* Help What are the UK Immigration Rules on statelessness... Join / Login (search) ____________________ -- EU Settlement Scheme course now available FREE to members What are the UK Immigration Rules on statelessness? 27th March 2019 By Nath Gbikpi Favorite Loading Add to favorites Hubs / Asylum / What are the UK Immigration Ru ... What are the UK Immigration Rules on statelessness? Page contents * Who is stateless? + State + Under operation of the law -- People who do not have citizenship of any country in the world — the “stateless” — can get leave to remain in the UK because they have nowhere else to go. The criteria for this leave are found at Part 14 of the Immigration Rules. The Home Office also has guidance on Statelessness and applications for leave to remain. In addition, practitioners should refer to the 1954 Convention Relating to the Status of Stateless Persons, and the UNHCR Handbook on Protection of Stateless Persons. The Home Office guidance states that, when there are differences between the Handbook and the guidance, the guidance will take precedence. -- The guidance is likely to be updated soon to reflect changes in the Immigration Rules due to come into force on 6 April 2019. This post looks at statelessness in light of the amended Immigration Rules. Who is stateless? Paragraph 401 of the Immigration Rules adopts the definition of the 1954 Convention. A stateless person is defined as a “person who is not considered as a national by any State under the operation of its law”. -- Kosovo is not recognised as a state by Spain, but it is recognised as a state by the UK. Therefore, a national of Kosovo, who is recognised as a citizen by Kosovo, will not be considered stateless by the UK. Venezuela is currently facing such an economic crisis that many Venezuelan nationals have been unable to get passports, because of a shortage of papers. Venezuela does, however, continue to be considered a state. A Venezuelan national will not be considered stateless, even if they cannot obtain a passport confirming their nationality. -- Even if someone seems to be a citizen under the law of a particular state, they may still be considered stateless if they are not treated as a citizen in practice. The Home Office recognises that: -- In summary, for someone to be granted leave on the basis of statelessness, they must: * not be “excluded” from recognition as a stateless person * meet the definition of statelessness * make a valid application * not be admissible to another country -- 1. Meeting the definition The first requirement to be granted leave on the basis of statelessness is to meet the definition in the previous section: not being considered a citizen by any country in the world. -- Paragraph 402 of the Immigration Rules set out the reasons why a person may be excluded from recognition as a stateless person. Click for full text of Paragraph 402 402. A person is excluded from recognition as a stateless person if there are serious reasons for considering that they: -- the United Nations. In summary, a person will not be recognised as stateless where 1. they have alternative protection, i.e. they are assisted by UNRWA or the country where they used to live is giving them legal rights -- Paragraph 403 (d) of the Rules states that an applicant must have “obtained and submitted all reasonably available evidence to enable the Secretary of State to determine whether they are stateless”. According to the Home Office, therefore, the burden of proof rests with the applicant to show that they are stateless, although the Home Office guidance states that some allowances will be made: -- Arguably, the Home Office is wrong in stating that the burden of proof rests with the applicant to show that they are stateless. In the case of Hoti v Croatia, the European Court of Human Rights criticised Croatia for not proactively determining the applicant to be stateless, indicating that it is indeed a shared burden. The standard of proof is the “balance of probabilities”. That is, an applicant must show that it is more likely than not that they are stateless. The Home Office guidance provides a non-exhaustive list of evidence -- grounds for refusal include having made false representations or submitted false information; failure to attend an interview when requested (this is particularly relevant for statelessness applications as applicants can be called for interviews); and litigation and NHS debts. -- Applicants applying after 6 April 2019 will need to show not only that they are stateless and not admissible to any other country, but that they have made every effort to acquire a nationality or right of admissibility to another country. In particular, they will need to show -- This is strikingly different from the position in nationality law, where a child is entitled to register as a British citizen after five years’ residence in the UK on the basis that they are stateless, independently of whether or not they could register to become a national of another country. -- Other considerations when making an application Statelessness applications are complex and should be well-prepared and evidenced. Wherever possible, applicants should seek legal advice. Cynthia Orchard of Asylum Aid has written an excellent piece on -- file. This is because it might contain useful information (for example if the Home Office already made a finding that the applicant is stateless) but may also contain damaging information which must be explained (for example if the applicant previously said that they were a citizen of country X). Similarly to asylum claims, the Home Office -- Under current rules applicants are eligible for indefinite leave to remain after five years’ continuous lawful residence in the UK, where the latest leave is as a stateless person (but the whole five years do not necessarily need to be with leave as a stateless person, just the most recent leave). The changes to the Rules however mean that, from 6 April 2019, applications will need to have had stateless leave for five years before being eligible for indefinite leave to remain. Example -- Doria had leave as the spouse of a British citizen valid from 2 March 2013 to 2 September 2015. On 15 August 2015, she applied for leave on the basis of statelessness, which was granted from 15 August 2016 to 15 February 2019. Under current rules, Doria could apply for indefinite leave to remain on 2 March 2018, on the five-year anniversary of her lawful residence in the UK, even though she was only granted leave on the basis of statelessness in August 2016. Under the new rules, however, Doria would need to wait until she has lived in the UK for five years with statlessness leave, that is until -- in line with the main applicant. Family members can also apply for family reunion from abroad. This is not a recognition that they are themselves stateless, and it may be that some family members would benefit from making their own application on the basis of statelessness. This post has been revised and updated following helpful comments by Cynthia Orchard. We also recommend reading the Best Practice Guide on Statelessness applications produced by the University of Liverpool Law Clinic, which is in the process of being updated. Nath Gbikpi -- Centre. She is also a co-convenor of the ILPA Family and Personal Migration Working Group and a trustee of JCWI. She tweets: @NathGbikpi. Tags: Applications, Immigration rules, key post, statelessness Share -- Explore membership now Share TagsApplicationsImmigration ruleskey poststatelessness Find similar resources & articles in hub