Proving statelessness: evidential issues for refused asylum seekers

The introduction of a statelessness determination procedure in the UK in April 2013 was a welcome development. However, it has thrown into sharp relief a number of issues about how to establish that a person is a stateless person.

The UK statelessness determination procedure forms part of immigration rules. It is, in truth, a mechanism, for regularising the immigration status of migrants. To that extent it is a useful tool. However it is limited to that function. It has no independent existence as a statelessness determination procedure. For example, it is not apt to assist an alien with permission to remain in the UK on some other basis, who seeks recognition as a stateless person in order to secure a Stateless Person travel document. Nor does it necessarily assist persons who are stateless but who are not necessarily migrants, for example a person who was born stateless as a result of a surrogacy arrangement.

Where the UK statelessness determination procedure scores more highly is in providing a relatively simple route to securing permission to remain in the UK for migrants who lack formal status. Indeed from the perspective of the UK Border Agency, the utility of the new procedure lies in its ability to deal with a residuum of persons of have not been able to secure permission to remain on any other basis and who cannot be readily removed from the UK. In practice that cohort of persons includes persons refused asylum and other persons who are unlawfully present in the UK.

As regards refused asylum seekers, this means that such persons will have come to the UK and sought asylum as refugees under the 1951 Refugee Convention or have sought complementary protection on some other basis. Such persons will have been through an administrative determination procedure and, where refused, ordinarily will have had the opportunity to appeal to an independent tribunal competent to determine matters of fact and law. Where unsuccessful in securing a grant of asylum or a form of complementary protection, many such persons will have remained on the territory of the UK. Absent voluntary departure or forced removal, refused asylum seekers remain in the UK without status, without entitlements to social assistance and without permission to work. For a stateless person the position is especially acute as there is no country to which they can return and enter as of right as a national of that country in order to end this regime of treatment.

For a refused asylum seeker who claims to be a stateless person under the 1954 Stateless Persons Convention and who seeks permission to remain in the UK on that basis, the problem of proving his or her case raises evidential questions. First, there will already be a body of official paperwork gathered about that person in connection with their asylum claim. In respect of the initial asylum application this will usually comprise an initial statement of evidence form, a screening interview and a full asylum interview.

Where that application is refused, there will usually be a further witness statement prepared for an appeal and a copy of the judgment of the appeal tribunal. In all this material the focus will be on the issue of whether or not the person is entitled to a grant of asylum because he or she is at risk of persecution on return.
On the initial statement of evidence form, in the record of the screening interview and in the record of the full asylum interview, information will be recorded that may be relevant to establishing statelessness but if it is that will be incidental to its purpose and so a full answer relevant to statelessness may not have been given.

Further questions may be asked and answers recorded as to a person’s nationality without regard to the significance of such information. A person may be recorded as holding the nationality of his or her home country merely because he or she has come ‘from’ that country to the UK. At this stage the decision maker will not have been interested in establishing whether or not the person is a stateless person.

Thereafter, on appeal, a person’s evidence will have been tested by cross-examination as regards the asylum claim and the tribunal judge will have drawn conclusions about the person’s credibility, possibly adverse conclusions, as regards that person’s account of past experiences. The asylum appeal will have been determined by evaluating whether there is a reasonable degree of likelihood of persecution on return. If expert evidence or background reports on the country of origin have been adduced, the focus will have been on the political situation in the country of origin rather than on the operation of the nationality law and administrative procedure in that country. It is also very unlikely that anyone will have sought a birth certificate or registry entry from the country of origin or have considered whether the country of origin has a low or high incidence of birth registration.

At the end of this process, a person who has been unsuccessful in claiming refugee status but who avers that he or she is stateless has to begin the process of establishing that he or she is stateless and that he or she is non-returnable to any other country. Such a person may have had a subjective fear of persecution and have been forced to leave his or her country of origin in a hurry or covertly and so may not have able to bring documents with them to the UK that would help establish a want of nationality. In addition, as already touched on above, the process of applying for refugee status and appealing against a refusal of the same will have led to a person answering questions with a view to establishing a risk of persecution on return but where such answers may have a bearing on proving whether a person is not recognised as a national of the country of origin under the operation of its law. Further, as already noted, that person’s credibility may already have been impugned. It should also be noted that most UK immigration advisors who focus on international protection issues tend to focus on proving risk of persecution on return and not on a technical analysis of the operation of foreign nationality laws and codes.

The refused asylum seeker who seeks to establish that he or she is a stateless person will not receive any legal aid from public funds in order to do so, nor will he or she have any entitlement to social assistance or permission to work. In this setting and against the backcloth of the material of the refused asylum claim, he or she will have to secure legal assistance and begin to establish that he or she is not accepted a national of any relevant country under the operation of its law. It is only at this late stage that the value of birth registration and birth certificates as forms of evidence as regards nationality and statelessness may become apparent.

Investigating whether a birth has been registered or a certificate is obtainable may prove difficult where the person is outside the state of birth and may have been so for many years seeking refuge.
Equally, a person who has come to the UK to seek asylum but who has been unsuccessful for what ever reason may be very reluctant to approach the embassy or consulate of his or her home state to seek confirmation that he or she is not a national of that state. This is particularly so as the UK also requires that a person is non-returnable to any country in order for a person to secure permission to remain as a stateless person.

One can easily imagine a situation where an asylum claim fails for want of background evidence, the applicant is nonetheless from a minority vulnerable to persecution in the home country, and the embassy of that country when approached recognises that person as one of its own nationals but may not have done so on a consistent basis as regards other persons from the same minority who had previously approached it; thus leading to that particular person being returnable. Such a person would not be stateless person of course, although he or she may be at risk of persecution. However, in the context of a subjective fear of persecution and the knowledge that others from the same minority had been refused recognition as nationals of that country, he or she may feel obliged to approach the embassy to seek to establish statelessness but may be apprehensive as to the consequences of so doing.

As regards expert evidence as to the operation of the nationality laws in a relevant country, an applicant for recognition as a stateless person may need to secure a person expert in the law of that country and the operation of its laws. The expert who assessed risk on return for the purposes of the asylum claim may be a political scientist or international relations scholar and may not have the expertise to assist. A lawyer qualified in the law of the relevant country may be better. However it may be expensive to secure advice from such a person.

Finally, it should be borne in mind, that a refused asylum seeker will have had his or her claim to be at risk of persecution judged by the tribunal on the standard of reasonable degree of likelihood as regards past facts as well as future risk. Any helpful findings of fact in the tribunal’s judgment will only help the applicant for recognition as a stateless person so far, as the standard of proof that the UK requires to prove facts in the statelessness determination procedure is higher, proof is required on the balance of probabilities.

In conclusion, it can be seen that the UK’s statelessness determination procedure is a welcome development but raises complex and difficult evidential issues for refused asylum seekers seeking to establish status as stateless persons.

(This post first appeared on the European Network on Statelessness Blog http://www.statelessness.eu @ENStatelessness)

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