The Burden of Proof and Standard of Proof in Statelessness cases  

1. There are problems with Stateless Determination Procedures (SDPs) to determine who is Stateless under the 1954 UN Convention Relating to the Status of Stateless Persons (Stateless Persons Convention) as to the application of the burden and standard of proof. State practice varies wildly.

 

2. The UNHCR Handbook on Protection of Stateless Persons opines upon the burden of proof and the standard of proof. As regards to the burden of proof it says: ‘The burden of proof in legal proceedings refers to the question of which party bears the responsibility of proving a claim or allegation. Typically, in administrable proceedings, a claimant bears an initial responsibility in substantiating his or her claim. In the case of statelessness determination, the burden of proof is in principle shared, in that both the applicant and the examiner must cooperate to obtain evidence to establish the facts. The process is a collaborative one aimed at clarifying whether an individual comes within the scope of the 1954 Convention…’ (para 89).

 

3. The principal difficulty with applying the burden of proof concept is that, ordinarily, say in legal proceedings, it suggests that one party bears the burden of proving a case and the other party (who opposes the first party) does not. When one describes a burden of proof as being shared one is saying there is no burden on one party to make good their case to the satisfaction of a judge or adjudicator, so as to prevail over the other party who opposes the case. In that respect the idea of a burden of proof being shared is unhelpful. Where there is a shared burden each party (the person and the state) must do what is reasonably can to establish whether a person lacks any nationality.

 

4. In truth the process of determining whether or not a person is stateless is an evaluative one, in which both parties have to make an effort to gather such evidence as is available. Thereafter, one party, the state body to which the application is made (rather than a judge deciding the matter between the two parties), gets to determine whether or not a person is in fact stateless. Thus, it is not right to speak of a burden of proof borne by one party, where that party’s case is opposed by another, and where the parties are arguing a case in front of a judge. Instead, this is a situation where both parties may bring evidence to the table, and that thereafter one party (the state) may determine whether or not the other party (the person concerned) is to succeed.

 

5. The picture is even more complicated as regards the standard of proof. In the UNHCR Handbook on Protection of Stateless Persons the standard of proof is described as follows: ‘As with the burden of proof, the standard of proof or threshold of evidence necessary to determine statelessness must take into the consideration the difficulties in proving statelessness, particularly in light of the consequences of incorrectly rejecting an application. Requiring a high standard of proof of statelessness would undermine the object and purpose of the 1954 Convention. States are therefore advised to adopt the same standard of proof of that required in refugee status determination, namely, a finding of statelessness would be warranted where it is established to a “reasonable degree” that an individual is not considered as a national by any State under the operation of its law’ (para 91).

 

6. There are difficulties with this approach. It is said that a lower civil standard the ‘reasonable degree’, as opposed to the balance of probabilities, is required in order to avoid the consequences of incorrectly rejecting an application in light of the difficulties of proving the application. However, a statelessness determination procedure is a very different process to that used when determining whether or not an applicant is at risk of persecution such that he or she is a refugee within the meaning of the Refugee Convention.

 

7. Under the Refugee Convention the question of risk of a persecution is forward-facing, it looks to the future as to what might happen and the risk of acts of persecution occurring. This is so notwithstanding that past persecution may be indicative of future risk. In contrast a question of whether or not a person is a Stateless Person because he or she lacks the nationality of any country under the letter or the operation of its law is a question as to the current circumstances looking at the evidence past and present.

 

8. In situations other than potential statelessness, where a person may have more than one nationality (for example where a person is born in one country to parents born in a neighbouring state) and a state has to decide which of those nationalities the person holds, the ordinary civil standard  (the balance of probabilities) is applied as the test and not the lower civil standard (reasonable degree of likelihood).  In determining whether or not a person holds a nationality or no nationality, absent determining whether or not that person falls within the scope of the Stateless Persons Convention, UK public authorities have approached matters by applying the balance of probabilities test applies as to the standard of proof and have done so where the burden of proof  falls upon the applicant.

 

9. In the UK, in the case ofAS (Guinea) v Secretary of State for the Home Department and the United Nations High Commissioner for Refugees[2018] EWCA Civ 2234, the Court of Appeal (of England and Wales) held that the standard of proof was that of the balance of probabilities and not the reasonable degree standard. The United Nations High Commissioner for Refugees (the UNCHR) intervened in the case in support of its stance in the UNHCR Handbook on Protection of Stateless Persons that the reasonable degree standard. It filed evidence of state practice in support. Unfortunately, that evidence did not show that states follow the UNHCR’s opinion. Instead, it shows, so far as can be ascertained, that state practice varies.

 

10. According to the UNHCR, in France the test to whether or not a person is stateless will be assessed on the basis of all available evidence that is ‘sufficient, precise and serious’. The UNHCR say that the burden of proof is shared in practice.

 

11. In Italy the Italian Supreme Court has held that ‘the attenuated burden of proof’ applies, and that the burden of proof is shared in practice during the judicial procedure.

 

12. In Spain it said that the standard of proof is similar to that applied to refugee determination procedures. It is said also that the burden is shared and that the standard has been lowered in having to prove your case from having to declare your case.

 

13. In Luxembourg it is said that an applicant must submit ‘sufficient, precise and serious evidence’ in support of his claim. It is said that the burden is shared.

 

14. In Hungary the burden and standard of proof is the same as that applied under the Refugee Convention to refugees. It is said that the national law does not define per sethe required standard of proof but the applicant must ‘prove or substantiate’ his claim. It is said that the burden of proof is shared in practice.

 

15. In the Philippines it is said that ‘reasonable degree’ standard of proof recommended by the UNHCR is applied. It is said that the proof of burden is shared.

 

16. As for many other State Parties to the Stateless Persons Covention, the UNHCR did by under applicable SDPs.

 

17. As one can see there is a variety of state practice as to the standard of proof. There is no consistency. There is no simple adherence to the UNHCR recommendations in the Handbook on Protection of Stateless Persons. The situation is highly unsatisfactory.

 

18. In AS (Guinea), when the Court of Appeal held that the standard of proof was that of the balance of probabilities and not the reasonable degree standard, it considered the provisions of the Stateless Persons Convention and the UNHCR Handbook on Protection of Stateless Persons. In looking at the Handbook it considered the paragraphs on the burden of proof and the standard of proof cited above. Whilst paying a great respect to the views of the UNCHR, it begged to differ as to the position of the standard of proof.

 

19. The Court held that it is permissible and appropriate for a court to consider the guidance in the UNHCR Handbook on how the Stateless Persons Convention is to be applied. But it considered that the tribunal below, the Upper Tribunal, did in fact consider the guidance. The Court accepted also that the Stateless Persons Convention must be interpreted in light of its human rights and humanitarian objectives.

 

20. Having done that, the Court considered the rationale for adoption for the lower standard (the ‘reasonable degree’ standard) as it applies to refugee and human rights cases and whether it should apply to determinations of whether a person is Stateless, not least because of the serious detrimental impact of statelessness and the grave consequences of an application being incorrectly rejected.

 

21. The Court also considered the submission that it is very difficult in reality to prove a negative, that a person is not a national under the operation of any state’s law. However, it considered that the steps that an applicant needs to take to establish statelessness are very different to those who arise in relation to applications for refugee status.

 

22. It considered that a stateless applicant can take particular steps without risk of harm that would not be open to a refugee status applicant. It considered that a stateless applicant can gather all reasonably available evidence as to identity and residence. It considered that a stateless applicant can make an application to an embassy or other state representative for recognition of nationality and may request the necessary documents to enable return. It considered in that context that there is no need to speculate as to whether or not a person is stateless, if the status can be ascertained. For the Court that situation was to be contrasted with the situation of someone trying to prove that they are a refugee by virtue of being at risk of persecution were they to be returned to their country of origin.

 

23. In coming to its decision, the Court considered prior UK case law, including the case of R v Secretary of State for the Home Department, ex parte Bradshaw[1994] Imm AR 359. In that case Ms Bradshaw a former citizen of the USSR had been granted Indefinite Leave to Remain in the United Kingdom as a result of fraudulent misrepresentations that asserted that she was stateless. The Outer House of the Court of Session in Scotland found that she had failed to establish that she was a stateless person and that therefore she could not be considered stateless within the meaning of Article 1 of the Stateless Persons Convention.

 

24. The Court of Session held that she would have had to apply to the states in question in order to seek confirmation of whether or not she was a national of those countries and that she had not done so. From that case one derives a requirement that in order to prove statelessness one must apply to the relevant countries in question for a determination as to whether or not one is a national of that country.

 

25. In a subsequent case, R (on the application of Tewolde) v Immigration Appeal Tribunal)[2004] EWHC 162, Henriques J said that the test for deciding whether a person is a national of a country is the balance of probabilities. As to proof of nationality, a further Court of Appeal case, NA (Ethiopia v Secretary of State for the Home Department)[2009] EWCA Civ 289, held that a person who wished to establish that they were not a national of a country had to approach the authorities of that country for a determination and t held that the test proving that a person is not an national of a country is one to be determined on the balance of probabilities. Further cases were considered by the Court of Appeal in the judgement.

 

26. In the result, in the UK the burden of proving that an applicant is stateless falls upon the person who asserts that he or she is stateless, and the standard of proof to be applied is the balance of probabilities. The opinion of the UNHCR in the Handbook on Protection of Stateless Persons has not been followed by the Court of Appeal. The Court was not persuaded.

 

27. Where does that leave the applicant for a statelessness determination in the UK and in the jurisdiction of any other State Party to the Stateless Persons Convention that follows the UK approach?

 

28. The reality is that an applicant for statelessness determination will bear the burden of proving his or her case on the balance of probabilities. He or she is going to have to approach the competent authorities of the countries of his or her putative nationalities to seek a determination as to whether he or she is or is not a national of a country.

 

29. In so doing, the applicant runs the ‘risk’ that a country will accept the person as a national of that country. That would provide a durable solution in the form of a nationality but often it is not what stateless applicants seek to achieve having been displaced into host countries other than their own.

 

30. An applicant must take all reasonable, possible, steps in order to assist the decision-maker who is determining whether or not a person is stateless, including gathering evidence from the public authorities of the state of origin.

 

31. If a person in a host state is approaching the consular authorities of the countries with which he or she is closely connected but of which he or she claims not to be a national, then a written letter setting out the full plenitude of his or her case supported with all possible documentary evidence must be sent to the country in question and thereafter taken in person to the consulate to try and obtain a statement or certificate of non-nationality.

 

 

32. Nothing less than full-factual disclosure together with all possible original documents will enable an applicant to succeed in showing that he or she is stateless. Furthermore an applicant may be expected to use a tracing service to try to determine whether or not there are friends or family in the country of origin who may be assist in the collection of other records, such as birth certificates or parish records, that may assist the home state of origin with making a definitive determination as to whether or not the applicant is not a national. In practice, unless and until the applicant takes those steps, he or she will not succeed.

 

33. One can see that the lack of a consistent state practice on proof issues hinders arguments that may be deployed in national proceedings to argue for the UNHCR-directed shared burden of proof and the lower civil standard of proof (reasonable degree) when seeking to ensure a State Party follows the UNCHR’s guidelines.

 

34. Were state practice to have been consistent and were it to follow the guidance set out in the UNHCR Handbook on Protection of Stateless Persons, the view of the Court of Appeal in AS (Guinea)may very well have been different. However, the Court of Appeal was able to digest the evidence advanced by the UNHCR, and not follow it on the basis that it does not support the proposition that there is a consistent state practice setting the standard of proof at the reasonable degree level.

 

35. The judgement in AS(Guinea) is binding on all courts and tribunals in England and Wales up to and including the Court of Appeal. In that jurisdiction the point is now only be open for further argument in the United Kingdom Supreme Court.

 

36. The judgement in the Court of Appeal in AS (Guinea)may well be persuasive to states and other jurisdictions. If it is persuasive it will create a precedent in departing from the UNHCR’s guidance on this matter. It is to be hoped that either in the UK or elsewhere a further case is brought that will enable a court to determine whether or not the approach of the England and Wales Court of Appeal in AS (Guinea)should be followed.

 

37. Among points to emphasise in future cases are (i) that stateless determination is about protection of those that lack a home in the world a state with access to standards of protection so they can lead meaningful lives, and (ii) a statelessness determination applying the reasonable-degree standard does not create an unmerited opening of a back-door to permanent residence in the host state; initial regularisation of status need only lead to time-limited permission to remain in the first instance, together with the possibility of an active review if circumstances change. Therefore, any concern deriving from the public policy Id’s fear of loopholes facilitating unwanted migration need only be addressed therapeutically.