UNHCR has published a report detailing findings from its audit of the UK's statelessness determination procedure. The report reveals a number of issues regarding statelessness decision making in the UK, and provides a series of recommendations to the UK government for improvement.
Determining whether or not a person is a national of any state is not always an easy task. This is the task of decision makers within the UK’s Statelessness Determination Procedure (SDP) established in 2013. The outcome of these decisions determines whether or not the UK becomes responsible for granting a right of stay to these persons and, ultimately, their “right to have rights”.
To see how far the quality of decision making under the UK’s SDP had come in the five years since it began, UNHCR set out to audit decisions against a set of quality markers in 2018. We were able to do so with the government’s agreement under the Quality Integration Project (known since 2019 as the Quality Protection Partnership); our long standing and joint collaborative partnership with the UK Home Office to quality assure its asylum and stateless decision making. Previously, there had been no independent oversight of the procedure (which has no right of appeal, and currently no routinely published statistics), and very little understanding of the government’s approach to decision making beyond what a handful of specialist pro-bono lawyers could deduce from their client’s refusal and grant letters.
Last year, UNHCR published the audit report, the first ever comprehensive audit UNHCR has made into an SDP globally. It provides a comprehensive and detailed end-to-end review of the procedure, identifying issues also reflected in the UK Statelessness Index country profile. The report includes 40 recommendations to the UK government for improvement. Whilst the UK government has already implemented or committed to making important changes to the quality of decision making in the SDP, until several fundamental procedural safeguards are introduced and policy positions are reconciled with UNHCR’s guidelines, some stateless people will continue to be wrongly denied statelessness leave.
The Home Office approach to determining statelessness needs considerable improvement
UNHCR observed several issues regarding decision makers’ approaches to gathering all available evidence (including from what was on the Home Office file) and in assessing credibility. It was often very difficult from the decision letters reviewed, to deduce what was or was not considered a material fact, or how the decision maker ultimately came to their decision. Some cases showed that relevant evidence, such as previous failed attempts to re-document an applicant, was not taken into account, whilst in others, irrelevant evidence, such as an applicant’s mode of travel to the UK, was used to refuse a statelessness application. Better training, improved guidance on credibility, and assistance in how to develop a structured decision can improve consistency and quality in decision making. Since the audit was published, the Home Office has provided refresher trainings to its decision makers and committed to improving its policy guidance, and we plan to work together on further training development.
The audit also found that several Home Office decision makers could have benefitted from more accurate and current information about nationality laws, in particular, how they are applied in practice. Given how essential the accurate application of country information is to determining statelessness (something that ENS has tried to support through the development of Country Position Papers available on the Stateless Journeys knowledge hub), we recommend that the Home Office Country Policy Information Team include information on nationality in their country guidance notes going forward. The Home Office has agreed and said that they will give priority to doing so for countries where statelessness is more likely to be an issue.
Although Home Office policy clearly states that the applicant bears the burden of proof, their guidance also states that where an applicant has provided all reasonably available evidence, caseworkers ‘must assist’ applicants in gathering further evidence, if more is required to make a decision. There were no cases identified in the audit in which the Home Office contacted relevant foreign authorities to obtain confirmation about the nationality of the applicant.
The burden of proof should be shared between applicant and decision maker in recognition that stateless persons often have little if any documentary evidence to substantiate their claims, through a collaborative, non-adversarial approach. We recommend that more guidance and support should be given to applicants in their attempts to understand, obtain and submit all ‘reasonably available evidence’. If it helps make a better, faster decision – and draws on the privileged position of the Home Office to contact its counterparts in other embassies – we find no reason why a shared burden should not be embraced, and specific tools developed to support it.
The absence of procedural safeguards can hinder the quality of decision making
Of the 530 cases that the Home Office initially offered for UNHCR’s audit, only ten were given an interview. In three cases audited, applications had been refused based on desk reviews of nationality law alone when, in our view, an interview could have elicited important missing information. The general position and discretion of the Home Office to not interview applicants under the SDP is perplexing given that 14 decisions in the audit were identified as being taken on insufficient evidence and where many stateless applicants and their lawyers see this as essential to making their claim.
Only 10 cases were decided within six months. While complex cases can take longer, it is UNHCR’s view that this should not exceed a year, particularly given the situation many applicants find themselves in while they wait, including homelessness in some cases. It also remains imperative in our view, that all applicants for statelessness leave have legal aid, and that more lawyers be trained in how to effectively represent their clients. The audit also makes a case for why an independent right of appeal, over and above the current right to administrative review, is necessary.
Not all statelessness determination policy and Rules are in line with the 1954 Convention
UNHCR believes that the current “admissibility test” found in paragraph 403 of the Immigration Rules, is contrary to the 1954 Convention Relating to the Status of Stateless Persons (1954 Convention) because it fails to adequately safeguard stateless persons from return to countries where their rights and entitlements under the Convention are not guaranteed.
At the time of writing the audit, for a recognised stateless person to be granted leave to stay in the UK, they must not only meet the definition of stateless under the 1954 Convention, but also show that they cannot secure admission to a country of former habitual residence, or any other country. Establishing the status of an applicant on return can be a complex and challenging undertaking – and can leave stateless persons in limbo if not correctly determined. UNHCR adopts a much narrower position for this very reason. If considering whether a stateless person has a realistic prospect of protection elsewhere, permanent residence must either be already enjoyed in the country proposed and where immediate return to that status is possible, or the applicant must be able to acquire or reacquire nationality through a simple, rapid and non-discretionary procedure. Neither of these important qualifications are currently required to meet the UK admissibility test.
UNHCR recommends that the admissibility test be aligned with UNHCR guidance, and that stateless applicants be granted a form of leave where there are delays in investigating their admissibility. While the Home Office and UNHCR are not entirely in agreement on this matter, UNHCR is engaging positively with the Home Office to ensure that forthcoming changes to the Immigration Rules and policy guidance provide an interpretation of admissibility that is as closely aligned with the purpose and intention of the 1954 Convention as possible.
Additional safeguards are needed to prevent stateless persons being arbitrarily detained
Stakeholders specifically asked UNHCR to look into cases that were decided from within immigration detention. Only one such case was shared with us. While this could indicate that almost all stateless applications are determined from within the community, several stateless applicants in the audit had been previously detained, even when there were clear early indicators of their lack of a nationality. These applicants were eventually released from detention not because these indicators were identified, but because they could not be re-documented and removed. Despite this, as mentioned already, such difficulties were not picked up and included in the evidence considered in the decision on their application for statelessness leave. This worrying picture echoes previous findings from research conducted by the European Network on Statelessness.
UNHCR makes a number of recommendations in the audit aimed at ensuring no stateless person is arbitrarily detained, including to amend the Adults at Risk in Immigration Detention policy to expressly identify an individual’s risk of statelessness as a factor that will weigh against detention, and to ensure that all persons who are detained are given clear information on the SDP and on how to apply at any time.
Some good practice
The audit found evidence of good practice by the Home Office. In four of seven cases audited involving children, the Home Office expedited the application, issuing decisions within six months. In some cases, caseworkers assisted applicants in building their case in accordance with Home Office Policy to share the burden of proof where appropriate, by inviting them for interview, inquiring with other Home Office departments and seeking out relevant country information from the Home Office’s specialised research team where absent in the application. UNHCR hopes to see more cases like these and is working with the Home Office to further improve its approach to decision making.
Towards better decision making and protection of stateless people in the UK
UNHCR welcomed the UK’s introduction of the SDP in 2013 as an important demonstration of the UK’s commitment to ending statelessness, and one of few procedures to exist at the time. However, with only 2.5% of cases granted, and in light of the ongoing issues with decision-making revealed by our audit, UNHCR is concerned that stateless people are not being identified and that the SDP is not fit for purpose. Ensuring that the procedure is robust and that the quality of decision making is high, should allow ‘genuine’ claims the opportunity to be heard and granted. It will allow the procedure to work without the need to do away with key safeguards designed to give applicants the best chance possible at presenting their case. Legal aid could significantly reduce the number of applications made without supporting evidence.
UNHCR is committed to working with the Home Office to ensure that the SDP is a pathway to protection within which rigorous, quality decisions are made. With the passage of Brexit and a new chapter in British history, we hope to see the UK maintain its rule of law traditions, live up to its commitment to end statelessness and offer up hope to those who find themselves without a nationality on UK soil.
This blog forms part of a series of three blogs that will be published over the coming weeks focusing on statelessness in the UK.