On 16 December 2020, UNHCR published an audit of the UK’s statelessness determination procedure at an online event attended by UK Government officials, civil society, parliamentarians, lawyers, and people affected by statelessness in the UK. Participants welcomed the audit and the resulting constructive dialogue between the UK Home Office and key stakeholders to address its findings and recommendations.
The audit covers decision making in the UK procedure between 2016-2019. Among other issues, the audit notes changes to guidance on interviewing applicants, and that the Home Office succeeded in its arguments in an important court case, as the Court of Appeal decided that the standard of proof required to establish statelessness is the balance of probability, contrary to arguments submitted by UNHCR. The audit also highlights that rules governing the procedure remain out of line with the 1954 Convention, applicants are not normally eligible for legal aid in England and Wales, and statistics on the procedure are not routinely published.
The audit also reveals some concerning issues with decision-making. A key finding was that decision makers are often reluctant to assume responsibility to investigate an applicant’s nationality status even when the applicant has already done everything they can to evidence their case. Decision makers make credibility findings without first putting their queries to the applicant: just 1% of applicants appear to have been interviewed before a decision is taken. The audit noted that there are long delays, with only 30% of cases decided in six months, and 60% within a year. Overall, only around 3% of applications for statelessness leave in the UK are granted.
In its response to the audit, the Home Office stated that its reasons for not interviewing all applicants are that it considers a high proportion of applications to be without merit, and that interviews may re-traumatise applicants. However, those supporting applicants have they have not been asked if they would like to be interviewed, nor have requests for interviews been granted by the authorities.
Lawyers experienced in assisting stateless applicants assert that many of the issues raised in the audit continue, including poor quality decisions, lengthy delays in complex cases, and a lack of communication with the competent authorities of other States. As applicants are not entitled to legal aid in England and Wales, they must pay lawyers privately, apply for exceptional legal aid funding, or find a charitable organisation to assist them.
To address the shortcomings highlighted in the audit and align legislation with international standards, UNHCR has made a series of recommendations to the UK Government, some of which have been accepted, and which were discussed at the launch event:
- Comprehensively revise and develop training for decision-makers
- Amend the Immigration Rules and guidance on statelessness
- Introduce a right of appeal
- Ensure that applicants for statelessness leave are entitled to legal aid
- Publish statistics on applications and decisions on statelessness
- Develop a quality assurance framework for the statelessness determination procedure
UNHCR, ‘Statelessness Determination in the UK’, December 2020: https://www.refworld.org/docid/5fe349c94.html
Home Office response to UNHCR’s Statelessness Determination report: https://www.unhcr.org/5fd8957c4
Immigration Rules, Part 14: stateless persons: https://www.gov.uk/guidance/immigration-rules/immigration-rules-part-14-stateless-persons
UK Visas and Immigration, 'Stateless Leave': https://www.gov.uk/government/publications/stateless-guidance
Liverpool Law Clinic and Asylum Aid, ‘Ongoing challenges in accessing leave to remain in the UK as a stateless person’, 16 December 2020: https://www.liverpool.ac.uk/media/livacuk/law/4-liverpool-law-clinic/LLC-AA,statelessness,briefing,-,Ongoing,challenges,-,Dec,20.pdf
Photo: © UNHCR/Greg Constantine