An Update on Statelessness Determination and Status in the UK - "Need for Fair and Timely Decisions"

Cynthia Orchard, Legal Policy Officer at Asylum Aid
/ 5 mins read

Some stateless persons living in the UK face harsh realities. Most stateless people without legal status cannot leave the UK because no country will accept them, but without status and without permission to work, they are vulnerable to destitution, homelessness, depression, and exploitation. Their circumstances may cause them to be separated from their families, and, as discussed in a forthcoming ENS report on detention of stateless persons in the UK, sometimes they are detained for years.

Until 2013, stateless persons had no option to remain lawfully in the UK based specifically on their statelessness. In April 2013, following advocacy by Asylum Aid and other organisations and the 2011 report Mapping Statelessness in the United Kingdom by Asylum Aid and UNHCR, the Government introduced a procedure through which eligible people can be recognised as stateless and granted permission to stay in the UK because of their statelessness. The procedure is established under Part 14 of the Immigration Rules, on which the Government elaborates in its related policy instruction. The introduction of this procedure was a very welcome and significant step towards improving the situation of stateless persons in the UK, and it has led to some stateless persons being recognised as stateless and/or granted permission to stay in the UK. However, the UK’s procedure is flawed in certain respects, in terms of law, policy, and practice. This is highlighted in the new Asylum Aid policy briefing: The UK’s Approach to Statelessness: Need for Fair and Timely Decisions. Some of the challenges are discussed below.

Under the UK’s statelessness determination procedure, the Government can acknowledge a person’s statelessness (as defined in the UK’s Immigration Rules, Part 14) and grant permission to remain in the UK (for up to 2.5 years initially, which can be renewed and can subsequently lead to permanent residency). Family members can also be granted permission to enter or stay in the UK.

Thus far, there is an incredibly low rate of success on statelessness applications under the UK’s procedure, and some decisions are of very poor quality and do not correctly apply relevant law and policy. As of April 2016, only 39 applications had been granted (approximately 5.2% of the 754 decided applications). This is likely due, at least in part, to inadequate legal knowledge of some Home Office staff, which indicates a need for further training. Additionally, in some cases, the Home Office does not make sufficient efforts to assist applicants with obtaining evidence of their statelessness, as should be done in accordance with the Home Office’s current statelessness policy instruction. The quality of decisions is particularly worrisome because, contrary to guidance in UNHCR’s Statelessness Handbook, there is no free-standing right of appeal for statelessness applications in the UK – only the possibility of an internal administrative review (introduced in February 2016). Such a remedy is inadequate, as it may simply perpetuate the Home Office’s initial errors. Other potential remedies, such as judicial review, are limited in nature and will likely not be available in some cases. To date, there are only two judicial review decisions arising pursuant to Part 14 of the Immigration Rules: Semeda v Secretary of State for the Home Department (statelessness; Pham [2015] UKSC 19 applied) [2015] UKUT 658 (21 October 2015); and JM v Secretary of State for the Home Department (Statelessness: Part 14 of HC 395) [2015] UKUT 00676 (22 September 2015). Additional judicial review proceedings are pending.

In addition to a right of appeal, an independent audit of statelessness decisions and publication of the results would help ensure the quality of decision making. This could be done, for example, through UNHCR’s Quality Integration Project, which has undertaken similar work previously. Publication of comprehensive, disaggregated statistics relating to statelessness applications and the detention of stateless persons would also be useful to ascertain the proper functioning of the UK’s statelessness determination procedure.

Another problem with the implementation of the UK’s statelessness determination procedure is that only 754 (47.4%) of the 1,592 applications made since April 2013 had been decided by the end of March 2016, and there are long delays (sometimes as long as three years) in reaching decisions in some cases. The Home Office aims to decide most asylum applications within 6 months, and UNHCR recommends that decisions on statelessness should usually be made within 6 months, with a possible extension of a further 6 months in exceptional cases. Making decisions in a timely manner is particularly important because some stateless applicants are not able to access adequate support and live in very difficult circumstances.

Finally, the lack of legal aid is another key concern. UNHCR recommends that free legal assistance is available for stateless applicants who cannot afford to pay for it. However, although legal aid is available for asylum and complementary protection applications in the UK, it is not available for statelessness applications, unless exceptional case funding is granted, to which significant barriers exist. The absence of legal aid exacerbates the inherent difficulties of proving lack of nationality.

Whilst the introduction of a statelessness determination procedure is commendable, making stateless persons wait for years – without being allowed to work or during which they are detained whilst the Home Office makes futile efforts to remove them – is an injustice which harms stateless persons and wastes resources. To ensure that their statelessness procedures operate fairly and efficiently to offer appropriate protection to stateless persons, the British Government and other governments should urgently address flaws in their laws, policies, and practices. In the UK, this includes (but is not limited to): improving the quality of decision-making; establishing a comprehensive right of appeal; deciding most applications within 6 months; and providing for stateless persons without sufficient means to pay to have access to free legal assistance.

See also:

Asylum Aid. (September 2016). Policy Briefing: The UK’s Approach to Statelessness: Need for Fair and Timely Decisions.

Migrants Resource Centre, University of Liverpool Law Clinic, European Network on Statelessness, and Institute on Statelessness and Inclusion. (September 2016). Joint Submission to the Human Rights Council at the 27th Session of the Universal Periodic Review, United Kingdom

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