The new Tottenham Hotspur football team manager, José Mourinho, recently vowed that he won't repeat his past mistakes, but instead will make new mistakes.
The UK Home Office's new guidance relating to applications to stay in the UK as a stateless person both repeats some mistakes of the past and makes new ones. But the new guidance also introduces some impressive improvements, which one can hope will make a real difference to the lives of stateless people in the UK, as one can hope that José Mourinho will bring improvements for the Spurs.
The Home Office introduced a statelessness determination procedure in 2013, through Part 14 of the Immigration Rules, to allow eligible stateless people to regularise their immigration status and access some of the benefits guaranteed under the 1954 Convention on the Status of Stateless Persons. Under Part 14, applicants can be recognised as stateless and granted ‘leave to remain’ (permission to stay) in the UK. Part 14 contains an unusual requirement that to be granted leave to remain (and a residence permit), the applicant must be both 1) stateless and 2) not ‘admissible’ to any other country [with a right of permanent residence]. The latter requirement is extraneous to the 1954 Convention. Stateless persons who are granted leave to remain under Part 14 are eligible for family reunification on a similar basis with refugees and have access to most (but sadly not yet all) the same benefits as peopled granted refugee status in the UK.
Part 14 was amended in April 2019, bringing in three main changes:
1) The duration of leave granted to persons under Part 14 was extended from 2.5 to 5 years.
2) New provisions were added to Para 403 – subparagraphs (e) and (f) – bringing in new requirements to be granted leave to remain as a stateless person.
3) Para 407 was amended to require that those granted indefinite leave to remain under Part 14 have had 5 years leave to remain as a stateless person, rather than a combination of different types of leave as had previously been possible.
Biggest changes in the 2019 policy instruction
The Home Office’s recently revised policy instruction (the Home Office’s guidance to its own decisionmakers) relating to statelessness applications (‘Stateless leave’, v. 3.0, 30 Oct 2019) brings several improvements which reflect stakeholder recommendations. It also brings some undesirable changes, and there are some remaining challenges.
The most substantial changes are:
- A new and generally helpful section introducing changes in how the Home Office should deal with applicants who have outstanding asylum claims and permitting, for the first time, asylum and statelessness applications to proceed in parallel in some circumstances (p 9-10).
- The General Grounds in Part 9 of the Immigration Rules prevent certain applicants from being granted permission to stay in the UK under any part of the Immigration Rules, for example if they have committed certain criminal offences. The new guidance brings in a helpful requirement that even where the general grounds apply, the Home Office ‘must still consider whether an applicant meets the definition of a stateless person’, because if the applicant is stateless and not admissible to any country [with a right of permanent residence], the Home Office may need to grant leave to remain, outside the Rules (p 24, 26).
- The UK’s statelessness determination procedure unfortunately does not entail a full right of appeal; instead, there is the possibility of Administrative Review – which means asking the Home Office to decide if it has made a ‘caseworking error’ in refusing an application. The new guidance provides for increased scrutiny in cases where the Home Office administrative review team finds that an error has been made and the case is returned to the statelessness determination team for a new decision. In such cases, the case should go to a different caseworker, who should reconsider it within 3 months; and their decision should be subject to a check by a Senior Caseworker or Higher Executive Officer.
- The Travel documents section has been amended to confirm that a Stateless Person’s Travel Document may be issued to a person who is stateless but has not been granted permission to stay in the UK as a stateless person. An example is given of a person who is stateless but refused leave under the general grounds but granted leave outside the Rules. Another example would be a person who is stateless but has leave to remain under the Rules in another category, for example (but not limited to): student, work permit or spouse categories.
Further amendments include:
- A partial misinterpretation but some clarification of the situation of children born stateless in the UK (relating to findings in JM (Zimbabwe) v SSHD  EWCA Civ 188. At p 7, there is confusion of the issue of statelessness with the issue of inadmissibility. At p17, there is a correct, updated interpretation of JM and additional information relating to April 2019 amendments of the Immigration Rules. The second paragraph of p 20 confirms that where a person could acquire nationality by registering with the relevant national authorities, but has not done so, they may be stateless, but admissible to the relevant country, and therefore not eligible for leave to remain under Part 14. I note that under the British Nationality Act (Schedule 2), children born stateless in the UK may be eligible to register as British citizens upon reaching the age of 5, and admissibility or lack thereof to their parents’ country or countries of origin is not determinative of whether they have a statutory entitlement to British citizenship (see also MK (India)  EWHC 1365 (Admin)). The new policy instruction fails to mention this point. Considering that there is always an obligation for the Home Office to consider children’s best interests, as a primary consideration, it would have been helpful for the Home Office to instruct its caseworkers to signpost a child applicant (or dependant) who is or may be eligible for British citizenship to apply under Schedule 2 of the BNA rather than under Part 14 of the Rules.
- Partially improved guidance on interviewing stateless persons (p 12). The policy regarding interviews has, however, formally changed from ‘should normally interview’ to ‘[a]n interview may be required’ in certain circumstances. This is contrary to UNHCR’s Handbook on Protection of Stateless Persons (Para 71). The first version of the guidance, of May 2013, required all applicants to be interviewed.
- Possibly problematic changes to the section on ‘Enquiries with relevant national authorities’ (p 16), notably losing an explicit requirement that all applicants must be asked to consent to enquiries of national authorities (but retaining a requirement that previous asylum claims not be disclosed).
- Generally helpful additions to the section on ‘Determining nationality under operation of state laws’, including a list of examples of ways in which people become stateless (p 18-19). I hope, however, that this will not be treated as an exhaustive list. It doesn’t include, for example the situation where a state has previously issued a person with documents suggesting that it considers the person is a national, and then refuses to renew them. In such cases, which are fairly common, the person may no longer be considered as a national by the state.
Some things that should have changed but didn’t:
- Sadly, the Home Office position regarding the burden and standard of proof in statelessness applications (p14) is still not in line with UNHCR standards, nor the findings of the European Court of Human Rights in Hoti v Croatia, ECtHR Application no. 63311/14 (26 April 2018). Hoti was decided on Article 8 grounds, and the Court indicates that states share the burden of proof in relation to matters of statelessness and that the standard of proof is relatively low. See eg, Para 138, in which the Court criticises the Croatian Government for not having facilitated ‘the applicant’s contact with the authorities of another country’ to verify whether he had a nationality, where the applicant had provided some evidence indicating that he was stateless. For a helpful analysis of Hoti v Croatia, see also a May 2018 blog article by Katja Swider, available here. I further note that although the Court in Hoti indicates that their decision is to some extent specific to the facts of the case, ECtHR judge Ksenija Turković (one of the judges who decided Hoti) stated at an event on statelessness at the Council of Europe on 10 October 2018 (attended by myself and numerous other members of the European Network on Statelessness) that the findings of Hoti v Croatia are generalisable to other statelessness cases. Importantly, although the 2019 Home Office policy instruction declares that the burden of proof rests with the applicant, it does continue to require that, where an applicant is unable to provide much evidence ‘because, for example, they do not have the resources or knowledge to obtain information about the nationality laws of a given state’, the Home Office caseworker ‘must assist’ the applicant by interviewing, undertaking relevant research, and making enquiries with relevant entities (p 14). With respect to the standard of proof, I note that the UK Court of Appeal found in AS Guinea 2018 EWCA Civ 2234 that the applicable standard of proof is the balance of probabilities, rejecting the standard approved in the UNHCR Handbook. I don’t agree with the Court of Appeal or Home Office on this point. Contrary to the Court of Appeal’s comments in AS Guinea, it is frequently not ‘easy’ to prove nationality or lack thereof (see Para 81).
- The new guidance, like the 2016 version, includes a brief section on country of origin information (p 16). It requires Home Office caseworkers to undertake research on relevant nationality and other laws, including their implementation and state practices. This section continues to assert that such information can ‘usually be found’ in Home office country information reports or be provided to Home Office caseworkers by the Home Office Country Information team. Although this would be welcome, I am sceptical that adequate information about relevant nationality laws and practices can indeed ‘usually’ be found or provided on a caseworker’s request. I also note the admirable findings by Judge Ockleton in MK India (para 6) relating to the need for expert interpretation of relevant nationality laws and practices. The decision in the deprivation of nationality case of E3 and N3 v SSHD [SIAC Appeal Nos. SC/138/2017 & SC/146/2017] also fully demonstrates the need for experts. For some helpful information on nationality laws and practices in specific contexts, see the position papers published by the European Network on Statelessness and the Institute on Statelessness and Inclusion.
- The section on ‘Serious criminality’ (p23-24) incorrectly states, as it did in the 2016 version, that the 1954 Convention on the Status of Stateless Persons ‘excludes from its scope those persons for whom there are serious reasons for considering that they have committed war crimes’ or certain other serious crimes. I note that the 1954 Convention (Art 2) does not exclude such persons from its scope, but rather from the benefits of the Convention. Such persons are, however, still stateless where they are not considered nationals of any state under the operation of its law, even if they are not eligible for leave to remain in the UK under Part 14 of the Immigration Rules or entitled to the benefits of the 1954 Convention. The guidance on leave outside the Rules will be relevant to such persons [see above].
- There is no instruction to caseworkers that they must consider the applicant’s right to private and family life under ECHR Article 8 or their right to freedom from torture and inhuman or degrading treatment under ECHR Article 3 should they be stuck in the UK without a residence permit. When the Home Office refuses leave to remain in circumstances where the applicant is unable to leave the UK, the applicant will remain in limbo, barred from working, driving a car, opening a current bank account, pursuing university studies, or undertaking many other activities that are part of a normal private life. Some such persons end up destitute and homeless. The new instruction that caseworkers must consider granting Leave outside the Rules in certain circumstances is, in my view, an effort to ensure that Article 3 and/or 8 rights are not violated, but without referring to Article 3 or 8. In my view, where human rights issues have been raised, they must be considered if statelessness leave is refused. This follows from the concession in Ahsan v SSHD  EWCA Civ 2009 (para 14) that human rights claims must be considered when raised and need not be made on a specified form. The findings in Hoti v Croatia also support this position.
Legal practitioners in the UK and elsewhere should consider whether a statelessness application, asylum application, or another type of application is the best option for their client, depending on the specific circumstances of the case. In the UK, especially in cases where there are multiple private or family life issues that arise in conjunction with statelessness, it may be to the applicant’s benefit to make a human rights application rather than a statelessness application. There may be several disadvantages of an Article 8 application in the UK in comparison with a statelessness application: the Article 8 application may require payment of a hefty fee (if not eligible for fee waiver or part of an asylum claim); the residence permit granted if successful with an Article 8 application will be for only 2.5 years, and it is a 10-year route to settlement, in contrast to 5 years for persons granted leave to remain as stateless persons under Part 14 of the Immigration Rules. However, an Article 8 application comes with a potentially speedier decision and a clear statutory right of appeal against refusal, rather than just administrative review and potentially judicial review (the only remedies against refusal of a statelessness application).
I end by noting that the recent changes to the Home Office guidance indicate that sometimes, at least, the Government listens to us. There are still many challenges remaining, of course, but change is possible.
This article is based on a longer article published by Free Movement on 2 December 2019 (published here with agreement from Free Movement).
Many thanks to Judith Carter for helpful contributions and comments on a draft of this article. Judith is an In-House Solicitor and Lecturer at the University of Liverpool Law Clinic and co-author, with Sarah Woodhouse, of Statelessness and Applications for Leave to Remain: A Best Practice Guide (ILPA, 2016).
Also many thanks to my 9-year-old Spurs fan/sports consultant.