The new Tottenham Hotspur manager, José Mourinho, recently vowed not to repeat his past mistakes, but instead will make new mistakes.
The Home Office’s new guidance on statelessness, as with its approach to other topics, both repeats some mistakes of the past and makes new ones. But the revised 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 Spurs).
Background on statelessness
The Home Office introduced a statelessness determination procedure in 2013, through Part 14 of the Immigration Rules. This allows 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 in the UK. If granted leave to remain under Part 14, stateless people 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 refugees.
Part 14 was amended in April 2019, bringing in three main changes:
- The duration of leave granted to persons under Part 14 was extended from two and a half to five years.
- New provisions were added to Paragraph 403 – subparagraphs (e) and (f) – bringing in new requirements to be granted leave to remain as a stateless person.
- Paragraph 407 was amended to require that those granted indefinite leave to remain under Part 14 have had five years leave to remain as a stateless person, rather than a combination of different types of leave as had previously been possible.
The Home Office’s revised guidance on applications for leave to remain in the UK as a stateless person (Stateless leave, v3.0, 30 Oct 2019) brings several improvements which reflect stakeholder recommendations. It also brings some undesirable changes, and there are some remaining challenges.
1. The most substantial changes
1.1 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 (pages 9-10).
1.2 The section on “General grounds for refusal” (page 24) adds a helpful requirement that even where the general grounds apply, the caseworker “must still consider whether an applicant meets the definition of a stateless person”. If the applicant is stateless and inadmissible to any country (with a right of permanent residence), the Home Office may need to grant leave outside the Rules. The new section on “Further leave applications” (page 26) also confirms that where the applicant is stateless and not admissible to any other country, but the general grounds apply, the caseworker “should look to grant leave outside the Rules”.
1.3 Changes to the administrative review procedure. These confirm that where caseworking errors are found on administrative review and the case is returned to the statelessness determination team, the case should go to a different caseworker. The new caseworker should reconsider it within three months and their decision should be subject to a “second pair of eyes” check by a Senior Caseworker or Higher Executive Officer. Although not stated in the policy instruction, the applicant should also be provided with reasons why their application for administrative review did or did not succeed. The instructions clarifies that, on refusal, applicants must be advised that they are entitled to administrative review. There is also clarification that there is no fee for the administrative review of decisions relating to Part 14 because there is no fee for the underlying application (this was confusing in the 2016 guidance).
1.4 The travel documents section has been amended to confirm that a Stateless Person’s Travel Document may be issued to persons who are stateless but have not been granted leave to remain as a stateless person. An example is given of a person who is stateless and 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) the student, work permit or spouse categories.
2. Other amendments
2.1 Updates relating to the April 2019 changes to the Immigration Rules: duration of stateless leave extends to five years (page 25).
2.2 Clearer confirmation that “admissibility” under Paragraph 403 means that a person has the right to enter a country with a right of permanent residence (see e.g. the background section on page 5, the section on burden and standard of proof, page 14, and the section on assessing evidence, page 17). There were references to permanent residence in the 2016 version, but it is helpful to have further confirmation.
2.3 A brief and generally helpful section recognising the links between trafficking/modern slavery and statelessness on page 7 (though I note that deceit is not part of the definition of trafficking).
2.4 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 page 7, there is confusion of the issue of statelessness with the issue of inadmissibility. At page 17, there is a correct, updated interpretation of JM (Zimbabwe) and additional information relating to April 2019 amendments of the Immigration Rules. The second paragraph of page 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 five, 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 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.
2.5 A problematic requirement that applications for variation of leave to remain as a stateless person by applicants who have leave to remain in another category will not be considered until 28 days before expiration of leave (page 9).
2.6 Somewhat improved guidance on interviewing stateless people (page 12, combining and adding to sections 3.4 and 4.3.3 of the 2016 guidance). The policy regarding interviews has 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 (see paragraph 71). Mind you the first version of this guidance, of May 2013, required all applicants to be interviewed.
2.7 Possibly problematic changes to the section on enquiries with relevant national authorities (page 16, amending 4.3.6 of the 2016 guidance). Notably absent is an explicit requirement that all applicants must be asked to consent to enquiries with national authorities (but it retains a requirement that previous asylum claims not be disclosed).
2.8 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 (pages 18-19). I hope, however, that this will not be treated as an exhaustive list.
2.9 In the section on decisions made by the national authorities (page 20), there is some new wording, including a criterion that an applicant “has made a genuine attempt to acquire nationality”. The final paragraph of this section is new, asserting that “[w]here there are difficulties in obtaining travel documents to facilitate removal, this does not, in itself, mean that the applicant is stateless or inadmissible…”. The situation is more nuanced: 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, the person may no longer be considered as a national by the state. This situation, which is quite common, could have been included in the list on pages 18-19 (see paragraph 2.8 above).
2.10 The section on response to enquiries with overseas governments (page 21) has been amended in part. There is a change in wording from the 2016 guidance that “the caseworker must progress the case to conclusion and no time should be wasted waiting for a response” to a requirement that caseworkers “must progress the case to conclusion within a reasonable timeframe and… may decide the case without waiting for a response’ if none is received within a ‘protracted period”. These changes are undesirable, particularly the use of vague terms such as “reasonable timeframe” and “protracted period”. However, there is a new and useful requirement in this section, that caseworkers “must chase up outstanding requests on a regular basis and liaise with returns logistics…”.
2.11 The section on further leave applications (page 26) confirms that where an applicant had previously been granted two and a half years’ leave to remain, and is now being granted a further period of leave, they should be granted five years but will be advised they will be eligible to apply for indefinite leave to remain after a continuous period of five years with leave to remain as a stateless person. There was a change to the corresponding section of the Immigration Rules (Paragraph 407) in April 2019. Previously, an applicant had to have had five years leave to remain total (but not necessarily all as a stateless person) and the most recent grant of leave to remain had to be under Part 14. This has changed, so that now, to be eligible for ILR as a stateless person, the applicant must have had five years’ leave to remain as a stateless person. It is not stated in the guidance, but practitioners should note that the relevant time period includes the time during which the applicant had ongoing 3C leave whilst their application for further leave to remain was pending. The rationale for this change isn’t clear.
2.12 There is, helpfully, a new section on settlement applications (pages 27-28) which confirms that ILR applications should be made on the same online form as the initial or further leave application. There is no need to re-submit evidence that was previously accepted as proof of statelessness and inadmissibility. There is other important information in this section about the timing of a settlement application – practitioners should read it carefully when advising on one. The new guidance asserts that where “clear evidence comes to light that the individual is not stateless and/or is admissible”, their application for settlement must be refused. There is, unfortunately, no instruction to put this information to the applicant to ascertain whether they have any explanation or submissions to make, but this is, clearly, what the Home Office should do in such cases. This section concludes (page 28) by stating that there is a right of administrative review where an application is refused under the Rules but leave is granted outside the Rules (see paragraph 1.2 above).
2.13 As with other guidance, and I presume further to the edict of some evil genius (who has made this a Home Office-wide requirement), there is a lamentable loss of paragraph numbers from the new version, making citation more laborious and less precise.
3. What should have changed but didn’t
3.1 The assertion that the (online) application form is mandatory (page 9) remains. This is incorrect because a statelessness application should be treated as a claim for international protection (see, generally, the UNHCR Handbook) and as such should not be subject to a mandatory form. Practitioners are, of course, advised to use the online form, to avoid causing problems for their clients.
3.2 Sadly, the Home Office position on the burden and standard of proof in statelessness applications (page 14) is still not in line with UNHCR standards, nor the findings of the European Court of Human Rights in Hoti v Croatia (application no. 63311/14). Hoti was decided on Article 8 grounds, and the court indicated that states share the burden of proof in relation to matters of statelessness and that the standard of proof is relatively low. At paragraph 138 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, see this May 2018 article by Katja Swider. I further note that although the court in Hoti indicated that its decision is to some extent specific to the facts of the case, Ksenija Turković (one of the judges who decided the case) stated at a Council of Europe event on 10 October 2018 that the findings of 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 (page 14). With respect to the standard of proof, I note that the Court of Appeal found in AS (Guinea)  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.
3.3 The sections on dependants (page 11) and family members (page 26) still fail to explain that where family members apply separately, each stateless person who is eligible for leave should be granted leave to remain as a stateless person (not just leave in line with the “main” applicant). This will allow stateless persons to more easily access travel documents and provide confirmation of lack of nationality where required for other purposes. I think this lack of clarity is unintentional, but practitioners should advise their clients that where more than one family member is stateless, they should make separate (linked) applications. I also note that when last I checked, it was still not clear on the application form how/where applicants should communicate whether or not their listed dependants or family members are also applying for leave to remain. Unless the form is updated, practitioners need to clarify this in correspondence.
3.4 The new guidance, like the 2016 version, includes a brief section on country of origin information (page 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 by the 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 paragraph 6 of MK (India)  EWHC 1365 (Admin) on the need for expert interpretation of relevant nationality laws and practices. The decision in the deprivation of nationality case of E3 and N3 [SC/138/2017 & SC/146/2017] also 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.
3.5 The section on serious criminality (page 23-24) incorrectly states, as it did in the 2016 version, that the 1954 Convention “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. Article 2 does not exclude such people from its scope, but rather from the benefits of the Convention. Such people 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 or entitled to the benefits of the 1954 Convention. The guidance on leave outside the Rules will be relevant to such people (see paragraph 1.2 above and paragraph 3.6 below).
3.6 There is no instruction to caseworkers that they must consider the applicant’s right to private and family life under Article 8 or their right to freedom from torture and inhuman or degrading treatment under Article 3. Should the Home Office refuse leave to remain in circumstances where the applicant is unable to leave the UK, the applicant will remain here, in the hostile environment. The new instruction that caseworkers must consider granting leave outside the Rules in certain circumstances is, I think, an effort to ensure that such rights are not violated, but without referring to Articles 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  EWCA Civ 2009 (paragraph 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. I also note that if the consideration of leave outside the Rules is linked to an Article 3 or 8 matter, a refusal gives rise to a statutory appeal (under section 82 of the Nationality, Immigration and Asylum Act 2002).
Human rights applications
I end by suggesting that practitioners should consider, in cases where there are multiple types of private or family life issues that arise in conjunction with statelessness, whether 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: it may require payment of a fee (if not eligible for fee waiver or part of an asylum claim); the leave granted if successful with an Article 8 application will be for only two and a half years, and it is a ten-year route to settlement. But there is a potentially speedier decision and a clear statutory right of appeal against refusal of an Article 8 application, rather than just administrative review and potentially judicial review.
I also recommend that where making a statelessness application and there is evidence that the applicant cannot leave the UK, practitioners should make representations that leave outside the Rules should be granted if statelessness leave is refused under Part 14, to avoid a breach of Article 3 and/or Article 8 rights.
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). Solicitors at the Law Clinic may be able to offer practitioners advice on statelessness matters and take referrals of a limited number of statelessness cases. Contact: [email protected].
Also many thanks to my nine-year-old Spurs fan/sports consultant.