United Kingdom

Law, policy and practice on statelessness in the United Kingdom (UK) is mixed. There have been some recent positive developments, such as the introduction of a statelessness determination procedure (SDP) in 2013, and the UK is party to most relevant human rights treaties. It also has safeguards in place to prevent statelessness in most cases. But there are some significant protection gaps. The UK is not party to the European Convention on Nationality, does not consider statelessness as a protection issue, does not provide for a time limit on detention, and the definition of a stateless person in UK law contains exclusion criteria that go beyond the 1954 Convention.

The UK SDP allows some people to have their statelessness recognised and acquire residence and socio-economic rights with a route to naturalisation. But, as well as the exclusion clauses, there are procedural obstacles, such as a lack of legal aid in some jurisdictions, limited appeal rights, a high standard of proof, and applicants have few rights and may be detained while in the procedure. Statelessness is not always considered a juridically relevant fact in decisions to detain, and the lack of sufficient procedural safeguards, including no time limit, leads to repeated and/or lengthy detention in some cases. Safeguards are in place in British nationality law to prevent statelessness in the case of most children born in the UK or to British citizens abroad, but prohibitively high fees for registration and naturalisation are a major barrier for stateless people and children who would otherwise be stateless to acquire British citizenship.

Last updated: 
Dec 2017
Next scheduled update: 
Dec 2018
Country expert(s): 

Cynthia Orchard, Migrants Resource Centre

ASSESSMENT KEY

++POSITIVE
+ SOMEWHAT POSITIVE
+-POSITIVE and NEGATIVE
- SOMEWHAT NEGATIVE
--NEGATIVE

ADDITIONAL INFO

-NORMS & GOOD PRACTICE

 

International and Regional Instruments

Assesses whether countries are state party to the relevant international and regional instruments, including whether reservations have an impact on statelessness, and whether instruments are incorporated into domestic law. The four core statelessness treaties (1954 Convention relating to the Status of Stateless Persons; 1961 Convention on the Reduction of Statelessness; European Convention on Nationality; Council of Europe Convention on the Avoidance of Statelessness in Relation to State Succession) carry more weight than other relevant human rights instruments in the assessment.

The UK is state party to most relevant international treaties, including the 1954 and 1961 statelessness conventions. However, it is not party to key regional instruments, such as the European Convention on Nationality, nor is it bound by the EU Returns Directive. Most provisions in the 1954 and 1961 conventions are enacted in domestic law (treaties do not have direct effect in the UK legal system), but the definition of a stateless person in UK law contains exclusion criteria that go beyond the 1954 Convention, and some reservations to international instruments impact directly on stateless people.

  • The UK is state party to the 1954 Convention, but it maintains several reservations and the convention has not been fully incorporated into domestic law (treaties do not have direct effect in the UK legal system).
  • Although some Convention rights are implemented through the statelessness determination procedure, there are legal and/or practical barriers to their realisation in some cases, for example, exceptionally high fees for British citizenship applications.
  • The UK is state party to the 1961 Convention, but has reservations allowing for deprivation of nationality of a naturalised person on certain grounds. Deprivation of nationality was reintroduced to UK law in 2014 in cases where a naturalised person ‘acts in a manner which is seriously prejudicial to the vital interests of the Crown’.
  • UK nationality law enacts many of the 1961 Convention provisions, but there are gaps, for example, having a form of British nationality with no right of abode in any country is not considered as statelessness.
  • The UK is not state party to two of the core regional statelessness conventions, the European Convention on Nationality and the Convention on the Avoidance of Statelessness in Relation to State Succession.
  • Although an EU member state, the UK has opted out of (and is therefore not bound by) the EU Returns Directive.
  • The UK maintains a number of reservations to all of the relevant international treaties, but these do not have a direct impact on statelessness or stateless people.

Statelessness Population Data

Examines the availability and sources of disaggregated population data on statelessness. Provides recent figures and assesses reliability of measures countries have in place to count stateless persons, including in the census, population registries and migration databases. Notes whether statelessness has been mapped in the country and whether there are sufficient measures in place to count stateless persons in detention.

The UK Government collects and publishes some data on the stateless population, but it only counts those people it recognises as stateless under the statelessness determination procedure (SDP), and there are potentially overlapping categories, such as 'unknown nationality' and 'Palestinian. Censuses in the UK do not count stateless people. A mapping study was carried out by UNHCR and an NGO in 2011, and noted limitations in stateless population data at the time. Measures are in place to count recognised stateless people detained in immigration removal centres, but there are instances of people who are stateless or at risk of statelessness in detention who are not counted in the statistics.

  • Censuses in the UK do not include a 'stateless' category but do include a question on passport held.
  • UK Government (Home Office) data includes the category ‘stateless’ in some statistics (for example, detention and asylum statistics), but this only counts people it recognises as stateless under the statelessness determination procedure (SDP). The Government does not yet publish statistics on applications under the SDP. People who are stateless but refused recognition or protection under the SDP, as well as other hidden populations, are not included in published data. In some published data, there is a category of 'unknown nationality', and other categories that may overlap with statelessness, such as 'Palestinian'.
  • 2017 statistics state that 30,603 people claimed asylum in the UK in 2016. 17 of these people were recorded in the ‘other and unknown' nationality category and 488 were recorded as 'stateless'.
  • There is a 2011 mapping study of statelessness in the UK (by NGO, Asylum Aid, and UNHCR), but it is now out of date and limitations in the availability of data were noted at the time of the study.
  • UNHCR’s mid-year 2016 figures record 60 stateless people in the UK, based on the UK Government's figures.
  • The UK Government (Home Office) counts and publishes some limited data on stateless people held in UK immigration removal centres, but this does not include people who are or may be stateless but have not been recognised as such under the SDP.
  • Home Office statistics show that 91 people recorded as 'stateless' entered immigration detention in 2016.
  • We were unable to find data published by the Ministry of Justice or prison services in devolved administrations (Scottish Prison Service and Northern Ireland Prison Service) on stateless people detained under immigration powers in UK prisons. 

Statelessness Determination and Status

Identifies whether countries have a dedicated statelessness determination (SDP) procedure; or, if not, whether there are other procedures or mechanisms by which statelessness can be identified and status determined. Countries are subdivided in four groups to enable comparison between those with an SDP in place (Group 1), those with other administrative procedures (Group 2), those with a status but no clear mechanism (Group 3), and those without any status or mechanism (Group 4). Where a procedure exists, this is assessed against good practice, and the rights granted to recognised stateless people are examined.

The UK introduced a dedicated SDP in the Immigration Rules in 2013 and so belongs to Group 1. A statelessness unit within central government is responsible for examining all claims. There is some good practice relating to accessibility, procedural protections, and status; but, there are significant shortcomings both in the Rules and how they are implemented. For example, the procedure prioritises consideration of eligibility for a residence permit over the determination of statelessness and given the exclusion criteria in the UK definition of a stateless person, this results in a protection gap. Legal aid is not generally available for the procedure in England and Wales, there is no automatic right to appeal, and poor decision-making has been reported in some cases. Those who are recognised and receive a residence permit as a stateless person, face further barriers to naturalisation, including prohibitively high fees. 

  • The UK has a dedicated statelessness determination procedure established in its Immigration Rules. However, the procedure bars certain stateless people from identification and protection on the basis of exclusion clauses in the UK definition of a stateless person. SDP decision-makers first consider eligibility for permission to stay before determining statelessness, resulting in a protection gap for stateless people who do not meet the criteria for permission to stay.
  • The authority appointed is UK Visas and Immigration (part of the UK Government Home Office), which has a dedicated, centralised Statelessness Unit.
  • Stateless determination is the specific objective of the procedure. There is a specific form with instructions, but it is lengthy, only available in English, and unclear and repetitive in parts. Applications must be made in English in writing, and cannot be made orally to a public official. There is no little flexibility in the application requirements.
  • There is no fee for the procedure. Access is not contingent on residence status, and there is no time limit. Authorities have an obligation in law to consider the application.
  • There is no general obligation to initiate the procedure ex officio. The authorities are not prohibited from referring to the SDP, but do not do so. An obligation might be inferred for children deriving from the obligation to consider children’s best interests in any immigration decision, but the procedure is not initiated ex officio for children.
  • There is no formal cooperation between different government agencies specifically on statelessness or the SDP.
  • Applications are assessed by a centralised team, but practitioners have reported some cases of poor decision-making.
  • Decision makers receive general training on immigration and asylum, which contains some elements of how to assess nationality. There is no specific formal training on statelessness, but decision-makers receive informal on-the-job training, are required to complete online UNHCR Training on Statelessness, and may attend other ad hoc trainings on statelessness.
  • The UK definition of a stateless person does not fully align with the 1954 Convention, as the exclusion clauses set out in the Immigration Rules are considered part of the definition itself. This departs from the 1954 Convention, which permits state parties to withhold protection on specific grounds, but the 1954 Convention does not incorporate the exclusion clauses into the definition of a stateless person.
  • Additionally, the UK bars granting leave as a stateless person to people who are admissible to a country of former habitual residence or based on certain criminal activities. These requirements go beyond the exclusion clauses of the 1954 convention.
  • The burden of proof is on the applicant, but decision makers are obliged by government guidance to carry out research and enquiries, particularly for child applicants. However, this is not done consistently.
  • There are special considerations in guidance for children, women and ethnic minorities, but practitioners have observed this guidance not being followed in practice.
  • The standard of proof is ‘balance of probabilities’, which is higher than in asylum applications.
  • The authorities publish guidance on how to determine statelessness, but it is not clear or comprehensive in all respects.
  • In contrast to provision of legal aid for asylum applicants throughout the UK, there is no legal aid for statelessness applications in England and Wales, though it is possible to apply for exceptional case funding and victims of trafficking are eligible for legal aid in any immigration application, including a statelessness application. Legal aid is available in Scotland and Northern Ireland, and for judicial review of refusals in all jurisdictions.
  • Not all applicants are interviewed. Interviews are only conducted where decision-makers consider they cannot make a decision based on the written information provided.
  • Interpreters are provided free of charge.
  • There is an internal Home Office quality assurance system in place within the Statelessness Unit, whereby at least one decision per examiner is reviewed each month, but the outcomes of these reviews are not published. Separately, UNHCR’s Quality Integration Project has access to Home Office files with authorities’ consent and works with the government to strengthen decision-making quality, including with respect to the statelessness procedure. 
  • Decisions for refusals are written and reasons must be provided, but reasons are not required nor given when applications are approved.
  • There is no referral mechanism into the SDP from other agencies or departments.
  • There is no automatic right for an applicant to remain in the UK during the procedure and no guarantee against expulsion. Applicants usually do not have the right to work and may be detained.
  • Applicants who have been refused asylum and are destitute (or imminently so) are potentially eligible for very basic shelter and support.
  • There is no time limit for the procedure in law. The UK Government has stated that it is working to reduce delays in decision-making and may introduce non-mandatory guidance on discretionary timeframes.
  • There is no automatic right of appeal, but administrative and judicial reviews are possible.
  • In all UK jurisdictions, legal aid is potentially available for judicial review, but not necessarily for administrative review (in England and Wales), and the case must meet an eligibility test. Judicial reviews are subject to court fees, but fee waivers may be available, and fees may be covered by legal aid, where approved. Court fees may vary in different jurisdictions. There are some restrictions on legal aid for judicial review (for example, in England, legal advisers may not be paid under legal aid if the court does not grant permission for the judicial review or does not order payment of their costs). There is no fee for an administrative review as there is no fee for the SDP application itself.
  • There is some evidence of errors in decision-making, for example, two cases decided at judicial review found errors of law and further cases are pending.
  • People recognised as stateless may be granted permission to remain in the UK if they meet additional requirements, but those admissible to another country for permanent residence are excluded, for example. The exclusion clauses of the Convention pertaining to character and conduct are applied.
  • If eligible for protection as a stateless person, a renewable right to reside for up to 30 months is granted. An application for permanent residence is possible after 60 months. A travel document can be requested but is not issued automatically.
  • Residence can be revoked if it is considered the applicant poses a danger to public safety or security or that they have made false representations and therefore should not have been granted stateless status.
  • Family reunion is available with a spouse, civil partner, unmarried, or same sex partner, and/or child under 18 years-old; however, there are significant delays and evidential hurdles for some applicants.
  • People granted stateless status have the right to work and to access primary, secondary and higher education. In England and Wales, stateless people are not eligible for student finance until they meet additional residence requirements, so access to higher education is limited (in Scotland they may qualify). They are also eligible for social security and access to healthcare (but in England and Wales they may be required to pay for non-urgent healthcare and there are some restrictions on housing assistance).
  • Stateless people are eligible to apply for naturalisation generally after five years’ lawful residence and one additional year of permanent residence in line with refugees and people with subsidiary protection. This does not put them in a more advantageous position than most other people applying for naturalisation.
  • The standard naturalisation fees are prohibitively high (1282 GBP equivalent to 1432 EUR in Dec 2017) and there are no exemptions for stateless people.
  • A 'good character' requirement is imposed, creating a further barrier, especially for those with criminal convictions or 'reasonable grounds to suspect they have been involved in a crime'.
  • There is no minimum income requirement, but there are citizenship and language tests, which can be waived in certain exceptional circumstances, but not on grounds of statelessness.
  • Children recognised as stateless are potentially eligible to register as British citizens when their parents naturalise; or if recognised as stateless under the SDP as unaccompanied minors, to register as British citizens after five years’ lawful residence and one additional year of permanent residence. The fees are also prohibitively high: 973 GBP (1087 EUR in Dec 2017) increased if the child turns 18 during the application process.

Detention

Analyses law, policy and practice relating to immigration detention generally, but focusing on protections in place to prevent the arbitrary detention of stateless people during removal and deportation procedures. Subthemes examine areas such as detention decision-making, how alternatives to detention are legislated for and implemented, procedural safeguards such as time limits, judicial oversight and effective remedies, as well as protections on release.

There are few positive aspects to law, policy and practice on immigration detention in the UK. Powers to detain are provided for in law and policy guidance, which states that detention should be a last resort, and detainees have recourse to legal aid and judicial review of their detention. However, there is no time limit on immigration detention in the UK and prolonged periods of detention have been found to be lawful in some cases (though unlawful in others). Many people enter detention who are later released, and in many cases re-detained; case reviews are often cursory, alternatives are not adequately considered prior to detention, and few protections are provided on release. Statelessness is not identified as giving rise to vulnerability and is not adequately considered as a juridically relevant fact in decisions to detain.

  • Powers of immigration detention are provided in law. Detention is permitted on various grounds including when removal from the UK is ‘imminent’. By law, detention must be for a reasonable period and the authorities must exercise diligence and expedition in seeking to remove. Detention must end if removal will not occur within a reasonable period. However, prolonged periods of detention (for example, 10 months) have been found to be lawful in some cases. The legislation in the UK is potentially compatible with Art. 5(1)(f) in that there is only ever a power to detain, not an obligation to do so.
  • The law does not state whether a country of removal must be identified prior to detention.
  • Statelessness is not explicitly referred to in UK law or policy as a juridically relevant fact in relation to detention, but it can be raised by detainees and is a relevant fact according to case law. In practice, there is evidence that the authorities do not always adequately consider statelessness.
  • The authorities do not refer people in detention to the SDP, though a detainee can make a statelessness application from detention.
  • Some stateless people are detained, including some who are not acknowledged to be stateless.
  • Individual vulnerability assessments are required under UK law and policy, but are not always thorough and do not consistently prevent detention in practice. Statelessness is not identified as giving rise to vulnerability.
  • There are various alternatives to detention and alternative forms of detention used in the UK, including curfews and electronic tagging, and these are required to be considered prior to detention, but in practice, they are not often adequately considered.
  • The law provides that immigration detention should only be used as a last resort, but this is not observed in practice; many people enter immigration detention each year who are later released.
  • There is no time limit on immigration detention in the UK.
  • Written reasons for detention are provided to the detainee at the time of detention, but these are in tick-box form and are not individualised.
  • Detainees are usually informed of how to try to access legal advice and bail when detained and in monthly reviews of their detention, but this does not include how to access the SDP.
  • Required monthly case reviews consider whether detention remains lawful, but these are often cursory in practice. Case progression panels, introduced in 2017, provide reviews every three months, but it is yet unclear whether these will be effective in preventing unlawful detention of stateless people.
  • Detainees can apply for bail, seek judicial review of unlawful detention or bring a habeas corpus action before a judge.
  • Free legal aid exists to challenge detention, but evidence suggests there are barriers to accessing it in practice.
  • A person released from detention is not routinely issued with residency documents unless they have applied for and been granted stateless (or another) status from within detention.
  • If the person is released, they are normally granted Immigration Bail. They may be eligible for basic support, accommodation and healthcare (although they may be required to pay for non-urgent healthcare in England and Wales), but are not permitted to work.
  • As there is no time limit on detention, cumulative time spent in detention does not count towards any limit. Some people are detained for very lengthy periods and some people are detained multiple times.

Prevention and Reduction

Assesses the adequacy of safeguards in nationality laws to prevent and reduce statelessness, including protections for otherwise stateless children born on the territory or to nationals abroad, foundlings and adopted children. Examines law, policy and practice on birth registration, including access to late birth registration, and measures taken by states to promote birth registration among groups at high risk of remaining unregistered.

There are safeguards in UK nationality law to prevent statelessness in most cases, but some gaps and practical barriers persist. Children born stateless in the UK can register as British citizens after five years of living in the UK before the age of 22, but there is a prohibitively high fee for registration. There are partial safeguards in law for children born abroad to British citizens, children adopted by British citizens in certain circumstances, and for foundlings. There is no statutory age limit for the acquisition of nationality by foundlings, but policy guidance is not clear about whether a foundling's nationality could later be lost should circumstances change or new facts come to light. All births must be registered in the UK irrespective of parents’ status, but health services are required to report certain immigration matters to the authorities which may deter undocumented migrants from accessing services.

  • Otherwise stateless children born in the UK to a parent holding a form of British nationality (British Citizenship; British Overseas Territories Citizenship; British Overseas Citizenship; British Subject), acquire British nationality automatically.
  • Children born stateless in the UK with no British (or permanent resident) parent are entitled to register for British nationality on application after five years’ continuous residence prior to the age of 22. This does not need to be lawful residence, but the child must not have been absent for more than 450 days during this period. 
  • There is a fee of 973 GBP (1087 EUR in Dec 2017) for registration of a child as a British citizen, which is a significant barrier for many.
  • Children are not required to prove they cannot access another nationality, only that they are, and always have been, stateless. The standard of proof is 'balance of probabilities' and the burden of proof is on the applicant.
  • Foundlings are presumed in law to have been born to a British national and granted British citizenship automatically.
  • The law refers to 'new-born infants'. Government guidance previously indicated that the reference to new-born infants should be interpreted generously and included babies up to one year old; however, this has been omitted from guidance issued in 2017.
  • There is no statutory age limit for the acquisition of nationality by foundlings, but policy guidance is not clear about whether a foundling's nationality could later be lost should circumstances change or new facts come to light.
  • An adopted child's acquisition of another foreign nationality does not result in loss of their British nationality.
  • The law provides for a child adopted by British nationals to acquire British nationality, but where it is not a Hague Convention adoption (for example, if it is a ‘de facto’ adoption where there are no papers) the child will not acquire the parent’s nationality automatically.
  • Children born to British citizen parents abroad can acquire a parent’s citizenship by descent (ius sanguinis) if in the first generation, and subsequent generations under certain conditions.
  • If a child would otherwise be stateless, children of British citizens by descent born overseas who cannot pass on their nationality to children born overseas can also be registered as British if the parents were resident in the UK prior to the birth, or for three years after the birth.
  • Conditions are not discriminatory in nature.
  • Births must be reported to the birth registrar within 42 days in England, Wales and Northern Ireland and within 21 days in Scotland.
  • All births must be registered by law even if parents are undocumented or not legally resident.
  • There is no evidence of barriers to birth registration in practice due to lack of documentation or legal status, however, health services are required to report certain immigration matters to the immigration authorities and some undocumented migrants are subject to charging for healthcare, which may deter them from accessing services and could prevent birth registration.
  • Late registration is possible in law and practice in all jurisdictions although it is discretionary after a year and there is provision in law for failure to register a birth to incur a fine (no more than 200 GBP).
  • There is no evidence of government campaigns to promote birth registration.
  • Hospitals advise people to register births and there is generally high awareness of the need to do so. Still, there is some anecdotal evidence of births in very marginalised communities not being registered.

Latest news on United Kingdom

UK COURT OF APPEAL SAYS STATELESSNESS MUST BE PROVED ON BALANCE OF PROBABILITIES

The UK Court of Appeals has ruled that the standard of proof for determining statelessness is the balance of probabilities.

Stateless child in UK denied leave to remain

The UK Court of Appeal issued a decision establishing that someone who cannot immediately be admitted to any other country but could be if they took...

Project funded by: