UK COURT OF APPEAL SAYS STATELESSNESS MUST BE PROVED ON BALANCE OF PROBABILITIES
13 Nov 2018 / Prevention and reduction / Statelessness determination and status / United Kingdom
The UK Court of Appeal issued a decision on AS (Guinea) vs Secretary of State for the Home Department [2018] EWCA Civ 2234 regarding the standard of proof required to establish statelessness. The decision says that statelessness must be approved on balance of probabilities, the normal civil standard, rejecting suggestions by UNHCR, who intervened in the case, to use lower standard of proof when determining statelessness in line with their 2014 Handbook on the Protection of Stateless Persons.
Below is a summary of the case, based on the analysis by the Free Movement blog.
DETAILS OF THE CASE
The appellant is originally from Guinea, and entered the UK using a false passport in 2004. Once in the UK, he became addicted to drugs and committed offences to fund this drug habit, resulting in a deportation order being made against him in February 2009. AS claimed that he was stateless, as he had never possessed any identity documents or a passport. The Guinean embassy refused to provide AS with a travel document, unless he provided further evidence. However, the 1954 Convention definition of statelessness means that failure to acquire a travel document issued by the country of origin is not enough to determine whether somebody is stateless. It requires an individual to prove that they do not meet the legal requirements for nationality in any country.
AS applied for the withdrawal of the deportation order citing his statelessness as an adequate exceptional circumstance to warrant the repeal of the decision under the Immigration Rules, which was refused by the court. The appellant appealed this decision, which both the First-tier Tribunal and Upper Tribunal refused, using the normal civil standard of proof i.e balance of probabilities.
In the Court of Appeal, UNHCR argued that the tribunals should have implemented the 'real risk' standard of proof test in alignment with the 2014 UNHCR Handbook on the Protection of Stateless Persons, which is a lower standard of proof used to establish refugee status. The court rejected this approach, stating that statelessness determination does not involve theorising about what could happen in the future and that even using the 'real risk' approach, AS would not have successfully appealed the decision, as he did not take legitimate steps towards demonstrating he is a Guinean national to the Guinean government. The Court of Appeal further noted that just six of the states party to the 1954 Convention use a lower standard of proof than the balance of probabilities.
Therefore, because AS was unable top obtain a travel document from his country of origin and does not fit the Convention definition of statelessness as he is still a Guinean national, the deportation order cannot be overturned.
The judgement is concerning given the difficulties inherent in proving statelessness and the dire consequences for stateless people of incorrectly rejecting their application for protection. As UNHCR states in its Handbook on the Protection of Stateless Persons, requiring a high standard of proof of statelessness undermines the purpose of the 1954 Convention. Our Statelessness Index assesses how countries in Europe, including the UK, determine statelessness in national law, policy and practice, including the Standard of Proof applied: see how other countries deal with this issue here.