance of probabilities', 13 November 2018, accessible at: https://index.statelessness.eu/news/uk-court-appeal-says-statelessness-…
Cynthia Orchard and Judith Carter, 'UK Home Office changes to Immigration Rules on statelessness: a mixed bag', ENS Blog, 18 March 2019, accessible at: https://www.statelessness.eu/blog/uk-home-office-changes-immigration-ru…
Note that there are links to the below cases in the following version of this judgment: http://www.bailii.org/ew/cases/EWCA/Civ/2018/2234.html
- MA (Ethiopia) v Secretary of State for the Home Department [2009] EWCA Civ 2009
- R v Secretary of State for the Home Department, ex parte Adan [2001] 2 AC 477, 520
- Pham v Secretary of State for the Home Department (Open Society Justice Initiative intervening) [2015] 1 WLR 1591
- R v Secretary of State for the Home Department Ex parte Valentina Bradshaw [1994] Imm Ar 359
- Revenko v Secretary of State for the Home Department [2001] QB 601 at page 624 G-H
- YL (Nationality, Statelessness, Eritrea, Ethiopia) v Secretary of State for the Home Department v [2003] UKIAT 00016
- R (on the application of Tewolde) v Immigration Appeal Tribunal [2004] EWHC 162
- 2003 UK IAT 00016 (Ethiopia)
- MA (Ethiopia) v Secretary of State for the Home Department [2009] EWCA Civ 289
- R (on the application of Nhamo) v Secretary of State for the Home Department [2012] EWHC 422
- Abdullah v Secretary of State for the Home Department [2013] EWCA Civ 42
- RM (Sierra Leone) v Secretary of State for the Home Department [2015] EWCA Civ 541
- Hesham Ali v Secretary of State for the Home Department [2016] 1 WLR 4799
Submission by the United Nations High Commissioner for Refugees in the case of AS (Guinea) v. Secretary of State for the Home Department before the Court of Appeal (Civil Division), available at https://www.refworld.org/type,AMICUS,UNHCR,GBR,5a9d54884,0.html