The extension of stateless leave from 2.5 to 5 years is very welcome; other changes to the Immigration Rules relating to statelessness raise concerns.
Imagine Ibrahim*, a person who has been living in the UK for 10 years without any permission to remain. He left his country of birth because he was not considered a citizen of that country and had no legal identity or status there, and life was hard. He didn’t face death threats or violence, but he couldn’t attend university, couldn’t work legally, couldn’t marry officially, couldn’t register the birth of his children, couldn’t vote, couldn’t own property, and couldn’t get a travel document. He hoped that in the UK, he would be able to have a better life – a life of dignity.
When he arrived in the UK in 2009, there was no way for Ibrahim to apply to stay just because he didn’t have citizenship of any country, so not knowing what else to do, he applied for asylum. But the Home Office and Tribunals decided that he did not have a well-founded fear of persecution. His asylum claim was refused, and his appeal rights eventually exhausted. There is a strong argument that what Ibrahim faced in the country of his birth in fact amounts to persecution, but let’s presume that in his case, this was neither argued nor accepted.
Ibrahim suffered more hardship in the UK – he became depressed about his situation and was homeless for several years. But, in 2014, he was able to submit a new application to the Home Office, to stay in the UK as a stateless person. This had become possible because of the 2013 introduction of a statelessness determination procedure, in Part 14 of the Immigration Rules. After waiting another two years for a decision, Ibrahim became one of the one hundred or so stateless migrants who have been granted leave to remain in the UK as a stateless person.
Ibrahim was granted 2.5 years leave to remain in the UK. He didn’t really understand why it was only 2.5 years. He had friends who had been granted refugee status for 5 years, and he felt like his situation was similar to theirs. Before his 2.5 year residence permit expired, Ibrahim had to make a new application to extend his stateless leave. Having to do this made him feel very anxious. His situation was the same – he was still stateless and had no right to enter the country of his birth – but what if the Home Office didn’t renew his leave to remain? The Home Office took 9 months to decide his renewal application even though his circumstances hadn’t changed. During that time several potential employers refused to employ him because he didn’t have a document proving he had current leave to remain (even though, by law, his previous leave continued while his application was pending). His Stateless Persons’ Travel Document expired at the same time as his leave to remain, and he wasn’t able to travel.
The UK Home Office announced last week, through a Statement of Changes to the Immigration Rules, that from 6 April 2019, persons granted leave to remain because they are stateless will normally be granted 5 years leave to remain (text of changes is available here). This is a very welcome improvement over the current 2.5 years. The duration of stateless leave will now parallel refugee status and humanitarian protection (though there are still some unhappy differences to entitlements of persons granted stateless leave compared to refugee status or humanitarian protection).
This change to the duration of stateless leave has been anticipated since a Home Office-stakeholder in March 2017, at which representatives of the Kuwaiti Community Association, Asylum Aid, Liverpool Law Clinic, and the Immigration Law Practitioners’ Association advocated for stateless leave to be extended. Extending the duration of stateless leave has obvious benefits for stateless people themselves, as it gives them more stability and eliminates the anxiety and hassle involved in applying to renew their lawful residence status. In addition, we pointed out that stateless people rarely gain a nationality during the first 2.5 years of having stateless leave (and the Home Office already has the power to curtail stateless leave should that occur). Granting 5 years’ leave to remain will also make Home Office decision-making more efficient because they will not have to deal with renewal applications after 2.5 years.
Other changes to Part 14 of the Immigration Rules announced last week are not welcome, however.
First, a change is made to the eligibility criteria for a grant of indefinite leave to remain (largely equivalent to ‘permanent residence’): in Paragraph 407(c) a person who has been granted leave to remain in the UK as a stateless person must have completed 5 years with leave to remain as a stateless person under Part 14 of the Immigration Rules. Under the current Rules, if a person had been granted leave to remain in some other category, such as a student, say for 3 years, and then was granted leave to remain as a stateless person, after a total of 5 years with leave to remain, they could apply for indefinite leave to remain. But the new Rules will require that they must have completed 5 years leave to remain as a stateless person. The change doesn’t explicitly violate international law (which is silent about the duration of a residence permit for stateless persons), but it would certainly be beneficial for stateless people if they could apply for indefinite leave to remain sooner rather than later. This would permit them to get on with their lives and be more productive members of society. And the change runs counter to Article 32 of the Convention relating to the Status of Stateless Persons, which requires that ‘States shall as far as possible facilitate the assimilation and naturalization of stateless persons’ in their territories (including by reducing ‘as far as possible the charges and costs of such proceedings’, which is also problematic due to the high fees for British citizenship applications). A stateless person who completes 5 years limited leave to remain must then apply for indefinite leave to remain and have it for 12 months before they are eligible to apply for naturalisation (and meet the other requirements for naturalisation). Naturalisation is different from leave to remain, of course; but the point is that naturalisation of stateless people in the UK who had leave to remain in another category before being granted leave to remain as stateless will take longer under the new Rules, and therefore, this change is unwelcome.
Secondly, and more problematically, new phrasing is proposed in the requirements to be granted leave to remain for a person who the Home Office consider to be stateless. There is a change to the existing ‘admissibility’ requirement in Paragraph 403(c), ie, with new wording that the applicant has been ‘unable to secure the right of admission to the country of former habitual residence or any other country’. Paragraph 403 will also contain two new requirements: that the applicant “(e) has sought and failed to obtain or re-establish their nationality with the appropriate authorities of the relevant country; and (f) … in the case of a child born in the UK, has provided evidence that they have attempted to register their birth with the relevant authorities but have been refused.”
The new wording in 403(c) is imprecise and likely to lead to confusion and inconsistency in its application, and therefore, litigation. The requirements in 403(e) and (f) are, in practice, already in place in the Home Office’s determination of statelessness applications, as they are taken from UK court judgements on the meaning of statelessness and admissibility (see JM (Zimbabwe), R (on the application of) v The Secretary of State for the Home Department  EWCA Civ 188 (15 February 2018); R (on the application of Semeda) v Secretary of State for the Home Department (statelessness; Pham  UKSC 19 applied) (IJR); and AS (Guinea) v Secretary of State for the Home Department & Anor  EWCA Civ 2234 (12 October 2018)).
The 2018 decision of the Court of Appeal in AS Guinea addressed a similar scenario to Ibrahim’s. However, the judgement is not entirely consonant with other statelessness jurisprudence and is not conclusive about time frames for possible acquisition or confirmation of nationality or the real difficulties of proof in many statelessness cases.
Bringing these evidential criteria into the Immigration Rules is unnecessary, and as the underlying requirement to show inadmissibility to another country is not present in the 1954 Convention relating to the Status of Stateless Persons, these new requirements are also extraneous to the requirements of international law. Further, the wording used is imprecise and will likely lead to legal challenges. What, specifically, does it mean to have sought and failed to “re-establish” a nationality (not a term known to either the 1954 nor 1961 Conventions)? In some cases, the authorities do not respond, or their answer is ambiguous, or they require evidence of identity that the applicant does not have and cannot obtain. In other cases, there may be a possibility that the applicant can be recognised as a citizen of another country, but it will likely take months or years or may require hiring a lawyer in the country of origin, which the applicant cannot afford to do. How much time must pass, and is it right that the applicant must continue living in limbo during this time? Bringing a requirement to identify lack of a future entitlement to nationality into the determination, and noting that the Home Office sometimes mix up the determination of statelessness with eligibility for leave to remain -- means that the burden of proving statelessness and eligibility for leave to remain becomes Sisyphean. In practice, the burden of proving the negative fact of statelessness or non-admissibility usually lies entirely with the applicant, even though the burden of proof should be shared between the applicant and the State, as per Hoti v Croatia, ECtHR Application no. 63311/14 (26 April 2018). Rather than adding these unnecessary requirements, the Home Office would do better to improve its current guidance, following the Supreme Court’s holding that assessing statelessness is not a ‘predictive exercise’, as well as the UNHCR Handbook on the Protection of Stateless Persons.
This Rules change also misses an opportunity to clarify an important point about the meaning of ‘admissibility’. The current Home Office guidance on statelessness applications refers to admissibility comprising a right of permanent residence in the country in question. A person cannot be considered ‘admissible’ to another country unless they have a right of permanent residence there; and they also must be able to access fundamental human rights, such as education, the right to marry, work, own property, etc. We have discussed with Home Office officials that this is the correct understanding of ‘admissibility’; and we hope that they will clarify this and other issues in the guidance, which is currently being amended, to conform with paragraph 158 of the UNHCR Handbook.
The problematic additions to the requirements for a grant of leave to remain in the UK as a stateless person should be avoided. The Home Office should instead adopt UNHCR’s guidance relating to possible acquisition of a nationality. UNHCR’s Handbook makes clear that, for potentially stateless migrants, a determination of statelessness is to take place as a first step. Once that is done – and, contrary to the Court of Appeal’s decision in AS Guinea (paragraph 50), it is not a ‘predictive’ exercise – the host state may afterwards consider whether there is another state able to provide protection to the stateless person. At that point it is reasonable to consider whether the person is likely to acquire another nationality or has the right to live elsewhere. UNHCR’s Handbook emphasises in Paragraph 154 that ‘care must be taken to ensure that the criteria for determining whether an individual has a realistic prospect of obtaining protection elsewhere are narrowly construed’. This guidance further states that ‘protection can only be considered available in another country when a stateless person:
- is able to acquire or reacquire nationality through a simple, rapid, and non-discretionary procedure, which is a mere formality; or
- enjoys permanent residence status in a country of previous habitual residence to which immediate return is possible (emphasis added).’
Paragraphs 153-163 of UNHCR’s Handbook set out other relevant considerations for stateless migrants. These standards make sense and should be adopted into the UK’s Immigration Rules and guidance relating to stateless persons.
To conclude – the extension of the duration of leave granted to stateless persons is very welcome. For people like Ibrahim, having leave remain for 5 years rather than 2.5 will make a real difference. However, the Home Office and Parliamentarians should consider the difficulties posed by the other proposed changes to the Immigration Rules relating to stateless people and make appropriate amendments in accordance with the object and purpose of the 1954 Convention, UNHCR guidelines and other international standards, after appropriate consultation with interested organisations.
*Ibrahim is a fictional person based on realistic scenarios.