“Everyone has the right to a nationality”

Bringing legal ghosts out of the shadows – Welcoming a new UK statelessness determination procedure

7 April 2013 | Chris Nash, International Protection Policy Coordinator at Asylum Aid

Back in November 2011 Asylum Aid and UNHCR published their joint study Mapping Statelessness in the United Kingdom. Over the course of a year we mapped the number and profile of stateless persons in the UK and sought to put a human face on their situation by conducting interviews across the country. We also examined the UK’s legal obligations to stateless persons under international law and analysed the impact of current policy and practice. Based on these findings our report made recommendations for reform, most notably calling for the introduction of a dedicated UK statelessness determination procedure.

We were all buoyed when the UK Home Secretary immediately responded to our report by making a commitment to introduce a statelessness determination procedure. It has taken longer than anticipated, and a significant amount of negotiation and behind the scenes dialogue with counterparts in the UK Home Office, but yesterday the new procedure became a reality and now offers a lifeline to stateless migrants such as those we interviewed during the research. Asylum Aid has prepared a short briefing note with more information about the new procedure.

Despite the UK’s obligations under the 1954 Convention and international human rights law, UNHCR and Asylum Aid’s 2011 mapping study found that stateless persons without leave to remain in the UK often go unidentified and those without leave to remain often live at risk of human rights infringements. Many of the stateless persons we interviewed had been destitute for months, had been detained by immigration authorities in spite of evidence that showed there was no prospect of return, or had been separated for years from their families abroad. Some had been forced to sleep on the streets. Many had seen their accommodation and support repeatedly cancelled and reinstated. Almost all of this group were prohibited from working. Few were in a position to break this cycle. In the absence of a dedicated and accessible procedure to identify people who are stateless, they were left in legal limbo for years.

What is interesting from a comparative perspective is how, as covered in previous blog posts on this site, UNHCR mapping studies in both Belgium and the Netherlands revealed a very similar picture with stateless migrants in those countries also stuck in the same endless limbo without respect for their fundamental rights. The difference is of course that the UK Government has finally taken action to break this cycle and to bring these legal ghosts out of the shadows. For this it is to be heartily applauded even if aspects of the new procedure are far from ideal.

Foremost among concerns about the new arrangements relate to exclusion criteria which could deny those recognised as stateless the chance to regularise their status if it is concluded that they are “admissible” to another country. There is concern that the way the policy is currently drafted may allow decision-makers too much leeway to conclude that a stateless person would be admissible to another country even where the individual has no formal residence status in it and/or would not be able to enjoy all the rights owing under the 1954 Statelessness Convention and wider international human rights law if returned there.

It is also questionable whether adequate support will be in place for stateless people while their claim is considered, or whether they will have access to an effective right of appeal in the event of refusal. Moreover, it remains to be seen whether Home Office officials will play their part in gathering the complex evidence needed to demonstrate that someone is stateless, evidence which can be notoriously difficult for people to obtain on their own. Or whether an appropriate standard of proof will be applied consistent with UNHCR Guidelines on Procedures for Determining whether an Individual is a Stateless Person

A further notable deficiency is a lack of dedicated legal aid provision for claimants under the new procedure which will likely undermine its efficacy and exacerbate evidentiary problems if unrepresented individuals are unable to adequately navigate proceedings in what is universally accepted as a complex determination exercise.

However, aside from the simple fact of having in place provisions for stateless persons where none previously existed, there are elements of the new procedure which should particularly be welcomed. For example, the fact that the procedure is accessible to any stateless person present in the UK, and not limited to those with lawful residence, as is the case for example in Hungary. There is also no time limit within which a statelessness claim must be lodged following entry, as for example is the case in Spain. The UK procedure also allows for stateless persons to be granted permanent residence after five years with the subsequent opportunity to naturalise as British citizens soon thereafter and thereby finally escape statelessness altogether.

Moreover, any identified shortcomings should not be allowed to unduly detract from the hugely positive impact the new policy will have for stateless migrants in the UK. The changes also serve as a very positive example to a number of other European states who have ratified the relevant international instruments but failed to properly implement their obligations by setting up a dedicated statelessness determination procedure and route to regularisation.

Equally, the UK experience provides a timely reminder of the value of joined up policy development between government and civil society, as well as the important role of sound research as a catalyst for change. The Asylum Aid/UNHCR research team met with Home Office counterparts before, during and after our research. This not only facilitated trust and “embedded” advocacy but also other very tangible benefits such as access to non-publicly available data.

The UK approach also highlights the benefit of an NGO working in tandem with UNHCR on a research project of this nature. The partnership both enhanced Asylum Aid’s credibility in the eyes of government and built the capacity of the organisation to dedicate time to other developmental work aimed at tackling statelessness.

In this regard, successful advocacy in the UK should properly be seen as testament to, and part of, a wider UNHCR strategy in motion to tackle statelessness at the global level. This strategy has already had significant impact as evidenced by pledges made at and implemented since the UNHCR High Level Ministerial meeting in Geneva in December 2011.

The appetite to address this hitherto hidden issue is also evident in the successful development of the European Network on Statelessness This civil society alliance is less than a year old but already has 71 members in over 30 European countries. If this expansion is to be matched with impact in raising awareness about and mainstreaming efforts to tackle statelessness then as a next step its members need proper resourcing, including to effectively complement the work of UNHCR.

Equally, and despite recent progress, the fact that only a handful of EU Member States have functioning statelessness determination procedures gives the lie to any notion that Europe can claim to be setting an example to the rest of the world. Developments in the UK are a welcome step in the right direction but much work remains to be done.

 

Asylum Aid hosts and coordinates the European Network on Statelessness. For further information about its other work or to access a briefing note on the new UK procedure visit www.asylumaid.org.uk  

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