Statelessness – Asylum Aid legal challenge to family reunion rules change in High Court this week

In January 2024 the immigration rules were changed and statelessness family reunion was brought into Appendix FM. The new rules make no special provision at all for the families of stateless people and treat them in the same way as any family member of any other sponsor applying under Appendix FM. Asylum Aid is challenging this rule change in the High Court and this post explains why.

The previous rules

Before 31 January 2024, part 14 of the immigration rules allowed family members of stateless people to be granted statelessness leave to remain in the UK in line with their stateless sponsor. There were no requirements other than proof of relationship.  The application was free and there was no immigration health surcharge. Family members could apply in the UK or from abroad. Statelessness leave is granted for five years and it is a five year route to settlement with no fee for the indefinite leave to remain application at the end of that period. 

This special treatment reflected the unique disadvantages faced by stateless people, who have no nationality. As explained in the UNHCR Handbook on Protection of Stateless Persons under the 1954 Convention relating to the Status of Stateless Persons:

Without nationality, individuals face an existence characterised by insecurity and marginalisation. Stateless people are amongst the most vulnerable in the world, often denied enjoyment of rights such as equality before the law, the right to work, education or healthcare.

Statelessness can result in the separation of families, which can often be prolonged and is obviously detrimental to the wellbeing of stateless people and their families.

The rule changes

Appendix statelessness came into effect on 31 January 2024 and changed all that. Family members of stateless people are now obliged to apply under Appendix FM with no special provisions to reflect their special status.

Under Appendix FM family members of stateless people are subject to the minimum income requirement (currently £29,000) and prohibitive application fees (currently £1,846 for applications from outside the UK and £1,258 for applications in the UK), and the Immigration Health Surcharge (£1,035 per person per year). A stateless sponsor who has spent many years in a legal limbo without being able to work (as is the case with many stateless people) is unlikely to be able to meet either of these financial requirements.

Stateless family members are also often from marginalised populations with limited access to education and will be unlikely to meet English language requirements. Many family members will therefore end up being forced to rely on the ‘exceptional circumstances’ provisions of Appendix FM and to apply for fee waivers. Both of these have onerous evidential requirements which stateless people’s families may struggle to satisfy.

Even if successful, their family members will then be on a 10-year route to settlement with renewals required every 30 months. Each renewal will involve the same onerous application process with prohibitive fees. Any individuals who are able to navigate this process successfully and are granted leave will then also have no recourse to public funds unless the Home Office agrees to lift this condition, which would require evidence of imminent or actual destitution, reasons relating to the welfare of a child that outweigh the reasons to impose the condition, or exceptional circumstances.

The changes to the rules came as part of the simplification of the immigration rules process ongoing since the Law Commission’s report in 2019. Consultation on changes to the statelessness rules had taken place since 2022, but this final and radical change resulting in the significant watering down of access to family reunion for stateless people was only proposed in September 2023. It was formally introduced in the statement of changes HC246 in December 2023 following serious objections from a stakeholder group, including Asylum Aid and the United Nations High Commissioner for Refugees.

The legal challenge

Asylum Aid’s legal challenge to the rule changes was given permission to proceed in July 2024 and is being heard over two and a half days starting on 21 January 2025. There are four grounds of challenge:

• Breach of the Public Sector Equality Duty under s 149 Equality Act 2010, in particular due to the failure to consider statelessness itself as a protected characteristic and failure to identify the true nature and extent of the discriminatory impact on stateless people and their families, and the disproportionate impact on women and children;
• Breach of s 55 of the Borders, Citizenship and Immigration Act 2009 by the failure to identify the true nature and extent of the impact on children;
• Incompatibility with International Law Obligations to Stateless Persons, in particular the obligations to (i) reduce statelessness and (ii) facilitate the assimilation and integration of stateless persons;
• Irrationality / unreasonable rule change. Asylum Aid relies on both process and substantive irrationality, arguing among other points that the change in the rules, from a rule which recognised the unique position of stateless sponsors to a rule that treats them the same as any other sponsor, including British citizens, is irrational. The rule change fails to recognise that a stateless person is in a uniquely vulnerable position. It made sense to have a bespoke rule that recognised this and it was irrational to replace it with a general rule which fails to treat unlike cases differently.

Asylum Aid’s statelessness work

Asylum Aid has a long history of working with stateless people in the UK. It provides specialist advice on statelessness in a project that works with city law firms who give their time pro bono. This is an area where there is no legal aid in England and Wales and where expertise is hard to come by.

Asylum Aid is represented by Freshfields LLP, acting pro bono, in this judicial review.  The challenge is supported by witness statements from individuals at the Liverpool Law Clinic (which also gives free specialist advice on statelessness) and Islington law Centre. Counsel are Stephanie Harrison KC and Emma Fitzsimons of Garden Court Chambers.

More information about statelessness in the UK and Asylum Aid’s work on statelessness is available on Asylum Aid’s website. We regularly deliver training and contribute to policy advocacy to improve the position of stateless people in the UK. We have recently updated the training module on statelessness on the Free Movement website which will give practitioners a good introduction to making a statelessness application.