Mapping Statelessness Report

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United Nations High Commissioner for Refugees/Asylum Aid,
London, November 2011
This document is for general distribution. All rights reserved.
Reproduction and translation is authorised, except for commercial
purposes, provided that UNHCR/Asylum Aid is acknowledged as
the source.
CONTENTS
Acknowledgements ..........................................................................................................4
Executive Summary ..........................................................................................................6
Abbreviations ..................................................................................................................11
CHAPTER 1: INTRODUCTION .......................................................................................12
1.1 Structure of the report .........................................................................................13
1.2 Denitions and scope ..........................................................................................13
1.3 Methodology ........................................................................................................15
1.3.1 Quantitative methodology ..........................................................................15
1.3.2 Qualitative methodology ............................................................................17
1.3.3 Data collection ...........................................................................................19
1.3.4 UK Border Agency co-operation ................................................................20
1.3.5 Legal research ............................................................................................20
CHAPTER 2: STATELESSNESS ACROSS THE GLOBE AND UNHCRS .....................22
ENGAGEMENT WITH STATELESSNESS
2.1 Introduction .........................................................................................................22
2.2 Causes of statelessness .....................................................................................23
2.3 Consequences of statelessness .........................................................................25
2.4 UNHCRs engagement with statelessness .........................................................26
CHAPTER 3: ESTIMATING THE POPULATION OF STATELESS ..................................28
AND UNRETURNABLE PERSONS IN THE UK
3.1 Introduction .........................................................................................................28
3.2 Home Ofce published immigration statistics ....................................................29
and UK Border Agency management information
3.3 Total numbers of stateless persons coming into ................................................34
contact with immigration control
3.3.1 Visas and entry clearance ..........................................................................36
3.3.2 Passengers granted leave to enter on arrival in the UK .............................37
3.3.3 Asylum ........................................................................................................39
3.3.4 Immigration cases ......................................................................................45
3.3.5 Stateless Persons Travel Documents issued ............................................49
under the 1954 Convention
1 in the United Kingdom
3.4 Published statistics: enforcement and compliance ............................................52
3.5 Data sets discounted or given minimal weight ...................................................55
3.5.1 Census data ...............................................................................................55
3.5.2 Eurostat ......................................................................................................56
3.5.3 Indirect data sets ........................................................................................57
Conclusions ...............................................................................................................58
Recommendations ....................................................................................................60
CHAPTER 4: THE IDENTIFICATION OF STATELESS PERSONS .................................62
IN THE OPERATION OF IMMIGRATION CONTROL
4.1 Introduction .........................................................................................................64
4.2 Proles of participants in the research ................................................................65
4.3 The UK and the 1954 Convention .......................................................................66
4.4 The history of the status of the 1954 Convention in domestic law .....................66
and the treatment of stateless persons in UK immigration law and policy
4.4.1 The Immigration Rules ...............................................................................66
4.4.2 Discretion and policy ..................................................................................68
4.4.3 Regularisation ............................................................................................71
4.4.4 Identity and Travel Documents ...................................................................73
4.5 The identication of statelessness in immigration law ........................................75
4.6 Guidance and training .........................................................................................79
4.6.1 Screening and early identication ..............................................................82
4.6.2 The attribution of nationality without appropriate evidence .......................83
4.6.3 Difculties in establishing whether consular authorities ............................84
treated participants as nationals
4.6.4 The approach of legal representatives .......................................................88
Conclusions ...............................................................................................................88
Recommendations ....................................................................................................89
CHAPTER 5: THE HUMAN RIGHTS CHALLENGES FACED BY ..................................90
STATELESS AND UNRETURNABLE PERSONS IN THE UK
5.1 Introduction .........................................................................................................90
5.2 Relevant provisions of international law ..............................................................91
5.2.1 International human rights law ...................................................................91
5.2.2 International refugee law ............................................................................92
5.3 Destitution (including access to employment, social ..........................................93
assistance and housing)
5.3.1 Entitlement to work ....................................................................................93
2 Mapping statelessness
5.3.2 Entitlement to benets, housing and the right to .......................................95
a minimum standard of living
5.3.3 Relevant domestic provisions ....................................................................97
5.4 Healthcare .........................................................................................................102
5.5 Detention ...........................................................................................................104
5.6 Failed forced removal ........................................................................................110
5.7 Immigration-related offences .............................................................................114
5.8 Private and family life.........................................................................................116
5.9 Refugee status determination ...........................................................................118
5.9.1 Palestinians and refugee status ...............................................................120
5.10 The situation of British Overseas citizens........................................................122
Conclusions .............................................................................................................129
Recommendations ..................................................................................................130
CHAPTER 6: THE REDUCTION AND PREVENTION OF STATELESSNESS ..............132
IN BRITISH NATIONALITY LAW
6.1 Introduction .......................................................................................................132
6.2 International obligations ....................................................................................132
6.3 The denition of statelessness in British nationality law ...................................134
6.4 The prevention and reduction of statelessness .................................................135
6.4.1 Children born on the UK territory .............................................................135
6.4.2 Children born outside of the UK ..............................................................138
6.4.3 Foundlings ................................................................................................140
6.5 Proof of statelessness in nationality law............................................................141
6.6 Naturalisation .....................................................................................................143
6.7 Deprivation and loss of nationality ....................................................................144
Conclusions .............................................................................................................146
Recommendations ..................................................................................................147
CHAPTER 7: CONCLUSIONS AND RECOMMENDATIONS .......................................148
Schedule of Participants ..............................................................................................154
Semi-structured interview questionnaire ...................................................................155
Bibliography ..................................................................................................................158
ACKNOWLEDGEMENTS
This report was written and researched by Lucy Gregg, Chris Nash and Nick Oakeshott.
Alexandra McDowall, on behalf of UNHCR, and Nick Oakeshott, on behalf of Asylum Aid,
jointly supervised the project. Additional writing and editing was provided by Russell Hargrave.
Veronique de Ryckere contributed Chapter 2. Special thanks are owed to Mark Manly, Frances
Nicholson, Veronique de Ryckere, Emilie Wiinblad and Laura Padoan, all of UNHCR, who
reviewed the report, to UNHCR interns Camille Crombe, Nevena Ilic and Samantha Regen
who supported the work of the researchers and to Claire Bennett who helped to devise the
original research proposal.
The researchers are also indebted to members of the expert consultative panel who gave
generously of their time and expertise throughout the project: Adrian Berry, Professor
Brad Blitz, Tarek Abou Chabake, Khassoum Diallo, Laurie Fransman QC, Professor Guy
Goodwin-Gill, Stefanie Grant, Alison Harvey, Professor Eleonore Kofman, Bronwen Manby,
Mark Manly, Nuala Mole and Professor Roger Zetter.
The researchers are grateful to the individuals who agreed to be interviewed in order to share
their experiences and consented for their immigration les to be analysed. All their names
have been changed in this report to protect their identities.
The researchers would also like to thank the following:
Paul Luckhurst for his written opinion on the effect of the lack of incorporation of relevant
international obligations into domestic law as well as his contribution to the expert
consultative panel meeting in June 2011.
Paolo Artini, Amal De Chickera, Chooi Fong, Roland Schilling, Maurice Wren, Emilie
Wiinblad and Veronique de Ryckere for their participation at panel meetings.
Philip Amarel, Nasser Al-Anezy, Claire Bennett, Katia Bianchini, Lisa Doyle, Dave Garrett,
Stephanie Huber, Kat Lorenz, Chen Mamam, Drazen Nozinic, Jerome Phelps, Jill Rutter,
Hugo Tristam and Penny Walker for their advice on the project methodology and/or
assistance with facilitating interviews with stateless persons.
Gabor Gyulai, Sebastian Kohn, Maureen Lynch and Dr Laura van Waas for sharing advice
and information concerning the international dimension of statelessness.
Edward Benson, Amanda Gray and Sarah-Jane Savage, all of the UNHCR Quality Initiative
Team.
Louis Barlow, Anna Downing, Michelle Forster, Dave Hollings-Tennant, Alison Keresey,
Mike Kray, Richard Lederle, Ian Page, Brindha Selvarajasingam, Geoff Sharland, Dian
Stanley, Sarah Sturgess, Dave Walsh, Jane Whitehead and Lou Wareing, all of the UK
Border Agency, who participated in the research.
Richard Cheeseman and Liz Urie of the Home Ofce Migration Statistics who also
participated in the research.
Emma Churchill (UK Border Agency), Rob Jones, Katherine McNulty and Fiona Couper
(Home Ofce) for their help facilitating various aspects of the research.
The researchers would like to additionally thank all those organisations that referred participants
and/or provided premises in which to conduct interviews, without whose assistance a large
part of the research would have been impossible:
Arian Associates, ASIRT, Asylum Link Merseyside, British Red Cross, Coventry Peace
House, David Gray & Co. Solicitors, Dover Detainee Support Group, Equality First, FREd,
International Support Kurds in Syria Organisation, Kuwaiti Community Association, Legal
Advice Centre (College of Law), Lifeline Options CLC, Migrant and Refugee Community
Forum (MRCF), Newcastle Childrens and Social Care, Paragon Law, Refugee Action,
Revive Manchester, Turpin Miller Solicitors, Wrexham Refugees and Asylum Support
Group and the Zimbabwean Association.
EXECUTIVE SUMMARY
The research maps the number and prole of stateless persons in the UK and puts a human
face on their situation. It also examines the UKs legal obligations to stateless persons under
international law and analyses the impact of current policy and practice. Based on these
ndings the report makes recommendations for improvement. While the work owes a debt
to previous studies, this is the rst time that this hidden issue has been subject to such
comprehensive quantitative and qualitative research.
The 1954 Convention on the Status of Stateless Persons denes a stateless person as a
person who is not considered as a national by any State under the operation of its law.
In practice many stateless persons are left without legal residence, consular protection, or
the right to return to their country of origin. No Government takes responsibility for their
protection. For those who have fallen through the cracks in this way, the consequences are
serious.
The UK is one of a select group of 37 States that have ratied both the 1954 Convention and
the 1961 Convention on the Reduction of Statelessness. The 1954 Convention aims to regulate
the status of stateless persons and to ensure the widest possible enjoyment of their human
rights, and is complemented by the relevant provisions of international human rights treaties.
The 1961 Conventions purpose is to prevent statelessness, thereby reducing it over time.
Although the Universal Declaration of Human Rights conrms that everyone has a right to a
nationality, it does not set out a specic nationality to which a person is entitled. Responsibility
for conferring nationality lies with individual States, and the UK has criteria in domestic law for
the conferral and withdrawal of nationality. Against this background, the 1961 Convention sets
out additional standards that States have agreed to ensure further international cooperation
and agreement to prevent and reduce statelessness.
The UK was one of the rst States to ratify and implement the 1961 Convention. This research
nds that the UK generally complies with its obligations in this area, although there are specic
areas where improvements in British nationality law could be made.
Despite the UKs obligations under the 1954 Convention and international human rights law,
UNHCR and Asylum Aid found that stateless persons without leave to remain in the UK often go
unidentied and those without leave to remain often live at risk of human rights infringements.
The researchers interviewed stateless persons who had been destitute for months, had been
detained by immigration authorities in spite of evidence that showed there was no prospect of
return, or had been separated for years from their families abroad. Some had been forced to
sleep on the streets. Some had seen their accommodation and support repeatedly cancelled
and reinstated. Almost all of this group were prohibited from working.
Few were in a position to break this cycle. In the absence of a dedicated and accessible
procedure to identify people who are stateless, they are left in legal limbo for years.
The available data indicates that the number of stateless persons stuck in such limbo in
the UK is relatively small, but appears to increase at between 50-100 persons annually. In
the absence of an accessible procedure that identies stateless persons, however, as well
as problems with the reliability of published statistics on statelessness and other data, it is
possible that this estimate is at the bottom end of the scale.
Nonetheless, the research found that difculties faced by stateless persons are deeply
entrenched and need to be addressed.
Key ndings
The UK currently lacks specic law, policy and procedures to address many of the challenges
confronting stateless persons. This gap impacts on many stateless persons on the territory,
from their rst contact with immigration control to the prospects of nding a permanent
solution to their predicament either in the UK or in another State. The key ndings of the
research are:
1
2
3
There are aws in the way data on stateless persons is recorded and presented.
This means it is currently impossible to provide an accurate estimate of the total
number of stateless persons in the UK.
The categories used by the UK Border Agency to record its contact with stateless
persons are numerous, overlapping and confusing. As well as preventing an
accurate count of stateless persons, this increases the risk that some stateless
persons are not identied and that, as a result, their protection needs are not
met.
A relatively small stateless population stuck in limbo in the UK can be identied
by cross-referencing published gures with more detailed data provided by the
Home Ofce and UK Border Agency for this research.
Despite recent improvements, the last published immigration statistics of August
2011, give an inconsistent and incomplete picture of the numbers of stateless
persons who come into contact with immigration control.
Disaggregation of the published data shows that stateless persons with travel
documents and visas are able to arrive in and depart from the UK without posing
any particular challenge to immigration control. The research identies around 150
to 200 people each year who claim asylum and are recorded as being stateless by
the UK Border Agency. This group is granted asylum or complementary protection
at a far higher rate than the average, reecting the fact that stateless persons often
face discrimination and the denial of their human rights in their countries of origin.
The disaggregated statistics, however, show that removal only occurs in around
10 per cent of cases of stateless persons whose asylum claims are unsuccessful.
The remaining group are small in number but are left in limbo, with no right to stay
in the UK and no State to which they can return.
The absence of a statelessness determination procedure prevents the proper
identication of stateless persons.
There is currently no dedicated and accessible procedure in the UK to which
individuals can apply for recognition of their statelessness. A number of other
European States have such a procedure. This gap is a major obstacle that
prevents the UK Border Agency from being able to identify those who are stateless
and cannot leave the UK, and to distinguish such persons from individuals who
do have a nationality or the right of residence elsewhere and who can depart.
Furthermore, the lack of such a procedure prevents a more accurate estimate of
the number and prole of stateless persons in the UK. While there is the opportunity
for stateless persons to apply for a 1954 Convention Travel Document, in practice
this is accessible to only a small number of stateless persons, as any applicant is
required to have six months leave to remain before being eligible to apply.
Stateless persons for whom the UK is the most appropriate country to provide
a long-term solution are no longer granted leave to remain in the UK.
Between 1998 and 2002, stateless persons were granted indenite leave to remain
in the UK as a matter of policy, in cases where the UK was the most appropriate
country of residence. By 2002, however, the policy had changed and applications
for leave to remain on the basis of statelessness are now refused. This contrasts
with the practice of a number of other European States and leaves many stateless
persons with no option but to seek asylum. If their asylum claim is refused, they are
expected to leave the UK in common with all other unsuccessful asylum-seekers.
Any further support and accommodation is conditional on their cooperation with
voluntary return, regardless of whether there is any country of nationality to which
they can return.
Stateless persons in the UK who have not been granted leave to remain are
at risk of human rights infringements.
Stateless persons without leave to remain in the UK interviewed for this research
described the consequences of their legal limbo. Some told of long periods without
food and nights spent on the streets. Several were separated from their immediate
family, including one father who has not seen his four children in 10 years. Many
were subject to lengthy periods in immigration detention, with no prospect of
removal. As one person told our researchers: I have no ID, no work, no education,
no freedom. Another interviewee likened his plight to that of a bird with nowhere
to rest on the ground, but which cant spend his whole life in the sky.
4
5
Key recommendations
1
2
3
The UK should implement an accessible procedure to identify
stateless persons on its territory.
The most effective way to ensure the UK meets its international obligations to
stateless persons under the 1954 Convention and in human rights law is through
the adoption of an accessible and efcient statelessness determination procedure
that identies stateless persons on UK territory as quickly as possible. Where
such a procedure establishes that an individual does in fact possess a nationality
permitting return, this could help facilitate the operation of immigration control.
Likewise, such a procedure could identify a nationality to which a stateless person
may be entitled, or a state where a stateless person may be entitled to return and
reside, and where their human rights will be respected.
The UK should review its approach to the identication of stateless persons,
and adopt a position in accordance with forthcoming UNHCR Guidelines on the
denition of stateless person in international law.
Currently, in both immigration and nationality law, the burden of proof is placed
on the individual to substantiate any claim that he or she is stateless, rather than
being shared between the State and the individual. This research found that many
applicants were frustrated in their efforts to obtain proof from foreign authorities
or consular authorities in the UK, which regularly refused to respond to enquiries
or to formally provide notication that an individual was not considered one of
their nationals. The qualitative research found that, even when such conrmation
was provided, the UK Border Agency would sometimes continue to attribute that
nationality to the individual.
UK Border Agency guidelines and the decisions of the courts alike provide some
guidance on whether a foreign State considers an individual to be a national under
the operation of its law. Neither, however, fully corresponds to the conclusions of
expert meetings convened in 2010 and 2011 to help develop UNHCR Guidelines.
The UKs approach to this issue should be reviewed in the light of the forthcoming
Guidelines.
The UK should grant leave to remain to stateless persons
in appropriate circumstances.
In the past, stateless persons without leave to remain were, in dened
circumstances, granted indenite leave to remain in the UK. This was the rst
step by which they could acquire a nationality and end their statelessness. The
research has shown that a return to a policy granting leave to remain to stateless
persons in appropriate circumstances would also ensure respect for stateless
persons rights under the 1954 Convention and international human rights law.
Such an approach is reected in current practice among those States that have
statelessness determination procedures, as it enables stateless individuals to
live with dignity and security. In a small number of cases, however, it may not
be appropriate to grant leave to enter or remain. For example, where a stateless
person enjoys the right of residence in another State and is able to return and live
there with full respect for their human rights. As discussed above, an effective
statelessness determination procedure could help identify such cases.
The UK should ensure that its law, policy and practice relating to stateless
persons and those who cannot as a matter of fact return to their country
of nationality complies with its international human rights law obligations,
particularly in relation to access to employment, social assistance and
healthcare.
The absence of an efcient procedure to effectively identify stateless persons,
or the possibility for stateless persons without leave to remain to regularise
their immigration status, results in many individuals facing a number of human
rights challenges. These are particularly pressing where individuals are at risk of
destitution. At present there is no clear and immediate route out of destitution
for these stateless persons, as nearly all are subject to immigration legislation
and policy that prohibits both access to mainstream benets and employment. To
counter this, provisions relating to social assistance (including section 4 support)
and access to employment should take into account the particular circumstances
of stateless persons, and be applied in accordance with the UK governments
obligations under international human rights law.
The UK Border Agency should amend its guidance on immigration detention to
expressly identify an individuals statelessness as a factor that will weigh against
detention, on the basis that it is likely to indicate that there are no reasonable
prospects of removal.
A third of participants interviewed for the research had been detained under
immigration powers. As well as amending existing guidelines in order to better
protect stateless persons who are at risk of arbitrary and prolonged detention,
there is a need for improved training of UK Border Agency personnel on how
statelessness affects the presumption against detention, and how statelessness
can sometimes become apparent only through the process of documentation for
removal.
The UK should build on the protections in British nationality law that already
prevent and reduce statelessness, specically with reference to obligations under
the 1954 and 1961 Conventions and the Convention on the Rights of the Child.
The statistical evidence showed that British nationality law, which includes specic
provisions designed to meet obligations under the 1961 Convention, is generally
effective at preventing statelessness at birth. There is, however, evidence of a
small number of stateless children who were born on the territory and remained
stateless for ve years before being able to register as British citizens as of right.
Furthermore, there is no accelerated or prioritised route through which stateless
persons on UK territory can naturalise as British citizens. These are both areas that
should be reviewed in the light of the UKs international obligations.
4
5
6
Abbreviations
ACID Asylum Casework
Information Database
ASU Asylum Screening Unit
BNA British Nationality Act 1981
BOC British overseas citizen
CEDAW Committee on the Elimination
of All Forms of Discrimination
Against Women
COIS Country of Origin
Information Service
CID Case Information Database
CRC Convention on the Rights
of the Child
CRD Case Resolution Directorate
DL Discretionary Leave
EEA European Economic Area
ECHR European Convention on
Human Rights and Fundamental
Freedoms
ELR Exceptional Leave to Remain
EU European Union
FOI Freedom of Information
GCID General Casework
HP Humanitarian Protection
ICID Immigration Casework
ICCPR International Covenant on Civil
and Political Rights
ICESCR International Covenant on
Economic, Social and
Cultural Rights
ILR Indenite Leave to Remain
IOM International Organisation
for Migration
IPS International Passenger Survey
LFS Labour Force Survey
MI Management Information
MP Member of Parliament
NAM New Asylum Model
NCID Nationality Casework
OECD Organisation for Economic
Co-operation and Development
ONS Ofce of National Statistics
SAR Subject Access Request
SIAC Special Immigration Appeals
Commission
SSHD Secretary of State for the
Home Department
UKBA United Kingdom Border Agency
UKSC United Kingdom Supreme Court
UKUT United Kingdom Upper Tribunal
UNHCR United Nations High
Commissioner for Refugees
UNRWA United Nations Relief and
Works Agency
UNTS United Nations Treaty Series
USSR Union of Socialist Soviet
Republics
WIP Work in Progress
CHAPTER 1: INTRODUCTION
The issue of statelessness has been left to fester in the shadows for far too long.
It is time to take the necessary steps to rid the world of a bureaucratic malaise that
is, in reality, not so difcult to resolve. It is simply a question of political will and legislative
energy.
Antnio Guterres, UN High Commissioner for Refugees
Louise Arbour, former UN High Commissioner for Human Rights
1
In 2011, to mark the 50th anniversary of the 1961 UN Convention on the Reduction of
Statelessness, UNHCR launched a worldwide campaign on statelessness. The plight of
people around the world not recognised as a national of any State under the operation of
its law and the urgent work needed to address the deprivations they experience as a result
remain a central concern in the work of the Ofce of the High Commissioner for Refugees
(UNHCR).
2
Most of these individuals are not refugees. Indeed most have not left their country of birth or
a successor State. Some have crossed an international border, however, and live in refugee
camps or urban areas. Statelessness is a global problem, with the largest concentration of
stateless persons to be found in Asia, but it is also a largely unacknowledged issue on our
doorsteps in the United Kingdom.
3
In an attempt to gain a greater understanding of the situation facing stateless persons in the UK,
and as part of global efforts to tackle statelessness, UNHCR and Asylum Aid have conducted
a joint research project seeking to map the size and prole of the stateless population in the
UK. The project also aimed to assess the UKs compliance with its international law obligations
to stateless persons.
The UK is one of a select group of 37 States to have ratied both the 1954 Convention on the
Status of Stateless Persons
4
and the 1961 Convention on the Reduction of Statelessness
5
,
although a number of further State ratications are expected by the end of 2011. Indeed,
British nationality law contains specic provisions that aim to meet the UKs obligations under
the 1961 Convention. However, anecdotal evidence derived from Asylum Aids legal team,
which provides legal advice and representation to asylum-seekers, and UNHCRs engagement
with the government on this issue suggest that statelessness could be considered a hidden
issue. Both government and non-governmental organisations appear to have a variable
understanding of statelessness and the issues that it raises. Statelessness seems to be
bound-up in the challenges that confront some asylum-seekers and other undocumented
Guterres, A. and Arbour, L.,
1
The Hidden World of Stateless People, UN Ofce of the High
Commisssioner for Human Rights, 28 November 2007, available at: http://www.ohchr.org/EN/
NewsEvents/Pages/DisplayNews.aspx?NewsID=4964&LangID=E. This and all following hyper-links
were accessed on 8 and 9 Oct. 2011.
See for example, BBC, UN warning over 12 million stateless people, 24 Aug. 2011, available at:
2
http://www.bbc.co.uk/news/world-14654066.
Hereafter the UK.
3
UNTS 5158, Vol.3 60, 117, in force 6 June 1960, UK ratication on 16 April 1959, (hereafter the
4
1954 Convention).
UNTS 14458, Vol. 989, p175, in force 13 December 1975, UK ratication on 29 March 1966,
5
(hereafter the 1961 Convention).
migrants trying to regularise their immigration status and in the efforts of some to gain release
from long periods in immigration detention. Although statelessness is clearly recognised as a
concept in British nationality law, there appeared to be no dedicated procedure in immigration
law that would allow for a stateless person to be identied and to access a route leading to a
permanent solution.
1.1 Structure of the report
Chapter 1 will continue to set out the denitions used in the study and its scope. It will also
describe the methodology employed in the research.
Chapter 2 provides a brief overview of the global causes and consequences of statelessness,
as well as UNHCRs mandate to protect stateless persons.
Chapter 3 provides an exhaustive analysis of relevant statistics published by the Home
Ofce and internal management data of the UK Border Agency, the executive agency of
the Secretary of State for the Home Department operationally responsible for immigration
control and British nationality matters. It considers the accuracy and usefulness of the records
held by the agencies with which stateless persons come into contact. Based on its empirical
ndings, it cautiously identies a stateless population in the UK.
Chapters 4 and 5 examine the identication of stateless persons when they come into contact
with UK immigration control, and the degree to which the UK government safeguards the
human rights of stateless persons in accordance with its obligations under international law.
Chapter 6 analyses the operation of British nationality law and the provisions that prevent and
reduce statelessness as required by the 1961 and 1954 Conventions and wider international
human rights law.
Each chapter starts with a brief summary of content and ends with conclusions and
recommendations which are compiled in a nal chapter setting out key conclusions arising
from the research as a whole.
1.2 Denitions and scope
The denition of a stateless person in international law is found in the 1954 Convention, Article
1(1). It provides that a stateless person is a person who is not considered as a national by any
State under the operation of its law. The International Law Commission considers that this
denition constitutes customary international law.
6
It is also the denition given to the term in
British nationality law.
7
The use of stateless person in this report assumes this meaning.
See International Law Commission,
6
Commentary on the Draft Articles on Diplomatic Protection
2006, available at: http://untreaty.un.org/ilc/texts/instruments/english/commentaries/9_8_2006.pdf,
p. 49.

7
Hamza v. Secretary of State for the Home Department (SSHD), [2010] UKSIAC 23/2005,
Special Immigration Appeals Commission (SIAC), available at: http://www.unhcr.org/refworld/
docid/4ce2a8022.htm, para. 5.
The denition, however, presents difculties in interpretation and, consequently, application.
UNHCR will issue guidelines in 2011 on the interpretation of Article 1(1). The development of
these guidelines has been informed by an expert meeting that drew up a set of conclusions.
8

These conclusions found that, considering the object and the purpose of the 1954 Convention
is to secur[e] for stateless people the widest possible enjoyment of their human rights and to
regulat[e] their status, the denition in Article 1(1) should be given an inclusive interpretation
and that some categories of persons hitherto regarded as de facto stateless are actually
de jure stateless.
9
Furthermore, as there is no international treaty regime to regulate the
treatment of de facto stateless persons and the interpretation of the term is subject to debate,
although the UNHCR Prato Summary Conclusions found that the lack of ability to return to the
country of nationality was the dening characteristic. In these circumstances, the researchers
decided, as far as possible, to avoid the use of the terms de jure and de facto stateless.
Instead, it was decided to include within the scope of the study persons who were, for the
purposes of the research, termed to be unreturnable, that is to say they were people who were
subject to UK immigration law, but could not return or be returned to any country including, if
known, their country of nationality. This working denition was chosen to reect the common
characteristics that the group shared, in that they did not have the right to remain in the UK
and that they were unable to gain admittance to their country of nationality or former habitual
residence. In this way their situation was similar to the situation of many of the participants in
the research who were stateless, although the two groups were treated as being distinct. This
group falls within UNHCRs mandate relating to stateless persons because if the situation of
unreturnable persons is left unaddressed it may become impossible to document nationality
in the future, thereby leading to statelessness.
10
Further, as the analysis in Chapter 5 reveals,
unreturnable persons are like many of the stateless participants interviewed left in limbo in
the UK. This has signicant consequences for the protection of their human rights. Indeed,
the UK courts have held that this unreturnable characteristic is a relevant consideration in
a series of cases concerning, for example, whether immigration detention was arbitrary or
unlawful and whether destitution and homelessness or limitations on access to healthcare for
non-nationals contravened human rights standards.
11
The researchers were able to identify persons as stateless if the UK Border Agency, a Court or
Tribunal had determined them to have such status. Additionally, individuals were considered
stateless if they met the interpretation of Article 1(1) of the 1954 Convention set out in the
conclusions of two expert meetings on statelessness organised bv UNHCR in 201011.
12

Finally, some persons who were identied as unreturnable were potentially stateless,
although that conclusion could not yet be drawn. This was because enquiries of the States
where they had a relevant link by birth, previous habitual residence or nationality of parents
had either not yet taken place or had not been concluded. If those enquiries, in the future,
revealed that none of the States in question was treating the individual as a national under
the operation of its law, then he or she would be stateless. Conversely, if those enquiries
revealed that the individual has a nationality, he or she would be able to return.
UN High Commissioner for Refugees (UNHCR),
8
Expert Meeting The Concept of Stateless Persons
under International Law (Summary Conclusions), May 2010, available at: http://www.unhcr.org/
refworld/docid/4ca1ae002.html (hereafter UNHCR Prato Summary Conclusions).
Ibid., Section II
9
De facto Stateless Persons.
Ibid., para. 12.
10
For further discussion, see Chapters 4 and 5.
11
See UNHCR Prato Summary Conclusions and UNHCR,
12
Expert Meeting - Statelessness
Determination Procedures and the Status of Stateless Persons (Summary Conclusions), Dec. 2010,
available at: http://www.unhcr.org/refworld/docid/4d9022762.html (hereafter UNHCR Geneva
Summary Conclusions).
The scope of the mapping element of the study was limited to the UK mainland territory. It
was therefore impossible to examine the operation of British nationality law as either a cause
of statelessness abroad or a mechanism for reducing statelessness abroad. The UNHCR
ofce in London is engaging in the protection of stateless populations and the reduction and
prevention of statelessness on British overseas territories. An examination of these issues,
however, was beyond the scope of the research.
The research was conducted between September 2010 and October 2011. The researchers
received input and guidance from an expert consultative panel. The panel met twice, in
December 2010 and June 2011, and provided input at other points during the research. The
research team is very grateful for the generous contribution of expertise given by the experts
on the panel.
1.3 Methodology
The methodology devised for the research is divided into three distinct parts: quantitative,
qualitative and legal. It was devised following a literature review which examined methodologies
best suited for research into hidden populations
13
and recent studies focusing on research
subjects who were likely to share similar characteristics to stateless persons, including
refugees, asylum-seekers, and other undocumented migrants.
14
Subsequently, a scoping
exercise involving a number of meetings with community representatives and extensive
networking was undertaken in order to compile a comprehensive database of all organisations
that work with or for the populations under study. This work secured involvement of several
key individuals and organisations to assist with referring participants and the design of
research materials.
1.3.1 Quantitative methodology
The challenges in mapping stateless populations
Estimating the number of stateless persons is extremely difcult. Stateless persons, whether
born in the UK or migrants, risk being hidden, for a number of reasons.
First, many individuals, for example, among stateless, destitute, refused asylum-seekers
or other undocumented migrants, will intentionally make themselves unobservable thereby
eluding registration and statistical coverage.
15
Secondly, statelessness appears to be a misunderstood and unfamiliar concept amongst
many government agencies and NGOs. The consequence is that stateless is not a common
Bloch, A.,
13
Carrying out a Survey of Refugees: Some methodological considerations and guidelines,
Journal of Refugee Studies, Volume 12. No. 4, 1999.
Crawley, H.,
14
Chance or choice? Understanding why Asylum Seekers Come to the UK, Refugee
Council and Swansea University, 2010; Bloch, A., Zetter, R., and Sigona, N., No right to dream: the
social and economic lives of young undocumented migrants in Britain, City University London in
association with the Refugee Studies Centre, 2009.
Tapinos, G., Clandestine Immigration: Economic and Political Issues, in Organisation for
15
Economic Cooperation and Development (OECD) (ed.), Trends in International Migration 1999,
OECD publications: Paris, 1999, pp. 229-251.
nationality category in data sets, and relevant data is not captured. Even where data sets
include a nationality category termed stateless, the denition of the category is often
questionable and inconsistent with the denition used in other data sets. This contributes to an
absence of accurate data on the numbers and prole of stateless persons on UK territory.
Thirdly, compounding this problem, stateless persons are subject to contested denitions
and are consequently hard to classify or categorise. Rather than being a group for whom
established legal procedures and protections exist, such as asylum-seekers and refugees,
stateless persons share only the common characteristic of a lack of nationality, whatever their
other circumstances. Stateless individuals can therefore span multiple incomplete data sets.
Data sources and methods of analysis
Stateless and unreturnable persons can be found amongst both documented and
undocumented migrants, as well as amongst those born in the UK. Previous equivalent
mapping studies have principally focused on estimating undocumented migrant populations
and have predominantly taken place in Europe and North America.
16
A diverse set of
methodologies have focused on different approaches. Most notably, a distinction is made
between direct and indirect methods. A combination of both methods was chosen for the
quantitative methodology of this study.
Direct methods
A number of direct data sources that record numbers of persons as stateless or of unknown
nationality were examined. Close attention was paid to the classication of stateless or
unknown nationality used in each data source to try to ensure consistency both with the
denition of stateless person used in this study, as well as across the different datasets. It
was recognised that examining direct data could provide certain totals, but risked resulting in
a signicant undercount of the total population.
There are no direct data sources that relate to unreturnable persons and this group does not
exist as a separate category within any of the datasets examined.
Direct data sources examined include: the Labour Force Survey; the International Passenger
Survey; European Union (EU) statistics published by Eurostat; UK government published
statistics; management information provided by the UK Border Agency; and data sets
collected by refugee-assisting NGOs that provide services to vulnerable migrants.
Indirect methods
Indirect methods can be used to infer a population size by investigating data derived from the
circumstances and characteristics of the population under study and, in the case of hidden
populations, how their position in society becomes visible. This could include examining
data sets relating to situations where stateless and unreturnable persons are likely to be
more highly represented. Whilst this method, in contrast to the direct methods, would have
the advantage of attempting to encompass hidden populations, it also has larger margins of
error.
Pinkerton C., McLaughlan G., and Salt, J.,
16
Sizing the Illegally Resident Population in the UK, Home
Ofce Online Report 58/04 London: Home Ofce, 2004.
The data examined included identiable groups such as Kuwaiti Bidouns and Palestinians,
individuals for whom voluntary return has proved impossible and refused asylum-seekers
who have not departed from the UK territory. It was considered likely that such groups would
include a proportionately much higher number of stateless persons than contained in other
classications.
It was hoped that combining the analysis of direct and indirect data with evidence obtained
from the qualitative and legal research would allow conclusions to be drawn about the number
and prole of the population under study.
1.3.2 Qualitative methodology
The second element of the methodology was to encourage the participation of stateless
and unreturnable persons in the research in order to provide a better understanding of
their situation and prole. At the outset, the researchers aimed to interview 40 stateless and
unreturnable persons, to hear their stories and, with their permission, obtain and review
their immigration case le.
A number of challenges were identied. The fact that stateless and unreturnable persons
are part of a hidden population poses a methodological challenge
17
in that no source of
information detailing the geographical distribution and social-demographic characteristics
of stateless people in the UK currently exists. Therefore, due to the absence of a reliable
sampling frame from which to draw a probability sample, it was necessary to adopt more
unorthodox alternative strategies for locating participants. Purposive sampling was therefore
used, a method not based on random chance but on pre-determined judgments. Participants
are identied because they have particular features or characteristics that will enable detailed
exploration of the research objectives. Two forms of sampling were combined.
Snowball sampling
Snowball sampling is used when respondents from the sample population are particularly hard
to locate and is the classic method for nding hidden populations.
18
The snowball technique
relies on referrals from initial contacts to supply additional contacts with good knowledge
of the target population. The technique produces a wide range of contacts and information
by a system of chain referral and serves to provide access to those persons who would
otherwise be difcult to contact.
19
This technique relies on trust being built up between the
researcher, intermediary (or gatekeeper) and the interviewee, with the gatekeeper acting as
an advocate for the project. As a result, gatekeepers help to facilitate the research through
their organisations, encouraging the participation of potential respondents who might not have
been willing to be interviewed without the recommendation of a gatekeeper. This approach
assumes that the selection of subjects stops once it has reached its saturation point, which
can be identied when the same points are brought up repeatedly during interviews or
alternatively when quotas have been met.
Beata, D.,
17
Estimating the size of the homeless population in Budapest, Hungary, Research Support
Scheme: Virtus, 2000.
Sawyer, C., and Blitz, B., K. (eds.),
18
Statelessness in the European Union: Displaced, undocumented,
unwanted, Cambridge University Press, 2011.
Atkinson, R., and Flint, J.,
19
Accessing Hidden and Hard to Reach Populations: Snowball Research
Strategies, Social Research Update, 33, 2001.
The snowball method is inherently biased due to several factors. Participants volunteering
for the sample can create a self-selection error whereby, for example, condent, English-
speaking individuals may be most keen to participate, risking the exclusion of isolated
groups. Those who have received numerous requests in the past may choose to ignore calls
for information and a skew in the data may occur because only participants who are currently
on the books of gatekeeper organisations may be referred, creating the risk that individuals
who have been in the country for longer time periods may be forgotten. Efforts were therefore
made to reduce over-reliance on one network, by developing a multiple access strategy.
20

This helps prevent reliance on particular groups and networks, ensuring instead a range of
different potential gatekeepers including statutory organisations, educational establishments,
community spaces and religious establishments.
Quota sampling
It is not possible to draw statistically valid inferences about the whole stateless population
through the use of snowball sampling. Rather, this method serves as an indication of potential
patterns and relationships. Efforts were therefore made to ensure that participants with certain
characteristics were interviewed in order to make the sample as representative as possible
of the overall stateless population. Quota sampling was used to implement the non-random
selection of respondents according to xed quotas. The key idea in quota sampling is to
produce a sample matching the target population on certain characteristics (for example, by
age) by lling quotas for each of these characteristics. It was intended that this method would
ensure that the sample reected key variables and encompassed all relevant groups.
21
Quotas
were not intended to be too rigid.
Sample size and content
The agreed aim was for a minimum of 60 per cent of participants to be stateless persons and
the remaining 40 per cent or less of participants to be unreturnable persons.
22
Age and gender were also signicant for this study because of the differing international
legal obligations owed by the State to children, as well as the potential impact of gender
discriminatory nationality laws. The existing data on undocumented migrants (including
refused asylum-seekers, overstayers and unauthorized entrants) were considered,
23
but
lacked disaggregation. Consequently, the UK asylum seeking population was put forward as
the best basis from which to draw quotas for age and gender.
According to statistics published in 2009, women make up around 33 per cent of all asylum
applicants. Adults aged 18 to 29 year olds make up over 50 per cent of all applicants, while
children under 18 years old comprise just over 10 per cent of all applications. It was hoped
to reect these proportions in the sample. It was also proposed that no single group would
make up more than 25 per cent of participants to try to ensure that no prole dominated the
sample. There were, however, several key countries of origin and groups that the researchers
aimed to cover, namely Kuwaiti Bidouns, Palestinians and British Overseas citizens who had
renounced their Malaysian citizenship. It was also hoped to ensure geographic representation
Snijders, T.,
20
Estimation on the basis of snowball samples: how to weight?, in Bulletin de
Methodologie Sociologique, 1992.
Bloch, A., Zetter, R., and Sigona, N.,
21
op. cit.
See Chapter 4 for the prole of participants referred and interviewed.
22
Bloch, A., Zetter, R., and Sigona, N.,
23
op. cit.
by aiming that 25 per cent of all interviews should be undertaken with participants living in
Wales, Scotland or Northern Ireland.
These methods adopted for sampling aim to increase the robustness of the research by
enhancing the reliability and the validity of the data and in turn provide a greater understanding
of stateless persons. The diversity of gatekeepers, multiple starting points for snowballing
and the setting of exible sampling quotas were all used to try to increase the diversity of
participants.
1.3.3 Data collection
Semi-structured interviews with stateless persons
The researchers conducted extensive research in order to compile a database of over 400
gatekeepers to approach for the referral of participants. This database encompassed a variety
of both voluntary and public sector bodies enabling a wide range of starting points for
snowballing. The database included: refugee community organisations; crisis groups; detainee
support groups; NGOs/refugee-assisting organisations; small local community groups and
centres; university and student groups; online social networking websites; service providers
such as housing associations and local councils; citizens advice bureaux and law centres;
public bodies such as strategic migration partnerships.
A referral form was designed which described the research and requested the referral of
stateless or unreturnable individuals. It included a short questionnaire intended to help
gatekeepers to identify the target population well as to enable researchers to lter the most
appropriate participants referred. The referral form was distributed to the project contact
database by email and post, and placed as a link on the Asylum Aid and UNHCR UK website.
It was also featured in other organisations newsletters and mailing lists, as well as being
distributed on relevant email lists, such as the Refugee Legal Group.
24
Meetings and other
follow-up work took place with organisations on the database about how best to encourage
and facilitate participation in the research. These included Detention Action, Coventry Peace
House, the Immigration Law Practitioners Association, Refugee Action, the British Refugee
Council and the British Red Cross. Several of these organisations agreed for a researcher
to present the project at frontline staff or management team meetings in order to increase
awareness of the research, as well as to help ensure endorsement by senior members of
staff and their engagement to encourage participation. This approach meant it was possible
to secure large numbers of referrals despite the challenges inherent in trying to engage the
participation of this type of hidden population.
If the status or circumstance of the potential interviewee was unclear following receipt of
completed questionnaires from individuals or organisations, a short call would be made to
ensure that the potential participants circumstances were within the scope of the research.
Participants for interview were selected to try to obtain a broad as possible sample. A
semi-structured interview questionnaire was designed to capture comparable information
identied as relevant for the research. The interview questions were a combination of legal
and sociological questioning and were grouped around four key themes including reasons for
statelessness or unreturnability, immigration history since entering the UK (if relevant), living
conditions while in the UK and nally about statelessness and the individual. All interviews
were digitally recorded. Detailed notes were taken, including the interview context, access
The Refugee Legal Group is an email group consisting mainly of legal representatives who provide
24
advice to asylum-seekers.
route, the setting for the interview, and key information and quotes from the interview. The
duration of interviews was typically one and a half to two hours. Interpretation was provided
where necessary. Three or four pilot interviews were initially carried out and a debrieng
meeting among the project team was held afterwards to discuss emerging themes and any
changes needed to the semi-structured interview format.
Anonymity and condentiality was guaranteed to enable participants to talk freely and
candidly about their experiences. Therefore throughout this report pseudonyms have been
used to portray participants stories.
Case le access and reviews
The interviews were complemented by an examination of the participants immigration case
les to ensure the accuracy of the data recorded as well as gain additional insights into the
UK Border Agencys engagement with participants. The detailed review of case les was
considered important given the inherent limitations on the extent of information it is feasible
to obtain from a one and a half hour interview. Moreover, wherever possible efforts were
made to obtain copies of the participants papers in advance of the interview in order to best
target questioning. Paper les were obtained through subject access requests (SARs) under
the Data Protection Act 1998 as well as in some cases directly from the UK Border Agency. In
addition, relevant information on each participant was reviewed on the UK Border Agencys
Case Information Database.
25
For various reasons, including delay or lack of consent, it was
not possible to obtain the paper les of all the participants interviewed. Those case studies
are referenced accordingly in footnotes.
1.3.4 UK Border Agency co-operation
In parallel with this, the UK Border Agency kindly agreed that the researchers could access
electronic databases and les. The researchers received security clearance for this purpose.
In addition, a series of semi-structured interviews were held with relevant UK Border Agency
ofcials in order to better understand the issues raised, as well as the application of relevant law
and policy concerning stateless persons. These interviews were not transcribed but were held
on record with the understanding that information obtained should be treated as anecdotal
and not attributed directly to individuals. Information obtained from these interviews, though
not constituting empirical evidence, nonetheless proved very valuable in lling information
gaps and enabling the researchers to test themes emerging from initial data analysis.
1.3.5 Legal research
The nal part of the methodology was to undertake extensive legal research, focused initially
on identifying the UKs obligations in international law towards stateless persons. The research
also examined UK law and policy relating to stateless persons and evaluated the extent to
which the UKs international legal obligations were being met. This analysis was informed by
the evidence obtained in the quantitative and qualitative work.
It was hoped that, taken together, these different strands of the research would form a strong
foundation for the evaluation and for any resulting recommendations.
Hereafter referred to as CID.
25
CHAPTER 2: STATELESSNESS ACROSS
THE GLOBE AND UNHCRS ENGAGEMENT
WITH STATELESSNESS
2.1 Introduction
Statelessness was recognised as a global problem during the rst half of the twentieth century
when an increased incidence of the phenomenon became apparent. Statelessness, instead of
disappearing, has developed over time to produce new situations.
Today there are an estimated 12 million stateless persons worldwide. The scale of the problem
has uctuated over the years, with improvements in some regions offset by new problems in
others. The large numbers at the beginning of the 1990s were gradually reduced as the States
of the former Soviet Union granted citizenship to several hundreds of thousands of people.
The numbers increased again, however, with developments in other parts of the world. Putting
precise gures on the number of stateless people is inherently difcult because few countries
have procedures to identify the stateless and collect comprehensive and reliable data in this
eld. Nevertheless the population data that UNHCR produces every June include available
ofcial statistics or estimates.
26

While some regions have larger stateless populations than others, every State and continent
is, or is potentially, affected by statelessness. With the full scope of statelessness across the
globe only just becoming known, the problem is particularly acute in South East Asia, Central
Asia, Eastern Europe, the Middle East and various countries in Africa. Because most of the
countries of Latin America grant citizenship to all born on their territory, that region has the
lowest incidence of people with no nationality.
Countries with the greatest numbers of stateless people, for which estimates are known,
are Iraq, Kenya, Myanmar, Nepal, Syria, Thailand, Estonia and Latvia. However, situations
and rights of stateless persons in each country vary signicantly and are not always easily
compared.
Before elaborating on the consequences of statelessness, it is useful to understand how
people become stateless.
UNHCR data are based on census counts, surveys and other government data and estimates.
26
2.2 Causes of statelessness
Statelessness occurs for a variety of reasons which can be grouped into three categories: a)
causes linked to dissolution and separation of States and transfer of territory between States;
b) causes linked to the complex, technical operation of citizenship laws or administrative
practices; and c) causes linked to discrimination or arbitrary deprivation of nationality.
27

Causes linked to dissolution and separation of States and transfer of territory between States
Firstly, statelessness often arises in the context of State dissolution: the turbulent dissolution
of the Soviet Union and the Yugoslav Federation caused internal and external migration
that left millions stateless throughout Eastern Europe and Central Asia. Twenty years later,
hundreds of thousands of people in the region remain stateless or at risk of statelessness.
The post-colonial formation of States has been another major cause of statelessness. Large
populations have remained without citizenship as a result of decades of such state-building
processes in Africa and Asia, which involved dening who are citizens of the independent
State.
Technical causes
Secondly, people may become stateless as a result of the complex, technical operation of
citizenship laws or administrative practices. States have the right to determine whom they
consider to be a citizen and have adopted a wide range of approaches in this eld. Within this
complex international maze of citizenship laws, many people nd that they fall through the
cracks between them. An individual can, for example, become the victim of a conict of laws,
in which two States each claim that the other is responsible for the bestowal of nationality.
This is especially likely to happen when a persons State of birth grants nationality by descent
(jus sanguinis), while his or her parents were born in a State that attributes nationality by birth
on its territory (jus soli). In addition, some States employ a mechanism whereby automatic
loss of nationality occurs, for instance after a prolonged absence from the country (in some
States as few as three or ve years is considered a prolonged absence).
28

Failure or inability to undertake what might be considered a simple administrative endeavour
can also lead to statelessness. Lack of registration of children at birth a pervasive problem
in many developing countries leaves many children without proof of where they were born,
who their parents were or where their parents were from. Not having a birth certicate does not
automatically indicate the lack of citizenship, but in many countries, and in todays increasingly
mobile world of migrants, not having proof of birth, origins or legal identity increases the risk
of statelessness.
Discrimination and arbitrary deprivation of nationality
Thirdly, underlying causes in most situations of statelessness are discrimination and arbitrary
deprivation of nationality. Ethnic and racial discrimination as well as discrimination affecting
women and children are particularly topical.
UNHCR, Nationality and Statelessness: A Handbook for parliamentarians,
27
2005, pp. 27-39.
Ibid. p. 33.
28
Via decree, Iraqs former President Saddam Hussein stripped the Faili Kurds of their Iraqi
citizenship in one day (in 1980). While most Roma and other minority groups are citizens of the
countries where they live, thousands continue to be stateless in Europe. As a consequence of
States independence or the establishment of new borders, certain ethnic groups have been
excluded from citizenship even though they have resided in the same place for generations.
This is the situation facing the Muslim residents (Rohingya) of the Northern Rakhine state in
Myanmar, some hill tribes in Thailand, the Bidoun in the Gulf States and various nomadic
groups.
Often such groups have become so marginalized that even when legislation changes to grant
access to citizenship and they become theoretically eligible for citizenship, they encounter
almost insuperable obstacles such as the high cost of actually obtaining citizenship and
documentation or of travelling to the place where they can obtain it.
Nepal provides a case in point. In 2007 it amended its nationality laws to extend citizenship
to anyone born in the country before April 1990, including various previously stateless
minorities. While the authorities undertook a massive citizenship campaign in which they
distributed almost 2.6 million certicates in the rst four months of 2007, the poorest stateless
people were nevertheless unable to acquire citizenship due to prohibitive fees and/or long
distances that needed to be travelled to lodge an application. UNHCR monitoring missions
also found that, in some communities, it was believed that some women and girls did not
need certicates as their interests were represented by their husbands or fathers and because
men did not want to share rights to property. In addition, contrary to the law, some authorities
required the cooperation of the husband or father when processing applications submitted by
married women, women and girls.
29

Statelessness arises also as a result of discrimination against women and/or children. In
some countries, marriage or the dissolution of marriage may also constitute a ground for the
automatic loss of citizenship. Additionally, while a number of countries in sub-Saharan and
North Africa, the Middle East and Asia have started to reform legislation to address this, in
at least 30 countries only men can pass on their citizenship on to their children. The children
who are born of women from these countries married to foreigners, or who are born out of
wedlock, may end up stateless if their father is stateless, if he cannot confer nationality under
the nationality law of his State or is unable or refuses to take the necessary administrative
steps with the authorities of his country on behalf of his children.
In Kuwait, for instance, nationality can by law only be passed on through the male line, although
Kuwaiti nationality can be acquired by a foundling born in Kuwait and may also be granted by
decree to any person born in or outside Kuwait to a Kuwaiti mother whose father is unknown
or whose kinship to his father has not been legally established.
30
Similarly, in Senegal, children
born to male nationals always acquire nationality of the state, while women can only confer
nationality in exceptional circumstances. Children born in wedlock to Senegalese mothers
and foreign fathers do not have the right to acquire Senegalese citizenship. Children born out
of wedlock can acquire Senegalese nationality if the person who establishes parentage to a
child is Senegalese.
31
Although these practices may be presented as legal technicalities, they
in fact constitute a clear form of gender discrimination.
32

29
UNHCR, UNHCR Handbook for the Protection of Women and Girls, January 2008, p.190. It should
be noted in addition that draft constitutional provisions on citizenship and fundamental rights
issued in November 2009 further restrict access to citizenship, raising the prospect of a signicant
increase in the size of the stateless population in Nepal.
Nationality Law [Kuwait], 1959 (and subsequently amendments), Articles 2 and 3, available at:
30
http://www.unhcr.org/refworld/docid/3ae6b4ef1c.html. In the latter scenario, the Minister may
afford such children the same treatment as that afforded to Kuwaiti nationals until they reach their
majority.
2.3 Consequences of statelessness
Statelessness costs people dearly. Stateless persons are among the most vulnerable in
the world. In principle, individuals are entitled to most human rights protections regardless
of their citizenship status. In practice, however, statelessness often results in the denial of
fundamental rights, provoking social and economic hardship, and acute vulnerabilities, most
notably for stateless women and children.
Authorities may refuse to register the birth and issue a birth certicate to a child whose parents
cannot prove that they hold the nationality of their country of residence. Without such a birth
certicate, the child in question is much more likely to experience trouble proving nationality
(or enjoying a host of other rights) in the future.
Stateless people may experience similar hindrances in obtaining personal identication
documentation. Considering that stateless people are often at increased risk of discrimination,
abuse, detention or expulsion, not being able to present an identity document may increase
the incentive to shun participation in society altogether.
They may not be able to own property, open a bank account, get married legally or raise a
child. While access to the labour market and housing is either difcult or barred completely,
stateless people often cannot access national services such as public education, healthcare
and pensions. The right to own or inherit property may be restricted or fully denied. Similarly,
it can be virtually impossible to start a business due to the inability to enter into contracts,
obtain licences or open a bank account.
33
This way, poverty becomes an integral part of
stateless life. Stateless persons are sometimes forced to obtain false identication documents
or assume alternate identities in order to engage in day-to-day activities.
Some face long periods of detention, because they cannot prove who they are or where
they are from. Statelessness may also result in the denial of a persons right to reside in the
country, which results in a heightened chance of expulsion from their own country.
34
However,
they also face restrictions on freedom of movement, including on travelling and returning
from abroad. Legitimate international travel may not be an option, resulting in signicantly
increased exposure to human smugglers and trafckers; an industry that thrives on the
desperation of individuals.
35

On a wider level, statelessness may hamper social development efforts, because the concept
of statelessness introduces a power-dynamic that is particularly challenging for the design and
delivery of effective pro-poor social development programmes.
36
Furthermore, the problem
becomes self-perpetuating because stateless parents cannot pass a nationality to their
Loi No. 61-70 du 7 Mars 1961 dterminant la Nationalit Sngalaise, and subsequent
31
amendments, Article 5.
For more information on specically gender-related problems facing stateless women and girls, see
32
UNHCR, Handbook for the Protection of Women and Girls op cit.
UNHCR,
33
Action to Address Statelessness: A Strategy Note, March 2010, p.14 available at: http://
www.unhcr.org/refworld/docid/4b9e0c3d2.html.
UN Human Rights Committee,
34
CCPR General Comment No. 27: Article 12 (Freedom of Movement),
CCPR/C/21/Rev.1/Add.9, 2 November 1999, available at: http://www.unhcr.org/refworld/
docid/45139c394.html.
M. Lynch,
35
Statelessness: International blind spot linked to global concerns, Refugees International
Field Report, 2 September 2009, p. 2.
B.K. Blitz,
36
Statelessness, protection and equality, Refugee Studies Centre, Forced Migration Policy
Brieng no. 3, 2009, p. 3.
children. Apart from the misery caused to the people themselves, the effect of marginalizing
whole groups of people across generations may severely affect the balanced integration in
society and may represent a source of conict.
2.4 UNHCRs engagement with statelessness
UNHCR has been involved in statelessness issues and with stateless persons since it began
operations in 1950. The organization is mandated by the United Nations to protect refugees
and to help them nd solutions to their plight, and many of the refugees assisted throughout
the years have also been stateless.
37
Indeed, over the past several decades, the link between
the loss or denial of national protection and the loss or denial of nationality has been well
established. It is also now generally understood that possession of an effective nationality and
the ability to exercise the rights inherent to nationality help to prevent involuntary and coerced
displacements of persons.
38

Over the years, UNHCRs role in helping to reduce the incidence of statelessness and in
assisting stateless persons has expanded. UNHCR is neither explicitly mentioned in the 1954
Convention on the Status of Stateless Persons nor in the 1961 Convention on the Reduction of
Statelessness. However, the UN General Assembly has designated UNHCR as the appropriate
body to examine the cases of persons who claim the benet of the Convention and assist
them in presenting their claim to the authorities under Article 11 of the 1961 Convention of
the Reduction of Statelessness
39
and recognized UNHCR more generally as the UN institution
with an international protection mandate for stateless persons.
40

The organisations responsibilities towards statelessness issues and stateless persons were
elaborated by UN General Assembly resolutions
41
and through the recommendations of the
organisations own advisory body, the Executive Committee of the High Commissioners
Programme (ExCom).
42

The UN General Assembly resolutions which set out UNHCRs mandate on statelessness are
universal in scope and do not restrict UNHCRs activities to State Parties to either the 1954
Convention or the 1961 Convention. UNHCRs statelessness mandate covers all situations
of statelessness.
Paragraph 6(A) (II) of UNHCRs Statute and article 1(A) (2) of the 1951 Convention refers to stateless
37
persons who meet the criteria of the refugee denition.
See UN General Assembly resolution A/RES/50/152 (21 Dec. 1995).
38
UN General Assembly resolutions 3274 (XXIX),10 December 1974, and A/RES/31/36, 30 Nov. 1976.
39

40
UNHCRs Role in Supervising International Protection Standards in the Context of its Mandate,
Keynote Speech delivered by Volker Trk at York University (Toronto) Conference in May 2010,
available at: www.unhcr.org/4bf406a56.html. See Article 33 of the 1954 Convention: the Secretary-
General is nominally mentioned but in practice this is to be read as UNHCR; see further UN General
Assembly resolutions A/RES/49/169 (para. 20); A/RES/50/152 (para. 14, where it was claried
that UNHCRs activities on behalf of stateless persons are part of the ofces statutory function of
providing international protection, and para. 15); A/RES/61/137 (Para. 4).
UN General Assembly resolutions: A/RES/51/75, (12 Dec. 1996), A/RES/53/125 (9 Dec. 1998),
41
A/RES/54/146 (17 Dec. 1999), A/RES/55/74 (4 Dec. 2000), A/RES/55/153 (12 Dec. 2000), A/
RES/56/137 (19 Dec. 2001), A/RES/57/187 (18 Dec. 2002), A/RES/58/151 (22 Dec. 2003), A/
RES/63/148 (18 Dec. 2008), A/RES/64/127 (18 Dec. 2009), and A/RES/65/194 (21 Dec. 2010).
The Executive Committee of the programme of the High Commissioner is composed of
42
representatives from countries 79 countries as of May 2011 selected by ECOSOC on the basis
There is some overlap between UNHCRs statelessness mandate and its refugee mandate
because stateless refugees are protected under the provisions of the 1951 Convention. When
refugee status ceases, though, individuals may remain stateless and therefore of concern
to UNHCR. UNHCRs statelessness mandate also applies to stateless individuals who are
internally displaced.
In 2006, the General Assembly urged UNHCR to continue to work in regard to identifying
stateless persons, preventing and reducing statelessness, and protecting stateless persons.
43
These four areas govern UNHCRs statelessness-related efforts today.
The identication of statelessness includes continued efforts to identify populations who are
stateless or of undetermined nationality; improved sharing and collecting of statistical data
on these populations; the undertaking and sharing of research on the causes, scope and
consequences of statelessness so as to promote increased understanding of the nature and
scope of the problem of statelessness, to identify stateless populations and to understand
reasons which led to statelessness, all of which would serve as a basis for crafting strategies
to addressing the problem.
44

UNHCRs mandate is not limited to addressing cases of statelessness which have already
occurred. It also includes prevention to identify and address risks of statelessness which may
affect populations, notably by means of support for needed legislative changes. In this context,
UNHCR provides notably technical and advisory services pertaining to the preparation and
implementation of nationality legislation, and promotes accession to the 1961 Convention.
Moreover, UNHCR encourages Member States to reduce statelessness, inter alia by pleading
for the adoption of measures to allow the integration of persons in situations of protracted
statelessness, for the right of every child to acquire a nationality, particularly where the child
might otherwise be stateless, and for the dissemination of information regarding access to
citizenship.
45

Lastly, UNHCR has a role regarding the protection of stateless persons, to help them to exercise
their rights. It promotes accession to the 1954 Convention and is encouraged to implement
programmes [] which contribute to protecting and assisting stateless persons.
46

2011 marks the 50
th
anniversary of the 1961 Convention on the Reduction of Statelessness.
With this important event and bearing the same four areas in mind, UNHCR is placing
statelessness issues at the centre of its advocacy work and intensifying efforts towards
States accession to the international statelessness instruments.
47
The present study was
initiated as part of these endeavours.
of their demonstrated interest to nd a solution to refugee problems. See especially Executive
Committee Conclusions No. 78 and 106, available at: http://www.unhcr.org/3d4ab3ff2.html.
UN General Assembly resolution A/RES/61/137 (19 December 2006).
43
UNHCR,
44
Conclusion on the identication, prevention and reduction of statelessness and to further
the protection of stateless persons, 6 October 2006, N 106 (LVII) - 2006, paragraph c, available at:
http://www.unhcr.org/3d4ab3ff2.html.
Ibid.,
45
para. p to r.
Ibid.,
46
para. v.
UNHCR,
47
Statement by Ms. Janet Lim, UNHCR Assistant High Commissioner High Level Segment
of the 16th Session of the United Nations Human Rights Council, 2 March 2011, available at:
http://www.unhcr.org/refworld/docid/4d762e352.html. See also UNHCR, Commemoration of the
Anniversary of the 100th Session of the Human Rights Committee (Statement by UNHCR), 2010,
available at: http://www.unhcr.org/refworld/docid/4cd798752.html.
CHAPTER 3: ESTIMATING THE
POPULATION OF STATELESS AND
UNRETURNABLE PERSONS IN THE UK
3.1 Introduction
One of the primary aims of the study was to map the number and the prole of stateless
persons in the UK.
48
At the outset of the research in September 2010 there was a gap in
the published statistics relating to stateless persons. In particular, stateless persons did not
appear as a separate category in the immigration control statistics, published by the UKs
Home Ofce.
49
Although the situation improved during the research, and stateless appeared
as a category in the immigration statistics published in August 2011,
50
further progress is still
needed to ensure accuracy. In addition, there was no published research that attempted to
estimate the number of stateless persons in the UK. In this context, it was recognised that a
greater understanding of the number and prole of stateless persons in the UK would help in
evaluating the extent to which the UK was complying with its international legal obligations
towards stateless persons and would be an aid to policy makers.
An attempt to calculate the stateless population in the UK in this chapter encounters
substantial aws in the quality of the data collected and presented by the government.
This chapter scrutinises much of the publicly-available data, explores the limitations
to this information, and suggests better ways in which relevant information might be
collected and presented in the future.
It also explores further disaggregated data in detail, made available to the researchers at
special request, from which more robust statistics can be derived. A number of practical
policy recommendations follow from these statistics.
Such research is part of the mandate that UNHCR has been given by the General Assembly in
48
respect of the identication of stateless populations, see UN General Assembly resolutions A/
RES/51/75 (12 Dec. 1996), A/RES/53/125 (9 December 1998), A/RES/54/146 (17 Dec. 1999), A/
RES/55/74 (4 Dec. 2000), A/RES/55/153 (12 December 2000), A/RES/56/137 (19 Dec. 2001),
A/RES/57/187 (18 Dec. 2002), A/RES/58/151 (22 Dec. 2003), A/RES/59/34 (2 Dec. 2004), A/
RES/64/127 (18 Dec. 2009), and A/RES/65/194 (21 Dec. 2010). Further see UNHCR, Conclusion
on the identication, prevention and reduction of statelessness and to further the protection
of stateless persons, 6 Oct. 2006, N 106 (LVII) - 2006, para. (c), available at http://www.unhcr.
org/3d4ab3ff2.html.
For example, Home Ofce,
49
The Control of Immigration: Statistics United Kingdom 2009, available
at: http://www.homeofce.gov.uk/publications/science-research-statistics/research-statistics/
immigration-asylum-research/hosb1510/?view=Standard&pubID=864717.
See Home
50
Ofce Immigration Statistics: April to June 2011, available at: http://www.homeofce.
gov.uk/publications/science-research-statistics/research-statistics/immigration-asylum-research/
immigration-q2-2011/.
It was also recognised that this aim was ambitious. Limitations were apparent in the data
sets that would have to be examined in an attempt to map the stateless population in the UK.
Therefore it was necessary to examine the different denitions and categorisations of stateless
person employed in this data, as well as relevant guidance and recording techniques. As it
proved difcult to draw rm conclusions in respect of overall numbers of stateless persons
on the UK territory, the analysis of the data sets also attempted to identify any patterns and
trends that existed.
The main part of the chapter will set out, in detail, an analysis of a combination of published
immigration statistics and the UK Border Agencys management information in relevant areas.
The analysis will identify trends and patterns that emerge, informed by ndings from the
qualitative data, whilst recognising the limitations that exist within the sources. This chapter will
also examine a number of potentially signicant data sources which, upon examination, were
either discounted or given little weight. It will end with conclusions and recommendations.
At the outset it is important to recognise that the referrals of participants to the project indicated
that it was likely that statelessness in the UK is primarily an issue linked to migration. Consequently,
the data relating to the operation of immigration control was likely to be revealing.
3.2 Home Ofce published immigration statistics and
UK Border Agency management information
The Home Ofce publishes the Control of Immigration Statistics.
51
It proved to be the primary
published source of data examined for the quantitative aspect of this research. The statistics
provide reports on a number of relevant areas ranging from visas and grants of entry clearance
issued, to the numbers of removals that occur. These datasets were chosen because they
appeared likely to provide the most fruitful information for analysis about the circumstances
in which stateless and unreturnable persons have interacted with the UK Border Agency
and its predecessors.
52
That said, the data could not provide reliable totals in respect of the
numbers, proles and situation of stateless or unreturnable persons in the UK because the
total population is likely to include a hidden element that has not engaged with the UK Border
Agency or its predecessors.
It was also clear from the outset that there was additional management information kept by the
UK Border Agency which could provide an important additional source of data. Consequently,
a number of requests were made under the Freedom of Information Act 2000 in respect of
data kept between the years of 2000 and 2010. However, since the cost of answering the
requests was likely to be above the statutory threshold, the UK Border Agency suggested and
made a data sharing agreement to facilitate the researchers access to relevant data.
53
For example,
51
The Control of Immigration: Statistics United Kingdom 2009, available at: http://www.
homeofce.gov.uk/publications/science-research-statistics/research-statistics/immigration-asylum-
research/hosb1510/?view=Standard&pubID=864717.
Immigration, asylum and nationality were part of the Immigration and Nationality Directorate of the
52
Home Ofce until 1 April 2007. These areas were taken over by the Border and Immigration Agency
on 1 April 2007. The UK Border Agency succeeded the Border and Immigration Agency on 1 April
2008.
The agreement stated that: The information provided is for Asylum Aid /UNHCRs use only and
53
specically for the Mapping Statelessness in the UK Joint Research Project. The information
provided should not be used for any other purpose other than the one specied above. Once
information disclosed has been satised, the information will be securely destroyed / returned and
no copies will be held by Asylum Aid /UNHCR body.
The data provided was supplied with the explanation that the gures quoted are not provided
under National Statistics protocols and have been derived from local management information
and are therefore provisional and subject to change.
The source of the management information examined was the UK Border Agencys Casework
Information Database (CID). CID is an administrative tool, used by the UK Border Agency to
perform all casework tasks including recording all applications with the related casework and
decisions. It is regularly updated by caseworkers as they progress applications. Caseworkers
record key details about particular applicants on CID, including a nationality section. This
electronic le is kept updated by caseworkers.
CID consists of four so-called avours or parts that are mainly used to segregate user
proles, which are:
1) ACID: asylum cases recorded at Public Enquiry Ofces (PEO)
2) ICID: immigration cases including visitors and spouses as well as asylum cases (only
where the applicant claims asylum at the border);
3) NCID: nationality cases;
54
4) GCID: general settlement cases: i.e. marriage, sponsorship, and indenite leave to
remain.
Given that some individuals relevant to the research were likely to have made multiple
applications across different CID avours, it was agreed that management data provided
by the UK Border Agency would be recorded against individuals rather than applications in
order to avoid duplication or double counting. Therefore where cases are referred to this
includes the main applicant plus dependants. Consequently, where data is disaggregated by
different CID avours it should be noted that this refers to the rst application made by an
individual, and therefore would exclude subsequent applications made in different avours.
There remain several problems, however, with the accuracy of CID management information,
as described below.
Relevant categories in CID
CID records four nationality
55
groupings relevant to this project. In day-to-day use,
caseworkers register applications on nationality elds from a drop down menu. The relevant
nationality categories are identied as:
1) Nationality currently unknown;
2) Stateless person (Article 1 of 1954 Convention);
3) Ofcially stateless; and,
4) Unspecied nationality
Guidance exists on aspects of CID usage within instructions for UK Border Agency
caseworkers, which are publicly available. The guidance given in respect of statelessness,
however, is limited. It includes, for example, directions about how information on disputed
nationality in asylum claims should be entered onto CID, including disputed stateless cases.
The instructions state, in respect of disputed statelessness cases, that:
An applicants nationality should only be recorded as Stateless on CID where the
applicant has produced a Convention document which denes them as Stateless under
No clear guidance was available on the case les allocated to this avour of CID.
54
The UK Border Agency uses the term nationality when referring to stateless relevant categories,
55
despite the contradiction this poses.
the 1951 or 1954 Convention. In all other cases, their claim to be Stateless should only be
recorded in Person notes. Should the applicant be considered to be Stateless following
consideration of the claim, ofcers should amend CID to reect this.
56
However, in examining CID records as part of the qualitative research, no consistent pattern
emerged in the way that CID was used. Indeed one response to a Freedom of Information
Act request detailed that caseworkers used these categories based on the clients self-
identication of being stateless and conrmed that [t]here is no guidance on when each of
the different stateless categories can or should be used.
57
Similar issues were identied from a series of semi-structured interviews undertaken with UK
Border Agency staff. The result is that any of the statistics derived from CID management
information relating to stateless persons have to be treated with caution.
Relevant nationality groupings in the published statistics
The Control of Immigration: Statistics United Kingdom 2009 was published by the Home
Ofce in August 2010, immediately before the data collection for this research began. It
contained no distinct nationality grouping of stateless. Rather, upon investigation,
59
it
became clear that there was an existing category for stateless persons recorded as a subset
of the published other and not known category.
60
While the data collection for this project
was coming to an end, however, the Home Ofce published Immigration Statistics: April to
June 2011, which contained in their supporting tables for the rst time a nationality grouping
of stateless, as well as a separate unknown or other nationality grouping.
61
The precise
composition of these categories is not set out in the publication, but from further discussions
with the Migration Statistics team at the Home Ofce it has become clear that these included
a wide combination of different categories, whose use uctuates dependent on the variable
being studied. Consequently, although the publication of a stateless nationality grouping
within the statistics is an excellent step forward, more needs to be done to ensure that the
grouping reects the numbers of stateless persons coming into contact with immigration
control accurately.
The stateless and unknown or other nationality groupings identied are partly made up
of data from databases that are used by the UK Border Agency. The rst database is CID
detailed above. The second is the Central Record System, a web-based application that
contains entry clearance data from diplomatic missions from overseas. Individual records on
these systems include an attribution of a nationality category from a specied drop-down list.
UK Border Agency,
56
Asylum Process Guidance: Nationality Doubtful, Disputed or Other
Cases, paragraph 7.1, available at: http://www.ukba.homeofce.gov.uk/sitecontent/
documents/policyandlaw/asylumprocessguidance/specialcases/guidance/natinality-doubtful-
disputed?view=Binary.
Detail provided in FOI request 18427 received 18th May 2011 in response to a question from the
57
researchers about how the various existing stateless relevant categories are selected for use by
case owners when entering information on CID.
For an analysis, see Chapter 4.
58
During discussions with the Home Ofce, Migration Statistics Team.
59
On some occasions, the category other and not known includes British Overseas Citizens as an
60
additional subset. This group has been separately disaggregated by UKBA and as it is not relevant
here will be excluded from this analysis.
See
61
Home Ofce Immigration Statistics: April to June 2011, available at: http://www.homeofce.
immigration-q2-2011/.
In addition, in respect of the details of passengers entering the UK, the information is derived
from landing cards that the passenger completes and submits.
The unknown or other nationality grouping is described as admissions with no identiable
nationality. It includes six nationality categories derived from the databases:
62
1) Those mis-recorded as British citizens;
2) Nationality currently unknown;
3) Unspecied nationality;
4) Nationality not recorded;
5) United Nations agency or United Nations organisation, and;
6) United Nations other
The stateless category is not given a description or a denition.
63
It includes seven
categories:
1) Ofcially stateless;
2) Kuwaiti Bidoun;
3) Refugee Other;
4) Refugee (Article 1 of the 1951 Convention);
5) Stateless person (Article 1 of the 1954 Convention);
6) Stateless,
64
and;
7) Northern Cyprus.
65
These categories raise a number of issues. First, it appears that a number of them are clearly
similar and would benet from consolidation.
Secondly, the inclusion of some categories of people who are not stateless risks signicant
over-counting in respect of a number of datasets. In particular those identied as Refugee
Article 1 of the 1951 Convention within the grouping of stateless is highly problematic.
Although some refugees may be stateless, many will not be.
66
The inclusion of this category
therefore causes a conation of the stateless and refugee populations which should be kept
distinct.
Amongst certain data sets examined below this can result in an inaccurate ination of those
who are identied as stateless. It is important to note that these categories are still the ones
used under stateless in the 2011 statistics (which contain supporting tables that go back
as far as, in some cases, 2001). Consequently, this problem remains unresolved. Following
discussions between the research team and ofcials in Migration Statistics Team at the Home
Ofce, a way forward was identied to try to address this issue of categorisation within the
published statistics as soon as possible, with UNHCRs involvement.
Detailed in an email from Migration Statistics Team to the researchers dated 10 June 2011.
62
When the researchers investigated this, no member of UKBA staff including case owners, statistics
63
teams or policy staff could provide a denition or description being used.
This is a historic category from the early 2000s that is no longer used but is present in data from
64
earlier years.
This category was removed for the 2011 published data.
65
See for example the denition that UNHCR uses in its statistical publications, UNHCR,
66
UNHCR Global Trends 2010, June 2011, p. 37, available at: http://www.unhcr.org/refworld/
docid/4e01b00e2.html.
Finally, issues arise in respect of how a nationality category is allocated to an individual
case le on CID. After investigation it appears that case owners and data analysts do not
have a consistent approach to this issue.
67
This means that these categorisations may be
used arbitrarily or inconsistently. This could result in a stateless persons application being
assigned, in error, to a nationality associated with their country of former habitual residence.
Such errors in categorisation could contribute to a signicant undercount of the numbers of
stateless persons in the published statistics.
The problems with the identication and categorisation of stateless persons indicate that
caution has to be displayed in analysing the relevant data from the Home Ofces published
immigration control statistics. Despite these challenges, an analysis of the relevant published
datasets was attempted to identify trends in the numbers and proles of stateless persons
identied.
See section 4.6 in Chapter 4.
67
3.3 Total numbers of stateless persons coming into
contact with immigration control
Given the weaknesses of the published datasets discussed above, the UK Border Agencys
management information was a source that was investigated in order to provide more
indicative totals. However, as with the published datasets, problems with the identication
and categorisation of stateless persons who come into contact with the UK Border Agency
limits the reliability of this data. Similarly, the risk persists that not all stateless persons would
have come into contact with the UK Border Agency or its predecessors. However, analysis
of this data, combined with the published datasets, provides a more comprehensive basis
upon which to try to estimate the total numbers of stateless persons coming into contact with
immigration control. These are examined in turn below.
Figure 1: Case records on CID in relevant categories by avour of CID (2001-2010)
ACID ICID GCID NCID TOTAL
Stateless Person (Article 1 of 1954 Convention) 123 1012 1393 1002 3,530
Nationality Currently Unknown 17 2181 1498 188 3,884
Ofcially stateless 0 48 17 1 66
Unspecied Nationality 31 1691 2505 477 4,704
Stateless 0 0 0 27 27
TOTAL 171 4932 5413 1695 12,211
Source: Management information request CPO11-1085 received 29 July 2011 from UKBA
performance services. Please note the gures quoted are not provided under National
Statistics protocols and have been derived from local management information and are
therefore provisional and subject to change.
0 500 1000 1500 2000 2500
ACID
ICID
GCID
NCID
Number of cases
C
I
D

a
v
o
u
r
s
Unspecied
Natonality
Natonality
Currently
Unknown
Stateless Person
(Artcle 1 of 1954
Conventon)
The data in Figure 1 relates to all cases captured on CID from 2001-2010 by avour.
68
This
demonstrates there were 3,694 case records on CID in the categories of Stateless Article 1,
1954 Convention, Ofcially stateless and Stateless categories. There were 8,518 case
records falling into the Nationality unknown and Unspecied nationality groupings. The
categories of Stateless and Ofcially stateless appear to be rarely used, and are therefore
omitted from the graph. Figure 1 demonstrates that GCID is the most common CID avour
for where the population under study is represented, with ACID the least common.
Figure 2: Case records on CID by relevant nationality categories and by year (2001-2010)
Source: Management information request CPO11-1085 received 29 July 2011 from UKBA
performance services team. Please note the gures quoted are not provided under National
Figure 3: Age distribution in relevant categories recorded on CID (2001-2010)
Age Percentage of caseload
0-9 15%
10-18 11%
19-35 52%
Over 35 22%
Figure 2 indicates an increase over time in case les relating to the category Stateless Person
(Article 1 of the 1954 Convention). The male to female ratio in all categories of case les is 2:1,
with 4,188 case les relating to females and to 7,695 relating to males. The age range within
the total relevant caseload is found in Figure 3. However, the data on the overall numbers of
stateless persons on the CID reveals that the numbers of persons being identied as stateless
within the last 10 years is very low.
0
100
200
300
400
500
600
700
800
2001 2002 2003 2004 2005 2006 2007 2008 2009 2010
N
u
m
b
e
r

o
f

c
a
s
e
s
Stateless Person
(Artcle 1 of
1954 Conventon)
Natonality Currently
Unknown
Unspecied Natonality
See section 3.2 for an explanation of the CID avours.
68
3.3.1 Visas and entry clearance
Visas or grants of entry clearance are issued outside the UK to those who are seeking to
come to the UK, almost always within one of the categories specied within the Immigration
Rules.
69
Applicants have to full specied criteria depending on the category under which
they seek entry. The groups that populate the published statistics referring to the stateless
and unspecied nationality groupings make it impossible to draw any reliable conclusions.
This is because Refugees (Article 1, 1951 Convention) and Stateless - Dened Article 1
1954 Convention are conated to form one stateless category.
Upon request and for the purposes of this research, however, the Home Ofces Migration
Statistics Team has provided disaggregated data on visas and grants of entry clearance
issued outside the UK to stateless persons. The disaggregated data is separated into two
groups, thereby identifying those who are Stateless - Dened Article 1 1954 Convention
as a distinct group. This disaggregation is shown in Figure 4 below. It demonstrates that the
number of stateless persons granted visas or entry clearance abroad to come to the UK is
low, at no more than 2,000 per year. The number is also decreasing year on year. This data,
however, must be viewed with the caveat that it includes duplications when one individual is
granted more than one visa in the same year, so the numbers of stateless individuals granted
visas or entry clearance is likely to be lower.
Figure 4: Entry Clearance and visas issued to persons to show disaggregation by Stateless
Person - 1954 Convention and Refugee - 1951 Convention as well as other and
unknown nationality, 2005 2010
UK Border Agency nationality category 2005 2006 2007 2008 2009 2010
Stateless Person (1954 Convention) 1,798 1,699 1,128 837 708 575
Refugee (1951 Convention) 1,759 1,548 1,702 3,697 3,998 3,521
Other and unknown 8,304 7,846 8,292 5,246 3,196 2,655
Source: Data obtained from the Home Ofce Migration Statistics (via email on 4 October 2011)
as an unpublished subset of published immigration statistics derived from Before entry data
tables, Immigration Statistics April - June 2011, 2005-2010.
0
1 000
2 000
3 000
4 000
5 000
6 000
7 000
8 000
9 000
2005 2006 2007 2008 2009 2010
N
u
m
b
e
r

o
f

e
n
t
r
y

c
l
e
a
r
a
n
c
e

v
i
s
a
s

i
s
s
u
e
d
Stateless
Refugee
Other and
unknown
HC 395.
69
3.3.2 Passengers granted leave to enter on arrival in the UK
Statistics on passengers granted leave to enter the UK are determined by the immigration
ofcer at border control where the information is derived from landing cards and is dependent
on the passenger entering their nationality correctly and this being checked by the immigration
ofcer. The classication of unknown nationality and stateless available for these immigration
ofcers is: Persons ofcially designated as stateless or of unknown nationality in a passport
or other travel document.
70
These leave to enter statistics for individuals of unknown or other nationality or who are
stateless are available through the UK Border Agencys published statistics (Figure 5). A
consistent pattern emerges which shows the majority of journeys are made by passengers
either returning after a temporary absence (72 per cent) or visiting the UK (25 per cent). These
numbers appear high, particularly when compared to the other data sets investigated. This is
for two main reasons. First of all, the data relates only to arrivals, and therefore an individual
travelling into the UK more than once in a year will be counted more than once. At present the
UK does not operate embarkation controls, and therefore the number of these people leaving
the UK and/or never returning is not recorded and cannot be compared.
Secondly, the stateless category in this instance includes those individuals grouped as:
Stateless Dened Article 1 1954 Convention, Stateless Refugee Dened 1951
Convention, Stateless Refugee Other, and Nationality Unknown Ofcially Designated
as Stateless. The published immigration statistics again includes recognised refugees in the
stateless category, which has inated the overall numbers signicantly.
Detailed in an email received on 3 May 2007 from the Home Ofce Migration Statistics in response
70
to a request for this information made by UNHCR. On le with the authors.
Figure 5: Passengers categorised as stateless and of unknown or other nationality granted
leave to enter by purpose of journey
Source: Published Immigration Statistics: April - June 2011, admissions data tables (2004-2010).
Statistics Team has provided disaggregated data on leave to enter granted to passengers
presented within the stateless nationality grouping, which excludes the refugee categories
and delineates those individuals recorded as Stateless Dened Article 1 1954 Convention
and Nationality Unknown Ofcially Designated as Stateless. As with the disaggregated data
on grants of visas and entry clearance to persons in the stateless nationality grouping, this
0
10 000
20 000
30 000
40 000
50 000
60 000
70 000
80 000
U
n
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n

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U
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U
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i
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U
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i
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t
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U
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n
a
t
o
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a
l
i
t
y
S
t
a
t
e
l
e
s
s
2004 2005 2006 2007 2008 2009
N
u
m
b
e
r

o
f

a
d
m
i
s
s
i
o
n
s
Classicaton and year
People returning afer
temporary absence
Others
Passengers in transit
Granted setlement
on arrival
Dependants
Work Permit holders
Students
Visitors
provides more detailed and reliable data by to estimate the number of stateless persons
entering UK territory, although all numbers must still be treated with some caution. This
disaggregation conrms that only 16 per cent of all admissions identied in Figure 5 within the
current stateless nationality grouping in Home Ofce published statistics relate to stateless
persons, and in fact 84 per cent of this grouping are therefore refugees.
71
3.3.3 Asylum
Overall numbers
The number of applications for asylum received by the UK Border Agency and its predecessors
between 2001 and 2010, and recorded in the published statistics for those who are categorised
as either stateless or of other or unknown nationality is set out in Figure 6 below.
Figure 6: Applications for asylum (excluding dependants) 2001 - 2010
Source: Published Immigration Statistics: April - June 2011, from asylum applications and
initial decisions for main applicants, by country of nationality (2001-2010).
This data merits particular scrutiny for a number of reasons. First of all, as is explained
elsewhere in the report, almost all of those stateless or potentially stateless persons who
expressed an interest in participating in the project had claimed asylum. Secondly, all
potential participants who were referred to the research team were migrants. Thirdly, their
experience and the analysis in Chapter 4 indicates that stateless persons who are currently
without leave to remain on the UK territory no longer have a formal route to regularise their
immigration status on the basis of their statelessness. Consequently, if a stateless person is
undocumented on the UK territory and wishes to attempt to regularise his or her immigration
status, then one of the only options that exists will be for him or her to claim asylum.
72
0
50
100
150
200
250
2001 2002 2003 2004 2005 2006 2007 2008 2009 2010
N
u
m
b
e
r

o
f

c
a
s
e
s
Stateless
Other and
unknown
natonality
Data obtained from the UK Border Agency publications team (via email on 4 Oct 2011) as an
71
unpublished subset of published immigration statistics derived from Admissions data tables
Immigration Statistics April - June 2011 (2005-2010).
See Chapter 4.
72
Therefore, the statistics in respect of asylum-seekers who are identied as stateless or
other or unknown nationality may be particularly revealing in respect of the number of
stateless persons on the UK territory. That said, the same issues about the reliability of the
data arise as a result of problems in classication and categorisation. As a result, these gures
should be treated with a degree of caution, although it is less likely that these statistics will
contain a signicant number of non-stateless persons recognised as refugees, compared to
other data sets examined.
The published data for asylum applications made by stateless persons suggest numbers
remain consistently low, rarely exceeding 200 per year. The data shows that the nationality
unknown or other was more frequent from 2001-2003, whilst numbers in the stateless
category tend to increase gradually from 2001, potentially largely replacing the use of
nationality unknown or other. One explanation for this increase may be that Kuwaiti
Bidoun was only established as a CID category in 2006. Consequently, Kuwaiti Bidouns who
could previously have been categorised in the other or unknown category on CID may, from
2006, be categorised differently (see further discussion below). Separate investigation of CID
data which excludes Kuwaiti Bidouns conrms this nding because it shows the numbers of
asylum cases of stateless persons decreasing in the relevant period.
73
Proles
The CID data also provides a disaggregation by age
74
and gender.
75
Any additional data
relating to specic details of an asylum claim are only recorded in the person notes sections
within the database or held solely on the case le. Consequently, the UK Border Agency was
unable to provide details on country of origin.
Figure 7: Relevant asylum cases recorded by CID by age at date of application (2001-2010)
Source: FOI request 18427 received 18 May 2011 from UKBA performance services team.
Please note the gures quoted are not provided under National Statistics protocols and have
been derived from local management information and are therefore provisional and subject
to change.
0 50 100 150
0-9
10-15
16-18
19-25
26-35
Over 35
Natonality
Currently
Unknown
Ocially
Stateless
Stateless Person
(Artcle 1 of 1954
Conventon)
Unspecied
Natonality
Received by researchers as FOI 18427.
73
Age relates to the applicants age at date of application.
74
This is because these variables are captured in certain mandatory elds on CID.
75
The gender disaggregation showed that females comprised 29 per cent of the group and
males 71 per cent. This is consistent with the national pattern of asylum applications, which
are one third female. Age data from the same source demonstrated that 30 per cent of
individuals in this group are under 18 years old, 59 per cent are between 18 and 35 years
old and 11 per cent are over 35.
76
This broadly reects national trends in the age of asylum-
seekers. However, given that child asylum-seekers constituted only 8.5 per cent of the overall
asylum seeking population in 2010,
77
it does indicate that a higher proportion of potentially
stateless asylum-seekers are children. This suggests that there may be a proportionately
higher number of stateless children on the UK territory, when compared to the overall asylum
seeking population.
Outcome of the asylum application
The grant and refusal rates for the asylum caseload within the published statistics are set out
in Figures 8 and 9 below. The gures are based on initial decisions, so exclude withdrawn
applications, appeals, and post-decision reviews. The grant rate for stateless persons was
47 per cent of which 97 per cent were grants of asylum.
78
For those of unknown or other
nationality the grant rate was 22 per cent, of which 43 per cent of those applicants were
granted asylum.
National trends for all asylum-seekers in 2010 indicated a refusal rate on all asylum
applications of 75 per cent alongside a 25 per cent grant rate.
79
These national averages
include post-decision reviews and are not, like the data presented in this section, based solely
on initial decisions. It is nonetheless safe to conclude that that published statistics show that
since 2001 the grant rates in asylum claims made by persons identied as stateless are
higher than average. This trend is even stronger amongst those who are identied as being
stateless (i.e. those categorised as Ofcially stateless or Stateless Person - Article 1 1954
Convention).
It is interesting to note that an analysis of the British Refugee Councils database which was also
76
investigated by the researchers, which stores records kept on the Councils clients entered by
frontline caseworkers presents a similar picture on both age and gender. Here, between 2003 and
2010, 122 individual cases were recorded as stateless. These comprised 30% Women, 70% men,
whilst the age categories appeared as follows: 0-19 (24%), 20-34 (57%), over 35 (19%).
Asylum data tables Immigration Statistics April - June 2011, asylum applications by age shows
77
1,530 of 17,916 applications are from individuals under 18. Available at: http://www.homeofce.
immigration-tabs-q2-2011v2/asylum1-q2-11-tabs.
That is to say that they were recognised refugees within the meaning of Article 1A (2) of the
78
1951 Convention. Although the domestic legal provisions that provide for the grant of asylum
have changed in the period under study, the current provision is found in paragraph 334 of the
Immigration Rules HC 395.
Home Ofce,
79
Control of Immigration: Statistics United Kingdom 2010, Home Ofce Statistical
Bulletin. Of initial decisions in 2010, 17 % were to grant asylum; 8 % were to grant Humanitarian
Protection (HP) or Discretionary Leave (DL) and 75 % were refusals.
Figure 8: Grants of asylum and complementary protection (excluding dependants)
2001-2010
Source: Published Immigration Statistics: April - June 2011, from Asylum applications and
Figure 9: Grants and Refusal rates of asylum applicants 2001-2010
Nationality category
(2001 2010)
Total initial
decisions
Cases
granted
Grant
rate
Cases
refused
Refusal
rate
Stateless 725 339 47% 386 53%
Other or unknown 836 187 22% 649 78%
Source: Published Immigration Statistics: April - June 2011, from Asylum applications and
Figure 10 illustrates the last recorded case outcomes in respect of asylum applications by
relevant nationality categories, noted on CID. It shows that 23 per cent of cases were
refused, 56 per cent were granted refugee status or another form of leave to remain, 6 per
cent of applications were withdrawn and 11 per cent fall into an other category (where either
the applicant is deceased or has left the UK). This broadly conrms that the grant rate derived
from the published statistics is around double the present average for all asylum-seekers,
whilst the refusal rate is over three times lower. Those cases classied as Stateless person
Article 1 of 1954 Convention account for 78 per cent of grants made within this group, whilst
this particular category made up only 58 per cent of all cases detailed here, meaning those
individuals in this category experienced the highest rate of grants.
0
20
40
60
80
100
120
140
2001 2002 2003 2004 2005 2006 2007 2008 2009 2010
N
u
m
b
e
r

o
f

c
a
s
e
s
Stateless
Other and
unknown
natonality
Figure 10: Relevant asylum cases last known case outcome as recorded on CID
(2001-2010)
Source: FOI request 18427 received 18 May 2011 from UKBA performance services team.
Please note the gures quoted are not provided under National Statistics protocols and have
been derived from local management information and are therefore provisional and subject
to change.
When considering complementary forms of protection granted, it is important to note that
on 1 April 2003 the basis upon which complementary protection was granted changed.
80

Until that date, 45 per cent of applicants identied as having an unknown nationality were
granted Exceptional Leave to Remain (ELR). Subsequently, grants of Humanitarian Protection
and Discretionary Leave only comprised 3 per cent and 12 per cent of the overall caseloads.
In conclusion, the data examined in this section indicates that the numbers of stateless persons
who are currently recorded as claiming asylum in the UK are relatively small in number, but are
recognised as being in need of international protection at a much higher rate than the national
averages across all nationality groupings. This is likely to reect the fact that stateless persons
are often subject to discrimination and human rights violations in their country of origin. These
two trends arise from both an analysis of the published data and from the UK Border Agencys
management information.
81
Kuwaiti Bidouns and Palestinians
Two additional CID nationality categories of relevance available to UK Border Agency
caseowners and screening ofcers are Kuwaiti Bidoun and Palestinian Authority. These
categories are likely to contain a proportion of persons that the UK Border Agency treats as
stateless although many may be entitled to asylum or complementary protection. In the case
0 50 100 150 200 250 300
Asylum
Refused
Asylum
Granted
Withdrawn
Other
Number of cases
L
a
s
t

r
e
c
o
r
d
e
d

c
a
s
e

o
u
t
c
o
m
e
Natonality
Currently
Unknown
Ocially
Stateless
Stateless Person
(Artcle 1 of
1954 Conventon)
Unspecied
Natonality
See
80
APU Notice: Exceptional Leave, Humanitarian Protection and Discretionary Leave, available at:
http://www.ukba.homeofce.gov.uk/sitecontent/documents/policyandlaw/asylumpolicyinstructions/
apunotices/elhpanddl.pdf?view=Binary.
It is interesting to note that an analysis of the Refugee Councils database, which stores records
81
kept on the Councils clients entered by frontline caseworkers, presents a similar picture. Between
2003 and 2010, 122 individual cases were recorded as stateless (30% women, 70% men). This
appears consistent with the pattern identied.
of the Kuwaiti Bidoun, those cases that are categorised in this way are presented as being
stateless within the Home Ofces published statistics.
A request by the researchers was therefore submitted to the UK Border Agency to obtain the
number of cases recorded under these categories over the last ten years. Kuwaiti Bidoun
was only introduced as a new nationality category in 2006. Prior to this year, therefore, zero
cases were recorded. This new category could explain the sudden increase in stateless
asylum applicants identied in Figure 6 because such cases risk having been categorised
as Kuwaiti previously, rather than as stateless. From 2006, however, the number of cases
in this category have been steadily increasing, yet the number of cases in this category from
2006 onwards nonetheless seems lower than might be expected (see Figure 11), with only
284 cases over ten years across all avours of CID. Moreover, qualitative data from interviews
with participants and review of their immigration les indicate that there appears to be an
issue of Bidouns being classied by the UK Border Agency as Kuwaiti,
82
which is a separate
category available on CID. Cases classied in the Palestinian Authority category are much
higher with a total of just over 21,000 cases identied across all avours of CID. These cases
increase substantially from just below 900 in 2001 to a peak of just over 3,000 in 2004. Case
numbers then level out thereafter at an average of just above 2,300 per year (see Figure 11).
Figure 11: Cases recorded as Kuwaiti Bidoun and Palestinian Authority on CID by year
(2001-2010)
Source: Management information request CPO-11-1350 received 13 September 2011 from
UKBA performance services team.
In addition to these gures, the researchers also requested data that indicated the numbers
of certain nationality categories amongst asylum claims that had been made since March
2007 but where the applicant has neither been granted leave to enter or remain in the UK, nor
has left the UK. This gure is referred to as Asylum Work in Progress (WIP) (see Figure 12).
0
50
100
150
200
250
0
500
1000
1500
2000
2500
3000
2001 2002 2003 2004 2005 2006 2007 2008 2009 2010
K
u
w
a
i
t

B
i
d
o
u
n

c
a
s
e
s
P
a
l
e
s
t
n
i
a
n

A
u
t
h
o
r
i
t
y

c
a
s
e
s
Palestnian Authority cases Kuwait Bidoun cases
For this reason, the numbers of WIP cases recorded under Kuwait were also requested. This
82
gure was 208.
Figure 12: Relevant nationality categories within Asylum Work in Progress (August 2011)
Of the 37,827 cases in the August 2011 WIP
83
(Asylum Work In Progress cases) there were:
145 cases classied as Kuwaiti Bidoun
667 cases classied as Palestinian Authority
5 cases classied as Stateless Person (Article 1 of 1954 Convention)
The gures quoted are not provided under National Statistics protocols and have been derived
from local management information and are therefore provisional and subject to change.
The gures relating to Work in Progress reveals that there are a signicant number of potentially
stateless persons who claim asylum. Given that these cases are still in the UK, and sometimes
for extended periods of time after their appeal rights are exhausted, it may indicate that there is
a proportion of this group who are unable to leave to the UK, even if their claims for asylum fail.
The most likely reason they are unable to leave the UK is that no other State will admit them.
They therefore appear to lack a solution that meets their protection needs.
3.3.4 Immigration cases
The UK Border Agency provided management data from CID on the numbers of case records
in relevant nationality categories granted limited leave to remain.
84
The results are displayed
in Figure 13.
85
They indicate that Stateless Article 1 1954 Convention has the largest
number of applicants in this category, with a peak of 127 grants of limited leave to enter
on non-asylum grounds in 2010. Previous years demonstrate a grant rate for this category
remaining below 70 grants of leave to remain per year. Over the period of ve years examined,
Article 1 Stateless 1954 Convention and Unspecied Nationality contribute in most part
to the number of refused applications at 231 and 186 cases in total respectively. The numbers
of applications in these categories remain low at below 70 cases per year. The Ofcially
stateless category remains an almost redundant category.
Detailed in an email from the UK Border Agency asylum policy team on 19 September 2011.
83
Limited leave to remain is the grant of immigration status in the UK for a xed period.
84
Researchers requested the total number of stateless persons or persons of unknown or
85
unspecied nationality for each year from 2006-2010 who were granted limited leave to remain by
purpose of grant (e.g. visit, studies, employment, points based system, other these categories
were picked from the immigration rules as examples to include). It was clearly highlighted that
these gures should not include cases where the purpose of the journey is to claim asylum.
Figure 13: CID case records of decisions to grant or refuse limited leave to remain in
relevant nationality categories (2006-2010).
Source: Management information request CPO-11-1088 received 16 August 2011 from UKBA
Figure 14 sets out the data in respect of grants or refusals of indenite leave to remain.
86

The numbers are signicantly lower than those granted limited leave to remain. Indeed they
are over three times lower than the numbers of decisions on applications for limited leave to
remain. The majority of these cases arise from the nationality categories Stateless Article
1 1954 Convention (113 cases) and Unspecied Nationality (115 cases) over the ve-year
period. Almost double the number of cases in the Stateless Article 1 1954 Convention and
Unspecied nationality categories are granted than refused, with a particularly signicant
increase of this pattern in 2010 with a grant to refusal ratio of 4:1. The Ofcially stateless
category again remains almost redundant.
Analysing this data is difcult because of missing information. For example, neither the basis
upon which the application was made or granted is provided nor whether the applicant had
pre-existing leave to enter or remain at the time of the application. One possible explanation
for the increase in the number of grants of leave to remain to stateless persons over the period
under scrutiny could be the operation of the Case Resolution Directorate. It aimed to resolve
the backlog of cases of asylum claims that had been made before March 2007 by July 2011
and is likely to have granted leave to enter or remain a signicant number of stateless persons
against whom it was not possible to enforce removal.
87
Indeed this analysis is also supported
by the increase in the number of travel documents issued under the 1954 Convention during
the same period.
88
140 120 100 80 60 40 20 0
2006
2007
2008
2009
2010
Ocially stateless Unspecied natonality
GRANTED REFUSED
Artcle 1 1954 Conventon Natonality currently unknown
20 40 60 80 100 120 140
Ibid.,
86
except relating to indenite leave to remain.
Resolved in this context means either where leave to enter or remain has been granted or where it
87
is established that the applicant has been removed.
See Figure 18.
88
Figure 14: CID case records of decisions to grant or refuse indenite leave to remain in
relevant nationality categories (2006-2010).
Data relating to applications by relevant nationality categories for a residence permit on the
basis of their right in EU law to free movement were also examined in Figure 15. These cases
would include family members, unmarried partners or spouses of nationals of the European
Economic Area (EEA) and include individuals with permanent resident cards exercising rights
under the EU Citizens Directive.
89
The data demonstrates that many more EEA applications in nationality categories relevant
to this research are granted than refused, with an overall grant rate average of 65 per
cent across all ve years. The majority of cases, however, are derived from the categories
Nationality currently unknown and Unspecied nationality, with only 4 per cent of the
caseload being derived from the Stateless Article 1, 1954 Convention category. Nationality
currently unknown cases are much higher in 2006 and 2007 than in the later years, whereas
Unspecied nationality cases then comprise the majority of grants from 2008 onwards.
This data appears to show that there are a small number of stateless persons who obtain the
legal right to remain in the UK as a result of being a family member of an EEA national exercising
treaty rights in the UK. In most cases it is likely that the nature of the family relationship will be
that of a spouse, civil partner or long-term partner.
Ocially stateless Unspecied natonality
GRANTED REFUSED
Artcle 1 1954 Conventon Natonality currently unknown
25 20 15 10 5 0
2006
2007
2008
2009
2010
5 10 15 20 25
Directive 2004/38/EC of the European Parliament and the Council of 29 April 2004 on the right of
89
citizens of the Union and their family members to move and reside freely within the territory of the
Member States, transposed by the Immigration (European Economic Area) Regulations S.I. 2006/1003.
Figure 15: CID case records of decisions to grant or refuse applications under European
Economic Area Regulations by relevant nationality groupings (2006 2010)
In conclusion, the UK Border Agencys management information indicates that annually there
are up to approximately 200 hundred grants of leave to remain, indenite leave to remain or
the issuing of a residence card evidencing a right to free movement in EU law to persons
attributed the Stateless Article 1, 1954 Convention nationality category on CID. This
indicates that there are stateless persons who are undocumented on the UK territory and are
able to regularise their immigration status, or that there are some stateless persons who have
always had leave to enter or remain and presumably arrive with a visa or prior entry clearance
or that it is a combination of both circumstances. The researchers only received the referral
of one participant who was stateless and had travelled to the UK with prior entry clearance,
90

but that could be explained by the fact that this groups situation is regular, they do not face
the same human rights challenges as those without leave to remain and they do not present
a particular challenge to immigration control.
The data in respect of entry clearance and grants of leave to enter indicate that there is a
population identied as stateless who are arriving in a regular manner. Nonetheless, taking the
quantitative and qualitative data together it appears likely that there is a small population of
undocumented stateless persons who have been able to regularise their immigration status,
usually after an asylum claim fails. The basis upon which they have regularised their immigration
status, however, is not directly related to their statelessness. This appears to be consistent
with the published statistics in respect of asylum applications, but is inconsistent with the
analysis of the data relating to entry clearance and visa applications and the passengers
travelling to the UK. The inconsistencies can, however, be explained by the fact that refugees
appear in the entry clearance and leave to enter statistics as stateless persons. When the
statistics were disaggregated this showed that only 16% of all passengers given leave to
enter or remain were in fact stateless.
Participant 1.
90
200 160 120 80 40 0
2006
2007
2008
2009
2010
40 80 120 160 200
Artcle 1 1954 Conventon Unspecied natonality
REFUSED GRANTED
Natonality currently unknown
3.3.5 Stateless Persons Travel Documents issued under the 1954 Convention
The obligation under the 1954 Convention, Article 28 to provide travel documents to stateless
persons lawfully staying in the territory is discussed in Chapter 4. Management data provided
by the UK Border Agency indicates that 531 stateless persons travel documents were issued
between 2002 and 2010. The ve countries of birth most highly represented in this sample
are detailed below in Figure 16 and together constitute 68.2% of Stateless Person Travel
Documents issued within the period. The remaining countries each comprise less than 2% of
the total sample and are not included within this gure.
Figure 16: Top ve countries of birth of persons
issued with Stateless Persons Travel Documents
(2002-2010)
Source: UKBA Travel Documents team, received
18 April 2011. Please note the gures quoted are
not provided under National Statistics protocols
and have been derived from local management
information and are therefore provisional and
subject to change.
The data set out in Figure 17 below give the
applicants ages at application, and their gender.
Females constitute 33% of the total granted 1954
Convention Travel Document whereas males
constitute 67% of the total, reecting a similar proportion to the national trend in respect of
asylum-seekers. The age range represented is broader than previous data examined, but still
indicates a young population with 91% of all cases aged under 45 years old.
Figure 17: Gender and age of individuals issued with 1954 Convention Travel Documents
(2002-2010)
Source: UKBA Travel Documents team, received 18 April 2011. Please note the gures
quoted are not provided under National Statistics protocols and have been derived from local
management information and are therefore provisional and subject to change.
-80 -60 -40 -20 0 20 40 60 80
0-4
5-9
10-14
15-19
20-24
25-29
30-34
35-39
40-44
45-49
50-54
55-59
60-64
65-69
70-74
75-80
>80
Number of cases
A
g
e

i
n

y
e
a
r
s
Female
Male
Kenya
Kuwait
Lebanon
Palestnian
Authority
United
Kingdom
Figure 18: Total number of 1954 Convention Travel Documents issued by the UK Border
Agency 2001-2010
Figure 18 above indicates that the numbers of 1954 Convention Travel Documents issued
has been increasing consistently year on year and most particularly in the last few years. It
has risen from ve such documents issued in 2001, to 135 documents issued in 2010. It is
likely that this trend reects an increase in the number of stateless persons granted leave to
enter or remain, for periods of over six months, who do not have travel documents reecting
the requirements contained in guidance.
91
The trend is likely to be as a result of the work of
the Case Resolution Directorate, which has granted leave to enter or remain to signicant
numbers of asylum-seekers who claimed asylum before March 2007, but had not departed
from the UK even though the vast majority had had their claims for asylum refused.
This supports the hypothesis that there are a number of asylum-seekers who claim asylum,
whose claim fails, but who are unable to leave the UK because no other state will admit them.
A further contributing factor to the increase in grants may be that, since 2006, children have
been required to make separate applications for travel documents rather than as dependants
of their parents.
92
When considering all 531 cases, 27 are children under ve years of age. Figure 20 below
indicates that the UK is the country of birth for 74% of these children. This may indicate that a
number of stateless children are able to regularise their immigration status and, subsequently,
apply for a stateless travel document. They may be unable to apply for British citizenship
under specic stateless provisions because they have not been resident for ve years.
93

However, an application for discretionary registration could be open to them.
94
The fact that
these children are not applying for British citizenship may reect signicantly higher fees
See
91
TD112 Guidance Notes Version 04/2011, available at: http://www.ukba.homeofce.gov.uk/
sitecontent/applicationforms/traveldocuments/td112-guidance.pdf.
Anecdotal information from a semi-structured interview with the Travel Documents Team at UK
92
Border Agency (9 Aug. 2011).
In particular, British Nationality Act 1981, Schedule 2, paragraphs 3 and 6.
93
Ibid.,
94
section 3(1).
0
20
40
60
80
100
120
140
160
2001 2002 2003 2004 2005 2006 2007 2008 2009 2010
T
o
t
a
l

n

u
m
b
e
r

o
f

d
o
c
u
m
e
n
t
s

i
s
s
u
e
d
Year applicatons made
charged for citizenship application than the fees charged on applications for 1954 Convention
Travel Documents.
95
Figure 19: Top 5 countries of birth represented in all 1954 Convention Travel Documents
issued, 2002-10
Country Count Percentage of total
Kenya 99 18.6%
Kuwait 85 16.0%
Lebanon 82 15.4%
Palestinian Authority 66 12.4%
United Kingdom 30 5.6%
Figure 20: Countries of birth represented in stateless persons travel documents issued to
individuals under ve years old (2002-2010)
United Kingdom
Jordan
Kenya
Kuwait
Palestnian Authority
Thailand
Turkey
See Chapter 6.
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3.4 Published statistics: enforcement and compliance
Detention
As discussed later in this report, the research indicates that stateless persons who are
undocumented, do not have the opportunity to regularise their stay on the basis of their
statelessness and, consequently, are particularly vulnerable to arbitrary detention and, further,
that there are gaps in the legal regime which could protect stateless persons in the UK from
arbitrary detention.
96
Data in respect of immigration detention of stateless persons is therefore
particularly important as a mechanism for monitoring this area of concern. The only relevant
data available covers 2009 and 2010 and is not very detailed.
There is also here a problem in respect of categorisation. The categories included within
the denition of stateless person in these gures are: Stateless Person (Article 1 of 1954
Convention); Refugee Article 1 of the 1951 Convention; Refugee other; and Kuwaiti
Bidoun. The data provided therefore conates stateless persons with refugees. However,
the inclusion of a specic group, Kuwaiti Bidoun, who are often recognised as stateless
97
is
benecial. Nonetheless, categorisation issues limit how much the gures can be relied upon.
There are also shortcomings in the data itself which makes it difcult to draw meaningful
conclusions. For example, detainees may be recorded more than once if the person has
been detained on more than one separate occasion, and the gures also include dependants.
Furthermore, the data omits crucial information about the length of time an individual has
been detained, and whether that detention is pending removal (as is likely to be the case) or
justied upon other grounds. In addition, the data does not tell us the circumstances of the
release from detention.
Figure 21: People entering detention by country of nationality, sex, place of initial detention
and age
Total
detainees
Male
detainees
Female
detainees
Total adult
detainees
Total child
detainees
Adult asylum
detainees
2009
Stateless 58 52 6 58 0 37
Other or unknown 33 27 6 30 3 2
2010
Stateless 53 47 6 52 1 34
Other or unknown 24 17 7 24 0 3
Source: Published Immigration Statistics: April June 2011, Table 3 of detention statistics.
See Chapter 5, section 5.5.
96
See Open Society Justice Initiative,
97
De Jure statelessness in the Real World: Applying the Prato
Summary Conclusions, Bingham, L., Harrington-Ready, J and Kohn, S., 2011, available at: http://
www.soros.org/initiatives/justice/articles_publications/publications/prato-20110302/prato-
statelessness-20110303.pdf p. 21.
The limited conclusions that can be drawn from this data are, rst, that stateless persons
are detained under Immigration Act powers in the UK. This is supported by the participants
testimony.
98
Secondly, the majority of stateless persons detained appear to have claimed
asylum. Thirdly, although the data indicating that stateless children appear to have been
detained is particularly concerning, this issue may be addressed by changes in government
policy in respect of the detention of children.
99
Removals and voluntary departures
The researchers examined published data on removals and departures from the UK of those
categorized as either stateless or of other or unknown nationality dating back to 2004.
This data included: persons subject to enforced removals (including removals of asylum-
seekers to third countries under the provisions of the Dublin Regulation),
100
persons departing
voluntarily after notifying the UK Border Agency of their intention to leave prior to their
departure, persons leaving under an Assisted Voluntary Return Programme
101
and persons
who it has been established left the UK without informing the immigration authorities. On
an initial overview of the data, higher numbers of removals exist of persons categorized as
either stateless or of other or unknown nationality than might be expected with a total
of 3,577 removals and departures over a seven year period. One would expect the numbers
of removals of stateless persons to be small because stateless persons are often unable to
depart from the UK because no other state will admit them to their territory. However, there is
a signicant risk that the numbers in the published data may be inated because again, the
categories that comprise the stateless nationality category in this dataset include refugees
with the categories.
102
The gures also include dependants.
Statistics Team has provided disaggregated data so as to exclude the refugee categories and
in doing so better identify just those individuals categorised as Stateless - Dened Article
1 1954 Convention, Nationality Unknown Ofcially Designated as Stateless, Kuwaiti
Bidoun and Ofcially stateless, referred to below as a collective Stateless Persons
grouping. The data shows that only 17% of cases in the original stateless category within
UK Border Agency published statistics relate to the non-refugee stateless population (i.e. 602
cases of 3,577). The vast majority of removals have involved those categorised as refugees,
presumably individuals travelling on Refugee Convention Travel Documents.
See Chapter 5.
98
For details of the Governments current policy position on the detention of children and families
99
see UK Border Agency, Enforcement Instructions and Guidance, Chapters 45 and 55, available
at: http://www.ukba.homeofce.gov.uk/sitecontent/documents/policyandlaw/enforcement/
oemsectione/chapter45?view=Binary and http://www.ukba.homeofce.gov.uk/sitecontent/
documents/policyandlaw/enforcement/detentionandremovals/chapter55.pdf?view=Binary.
Council Regulation (EC) No 343/2003, of 18 February 2003 establishing the criteria and
100
mechanisms for determining the Member State responsible for examining an asylum application
lodged in one of the Member States by a third-country national.
See UKBA:
101
Voluntary Returns, available at: http://www.ukba.homeofce.gov.uk/asylum/outcomes/
unsuccessfulapplications/voluntaryreturn/.
The CID nationality categories included are Nationality Unknown Ofcially Designated as
102
Stateless, Stateless Dened 1954 Convention, Refugee Dened 1951 Convention,
Stateless Refugee Other, Ofcially stateless and Kuwaiti Bidoun.
Figure 22: Removals and voluntary departures from the UK disaggregated to separate
refugees from overall totals (2004-2010)
2004 2005 2006 2007 2008 2009 2010 Total
Stateless Persons 113 90 63 122 72 96 46 602
Refugees 621 456 458 418 364 379 279 2,975
Source: Data obtained from the UK Border Agency publications team (via email on 4 October
2011) as an unpublished subset of published Immigration Statistics derived from Removals
and voluntary departures data tables Immigration Statistics April - June 2011.
Figure 23 below shows that 95% of cases (a count of 571) identied as non-refugee stateless
persons are in fact non-asylum cases with 93% (a count of 530) of these cases being refused
entry at port and subsequently removed. The asylum cases comprise only 31 cases. This
demonstrates that there are very low numbers of removals of stateless persons who claim
asylum, supporting the hypothesis that there is a population of stateless persons who claim
asylum but who cannot be removed, even if their claims fail. It is reasonable to infer that they
are not removed because they do not have the right of entry or residence in another State.
Figure 23: Removals and voluntary departures of stateless persons by type of case (2004-
2010)
Total removals and voluntary departures of stateless persons excluding refugees 602
Total asylum cases 31
Asylum cases: Enforced removals and notied voluntary departures 26
Asylum cases: Assisted Voluntary Returns 5
Total non-asylum cases 571
Non-asylum cases: Enforced removals and notied voluntary departures 41
Non-asylum cases: Refused entry at port and subsequently removed 530
Source: Data obtained from the UK Border Agency publications team (via email on 4 October
2011) as an unpublished subset of published Immigration Statistics derived from Removals
and voluntary departures data tables Immigration Statistics April - June 2011.
0
100
200
300
400
500
600
700
2004 2005 2006 2007 2008 2009 2010
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Stateless
Persons
Refugees
3.5 Data sets discounted or given minimal weight
This section will examine a number of potentially signicant datasets. These were either
discounted or given little or no weight because little reliance could be placed upon them.
3.5.1 Census data
The census, undertaken by the UK Ofce of National Statistics (ONS), is the most comprehensive
source of data on the UK population. A census took place during the research for the project
in 2011, but the data will not be available until September 2012 and so could not be analysed.
The data from the previous census in 2001 would have been out of date and did not ask
questions required for an analysis.
103
Whilst the 2011 Census does not contain a question that
specically relates to statelessness
104
the data resulting from the answers to four questions in
the census will merit analysis.
105
A possible method for analysing this data to help identify the
number and prole of stateless persons in the UK is set out in Figure 22.
106
Figure 24: A Method for analysing 2011 Census Data
Question 15
How would you describe
your national identity?
An answer box other is left open for a
response of the individuals choosing. In
this instance an individual may self-declare
as anything such as: stateless, unknown
nationality or no identity/nationality.
Question 9
What is your country of birth?
An answer box elsewhere exists for
individuals from outside the UK, and is
left open for a response of the individuals
choosing.
There may be variations in self-identication and limited understanding of the concept of statelessness
among respondents and resulting limitations in accuracy. Therefore, cross-tabulations between both
questions 15 and 22 and questions 9 and 16 (or proxy indicators) might be useful to help gain more
certainty, clarity and detail from the ndings. This is because specic countries or ethnicities are more
likely to be faced with problems of statelessness or unreturnability.
Question 22
What passports do you hold?
An answer box other is left open for a
response of the individuals choosing. In this
instance, individuals may answer with 1954
Stateless Persons Travel Document or
none for example.
Question 16
What is your ethnic group?
Section E is described as other and is
left open for a response of the individuals
choosing.
The 2001 Census asked participants for their country of birth and ethnic grouping, but did not ask
103
about what passport they hold. This would have made it hard to identify a stateless population.
In addition, this census data is out of date, particularly as migration has caused a signicant
demographic change in the UK in the last decade.
3.5.2 Eurostat
Eurostat is the statistical ofce of the European Union. Its task is to provide the EU with
statistics at EU level that enable comparisons between countries and regions. Eurostats
sources for the UK include survey data in the form of the Labour Force Survey (LFS) and
the International Passenger Survey (IPS) which are both undertaken by the ONS. Recorded
numbers of stateless persons in the UK from 2001 to 2008 by Eurostat are set out in Figure
23 below.
Figure 25: Stateless populations in the UK by year as derived from UK survey data
Year 2001 2002 2003 2004 2005 2006 2007 2008 Source
Total
population
7850 : 1174 915 : : : :
LFS weighted
estimates
Immigration 551 87 242 331 325 : : :
IPS with LFS used to
weight for regional
variation
Emigration 0 0 411 204 0 0 176 :
IPS with LFS used to
weight for regional
variation
SOURCE: Eurostat
(:) data not available
There are, however, problems created by the process Eurostat uses for weighting the data
107

from both the Labour Force Survey and the International Passenger Survey meaning data
is often recorded as unavailable. In addition, there are also problems in the identication
United Nations statisticians recommend, in international discussion on censuses, that provisions
104
should be made in order to obtain separate data for stateless persons. See UN Economic
Commission for Europe, Conference of European Statisticians Recommendations for the 2010
Censuses of Populations and Housing: point 377, 2006, available at: http://www.bfs.admin.
ch/bfs/portal/de/index/news/02/02.parsys.43257.downloadList.37177.DownloadFile.tmp/
recommendationsforcensusen.pdf.
2011 Census Questionnaire Content:
105
http://www.ons.gov.uk/ons/guide-method/census/2011/
the-2011-census/2011-census-questionnaire-content/question-and-content-recommendations-for-
2011/index.html. Question numbers detailed here refer to the census as carried out in England.
This analysis will have to note that census data tends to under-enumerate particular groups, such
106
as those in temporary accommodation, those who are not literate in English, and vulnerable groups
such as undocumented migrants who may wish to remain hidden. Consequently, the analysis of the
census data would therefore still have to be considered in the context of other data sources.
In order for Eurostat to convert the information it gains from survey samples, and produce estimates
107
which are generalised across the whole population, the data must be weighted. Each case is given
a weight that can be thought of as the number of people that case represents nationally. People
with a lower probability of being in the sample are given a higher weight. For example, in 2004,
only six individuals were recorded in the Labour Force Survey as being stateless. This gure was
weighted up by Eurostat to produce a gure of 915. However, if the numbers of cases recorded in
any one year are too small, a weighting procedure is deemed inappropriate and Eurostat publishes
a count of zero or not available. As the numbers of stateless people recorded are relatively low in
general, this process of weighting produces numbers that uctuate greatly, because one additional
case alone can increase the weighted gure substantially.
and categorisation of statelessness in the Labour Force Survey
108
and for the International
Passenger Survey.
109
In combination, these difculties lead to misleading and inconsistent
results which create an inaccurate impression of the numbers of stateless persons in the
UK, meaning it is not possible to rely upon the published Eurostat gures for an accurate
analysis.
3.5.3 Indirect data sets
A number of requests for data were submitted to the UK Border Agency under a data sharing
agreement. The purpose of the request was to try to provide indirect data on stateless and
unreturnable persons. These requests included the numbers of persons who were refused
re-entry to their country of destination when being removed from the UK; the numbers of
certain proles of refused asylum-seekers receiving support under the Immigration Act 1999,
section 4; the numbers of requests for emergency travel documents and delays in issuing such
documents; the nal outcome in respect of asylum applications disaggregated by relevant
characteristics; and details on the numbers and proles of unresolved asylum applications.
These questions were intended to identify groups that were more likely to include stateless or
unreturnable persons. It was hoped that an analysis of the data would form the basis for a
conclusion on the total possible numbers of stateless and unreturnable persons in the UK.
After the analysis was complete, however, it became clear that it was not possible to draw
such conclusions from this data because it was impossible to identify with any accuracy
those who were stateless or unreturnable. That said, some of the information that came to
light has informed the analysis of other areas of the research.
Until 2006, the Labour Force Survey used stateless as a variable in the nationality section of the
108
survey. However, following an information request into how the term stateless was applied in
the Labour Force Survey, no relevant guidance could be found (Reply to information request by
the research team to the LFS Production Manager, Ofce of National Statistics, November 2010:
on le with the authors). Additionally, the Labour Force Survey stateless variable has since been
removed from the survey after it was reportedly amalgamated into other nationality groups due to
additional countries being added as new variables. This suggests that the stateless category was
being used predominantly where nationality was unknown or where no correct nationality category
existed.
Three problems were identied by the researchers: 1) For the purposes of the IPS, stateless
109
persons are identied on production of either i) a Certicate of Identity or ii) a Stateless Persons
Travel Document issued under 1954 Convention or iii) a Refugee Convention Travel Document
issued under the 1951 Convention. The data in respect of each of these constituent groups are not
disaggregated. 2) The survey takes into account individual journeys and consequently risks multiple
counting. 3) Respondents are not asked to show proof of their nationality or identity and are
therefore expected to self-identify as stateless. If the interviewee is uncertain of their nationality he
or she may be prompted to refer to travel documentation but the respondent can choose to refuse
to provide it.
Conclusions
A number of conclusions can be drawn from this analysis.
On the basis of the data examined, it is not possible to estimate the total number of stateless
or unreturnable persons currently in the UK. In particular, the 2001 Census data and
the Eurostat data do not provide a reliable basis upon which to make such an estimate.
A methodology has been suggested for analysing the 2011 Census data when it becomes
available. The indirect data examined was not sufciently robust to help identify a potential
maximum number of stateless or unreturnable persons on the UK territory. Indeed, as
unreturnable persons do not form a category in direct data sets, it proved impossible to
identify their number and proles from the data sources examined.
Across almost all the data sets examined there appears to be a problem in recording and
categorising stateless persons. Consequently, although information about numbers of
individuals or cases the UK Border Agency or the Home Ofce categorised as stateless
or of unknown or unspecied nationality is available from both published statistics and,
for the purposes of this research, management information, the nationality categories used
to identify these cases are numerous, confused and overlapping. The effect of the confused
categorisation, and in particular the inclusion of 1951 Convention refugees within the category
of stateless in the published statistics, appears to result in signicant inconsistencies
between a number of important data sets. Published statistics in respect of entry clearance
and visa applications and of passengers coming to the UK creates a false perception that
there are many more thousands of stateless persons coming to the UK than is truly the case.
Once this data has been further disaggregated to exclude refugee populations (provided at
special request by the Home Ofces Migration Statistics Team), it can be seen that non-
refugee stateless persons account for around 16% of those categorised as stateless in
published statistics on grants of leave to enter to passengers and, in 2010, around 9% of
those categorised as stateless granted a visa. The data on asylum, immigration and EU law
applications and the issuing of 1954 Convention Travel Documents supports this nding by
identifying a much smaller stateless population.
Some trends in relation to age and gender can be identied within the data sets. An analysis of
at least three different data sources demonstrates that trends tightly reect the gender balance
amongst UK asylum-seeking population of 30 per cent females and 70 per cent males. An
analysis of at least three different data sources demonstrates that the age of those affected
by statelessness or disputed nationality broadly reects trends apparent within the UK asylum
seeking population, notably a young, male population with over 90% of cases under 45 years
of age. There was some evidence of a higher proportion of stateless children than is found
amongst the asylum-seeking population in general. Problems with categorisation also cause
inconsistencies when analysing other trends in the data. For example, the published asylum
statistics appear to indicate applications made by stateless persons or those of unknown
or other nationality have been increasing since 2007. In contrast, management data indicates
a decline in applications and grants during the same time period. This is likely to result from
the creation of a Kuwaiti Bidoun category by the UK Border Agency in 2006, skewing the
data from this point onwards.
UK Border Agency management information indicates that there are a larger number of
stateless persons or persons of unknown or unspecied nationality (close to averaging
400-500 per year) who make applications under the provisions of immigration law, including
applications for settlement. However, this data has numerous issues relating to duplication
making it less reliable. Indeed, an analysis of total numbers of cases of limited leave to remain,
indenite leave to remain, or a grant of a residence card or certicate over the period of
study, indicates that under 200 grants of leave to enter or remain or recognition of the right
arising out of EU law per year, are made to stateless persons or persons of unknown or
unspecied nationality.
The best sources of data examined were the published Home Ofces immigration statistics
and the UK Border Agency management information, obtained on the basis of a data sharing
agreement. In particular, some numbers are drawn from more detailed data provided by
the Home Ofces Migration Statistics Team, on request, than that normally published. By
cross-referencing the published statistics with this more detailed disaggregated data, it has
been possible to identify some trends relating to stateless persons coming into contact with
immigration control. This is explained below.
The data for entry clearance visas in combination with the removals data indicate that there
is a population of stateless persons who are able to arrive and depart the UK in accordance
with the provisions of immigration law; by obtaining entry clearance and leaving before their
period of leave to enter ends. It also demonstrates that the overwhelming majority of stateless
persons successfully removed from the UK are removed either at port, presumably after
examination of whether they were entitled to leave to enter or remain or, in a much smaller
number of cases, after breaching the conditions of their leave to enter or remain. This would
suggest that those stateless persons who are granted leave to enter the UK, arriving after
obtaining a visa or entry clearance, pose relatively few challenges to immigration control.
The asylum statistics show that around 150-200 asylum-seekers each year are identied as
stateless by the UK Border Agency. Analysis of two data sources in relation to grant and
refusal rates for asylum applications made by stateless persons or those of unknown
nationality indicate that stateless persons are more frequently recognised as being in need of
international protection than the average amongst the asylum-seeking population. Of these,
a much higher proportion than the average are granted asylum, at an average of 50%. This
leaves up to 100 stateless persons each year being refused asylum and according to numbers
identied from the removals statistics, barely 10% of these stateless persons refused asylum
are being successfully removed from the UK each year. Without a means to determine their
status in the UK, it can be concluded that the remaining individuals are left in limbo, that is
to say that they are unable to leave the UK, but they are not granted leave to enter or remain
even though they have been identied as stateless. This analysis is supported by the ndings
in Chapter 4.
To obtain a more complete understanding of the number and prole of persons
who may be stateless in the UK, the Home Ofce should undertake an analysis
of the 2011 Census data. This analysis should be compared with the analysis
of other data sources contained in this study to try to build the best achievable
overall picture.
The statistical recording and reporting of stateless persons as dened by Article
1(1) of the 1954 Convention should be made available as a disaggregated group in
published Home Ofce immigration statistics. Recent progress in this area should
be consolidated with further changes necessary to ensure that this group is not
conated with refugees, and that both groups are distinct in published statistics.
The UK Border Agency should consolidate its numerous categories relating to
stateless persons and those of unknown or unspecied nationality into distinct
groupings to facilitate more accurate recording and identication. In particular, the
Border Agency should have a consistent approach as to whether statelessness
should be identied as a specic nationality category on casework databases,
such as the Case Information Database (CID).
To ensure a more accurate registration and recording of stateless persons the UK
Border Agency could develop its IT systems. For example:
When stateless or unknown nationality is selected on the CID drop-
down menu, a country of birth or origin option should also be available for
caseowners/screening ofcers to ll in; and,
When an individual knows their country of origin but indicates uncertainty
about their nationality but does not declare themselves to be stateless, this
uncertainty should be recorded in a systematic and easily accessible way to
allow statistical analysis. It should not be noted in the CID notes eld as this
means the issue becomes hidden. This should also be the case where an
individual asserts themselves to be stateless but this is not accepted by the
UK Border Agency, or there is not yet sufcient information to conrm this.
New UK Border Agency guidance relating to the recording of statelessness on
CID and other IT systems should be developed to ensure that ofcials use a
consistent approach and to avoid the risk of incorrect attribution of nationality or
the failure to record when an individual is stateless. This guidance should take into
account UNHCRs forthcoming Guidelines on the denition of stateless person
in international law to ensure that the UKs obligations under the 1954 and 1961
Conventions are met for all those who are stateless.
Recommendations
CHAPTER 4: THE IDENTIFICATION OF
STATELESS PERSONS IN THE OPERATION
OF IMMIGRATION CONTROL
This chapter examines the proles of the stateless and unreturnable persons identied
and interviewed by the researchers. It sets out how protections for stateless persons in
immigration law have declined and the way in which the Secretary of State for the Home
Departments policy on stateless persons who are seeking residence because they have
no other State in which to live became more restrictive. It also examines the current
approach of the UK Border Agency in identifying stateless persons in the operation of
immigration control.
Name: Nischal (Participant 6)
Country of origin: Bhutan
Date of arrival in UK: June 2010
Time in detention: N/A
Time in limbo: 6 months
Current immigration status: None
Nischal, aged 26, arrived in the UK in June 2010. He is an ethnic Nepali and was born in
Bhutan in 1993. After his father had been killed by the authorities, he was forced to ee
with his mother to India when he was just six years old. He had previously been denied
Bhutanese citizenship because of his ethnicity and had never possessed a passport or
identity card. He lived with his mother in Darjeeling as part of a community of ethnic
Nepalese refugees from Bhutan, which was broadly tolerated by the Indian authorities but
given no legal status or any opportunity to regularise their immigration status or naturalise
as Indian citizens.
His mother was able to make an income from a small restaurant set up with an Indian
friend, in whose name the business had to be registered. Nischal was able to attend
school for ve years, but eventually the fact that he was undocumented meant he could
not continue, so he joined his mother working at the restaurant. Meanwhile his mother
had made unsuccessful efforts to register as a refugee with the municipal authorities in
Darjeeling. There was no possibility of returning to Bhutan.
After his mothers death in 2007, Nischal was pressured to become involved with protests
by the Nepalese community. He was reluctant because he had no immigration status
and on one occasion he was beaten up for refusing to participate in a demonstration.
Eventually his mothers friend, with whom he had been living since his mothers death,
decided to sell the restaurant business and use Nischals share to nance him in leaving
India. A people smuggler provided false documents and arranged his travel abroad. On
arrival, he discovered that his destination had been the UK.
Nischal claimed asylum. In July 2010, his application was refused. The UK Border Agency
disputed that he was stateless, nding that he could be returned to India as his country of
former habitual residence and that he would be entitled to naturalise as an Indian citizen.
It found that he was not at risk of persecution in India. Nischal appealed this decision.
In a determination dated 16 September 2010, the Tribunal concluded that Nischal was
not at risk of persecution in India and rejected the appeal on refugee and human rights
grounds.
110
However, the Tribunal found, after considering the evidence, that Nischal
was stateless and that he had no possible entitlement to legal status or return to India.
The Tribunal directed that [t]he Appellant is stateless and the matter is remitted to the
[Secretary of State for the Home Department] for her consideration.
Nischal heard nothing from the UK Border Agency until October 2010. At that point, he
received a letter informing him that his asylum application had been refused and fully
determined, and that he was not entitled to asylum support or accommodation. It stated
that as a failed asylum seeker he was expected to make arrangements to leave the
UK without delay. The letter identied Nischals nationality as Bhutanese and made no
reference to the Tribunals legally binding nding
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that Nischal is stateless and could not
be returned to India, his country of former habitual residence.
A review of Nischals immigration le shows no action in relation to the Tribunals nding
and direction. No attempts to pursue removal have been followed up, despite the fact that
Nischal has always maintained contact with the UK Border Agency, including notifying
the Agency when he changed address.
At the time of the interview, Nischal remained destitute. Without any asylum support, he
is totally reliant on the charity of friends from the ethnic Nepalese community living in and
around London. He said:
It can be very hard sometimes. I remember one time I was staying with some friends
and they went to Germany for a long weekend without leaving any food in the house.
So I could not eat for two days. Eventually I contacted another Nepalese friend but
I didnt want to tell him Id not eaten so I just pretended I was bored and asked him
to come round to pick me up so we could hang out together. When he arrived he
realised I was starving so he bought me some food.
On some occasions Nischal has found himself street homeless:
I remember one night when a friend was meant to collect me from Farnborough but
he never turned up as it turned out that he had to work a night shift at short notice. So
I spent the night walking around the town centre from 10pm until 9am in the morning.
I was afraid to lie down and sleep in case I was attacked or robbed. It was freezing.
He also worries about how his friends perceive him and the burden he is placing on
them.
The Tribunal may have erred in assessing the protection claim in that it did not consider Bhutan as
110
the country of former habitual residence in accordance with the UNHCR Handbook on Procedures
and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol
relating to the Status of Refugees, January 1992, available at: http://www.unhcr.org/refworld/
docid/3ae6b3314.html, paras 103-105. Further, it did not consider whether, if Nischal was sent
from India to Bhutan his rights under Article 3 ECHR would be infringed, see S.H. v. United
Kingdom, App. no. 19956/06.
Chomanga (binding effect of unappealed decisions) Zimbabwe
111
[2011] UKUT 00312 (IAC).
Im always worried that my friends are getting sick of me staying at their homes and
eating their food without contributing anything. I know that they must talk behind my
back and that is why I always try to avoid staying in one place for too long.
Underpinning everything is his frustration and despair about not being able to get on with
his life.
My biggest worry is staying like this, doing nothing. I did not think it would be such
a problem to work and support myself in a developed country like the UK. I have no
work, no place to stay, nothing. [Being stateless] really does affect it a lot. Since I was
nine years old I have been a person without status. I had problems in Darjeeling but
coming here has not solved anything. Even if it was dangerous for me in Darjeeling at
least I had a place to stay and enough to eat.
This is really killing me. Every morning I wake up its the same thing, the same
question about what I will do that day. If I was allowed to stay in the UK I could move
forward with my life, I would try to get into the restaurant business as I have the skills
to do this.
He nds it hard to see a future. He has told the UK Border Agency that if he could be
given either Bhutanese or Indian citizenship then he would be happy to return voluntarily
to either country. As a stateless person he cannot. Nischal is stuck without rights or status
in the UK, with no solution in sight.
4.1 Introduction
Nischals story reects many of the challenges that stateless persons who do not have an
immigration status in the UK face on a daily basis. His situation is exceptional because the
Tribunal has recognised that he is stateless. However, it is no accident that this recognition
has not resulted in the regularisation of his immigration status. It is not caused by a failure in
administration but, rather, by the legal and policy framework that is currently applied by the
Secretary of State for the Home Department to stateless persons in the UK who do not have
leave to enter or remain. For these purposes, the fact that Nischal is stateless is ignored. In
contrast to Nischal, for the majority of the participants in the study, no nding of statelessness
has been made. Their statelessness remains hidden within the current framework and, like
Nischal, no solution is immediately available to them.
This is the rst of two complementary chapters. It will begin by describing the prole of the
individuals who were referred to the researchers to provide context. It will then describe how
the way in which UK immigration law and policy has treated those who are identied as
stateless under the 1954 Convention has changed over time. At the time of writing, stateless
persons who are not entitled to asylum or complementary protection are unable to regularise
their immigration status on the basis of their statelessness and gain access to many of the
rights to which they are entitled to under the 1954 Convention and international human rights
law. There is also no mechanism established in law which allows for the fact that they are
stateless to be identied. The chapter will continue to examine the current problems that
exist in identifying stateless persons on the territory, which could be solved by adopting
a specic procedure to identify stateless persons. Chapter 5 will continue to examine the
human rights challenges that result from the failure to appropriately identify stateless persons
and the current domestic legal and policy framework that is applied to them, particularly in
areas other than immigration control.
4.2 Proles of participants in the research
The researchers received over 80 referrals of potential participants. These referrals came
from over 20 different organisations. In all, 37 interviews were conducted across the UK,
including in London, Leeds, Coventry, Nottingham, Birmingham, Liverpool, Newcastle, Oxford
and Cardiff. The interviewees were selected on the basis of the information contained in the
interview referral form and in accordance with the criteria in the methodology designed to
achieve as broad and indicative a sample as possible.
112
Of those interviewed, 32 were men and ve women. The low number of women interviewees
reects the low number of stateless women referred to the research generally despite the
additional efforts made to attract more referrals of women. This gure of around 15 per cent
is signicantly less than the 33 per cent quota identied in the methodology, or indeed what
would be expected from the initial quantitative data ndings. There were no child participants
(under 18 years old) but otherwise the age range of interviewees was broadly as anticipated
and in line with the target quotas outlined in the methodology: namely 16 individuals aged
18-29 (43 per cent), 16 individuals aged 30-49 (43 per cent) and ve individuals aged over 50
(14 per cent).
By far the most predominant prole of participant referred were refused asylum-seekers who
remain in limbo on the UK territory. Thirty interviewees tted this prole. A signicant number
came from countries of origin that are known to generate statelessness, as well as from ethnic
groups which are subject to discrimination and/or arbitrary deprivation of nationality. They
included Kuwaiti Bidouns (10 cases), Palestinians (six cases), a stateless Kurd from Syria, an
ethnic Jew from Iraq, and an ethnic Nepali from Bhutan. Others countries of origin included
Algeria, Belarus, Burundi, Chad, China, Eritrea, France, Kenya/Somalia, Liberia, Lithuania,
Malaysia, Mozambique, Sierra Leone, and Zimbabwe. Only four participants interviewed (or
referred) had not claimed asylum although all were nonetheless of a migrant background,
two were from Malaysia and one each from France and Lithuania respectively. Of those
interviewed it was concluded that 24 participants were stateless and the remainder were either
unreturnable or outside the scope of the research or that further information was required
before making a nal assessment. Only three of the participants had been recognised by the
UK Border Agency as stateless.
This data indicates that statelessness on the UK territory is primarily a migratory phenomenon.
As a result, the application of immigration law is particularly relevant to stateless persons in
the UK.
See Chapter 1, Section 1.3.2.
112
4.3 The UK and the 1954 Convention
As explained in Chapter 1, the UK is a party to the 1954 Convention. The Treatys object and
purpose is to assure stateless persons the widest possible exercise of these fundamental
rights and freedoms and to regulate and improve the status of stateless persons by an
international agreement.
113
The International Law Commission considers that the denition
of a stateless person in Article 1(1) of the Convention constitutes customary international
law.
114
It provides that a stateless person is a person who is not considered as a national by
any State under the operation of its law. The obligations in this treaty relate to those who fall
within that denition.
The UK entered three reservations to the 1954 Convention, seeking to qualify the legal
obligations that arose in specic areas. The rst two reservations are not relevant to any of
the issues raised in the research.
115
The third is relevant to limitations on stateless persons
accessing National Health Service treatment, and is discussed in Chapter 5.
The UK has a dualist system of law that limits the extent to which international treaty provisions
can be relied upon in proceedings in domestic courts, unless provisions of domestic law
either directly incorporate international law or are interpreted to have that effect. The status
of the 1954 Convention in UK domestic law has changed over time, which has particularly
affected the way in which stateless persons who are in the UK are treated by immigration law.
Those changes, and their consequences, will be examined.
4.4 The history of the status of the 1954 Convention in
domestic law and the treatment of stateless persons in
UK immigration law and policy
4.4.1 The Immigration Rules
The Secretary of State for the Home Department is responsible for exercising powers relating
to immigration control. Those functions are carried out by an executive agency called the UK
Border Agency in accordance with the Immigration Rules.
Between 25 January 1973 and March 1980, the Immigration Rules
116
provided that where a
person is stateless or a refugee full account is to be taken of the provisions of the relevant
1954 Convention, Preamble.
113
International Law Commission,
114
Commentary on the Draft Articles on Diplomatic Protection 2006,
available at: http://untreaty.un.org/ilc/texts/instruments/english/commentaries/9_8_2006.pdf, p. 49.
UNHCR,
115
Declarations and Reservations to the 1954 Convention Relating to the Status of Stateless
Persons, 20 Nov. 2006, www.unhcr.org/416114164.html. These reservations were to Articles
8 and 9 (exempting stateless persons from emergency measures) and to Article 25 (relating to
administrative assistance for stateless persons to facilitate the delivery of documents and
certicates).
Statement of Changes of Immigration Rules for Control of Persons after Entry, EEC and other non-
116
Commonwealth Nationals (HC82), Laid before Parliament on 25 Feb. 1973, para. 56.
international instruments to which the UK is a party.
117
This gave a basis upon which a
stateless person could attempt to resist his or her deportation by reference to Article 31 of the
1954 Convention. The wording of the provision makes it clear that, at that time, the Secretary
of State considered that refugees and stateless persons were owed international obligations,
which had to be taken into account in the exercise of immigration control.
118
However, the Immigration Rules were changed in March 1980. Any reference to stateless
persons was omitted, whilst maintaining provisions that related to refugees. The reason
for this omission was unexplained. The then leading legal textbook on immigration law
119

concluded that this was as a result of the decision of the Immigration Appeals Tribunal in
Kelzani.
120
Mr Kelzani was a stateless Palestinian who had been lawfully resident in the UK
for a considerable period. The Secretary of State for the Home Department sought to remove
him to Egypt, although there was a dispute about whether he would be admitted there. Mr
Kelzani appealed, seeking to rely on Article 31 of the 1954 Convention, which provides both
substantive and procedural protections against expulsion of stateless persons who are
lawfully on the territory.
121
Mr Kelzanis case came before the Immigration Appeals Tribunal
which held, in interpreting Article 31, that the control of immigration is necessary for the
maintenance of public order. The consequence of this ruling was that the State could always
justify the expulsion of a stateless person who had been granted leave to enter or remain
solely by reference to the need to control immigration and, as a result, Article 31 would
never be breached on the grounds that the State could not justify the expulsion.
This nding has been criticised
122
and, if interpretation of Article 31 was substantively
considered by the UK courts in the future, there is a strong possibility that the courts would
rule that it provides stronger protection.
123
It is, however, unlikely that a Court will have the
opportunity to consider this matter given the omission of reference to the 1954 Convention
Paragraph 56 of Immigration Rules HC 82. The subsequent paragraph of the Immigration Rules
117
also required that full account be taken of the 1951 Convention.
Paragraph 57 of Immigration Rules HC 82.
118
Macdonalds Immigration Law and Practice,
119
1st Edition, 1983, p. 251.
Kelzani v. SSHD,
120
[1978] Imm AR 193, UK Immigration Appeal Tribunal, 7 Nov 1978, available at:
http://www.unhcr.org/refworld/docid/3ae6b62e8.html.
1954 Convention, Article 31 provides:
121
1. The Contracting States shall not expel a stateless person lawfully in their territory save on
grounds of national security or public order.
2. The expulsion of such a stateless person shall be only in pursuance of a decision reached
in accordance with due process of law. Except where compelling reasons of national security
otherwise require, the stateless person shall be allowed to submit evidence to clear himself, and to
appeal to and be represented for the purpose before competent authority or a person or persons
specially designated by the competent authority.
3. The Contracting States shall allow such a stateless person a reasonable period within which to
seek legal admission into another country. The Contracting States reserve the right to apply during
that period such internal measures as they may deem necessary.
See
122
Gashi (Asylum; Persecution) Kosovo [1996] UKIAT 13695; If the decision of the Tribunal
concerning this Convention in Kelzani (1978 Imm AR 173) were to be decided today we have some
doubts whether it would be decided in the same way and Macdonalds Immigration Law and
Practice, 1st Edition, 1983, p. 251.
See, for example, Neremiah Robinson,
123
Convention relating to the status of stateless persons Its
history and interpretation, UNHCR, Geneva, 1955, pp. 96-97: once a stateless person has been
admitted or legalised, he is entitled to stay in the country indenitely and can forfeit this right only
by becoming a national security risk or by disturbing public order.
in the Immigration Rules.
124
That said, the exclusion of reference to the 1954 Convention
within the Immigration Rules in 1980 may have been made on the basis of an erroneous
interpretation of the nature of the UKs international obligations.
As a result of this change, there are no specic provisions within the Immigration Rules that
allow for a stateless person on the UK territory to be protected against expulsion in accordance
with the 1954 Convention. Unlike refugees, there is no provision for stateless persons to be
granted leave to enter or remain on the basis of their statelessness in the Immigration Rules.
4.4.2 Discretion and policy
The Secretary of State has the power to grant leave to enter or remain in the UK on a
discretionary basis. From time to time written policy statements are issued which set out how
that discretion will be exercised. At present these policy statements are published on the UK
Border Agency website.

In the past, such policies were made public through letters.
In a letter dated 18 December 1998 from the Asylum Policy Unit to a solicitors rm, the terms
of a policy relating to stateless persons were set out. It provided that stateless persons who
were on the UK territory would, subject to fullling certain conditions, be granted the same
period of leave to remain as refugees granted asylum which, at that time, was Indenite Leave
to Remain.
125
The conditions were that he or she had no residence rights in any countries and
that the UK was the most appropriate country for resettlement.
This application of this policy helped ensure that the UK met its international obligations to
stateless persons under the 1954 Convention and international human rights law.
126
Indeed, the
granting of a residence permit to those recognised as stateless is, in general, reected in the
practice of States that have established statelessness status determination procedures.
127
This policy appears still to have been in force in April 2002, when the Immigration Appeal
Tribunal
128
considered the case of an ethnic Russian who was found to be stateless and who
had previously been resident in Estonia. He was found to have lost his USSR nationality when
that State dissolved, but had not acquired Estonian nationality. He had claimed asylum, and
argued that he should be allowed to remain on the basis that his removal would breach his
right to respect for family life because he would not be readmitted to Estonia and that this
See, for example, A.K. v. SSHD [2006] EWCA Civ 1117, paras. 51 and 52: Mr Williams submitted
124
that in the present case the Secretary of State ought to have considered the 1954 Convention in
deciding whether or not to grant the appellant discretionary leave outside the Immigration Rules,
and that the Secretary of States failure to consider it meant that his decision was open to appeal
under section 82 of the 2002 Act on the ground that it was otherwise not in accordance with the
law within section 84(1)(e). This argument, too, is beset with difculties. Since the issue was not
raised before the Secretary of State and was not the subject of any published policy, it is difcult to
see how his decision could be challenged for failure to consider the point.
See Stateless Persons (Bidoons of Kuwait) Immigration and Nationality Directorate letter, 18
125
December 1998, Butterworths Immigration Law Service, Issue 29 (on le with the authors).
See UNHCR,
126
Geneva Summary Conclusions, para. 25 When States recognize individuals as
being stateless, they should provide such persons with a lawful immigration status from which the
standard of treatment envisaged by the 1954 Convention ows. Having a lawful status contributes
signicantly to the full enjoyment of human rights.
Ibid.,
127
para. 27.
AF (Return) Estonia
128
[2002] UKIAT 02544.
would separate him from his wife and children. The Tribunal dismissed the appeal on the
facts, but recorded that:
if the Respondent were not admitted by the Estonian authorities, then it was the
policy of the Secretary of State that the Respondent would be re-admitted to the United
Kingdom so that his position could be reassessed on the basis that he was a stateless
person. There would be no question of any repeated attempt to remove him to Estonia
without such reconsideration.
129
It is, however, clear from the testimony of stateless participants in this study that this policy
is no longer applied by the UK Border Agency. Furthermore, policy statements from the UK
Border Agency make it clear that the Secretary of States position has changed. For example,
the Asylum Policy Instruction in relation to Palestinians assisted by the UN Relief and Works
Agency for Palestine Refugees in the Near East (UNRWA) evidences the UKs approach to
stateless persons who, at the same time as making a claim for asylum, also make a claim
that they should be granted leave to enter or remain on the basis that they are stateless. It
provides:
7. Statelessness issues
An asylum claim from a Palestinian may be accompanied by a claim to stay in the UK on
the grounds that they are stateless. The UK is a signatory to the 1954 UN Convention on
the status of Statelessness Persons [sic], but that Convention does not require signatories
to grant leave to stateless persons. There is no provision in primary legislation, the
Immigration Rules or Home Ofce published policies that require leave to be granted to a
person on the basis that they are stateless. Such a claim would therefore fall to be refused
on the grounds that leave is being sought for a purpose not covered by the Immigration
Rules.
130
An earlier version of this policy was issued in September 2002.
131
It therefore appears that the
way the Home Ofce treated applications for leave to enter or remain by stateless persons
changed in 2002. This change of practice contrasts with the approach by a number of
other States Parties to the 1954 Convention, for example France and Spain, that operate
a dedicated procedure designed to identify stateless persons. In those States, a residence
permit is granted to those found to be stateless.
132
This change also coincides with the timing
of the abolition of Exceptional Leave to Remain and its replacement with a narrower form of
complementary protection regime found in the old Humanitarian Protection and Discretionary
Leave Asylum Policy Instructions.
133
Ibid.,
129
para. 13.
See Home Ofce,
130
Asylum Policy Instruction, UNRWA assisted Palestinians available at: www.ukba.
homeofce.gov.uk/sitecontent/documents/policyandlaw/asylumpolicyinstructions/apis/unrwa.
pdf?view=Binary, p. 3.
Email from UK Border Agency to the researchers 7 October 2011 (on le with the authors).
131
In contrast note Van Waas, L.,
132
Nationality Matters: Statelessness under International Law,
Intersentia, 2008, which at p. 249 states: These facts uncover what is arguably the core weakness
of the 1954 Statelessness Convention: that with no state compelled to allow a stateless person to
enter or settle on its territory, these individuals are stuck in a true legal limbo.
See Home Ofce,
133
Asylum Policy Instruction, Exceptional Leave, Humanitarian Protection and
Discretionary Leave, available at: http://www.ukba.homeofce.gov.uk/sitecontent/documents/
policyandlaw/asylumpolicyinstructions/apunotices/elhpanddl.pdf?view=Binary and Still Human, Still
Here, At the End of the Line: Restoring the Integrity of the UKs Asylum System, pp. 13-15, available
at: http://stillhumanstillhere.les.wordpress.com/2009/01/at-the-end-of-the-line-2010.pdf. Note the
scope of Humanitarian Protection changed when it was incorporated into the Immigration Rules in
October 2006.
The current policy position
134
on applications for leave to enter or remain from stateless
persons is set out in the guidance on how to treat asylum claims made by Palestinians. It
provides:
No distinction is made between applications for leave to remain from stateless people and
from people who have a nationality. Stateless people whose applications are successful
are granted leave to enter or remain in the usual way. Those whose applications fail are
expected to leave the United Kingdom, usually to return to their countries of habitual
residence (see MA (Palestinian Arabs Occupied Territories Risk) Palestinian Territories
CG [2007] UKIAT 00017). The fact of being stateless is not, therefore, in itself a reason
for granting leave to enter or remain in the UK and would not give rise to a grant of asylum
or Humanitarian Protection.
135
(Emphasis added)
Consequently, although the Secretary of State can use discretionary powers to grant leave
to enter or remain to stateless persons,
136
there is no requirement in domestic legislation or
the Immigration Rules that leave to enter or remain should be granted to stateless persons
on the basis that they are stateless.
137
The qualitative and quantitative analysis reveals no
discernable or consistent practice by the Secretary of State of using discretion in this way.
138

Indeed, current UK law and practice provides only a very limited possibility for leave to enter
or remain to be granted to persons who are unable to leave the UK, as will be the case for
many stateless persons. They must show that the Secretary of States refusal to grant leave
to remain is irrational on the basis that there is no possibility that they can depart from the
UK.
139
Thus, in deciding whether a stateless person should be granted leave to enter or remain
in the UK, the fact that the individual is stateless is, in most cases, not considered to be
relevant. The evidence indicates that, as a result, stateless persons are not identied within
the operation of immigration control. This also means that statelessness has little bearing on
their ability to access rights or other entitlements, despite the obligations in international law
owed to them by the UK.
There is a very specic policy on the possibility of granting Discretionary leave to remain to British
134
Overseas citizens (and other UK passport holders such as British protected persons and British
subjects) who are otherwise stateless and who are left in limbo, see Immigration Directorate
Instructions Chapter 7, Section 2, available at: http://www.bia.homeofce.gov.uk/sitecontent/
documents/policyandlaw/IDIs/idischapter7/section2/section2.pdf?view=Binary. For a discussion of
whether such people are stateless see Section 5.10 below.
Home Ofce,
135
Operational Guidance Note, Israel, Gaza and the West Bank, February
2009, available at: www.bia.homeofce.gov.uk/sitecontent/documents/policyandlaw/
countryspecicasylumpolicyogns/israelgazawestbank.pdf?view=Binary.
For example, by exercising the wide discretion to grant leave to enter or remain provided by the
136
Immigration Act 1971, section 3, including in line with the Discretionary Leave API, Immigration
Directorate Instructions, Chapter 1, Section 14 or, in the context of administrative removal or
deportation, paragraphs 395C and 364 of the Immigration Rules. The authors are grateful to Paul
Luckhurst, Counsel, Blackstone Chambers, for drawing this point to our attention.
See A.K. v. SSHD, [2006] EWCA Civ 1117.
137
There is anecdotal evidence from a semi-structured interview with a UKBA Senior Caseworker (15
138
August 2011) that such discretion may occasionally be exercised. A specic example given was of
an asylum applicant from Estonia being granted Discretionary leave to allow him to make enquiries
as to whether he was entitled to Estonian nationality.
See
139
R (on the application of MS, AR & FW) v. Secretary of State for the Home Department, [2009]
EWCA Civ 1310, United Kingdom: Court of Appeal (England and Wales), 4 December 2009,
available at: http://www.unhcr.org/refworld/docid/4b2f7eec2.html, per Sedley LJ, citing with
approval, Baroness Hale in Khadir, R (on the application of) v. SSHD, [2005] UKHL 39 when the
prospects of the person ever being able safely to return are so remote that it would be irrational
to deny him the status which would enable him to make a proper contribution to the community
here.
4.4.3 Regularisation
Only eight of the participants in the study had had their immigration status regularised through
a grant of leave to enter or remain, usually after a long period left in limbo as refused asylum-
seekers.
140
A total of 29 participants remained undocumented and in limbo at the time of
their interviews for periods ranging up to, and in some cases exceeding, ve years since the
rejection of their asylum claims or other applications for leave to remain in the UK.
In recent decades the Secretary of State has undertaken a number of backlog clearance
exercises in respect of asylum-seekers whose claims have not been determined or who, after
their claims have been refused, have not left the UK or been removed.
These exercises have provided a basis for non-nationals, including stateless persons, to
apply to regularise their immigration status outside the Immigration Rules. In some cases
these measures have been accompanied by administrative rearrangement and allocation of
case working resources to undertake the exercise.
141
In other cases, the policies have been
maintained more broadly. Examples include the one-off family exercise for asylum-seekers
who had claimed asylum before 1 October 2000 and who had dependent children,
142
specic
policies in respect of non-national children who had been in the UK for seven years,
143
and
non-nationals who married British citizens or persons who were settled in the UK.
144
The Immigration Rules themselves also contain provisions that could facilitate stateless
persons who had not left the territory acquiring leave to enter or remain. Paragraph 395c
mandates caseworkers to consider the compassionate circumstances of the case before
enforcing administrative removal. Policy guidance on how compassionate circumstances
should be interpreted includes taking into account, amongst other things, the prospect of
enforcing removal.
145
Given the problems that exist in removing stateless persons, it is likely
that the application of this provision by the Case Resolution Directorate has resulted in the
regularisation of a signicant number of stateless persons, albeit that no formal identication
of their statelessness was made during decision-making.
146
Participants 8, 9, 19, 28, 33 were all regularised by the Case Resolution Directorate. Those
140
participants regularised who did not experience a period in limbo were participant 23, who was
granted indenite leave to remain under the one-off family exercise before his asylum claim
was decided and participants 22 and 37 who were granted Humanitarian Protection which is the
equivalent of subsidiary protection under the EC Qualication Directive.
For example in the operation of the Case Resolution Directorate which aimed to either remove or
141
grant leave to enter or remain to all asylum-seekers who had claimed asylum before March 2007.
See for details
142
AL (Serbia) (FC) v. Secretary of State for the Home Department; R (on the application
of Rudi) (FC) v. Secretary of State for the Home Department, [2008] UKHL 42, United Kingdom:
House of Lords (Judicial Committee), 25 June 2008, available at: http://www.unhcr.org/refworld/
docid/486246502.html, paras. 1719.
See Home Ofce,
143
DP2/93 and the Enforcement Instructions and Guidance, Chapter 53.5,
available at: www.bia.homeofce.gov.uk/sitecontent/documents/policyandlaw/enforcement/
detentionandremovals/chapter53?view=Binary.
Ibid.,
144
DP3/96.
See UK Border Agency,
145
Enforcement Instructions and Guidance, Chapter 53, available
at; http://www.bia.homeofce.gov.uk/sitecontent/documents/policyandlaw/enforcement/
Anecdotal evidence from a semi-structured interview with a UKBA Senior Caseworker (15 August
146
2011) suggested that while the lack of prospects of enforcing the removal of a stateless persons
would be one factor considered in the application of paragraph 395c, it would not in itself be
conclusive.
In addition to specic regularisation programmes, undocumented stateless and
unreturnable persons may acquire an immigration status as a result of changes in their
personal circumstances, for example, by having children or marriage to an EEA national who
is exercising treaty rights in the UK. In addition, recent developments in EU law may benet
the stateless or unreturnable parents of children who become British or EU nationals.
147

Furthermore, paragraph 276A of the Immigration Rules sets out the circumstances in which
persons can remain in the UK on the basis of long residence.
148
There is also relevant guidance
contained within the Discretionary Leave policy.
149
It could be argued that measures that facilitate regularisation of the immigration status of
stateless persons provide a mechanism to protect human rights, as they have the effect
of providing an opportunity for stateless persons to access the entitlements that they are
otherwise denied. The evidence, however, from the participants in this study indicates that
regularisations are an inadequate safeguard. They result in stateless persons being left on
the territory for a period of sometimes several years where they do not have leave to enter or
remain and risk, in particular, destitution, homelessness and immigration detention. In addition,
the evidence from the study shows that measures that should facilitate the regularisation of
stateless persons, such as an individual assessment of the prospects of enforcing removal,
are not consistently applied to the benet of stateless persons.
150
In conclusion, if the human
rights of stateless persons are to be respected, then it is necessary to identify stateless
persons on the UK territory as quickly as possible and, if appropriate, grant them leave to
remain. There will, however, be circumstances where it will not be appropriate to grant leave
to remain. This reects part of the UNHCR Geneva Summary Conclusions:
When States recognize individuals as being stateless, they should provide such persons
with a lawful immigration status from which the standard of treatment envisaged by
the 1954 Convention ows. Having a lawful status contributes signicantly to the full
enjoyment of human rights.
...
While the 1954 Convention does not explicitly prescribe a right of residence to be accorded
upon a persons recognition as stateless, granting such a right is reected in current State
practice to enable stateless individuals to live with dignity and in security. Participants
agreed that this approach is the best means of ensuring protection of stateless persons
and upholding the 1954 Convention. Without such status, many stateless persons may
be deprived of the protection of the Convention. Nonetheless, it was also discussed
whether in a limited set of circumstances it may not be necessary to provide for residence
upon recognition. One view was that this would be the case for stateless persons in a
migration context who can immediately return to a State of former habitual residence
where they enjoy permanent residence as well as the full range of civil, economic, social
and cultural rights and have a reasonable prospect of acquiring nationality of that State.
Zambrano v. Ofce National de lEmploi (Reference for a preliminary ruling from the Tribunal de
147
travail, Brussels, Belgium), Case C-34/09, Court of Justice of the European Union, 8 March 2011,
available at http://curia.europa.eu/jurisp/cgi-bin/form.pl?lang=EN&Submit=rechercher&numaff=C-
34/09.
Although, at the time of writing the Home Ofce was consulting on whether there was a need to
148
maintain the policy. See UK Border Agency, Family Migration a consultation, July 2011, available
at: http://www.ukba.homeofce.gov.uk/sitecontent/documents/policyandlaw/consultations/family-
migration/consultation.pdf?view=Binary, p. 64.
Asylum Policy Instruction on Discretionary Leave (currently under review, on le with authors).
149
For example, it is not evident that signicant weight has automatically been given to statelessness
150
or barriers to removal by the Case Resolution Directorate when reviewing cases. Indeed, six
participants (2, 3, 4, 10, 20 and 29) whose cases were within the remit of the Directorate as a result
of having applied for asylum before March 2007, had either been refused or not had their cases
considered by the Case Resolution Directorate at the time of interview.
Similarly, while a form of protection (including some kind of immigration status), may be
necessary in the short term, grant of residence may not be necessary where an individual
can acquire or re-acquire nationality of another State within a reasonable period of time
through simple, accessible and purely formal procedures, where the authorities do not
have any discretion to refuse to take the necessary action.
151
4.4.4 Identity and Travel Documents
The 1954 Convention makes specic provision to ensure that stateless persons are able to
obtain identity documents and, if lawfully staying on the territory, travel documents. The two
relevant provisions are intended to act in conjunction to ensure that every stateless person
benets from one form of documentation or another.
152
Article 27 of the 1954 Convention provides: The Contracting State shall issue identity papers
to any stateless person in their territory who does not possess a valid travel document.
A leading commentary on the 1954 Convention sets out the nature of the obligation that this
places on state parties to the Convention:
The identity papers with which Article 27 deals are for internal use, as contrasted with
the travel documents to be used for journeys abroad. It is a paper certifying the identity
of a stateless person (certicate of identity) and, in countries with a passport system, a
substitute for a domestic passport. Contrary to other articles, Article 27 deals with any
stateless person in their territory, thus indicating verbally that neither residence nor even
lawful presence is required. All that is necessary, is that the stateless person be physically
in the territory of the given state. It was made clear in the Refugee Conference that this
Article in no way impaired the right of Contracting States to control the admission and
sojourn of refugees in other words, the issuance of an identity paper does not obligate the
state to keep the stateless person within its borders.
The Convention does not prescribe the nature of the identity papers. As said, they may
be temporary or nal; they need not be ofcial papers in the sense used in Europe and
may [simply] consist of a document showing the identity of the [the stateless person]. In
countries where no identity papers are required or issued, Article 27 would not impose on
stateless persons an obligation to possess one because its purpose is only to safeguard
the interests of the stateless persons, and not to stigmatize them in any way.
153
There is no provision in UK immigration law that allows for stateless persons who do not
possess travel documents to apply to the UK Border Agency to be recognised as stateless
and obtain identity documents if they do not have a valid travel document. This gap appears
to conict with the UKs international obligations.
154
UNHCR,
151
Geneva Summary Conclusions, paras. 25 and 27.
Van Waas, L.,
152
Nationality Matters: Statelessness under International Law, Intersentia, 2008, p. 374,
citing Goodwin-Gill, G., and McAdam, J., The Refugee in International Law, Oxford University Press,
2007, p. 515.
Robinson, N.,
153
The Convention relating to the Status of Stateless Persons. Its History and
Interpretation, UNHCR, 1955, available at: http://www.unhcr.org/refworld/docid/4785f03d2.html.
There are specic provisions in UK law and policy to provide an Application Registration Card
154
to asylum-seekers, the card is issued only to asylum-seekers and does not claim to constitute
identity papers. See UK Border Agency. Asylum Policy Instruction Application Registration Card,
July 2006, available at: www.ukba.homeofce.gov.uk/sitecontent/documents/policyandlaw/
asylumpolicyinstructions/apis/applicationregistrationcard.pdf?view=Binary.
The obligation to provide travel documents is contained in the 1954 Convention, Article 28:
The Contracting States shall issue to stateless persons lawfully staying in their territory
travel documents for the purpose of travel outside their territory, unless compelling reasons
of national security or public order otherwise require, and the provisions of the schedule
to this Convention shall apply with respect to such documents. The Contracting States
may issue such a travel document to any other stateless person in their territory; they
shall in particular give sympathetic consideration to the issue of such a travel document
to stateless persons in their territory who are unable to obtain a travel document from the
country of their lawful residence.
The UK Border Agency has a procedure that allows for an individual who is recognised as
a stateless person to apply for a Stateless Persons Travel Document.
155
It requires that the
applicant holds at least six months leave to enter or remain at the time of the application
156
and
that the applicant must pay an application fee.
157
These restrictions risk conicting with Article
28 in that persons who may have less than six months leave to enter or remain outstanding on
a period of leave of a number of years, and who intend to extend their leave, would not qualify
for such a document but could be considered to be lawfully staying.
158
However, the UK
Border Agency justies this position by stating [y]ou must have permission to stay here for
at least six months from the date you make your application. This is because other countries
may not accept your travel document if you have less than six months permission to return
to the United Kingdom.
159
Furthermore, as these documents are issued on a discretionary
basis, the Secretary of State could grant such documents to stateless persons who did not
possess six months leave to enter or remain, avoiding the risk of any incompatibility.
160
That
said, there is no evidence in practice or policy that indicates that the Secretary of State is
prepared to grant a 1954 Convention Travel Document to stateless persons in the UK that are
not lawfully staying.
No details are given in published UK Border Agency policy about the procedure that is used
to determine whether a person has the status of a stateless person for the purposes of
obtaining a Stateless Persons Travel Document. The only public documents available are the
application form
161
and the very limited guidance note provided for applications for a Stateless
Persons Travel Document.
162
However, anecdotal information was obtained from a semi-structured interview with members
of the Travel Document team.
163
During this interview it was suggested that the whole of
the immigration le is reviewed when considering whether to issue a travel document, and
that this was necessary because usually there had been no prior formal identication of
155
Stateless persons travel document, available at: www.ukba.homeofce.
gov.uk/visas-immigration/while-in-uk/travel-abroad/traveldocuments/statelessperson/.
See UK Border Agency
156
TD112 Guidance Notes, Version 04/2011, available at: www.ukba.
homeofce.gov.uk/sitecontent/applicationforms/traveldocuments/td112-guidance.pdf.
The Immigration and Nationality (Fees) Order 2011 No. 445. The fee in 2011 was 77.50 for adults
157
and 49 for children. See UK Border Agency UK Border Agency Fees April 2011, available at: www.
ukba.homeofce.gov.uk/sitecontent/documents/aboutus/fees-table-spring-2011.pdf.
See, for a discussion of the interpretation of lawful stay, Section 5.3.1.
158
See UK Border Agency TD112 Guidance Notes, Version 04/2011, available at:
159
www.ukba.
homeofce.gov.uk/sitecontent/applicationforms/traveldocuments/td112-guidance.pdf.
The authors are grateful to Paul Luckhurst, Counsel, Blackstone Chambers, for this point.
160
UK Border Agency
161
TD 112 Guidance Note, op. cit.
Ibid.
162
Semi-structured interview with UKBA Travel Document Team (9 August 2011). It was not possible to
163
systematically audit individual les involving Stateless Person Travel Document applications in order
to verify the approach taken.
whether the individual applying was stateless. Before 2008, decision-making on applications
where statelessness had not been previously identied was undertaken by the asylum policy
team but this was now the responsibility of the Travel Document team. It was explained
that the Bradshaw test
164
was adopted, the burden of proof was placed on the applicant
and that the Travel Document team would not usually take any role in contacting consular
authorities. Moreover, although reliance was placed upon the 1954 Convention, there was no
internal guidance on how statelessness ought to be assessed. It was emphasised that the
consideration of these application was a very small proportion of the teams work.
165
In conclusion, the UK should ensure that it has a procedure in place to issue identity documents
to stateless persons who do not have valid travel documents and are on the UK territory. To
support this, the research suggests that it may be necessary to develop guidance on the
identication of statelessness and training on it could be given to members of the Travel
Document team. UNHCR will issue Guidelines on the denition of a stateless person in Article
1(1) of the 1954 Convention that should inform the guidance developed.
4.5 The identication of statelessness in immigration law
This section will begin by setting out UK immigration law on the identication of statelessness,
before continuing to set out themes that emerged from the evidence gathered by the researchers
in respect of the identication of statelessness. These ndings are based on participants
testimonies and review of their immigration les, as well as several semi-structured interviews
with UK Border Agency ofcials. Given that the vast majority of participants had claimed
asylum, much of the analysis concerns how statelessness is engaged with within the UK
asylum procedure.
A common feature for many of the participants interviewed was the lack of a substantive
investigation of their actual or potential statelessness by the UK Border Agency. Consequently,
their stateless status was hidden and did not affect the way in which they were treated by the
UK Border Agency and other public authorities.
A review of participants immigration case les showed that participants claims to be stateless
were not prioritised. Legal representatives made detailed submissions on statelessness to the
UK Border Agency in only a handful of cases.
166
Where such submissions were made, they
usually took the form of further submissions following the refusal of an asylum claim.
See Section 4.6.3.
164
In 2010, 135 Stateless Person Travel Documents were issued, whereas the team estimated
165
that it received 20,000 applications for Travel Documents, for example under the 1951 Refugee
Convention, per year.
Participants 2, 3, 5, 20, 28, 33 and 37. However, more cursory references to the fact of an individual
166
being stateless were made in relation to some other participants, and for some cases it was not
possible to review the full immigration le in order to assess whether representatives submissions
engaged with the issue of statelessness.
The law relating to the identication of statelessness
There is limited State practice on the assessment of eligibility for stateless status with
reference to Article 1(1) of the 1954 Convention. Taking examples from States that operate
statelessness determination procedures, in Spain it appears that in practice the burden
of proof is shared between the authorities and the individual, with the individual under
an obligation to fully cooperate, but there is no standard of proof identied. In Hungary
the determining authority is obliged, as a result of general administrative law, to establish
the relevant facts of the case. In practice, the determining authority takes an active role in
searching for evidence. In France there is no explicit reference to a standard of proof, but
the brief guidance published by OFPRA1
67
for applicants identies that the proof must be
sufciently precise and serious.
168
That said, the denition of stateless person in Article 1(1) is challenging and UNHCR aims to
publish guidelines soon. The conclusions to the Geneva Expert Meeting organized by UNHCR
in December 2010 provide guidance on the appropriate application of the provision:
The 1954 Convention requires proving a negative: establishing that an individual is not
considered as a national by any State under the operation of its law. Because of the
challenges individuals will often face in discharging this burden, including access to
evidence and documentation, they should not bear sole responsibility for establishing
the relevant facts. In statelessness determination procedures, the burden of proof should
therefore be shared between the applicant and the authorities responsible for making the
determination.
169
Despite the lack of a statelessness determination procedure in the UK, there is established
caselaw on the evidentiary requirements for assessing whether an individual is stateless in
the context of immigration law. The eligibility for nationality of another country is a matter for
the municipal law of the foreign country.
170
Consequently, as with all assessments of foreign
law, it is a matter of fact.
171
Where an applicant has asserted statelessness in immigration proceedings, the Scottish Outer
House of the Court of Session held in the case of Bradshaw
172
that he or she would have to
apply to those states which might consider her to be and might accept her as a national.
This places a high evidentiary burden on the applicant. It could be argued that the reasoning
in Bradshaw is the result of the particular facts of the case, namely that the applicant asserted
that she was statelessness on the basis of evidence of Ukrainian and Russian nationality law
but, in circumstances where her credibility was otherwise in doubt, refused to put forward any
further evidence in respect of her situation.
The Bradshaw approach has been criticised by the leading commentary on British nationality
law. It observes that [a]lthough it was said that he who asserts statelessness must prove it,
this case should be limited to its facts, as the test referred would be onerous and/or practically
impossible in many cases and therefore inappropriate as a universal requirement.
173
However,
Ofce Franais de Protection des Refugis et Apatrides.
167
This is the body in France which is
responsible for deciding applications for asylum and for recognition of stateless status.
Mandal, R., UNHCR Handbook on the Determination of Stateless Status, Discussion Paper No. 3.
168
Procedures for Determining whether a person is stateless, Nov. 2010, on le with the authors.
UNHCR,
169
Geneva Summary Conclusions, para. 13.
Stoeck v. Public Trustee,
170
[1921] 2 Ch. 67.
MA (Ethiopia) v. Secretary of State for the Home Department,
171
[2009] EWCA Civ 289, United
Kingdom: Court of Appeal (England and Wales), 2 April 2009, available at: http://www.unhcr.org/
refworld/docid/49da220e2, para. 63.
R. (Bradshaw) v. SSHD,
172
[1994] Imm AR 359.
Fransmans British Nationality Law,
173
3rd Edition, 2011, p. 591.
this criticism has not been examined by the UK Courts and the Bradshaw approach has been
approved in the context of assessing statelessness in asylum applications.
174
The Bradshaw approach does not result in the burden of proof being shared between the
applicant and the authorities. Further, the requirement that the applicant would have to apply
to those states which might consider her to be and might accept her as a national runs the risk
of conicting with the Prato Summary Conclusions. They found that [w]hether an individual
actually is a national of a State under the operation of its law requires an assessment of the
viewpoint of that State. This does not mean that the State must be asked in all cases for its
views about whether the individual is its national in the context of statelessness determination
procedures.
175
Further, given that Article 1(1) is a negative denition, by any State could
be read as requiring the possibility of nationality to be ruled out for every State in the world
before Article 1(1) can be satised. However, the adoption of an appropriate standard of proof
would limit the States that need to be considered to those with which the person enjoys a
relevant link (in particular by birth on the territory, descent, marriage or habitual residence).
176

The practical problems that result from the Bradshaw approach can be seen in the case of
Steven,
177
one of the participants in the study.
Name: Steven (Participant 29)
Country of origin: Mozambique
Date of arrival in UK: July 2003
Current status: None
Steven is 29. He believes he was born in Mozambique, but has no evidence of this, nor
of entitlement to Mozambique or any other nationality. He spent his entire childhood
travelling between Mozambique, Zimbabwe and Zambia with his mother. This cycle
continued until 2000 when his mother left him alone in Zimbabwe, since which time he
has not had any further contact with her. He left Zimbabwe following problems caused by
his involvement with the Movement for Democratic Change (MDC) and travelled to the UK
where he claimed asylum in July 2003.
His asylum claim was refused, as was his subsequent appeal in December 2003. His most
recent further submissions were refused in March 2011, although no removal directions
have been set, apparently due to uncertainty about his nationality.
He describes his efforts since being in the UK to try to establish his nationality.
I have no identity documents to show that I am from a country which I could be
returned to. I contacted IOM [the International Organisation for Migration] about
voluntary return, but they advised me that I need to be able to prove where I am
from in order to be returned there. I have phoned the Zimbabwean embassy in
London but they told me that I need to have documentary evidence to show that I
am from Zimbabwe before they can assist me. I asked them if they could search the
population registrar but they told me that I would have to do this physically in Harare.
I also contacted the Zambian embassy but they told me the same thing. Recently
M.A. (Ethiopia) v. SSHD, op. cit.
174
paras. 52-53.
UNHCR,
175
Prato Summary Conclusions, para. 12.
Ibid.,
176
para. 22.
It was not possible to obtain a full paper le for this case but factual aspects were checked on CID
177
as well as the limited papers available.
I completed a biodata interview and form with UKBA in relation to Mozambique
and they have arranged an appointment for me with the Mozambique embassy
but I still rst need to be able to obtain the money to travel to London. I believe
that it will be necessary for me to arrange formal appointments with the Zambian
and Zimbabwean embassies because UKBA are unlikely to accept my account of
telephone conversations. Only this way will I be able to establish if I have a nationality
or a solution to my current situation. When I asked immigration ofcers what would
happen next if these embassies did not accept me they said It is your problem. I nd
this frustrating as I am trying to cooperate with them.
Steven has been denied section 4 support
178
and, at the time of his interview for the
research, was destitute and sleeping at a homeless shelter. He has very limited resources
with which to try to establish his nationality, lacking even the cost of a two hour train
journey to London to attend interviews with relevant embassies. His perception of his
situation and treatment is that:
They are happy to leave me in limbo because they know that I am not a risk to the
public and they do not need to pay the cost of detaining me. They do not care how I
support myself as this is not a consideration for them.
Other relevant UK caselaw exists, relating to how nationality ought to be assessed in the
context of refugee status determination procedures. The Court of Appeal has outlined the
standard of proof that an asylum applicant must meet if he or she is to show that their State
of nationality will not provide appropriate travel documentation, as well as the evidence that
an applicant is expected to produce to discharge the burden of proof. First of all, unlike other
aspects of an asylum claim, the standard of proof is the balance of probabilities. Secondly,
the Court recognised that in some circumstances it will not be appropriate to expect an
asylum applicant to approach the consular authorities of their country of nationality to show
that they are not prepared to re-document the applicant, as this might put the applicant or
family members in the country of origin at risk. Thirdly, it has held that in a normal case the
authorities can require the applicant to act bona de and take all reasonably practicable
steps to seek to obtain the requisite documents to enable her to return.
179
Further, the Immigration Appeal Tribunal and Asylum and Immigration Tribunal have rejected
a hierarchical approach to the sources of evidence in assessing nationality. A wide range of
sources of evidence can be considered which include:
(i) Relevant documentation. The relevant country of nationality may be established with
documentation such as a passport or travel document. In Polivina (18441), in which a
claimant was adjudged to be Croatian, possession of a passport was held to create a
strong presumption of citizenship which could only be displaced by weighty evidence
to the contrary. However, other items of documentation may be relevant, e.g. letters
from relevant authorities in the country concerned or (as in the instant case) birth
certicates in respect of countries that operate qualied or unqualied ius soli;
(ii) The claimant. Where documentation is not available or admitted to be false, evidence
from the claimant will be especially important. Relatives and friends may also have
relevant evidence. Just because there is no documentary evidence to support the
appellant`s claimed nationality is not fatal if his word is believed as to his nationality;
See Section 5.3.
178
M.A. (Ethiopia) v. SSHD, op. cit.
179
paras. 49-50 and 78-83.
(iii) Agreement between the parties;
(iv) Expert oral or afdavit evidence;
(v) Foreign and Commonwealth Ofce letters;
(vi) Text of relevant nationality law of country(ies) concerned;
180
and,
(vii) Secretary of State for the Home Department asking questions of a relevant countrys
Embassy.
181
In conclusion, the UK courts currently consider that if an applicant seeks to establish
statelessness, the burden of proof is placed on the applicant. It appears that there is a strict
requirement for the applicant to apply to those states which might consider her to be and
might accept her as a national. In contrast, in the context of refugee status determination,
the UK courts have been prepared to consider a greater number of sources of evidence.
The Bradshaw approach to the interpretation of Article 1(1) of the 1954 Convention risks
frustrating its object and purpose of assuring stateless persons the widest possible exercise
of these fundamental rights and freedoms.
182
The participants testimony explains how
difcult it is for individuals to prove that they are stateless, particularly if they are vulnerable. It
is therefore recommended that in assessing statelessness in the future the courts should take
into account and give appropriate weight to forthcoming UNHCR Guidlines.
4.6 Guidance and training
There is little UK Border Agency guidance on how to identify statelessness within asylum
claims.
183
Ofcials are aware of the guidance and it was referred to in semi-structured interviews
with the New Asylum Model (NAM+) Training Team, a Senior Asylum Caseworker, the Quality
Audit Team and Screening Ofcers at Asylum Screening Unit.
184
The limited existing guidance
that exists emphasises, in respect of Doubtful Nationality Cases, that:
It is important to keep in mind that the fact that the ofcer does not accept the applicants
claim to nationality but has insufcient evidence of an alternative country or territory to
which the applicant can be removed, does not mean the applicant falls to be granted
asylum as a Stateless person. In order to make a claim for refugee status as a Stateless
person, the applicant must satisfy the ofcer that they have no nationality and that they
are outside the country of their last habitual residence owing to a well-founded fear of
persecution for a Convention reason, and that owing to such a fear they are unable or
unwilling to return to it.
185

The above is an edited version of the guidance in
180
Smith (Liberia) v SSHD [2000] UKIAT 00TH02130.
See
181
MA (Disputed Nationality) Ethiopia v. SSHD, [2008] UKAIT 00032, United Kingdom: Asylum
and Immigration Tribunal / Immigration Appellate Authority, 17 April 2008, available at: http://www.
unhcr.org/refworld/docid/48076a1c2.html.
1954 Convention, Preamble.
182
183
Nationality Doubtful, Disputed and Other Cases, available at: http://
www.ukba.homeofce.gov.uk/sitecontent/documents/policyandlaw/asylumprocessguidance/
specialcases/guidance/natinality-doubtful-disputed?view=Binary.
Anecdotal information from semi-structured interviews with the NAM+ Training Team (19 July 2011),
184
a UKBA Senior Asylum Caseworker (15 August 2011), the Quality Audit Team (1 August 2011) and
the Asylum Screening Unit (15 August 2011).
UK Border Agency,
185
Nationality Doubtful, Disputed and Other Cases, op. cit., para. 5.2.
It continues to focus on what are termed Disputed Statelessness Cases. It directs that these
should be treated in the same way as Disputed Nationality Cases. In particular, it states
that:
In instances where the UK Border Agency disbelieves the applicants assertion that
they are stateless, but cannot be satised on the basis of all the available documentary
and oral evidence that the applicant is a national of a country other than the country in
which they were formerly habitually resident, only the country in which they were formerly
habitually resident should be specied. In such cases ofcers should take particular care
to thoroughly investigate the evidence of statelessness/nationality at interview so that
wherever possible the UK Border Agency can rebut their claim to be stateless.
There is further guidance on how a nationality should be identied in correspondence with the
applicant in Disputed Statelessness Cases. It provides that alongside an applicants name,
the fact that the applicant claims to be stateless should be identied, as well as the nationality
that the UK Border Agency believes the applicant to have.
186
Caseworkers are guided to update CID records in disputed statelessness cases in the
following way:
An applicants nationality should only be recorded as Stateless on CID where the
applicant has produced a Convention document which denes them as Stateless under
the 1951 or 1954 Convention. In all other cases, their claim to be Stateless should only be
recorded in Person notes. Should the applicant be considered to be Stateless following
consideration of the claim, ofcers should amend CID to reect this.
187
Given that statelessness is recognised rather than granted,
188
it is a matter of concern that
the current guidance on disputed statelessness cases requires an individual to present with
a stateless person travel document (or subsequently to be issued with one) in order to have
their statelessness recorded in the nationality eld on CID. Although this guidance should
only be applied to a dened group of cases, if it were applied broadly it would limit the UK
Border Agencys ability to collect accurate data about the number of stateless persons on UK
territory.
Moreover, from the participants CID records it emerged that in 22 of the 36 les reviewed the
guidance had either been followed only partially or not at all, as illustrated in more detail in
section 4.6.1 on screening and early identication. These seemingly common recording and
data entry problems appear to have hindered the proper consideration of nationality and/or
statelessness issues as the cases progressed. Anecdotal evidence from interviews with the
UK Border Agency also conrmed this pattern.
189
A further limitation with the guidance is that no explicit reference is made to the 1954
Statelessness Convention and no direction is given on how to properly identify statelessness.
This is compounded by an apparent lack of comprehensive training on statelessness for
Ibid.,
186
Section 7.
Ibid.,
187
Section 7.1.
UNHCR,
188
Anecdotal information from semi-structured interviews with the NAM+ Training Team (19 July 2011),
189
a UKBA Senior Asylum Caseworker (15 August 2011), the Quality Audit Team (1 August 2011) the
Asylum Screening Unit (15 August 2011). The UKBA travel document team (9 August 2011) and the
Nationality Directorate (1 August 2011).
decision-makers. During a semi-structured interview, the NAM+ training team
190
explained
that limited reference to statelessness was included in the foundation training compulsory for
all new caseowners. A module on Nationality and Stateless Persons is provided as part of
consolidation training which is usually provided to caseowners after three to six months. The
content of these training notes, however, do not engage in detail with the 1954 Convention,
nor the procedures necessary to identify stateless persons or the rights owing to them.
Moreover, there is apparently no training on how to record or update CID or other databases
where an applicant is identied as being stateless. As has been discussed, the research has
already identied this as a major problem.
An important component of the accurate identication of statelessness is the availability of
country of origin information relating to relevant nationality laws and their application, as
well as the position of particular stateless populations in foreign states. While some relevant
information is contained in Country of Origin Information Service (COIS) reports and through
individual information requests,
191
it is not clear whether decision-makers systematically
make use of this facility or fully understand how to assess nationality laws when identifying
statelessness.
192
During the interview with COIS
193
it was explained that they are already able
to reference a range of sources on nationality law
194
but it was accepted that additional training
might be benecial on their specic application to the issue of statelessness.
One mechanism available to the UK Border Agency to potentially better evaluate the
identication of statelessness and the use of relevant country of origin information would be
through the UK Border Agencys Asylum Quality Audit Team. A semi-structured interview with
the Asylum Quality Audit Team
195
identied that at present statelessness was only directly
relevant to two of the 97 indicators used to assess quality of asylum decisions. It was accepted
that this was an area that could potentially be further developed. However, it was emphasised
that currently the teams remit is restricted to initial asylum decisions made by the UK Border
Agency and, consequently, would only engage with a limited area of casework.
In conclusion, it appears that there is limited policy guidance for caseworkers on assessing
statelessness. Although doubts were expressed by some interviewees that statelessness
was a pressing issue in asylum casework, it was also accepted that statelessness might
Anecdotal information from semi-structured interviews with the NAM+ Training Team (19 July 2011).
190
Anecdotal information from semi-structured interviews with the Country of Origin Information
191
Service (COIS) (4 August 2011).
Anecdotal information from semi-structured interviews with a UKBA Senior Asylum Caseworker ((15
192
August 2011).
Anecdotal information from semi-structured interviews with the Country of Origin Information
193
Service (COIS) (4 August 2011).
Information provided in email from COIS dated 4 August 2011 and referring to the following
194
sources: The US Ofce of Personnel Managements Citizenship Laws of the World, March
2001:, http://www.multiplecitizenship.com/worldsummary.html; also http://www.opm.gov/
extra/investigate/is-01.pdf; International Labour Organisation, http://www.ilo.org/dyn/natlex/
country_proles.byCountry; Law Library of (US) Congress, http://www.loc.gov/law/help/guide/
nations.php; Legislation online, http://www.legislationline.org; Richmond University (Virginia,
USA), http://connder.richmond.edu; World Law http://www.worldlii.org/catalog/215.html;
University of Pittsburghs School of Law journal the Jurist, http://jurist.org/; Max Planck Institute
for Comparative Public Law and International Law, http://www.mpil.de/ww/en/pub/news.cfm;
IDMC (more for documentation) http://www.internal-displacement.org/8025708F004CE90B/(httpS
ectionHomepages)/$rst?OpenDocument&count=1000; Refworld: http://www.unhcr.org/refworld/
topic/4565c2252/459d2ecd2.html; European Union Democracy Observatory, which has a useful
database for European countries (including Turkey).
Anecdotal information from semi-structured interviews with the Quality Audit Team (1 August 2011).
195
be a hidden issue.
196
It was suggested that more complete guidance on the identication of
statelessness would be useful and that this could be a basis upon which increased training
on the issue, potentially to Senior Caseworkers, could be considered as well as with regard
to future reforms to the Quality Audit Teams decision-making quality assurance matrix and
remit.
4.6.1 Screening and early identication
One trend that appeared in the analysis of the immigration les of participants was the failure
by UK Border Agency ofcials to record on CID where individuals identify themselves as
stateless at the initial screening interview after the participant had claimed asylum.
197
This
was particularly evident among Kuwaiti Bidouns, several of whom describe having identied
themselves as stateless on arrival but subsequently discovered that their nationality was
recorded by immigration ofcers as Kuwaiti. In some cases, when this was queried,
participants reported that it was said this was because this is where you are from.
The ofcials who work at the Asylum Screening Unit are responsible for taking initial details
from applicants who claim asylum having already passed through port immigration control.
When interviewed for this study,
198
ofcials stated that they came across few statelessness
related cases. The majority of stateless applicants self-identied as being stateless.
Screening ofcers record these individuals on CID as stateless using one of the relevant
nationality categories. Screening ofcers tended to trust the self-identication by individuals.
Furthermore, in the Screening Units experience it would be rare for a stateless person to
have documentation to prove their statelessness. The Kuwaiti Bidoun stateless participants
referred to above recalled a different experience with their nationality being recorded as
Kuwaiti despite their recollection that they indicated that they considered themselves to be
stateless Bidouns. Three of this group applied for asylum in-country at the Asylum Screening
Unit
199
and the other two participants
200
applied on arrival at port. This indicates that there may
be issues in the identication and recording of stateless persons at ports and in the Asylum
Screening Unit.
The ofcials at the Asylum Screening Unit also noted that they were not aware of a difference
between the CID nationality categories of Ofcially stateless, Stateless Convention 1954
- Article 1, Unknown nationality and Unspecied nationality. Moreover, the researchers
observed that there was no consistent approach adopted in the use of these categories. It was
also noted that where specic categories on CID exist, such as Kuwaiti Bidoun or Palestinian
these categories would be used in preference to generic statelessness categories. In these
instances, applicants would not be identied on CID by one of the stateless related categories
despite the fact they may have self-declared as stateless, which could result in statelessness
being masked. Furthermore, when reviewing participant les on CID numerous examples
emerged where information on nationality had been entered inaccurately or inconsistently.
201

Anecdotal information from semi-structured interviews with the Quality Audit Team (1 August 2011)
196
and with a UKBA Asylum Senior Caseworker (15 August 2011).
For example participants 10, 15, 16, 27 and 31.
197
Anecdotal information from semi-structured interview with the Asylum Screening Unit (15 August
198
2011).
Participants 10, 15 and 31.
199
Participants 16 and 27.
200
It was noted that there was no training given to ASU staff on the identication of nationality,
and no relevant continuous professional development training was provided.
The attribution of a nationality category at the beginning of the asylum process is particularly
important because there is evidence that CID nationality categories are not automatically
amended when someone is subsequently found to be stateless, such as after a hearing at the
Tribunal.
202
Moreover, even if an individual is subsequently granted asylum or another form
of leave to remain, a failure to properly record statelessness at the outset may subsequently
impact on the persons ability to obtain a 1954 Convention Travel Document or, at least,
complicate the decision-making process before this can be issued.
203
The evidence conrms the need to rationalise stateless and unknown nationality categories on
CID and the importance of the development of new guidance and training on the identication
of statelessness at screening and in other areas of the asylum process.
4.6.2 The attribution of nationality without appropriate evidence
The evidence also indicated that, in some instances, UK Border Agency ofcials would
attribute a nationality without sufcient or appropriate evidence.
204
There was also evidence
that ofcials would not adjust the nationality categorisation of an individual, despite evidence
to the contrary. This included where an embassy or consulate had refused to acknowledge an
individual as a national of the State in question after an interview.
205
This is a prominent feature of the case of one participant,
206
where the UK Border Agency
continued to assert his nationality as Ethiopian despite a previous refusal by the Ethiopian
authorities to acknowledge this. As the Eritrean authorities had also refused to recognise
him as a national, this failure to recognise his stateless status contributed to his detention
under the Immigration Act 1971 for a cumulative total of over ve years, whilst unsuccessful
attempts were made to remove him.
For example participant 1, who had entered the UK on a stateless person travel document issued
201
by Lithuania, but on CID and in correspondence his nationality was erroneously recorded as
Lithuanian. Several instances were also observed of individuals who, despite being recognised by
the UK Border Agency as an undocumented Bidoun from Kuwait, had their country of nationality
erroneously recorded as Kuwait on CID and in status letters (e.g. participant 31). Participant 28
was recorded in the nationality eld on CID as Kuwait Bidoun but in correspondence as variously
Kuwait, Kuwait Bidoun and Kuwait (Bidoun Claimed). Yet in other cases where it was disputed
that the participant was Bidoun as claimed the nationality was simply recorded as Kuwait with no
other record having been made in the person notes on CID.
Participant 6, case study set out at the start of Chapter 4.
202
See anecdotal information from semi-structured interview with UKBA Travel Document team (9
203
August 2011).
204
205
Participant 17.
206
The le reviews also provided examples of where the UK Border Agency had maintained
a participants nationality after failing to take account of evidence on the immigration le
207

or where a participant had been refused entry by the receiving state during an attempted
removal to their attributed country of nationality.
208
In relation to the two cases above, it is suggested that the refusal by the receiving state to
recognise nationality combined with the absence of any other state to which either participant
had a relevant connection indicated that the participants should have been identied as
being stateless. A leading jurist in this area has observed that [i]f the foreign state refuses
to recognise the person involved as a national, other States are absolutely not entitled to
conclude that the person in question is nevertheless a national of this foreign State. If the
person involved does not possess any other nationality, this person is de jure stateless and
must enjoy the advantages of statelessness according to reducing provisions.
209
However,
this did not happen in either case.
The above examples illustrate that there are instances of UK Border Agency ofcials registering
stateless persons as being of unconrmed (or incorrectly attributed) nationality on CID. This
creates a risk that their stateless status is masked or there is a failure to determine whether, in
fact, the individual is stateless. This acts as an additional barrier preventing stateless persons
from accessing rights guaranteed under the 1954 Convention and international human rights
law.
4.6.3 Difculties in establishing whether consular authorities treated
participants as nationals
A common issue that appeared from the participants testimony and case les was a reluctance
by consular authorities to engage with requests of individuals to be documented and treated
as a national, or to put in writing their conclusions as to whether the individual making the
approach was a national.
210
The refusal of consular authorities to engage or respond in writing
appears to be a particular problem where the participants themselves approached consular
authorities, but is also evident where direct contact takes place between UK Border Agency
and the relevant authority.
While such difculties may be wholly or partly attributable to the conduct of either the individual
or embassy concerned, the evidence examined did not reveal a systematic or consistent
process by which the UK Border Agency engages with consular authorities to obtain
documentation to facilitate removal. Furthermore there was evidence of a failure to pursue
enquiries with due diligence.
211
The difculties present in trying to establish an entitlement to
nationality or consular protection are illustrated by the case of Tauy.
Participant 28. Here the participant had his nationality recorded as Sierra Leone despite the fact
207
that he was a British protected person (BPP) and the UKBA were asserting him to be Lebanese
by descent (this in spite of the participant having adduced letters from both the Lebanese and the
Sierra Leonean authorities conrming that he was not a national).
For example, participant 6.
208
De Groot, G-R.,
209
A clarication of the fundamental rights implications of stateless and persons
erased from the register of residents, Brieng paper European Parliament, 2007, p. 4.
Participants 3, 16, 24, 25, 29, and 30.
210
211
Name: Tauy (Participant 3)
Country of origin: Belarus
Date of arrival in UK: February 2002
Tauy is 59 and is from Belarus. He claimed asylum in 2002, but the claim was refused
and he exhausted his appeal rights in 2005. He has since spent over ve years in limbo in
the UK. He has not been able to leave the UK because he has been unable to establish
an entitlement to Belarusian or any other nationality. He has not seen his four children for
over 10 years.
Tauy applied three times for Assisted Voluntary Return, and a letter dated December 2006
from IOM (which at that time ran the scheme for the government) conrmed that it had
been unable to facilitate his departure. The letter conrms that the IOM had arranged
interviews with the Belarus embassy in February and November 2006 in an effort to
obtain travel documents. Neither had succeeded. The Belarus embassy conrmed that
he was not recognised by them as a citizen of Belarus and that there was no need to
put this in writing as they have no responsibility for him. The IOM letter also notes that
interviews were subsequently arranged in December 2006 with both the Russian and
Ukrainian embassies (countries with which Tauy had relevant connections) but that both
embassies had refused to issue travel documents stating that from the documentation
he has presented that he is a citizen of Belarus.
The documentation in question was a copy of Tauys expired Belarusian passport. The
original had, at that time, been lost by the UK Border Agency.
212
This was one reason why
the Belarus embassy refused to accept him as a national.
In 2008, Tauy made further submissions in respect of his asylum claim which were, in part,
based on his statelessness. The UK Border Agency dismissed the further submissions in
2010 and subsequently withdrew the support and accommodation that Tauy had been
receiving while the submissions were under consideration.
The UK Border Agencys position was set out in a letter to Tauys MP from April 2010. It
stated:
Unfortunately the UK Border Agency is unable to issue a travel document for Mr
[blanked] to return to Belarus as these can only be issued by the authorities for his
home country, i.e. the Belarus Embassy.
As with all passport applications for foreign nationals, the embassy will require proof
of the applicants identity and nationality. This is a matter between Mr [blanked] and
the Belarus Embassy and the UK Border Agency is unable to assist. I am sorry that I
cannot help further with this enquiry.
This letter did not mention that, in fact, it was the UK Border Agency that had been
responsible for the loss of the original passport. It also overlooked the fact that Tauys
UK Border Agency le contained a letter that had been faxed by the Belarusian embassy
in March 2007 conrming that Tauy was not considered one of their nationals. There is
Following his interview for the research in February 2011, the participant emailed to say that his
212
original expired passport had nally been located and returned to him by the UKBA.
also a note of a communication from IOM to the UK Border Agency from May 2007 which
stated that it is unlikely that he [Tauy] would receive a document as he is stateless.
Furthermore, the support that Tauy was given as a refused asylum-seeker was withdrawn
twice only to be quickly reinstated following successful appeals in June 2010 and January
2011 respectively, after it was found that he was cooperating with attempts to remove
him.
Despite so many years in limbo, the UK Border Agency decided not to grant Tauy leave
under paragraph 395c of the Immigration Rules when his case was considered by the
Case Resolution Directorate in February 2011. It appears that, contrary to UK Border
Agency policy,
213
no weight was attached to the clear evidence on le that there was little
prospect of enforcing removal.
Tauys frustration at his treatment and continuing limbo (exacerbated by the fact that he
is highly qualied and has been offered university places which he cannot take up due to
his lack of status) is evident: They are trying to destroy me physically. It is dirty tricks. I
am stateless.
He describes seeing himself as an undesirable alien and being prepared to leave
immediately if this were possible:
I see that according to the law they will not allow me to go out of this country. Give
me a travel document and I will leave immediately you will not see me again. If I am
undesirable here then okay but allow me to go out.
My life started in the Soviet gulag and now I have ended up stuck in this gulag.
Tauys situation also reects a potential confusion of roles between the UK Border Agency
and the organisation contracted to run the Voluntary Assisted Return Scheme (at that time
IOM). IOM, often in the absence of UK Border Agency involvement, took a role in facilitating or
assisting with relevant enquiries to try and establish nationality or to obtain travel documents for
the purposes of return.
214
In Tauys case,
215
IOM were prepared to provide written conrmation
of the difculties that Tauy was having in persuading the Belarus consular authority to treat
him as a national, but this did not occur in other participants cases.
216
If the UK Border
Agency is to successfully identify stateless persons who are not being treated as nationals by
consular authorities of a State to whom the applicant has a relevant link and share the burden
of proof with the applicant, it will be necessary for the Agency to participate actively in the
process, to collect and consider relevant evidence.
This is particularly important in the context of evidence that came to light during the research.
This showed that where individuals are either held in detention, are destitute or lack legal
representation, it is more difcult for them to establish that they are not being treated as a
national under the operation of the law of the States to which they have a relevant link. Given
the signicant incidence of both detention and destitution among stateless and unreturnable
persons interviewed during the research, it is all the more problematic that the UK Border
UK Border Agency, Enforcement Instructions and Guidance, Chapter 53.3.1 available at:
213
http://www.ukba.homeofce.gov.uk/sitecontent/documents/policyandlaw/enforcement/
This was also evident in the cases of participants 3, 4, 5, 11, 18, and 20.
214
It was also the case in the case of participant 11.
215
216
Agency role in these matters is limited. Such difculties are well summed up by the case of
Steven cited above.
217
The ndings of the research in this area are similar to recent initial ndings made by the
Independent Chief Inspector of the UK Border Agency in a thematic inspection. The report
found that:
We appreciate that the re-documentation process is far from straightforward. Even
where foreign national prisoners cooperate and provide detail, political and diplomatic
issues can affect the availability of documentation, as can relations with Embassies and
High Commissions. Staff and managers were aware of the difculties in obtaining travel
documentation from particular countries. However, we saw little evidence that cases
were prioritised on the basis of the length of time and potential difculty in obtaining
travel documentation.
The scope of this inspection did not include an assessment of the Agencys processes
for obtaining, or using, [emergency travel documents] in detail. However, given the
ndings of both this inspection and our inspection of asylum, we intend to carry out a
more detailed examination in the future.
218
Semi-structured interviews with UK Border Agency ofcials and a review of policy guidance
indicates there are no directions linking the issue of the refusal by consular authorities to
document an individual for the purposes of return with statelessness. The testimonies of
the participants above are evidence of the limbo in which individuals can nd themselves
despite having taken reasonable and necessary steps to try to establish their entitlement
to a nationality. At the same time, it should be acknowledged that it was extremely difcult
to conrm in every case where statelessness or unreturnability was an issue whether the
individual had in fact taken all reasonable steps to establish whether consular authorities
would treat him or her as a national. This should, however, be viewed in light of the inherent
difculties and limitations that individuals who are in limbo may face. As such, there is a clear
need to identify a more balanced and systematic approach to such enquiries and to questions
of proof.
It is important to note that an efcient statelessness determination procedure has the
potential to help the efcient operation of immigration control. If such a procedure was in
place it would allow the government to identify those who could and could not be removed.
It would also recognise the link between statelessness on the one hand and the failure of
consular authorities, in some circumstances to provide documentation. If such a procedure
has a possible outcome of regularisation for those who were stateless and who did not have
residence in another state where their human rights would be respected, then it would provide
a reason for individuals to cooperate with re-documentation processes if they believed that
they were stateless. The UK Border Agencys approach to statelessness is therefore a relevant
factor in evaluating its approach to removal and documentation.
Participant 29.
217
Independent Chief Inspector of the UK Border Agency, A Thematic inspection of how UK Border
218
Agency manages foreign national prisoners, 27 October 2011, available at: http://icinspector.
independent.gov.uk/wp-content/uploads/2011/02/Thematic-inspection-report-of-how-the-Agency-
manages-Foreign-National-Prisoners.pdf, paras 5.20 and 5.21.
4.6.4 The approach of legal representatives
The review of participants case les revealed that, even in cases where the participant was
demonstrably stateless and no issues of further investigation or proof arose, relatively few
les contained detailed submissions relating to statelessness by legal representatives.
219
This
apparent lack of engagement by lawyers in statelessness may in part derive from the fact that,
in contrast to refugee status, there is no provision or policy that sets out the circumstances
in which stateless persons ought to be granted immigration status following recognition.
Thus, there may be a lack of incentive to expend limited resources exploring questions of
statelessness and nationality. In any event, it indicates a need for increased training and
awareness-raising among lawyers and advice agencies.
Furthermore, the government does not consider that proving statelessness is a matter for
which legal aid should be granted because applications are straightforward.
220
This conclusion
does not accord with the evidence in this study which shows the complexities that exist in
proving statelessness. Furthermore, the provision of legal aid is one mechanism by which the
identication of stateless persons will improve, and is a necessary part of any statelessness
determination procedures.
221
Conclusions
Despite the fact that the UK is bound by the obligations contained in the 1954 Convention,
reference to the 1954 Convention was taken out of the Immigration Rules in 1980. Prior to
1980, the Immigration Rules contained a reference to the international conventions relating
to stateless persons and, thus, stateless persons could rely on their protection. In addition,
from 1998 a policy provided that those recognised as stateless, where they had no residence
rights in another State and where the UK was the most appropriate country of residence,
were granted the same period of leave to enter or remain as refugees. However that policy
changed in 2002.
At present, in the context of immigration law,
222
statelessness appears to only provide an
entitlement to a 1954 Convention Travel Document in limited circumstances, but there is
no basis upon which they can rst apply to be recognised as stateless. Current UK law and
policy does not make specic provision to grant identity documents to stateless persons who
do not possess valid travel documents. Stateless persons who are undocumented must seek
immigration status either through relying on provisions where their statelessness is either
irrelevant, for example through their marriage to an EEA national exercising treaty rights, or
through regularisation programmes that they may qualify for, usually as failed asylum-seekers
on the basis of long residence and established connections with the UK.
From a review of available immigration les it appeared that detailed submissions on statelessness
219
were only made in relation to participants 2, 3, 5, 20, 28, 33 and 37. However, more cursory
references to the fact of an individual being stateless were made in relation to some other
participants, and for some cases it was not possible to review the full immigration le in order to
assess whether representatives submissions engaged in detail with the issue of statelessness.

220
The Reform of Legal Aid in England and Wales: the Government Response, available at: http://www.
justice.gov.uk/downloads/consultations/legal-aid-reform-government-response.pdf, p. 38 and p.
133.
See UNHCR,
221
Nationality law is discussed in Chapter 6.
222
In addition to the problems identied within the current legal and policy framework, there is
signicant evidence that statelessness is not appropriately identied within the operation of
immigration control. The evidence indicates that this is true both when an individual presents
initially to the UK Border Agency but, also, in the context where the Agency is seeking to re-
document a non-national for the purposes of removal. The lack of appropriate identication
of statelessness resulting from the lack of a statelessness determination procedure potentially
contributes to inefcient border control. In addition, there is evidence that the current
framework contributes to profound human rights concerns for stateless persons on the UK
territory, which will be discussed in detail in the next chapter.
Recommendations
The UK should incorporate the 1954 Convention into domestic law to ensure that
stateless persons in the UK are able to access their rights guaranteed under the
Convention.
The Home Ofce and UK Border Agency should develop an accessible procedure
for identifying stateless persons on the territory in order to meet the UKs legal
obligations under the 1954 and 1961 Conventions and in international human
rights law.
The Home Ofce and UK Border Agency should develop guidance on the
identication of stateless persons and adopt a position in accordance with
forthcoming UNHCR Guidelines on the denition of stateless person in
international law. In particular this guidance should ensure that the burden of
proof is shared between the applicant and the State and that the approach to
assessing evidence meets the developing understanding of the interpretation and
application of Article 1(1) of the 1954 Convention. It should make it clear that
statelessness may only become apparent during the process of documentation to
allow a person to return to a foreign State, and in the light of responses received
from that States consular or other national authorities.
The UK government should ensure that legal aid is available to stateless persons,
who cannot afford to pay for a lawyer themselves, and are seeking to have their
status recognised. Legal aid is a necessary part of an efcient procedure for
determining statelessness and helps to ensure that the UKs legal obligations
under the 1954 Convention and in international human rights law are met.
CHAPTER 5: THE HUMAN RIGHTS
CHALLENGES FACED BY STATELESS AND
UNRETURNABLE PERSONS IN THE UK
5.1 Introduction
The previous chapter examined the status of the 1954 Convention in UK immigration law
and the signicant problems that exist in identifying stateless persons in the operation of
immigration control. This chapter will provide a complementary analysis of the human rights
challenges faced by stateless and unreturnable persons in the UK. It will examine each
issue by reference to the UKs international obligations,
223
taking into account the participants
testimony, evidence in their immigration case les and current UK law and policy. It will
also examine issues that were identied in the assessment of stateless persons claims for
international protection, before drawing conclusions and making recommendations.
The focus will be on the cases of persons left in limbo, predominantly after their asylum claim
has been refused and appeal rights have been exhausted. One third of participants in the
study had been held in administrative detention under powers contained in the Immigration
Act 1971 at some point in time.
224
All participants had, at some point, been granted temporary
admission or release whereby they were at liberty subject to conditions, typically with a
requirement to report to the UK Border Agency at varying intervals, along with restrictions on
the place of residence and working. It is important to note that this is not the equivalent of a
grant of leave to enter or remain and, as was set out in the previous chapter, stateless persons
who have no outstanding claim to remain in the UK are expected to leave the UK, like other
undocumented migrants.
225
A small number, eight out of 37, of participants beneted from a
grant of leave to enter or remain at the time they were interviewed for the research, resulting
in signicantly improved rights protection.
226
The human rights of stateless and unreturnable persons in the UK are guaranteed
under existing obligations under international law. There are, however, signicant gaps
and omissions in the way in which stateless persons are treated in practice.
This chapter examines some of the reasons why these obligations may not be met. It
explores the extent to which both groups are at risk of human rights infringements,
especially as a result of destitution, limitations on access to healthcare, arbitrary detention
and disruption of family life.
In particular under the 1954 Convention, the 1951 Convention and international human rights law.
223
In particular, Schedule 2.
224
See Chapter 4, Section 4.4.2.
225
Participants 8, 9 19, 22, 23, 28, 33 and 37.
226
5.2 Relevant provisions of international law
The 1954 Convention establishes statelessness as a status in international law, bringing with
it a number of rights and protections. These are complemented by protections in international
human rights law, some of which are incorporated into UK domestic law.
5.2.1 International human rights law
International human rights law applies equally to stateless persons and others within the UKs
jurisdiction. Relevant obligations are found across all the universal treaties from the International
Covenant on Civil and Political Rights
227
to the Convention on the Rights of Persons with
Disabilities.
228
These Conventions have not been directly or completely incorporated into UK
law.
229
As with the unincorporated provisions of the 1954 Convention, the UK is obliged, as
a matter of international law, to perform its obligations under these treaties in good faith,
and the UK may not invoke the provisions of its internal law as justication for any failure to
perform its obligations.
230
In contrast, the European Convention on Human Rights and Fundamental Freedoms
231
is
substantially incorporated into domestic law by the Human Rights Act 1998.
232
The Act
contains certain key provisions to achieve this end, including:
(i) So far as it is possible to do so, primary legislation and subordinate legislation must
be read and given effect in a way which is compatible with the Convention Rights;
233
(ii) It is unlawful for a public authority to act in a way which is incompatible with a
Convention right;
234
(iii) A person who claims that a public authority has acted (or proposes to act) in a way
which is made unlawful by section 6(1) may:
a. Bring proceedings against the authority under the Act in the appropriate court
or tribunal; or,
b. Rely on the Convention right or rights concerned in any legal proceedings but
only if he is (or would be) a victim of the unlawful act.
235
999 UNTS 171, in force 4 January 1969, UK ratication 20 May 1976 and UN Human Rights
227
Committee (HRC), General Comment No. 31, The nature of the general legal obligation imposed on
States Parties to the Covenant, 26 May 2004, CCPR/C/21/Rev.1/Add.13, available at: http://www.
unhcr.org/refworld/docid/478b26ae2.html, para. 10.
2515 UNTS 3, in force 3 May 2008, UK ratication 8 June 2006.
228
Although there are particular provisions in domestic legislation aimed to try to ensure compliance
229
with some of these international law obligations (e.g. Borders, Immigration and Citizenship Act,
section 55, discussed in Chapter 6).
Articles 26 and 27 of the Vienna Convention on the Law of Treaties 1969, UNTS, vol. 1155, p. 331,
230
in force 27 January 1980.
ETS No 5, in force 3 September 1953.
231
Entry into force 2 October 2000.
232
Human Rights Act, section 3.
233
Ibid.,
234
section 6.
Ibid.,
235
section 7.
The European Court of Human Rights has considered a number of cases in relation to
stateless persons.
236
In applying the provisions of the Act, [t]he duty of national courts is to
keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no
less.
237
This chapter will examine some of the principles that derive from the caselaw of the
European Court of Human Rights, and how it should be applied to the particular situation of
stateless persons to ensure appropriate legal protection. The testimony of the participants in
the project shows that, at present, these principles are not always applied in practice.
5.2.2 International refugee law
The UK owes stateless persons who are also refugees obligations arising from the 1951
Convention.
238
A refugee is dened in the relevant part Article 1A(2) of the 1951 Convention
as being a person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality,
membership of a particular social group or political opinion, is outside the country of
his nationality and is unable or, owing to such fear, is unwilling to avail himself of the
protection of that country; or who, not having a nationality and being outside the country
of his former habitual residence as a result of such events, is unable or, owing to such
fear, is unwilling to return to it.
239
These obligations are cemented in EU law by the Qualication Directive.
240
The UNHCR Prato
Summary Conclusions nd that [i]f a stateless person is simultaneously a refugee, he or she
should be protected according to the higher standard which in most circumstances will be
international refugee law, not least due to the protection from refoulement in Article 33 of the
1951 Convention.
241
However, not all stateless persons are refugees.
242
Stateless persons claiming asylum in the UK are entitled to be treated in accordance with
the minimum standards contained in the Reception Conditions Directive
243
and to have their
For example,
236
Karassev and Family v. Finland, 31414/96, Council of Europe: European Court of
Human Rights, 12 January 1999, available at: http://www.unhcr.org/refworld/docid/45d076a92.html
Silvenko v. Latvia Application No. 48321/99, Kuric and Others v. Slovenia, Application no 26828/06,
Council of Europe: European Court of Human Rights, 13 July 2010, available at: http://www.unhcr.
org/refworld/docid/4c3f01312.html.
Ahsan Ullah v. Special Adjudicator; Thi Lien Do v. Secretary of State for the Home Department,
237

[2002] EWCA Civ 1856, United Kingdom: Court of Appeal (England and Wales), 16 December 2002,
available at: http://www.unhcr.org/refworld/docid/404f17c04.html, at 350 per Lord Bingham.
189 U.N.T.S. 150, in force 22 April 1954, UK ratication 11 March 1954.
238
Note that the Convention does not apply to those who fall within Article 1D, 1E and 1F.
239

240
Council Directive 2004/83/EC of the European Union on minimum standards for the qualication
and status of third country nationals or stateless persons as refugees or as persons who otherwise
need international protection and the content of the protection granted, (hereafter the Qualication
Directive).
UNHCR,
241
Prato Summary Conclusions, para. 5.
See
242
Ravenko v Secretary of State for the Home Department [2000] EWCA Civ 50 where the
Court of Appeal held that that a stateless person who is unable to return to his or her country of
habitual residence is not a refugee unless he or she is able to demonstrate a well-founded fear of
persecution.

243
Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception
of asylum-seekers, (hereafter the Reception Conditions Directive).
asylum claims considered in accordance with the minimum standards contained within the
Asylum Procedures Directive.
244
These sources of law are, to a signicant extent, incorporated
245
or transposed into UK law.
246

However, the analysis of the way in which the claims for asylum or complementary protection
of stateless persons are considered has identied a number of concerns and, in particular,
divergence from UNHCRs interpretation of Article 1D of the 1951 Convention.
247
That said,
the quantitative analysis indicates that their claims for international refugee protection are
signicantly more likely to be successful than other asylum-seekers. This is because stateless
persons are often subject to discrimination and human rights abuse in their countries of former
habitual residence.
248
5.3 Destitution (including access to employment,
social assistance and housing)
Of the 37 participants interviewed, 28 had experienced destitution. Of these, 11 participants
had experienced rough sleeping or homelessness.
249
Their testimony and the analysis of
their case les raises a complex set of issues relating to the compatibility of their treatment
with obligations under the 1954 Convention and international human rights law; in particular,
obligations that aim to ensure access to employment, housing and social assistance. Further,
the circumstances in which the destitution of stateless and unreturnable persons on the
UK territory can constitute prohibited inhuman and degrading treatment are particularly
important as this obligation is enforceable in domestic law.
250
5.3.1 Entitlement to work
The 1954 Convention provides qualied obligations in respect of the right to work which is
an important right in avoiding destitution. Stateless persons who are lawfully staying in the
territory are guaranteed treatment as favourable as possible and, in any event, not less
favourable than that accorded to aliens generally in the same circumstances in respect of
Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in
244
Member States, (hereafter the Asylum Procedures Directive).
See, for example, the Asylum and Immigration Appeals Act 1993, section 2 which provides that
245
[n]othing in the immigration rules (within the meaning of the 1971 Act) shall lay down any practice
which would be contrary to the Convention and the Immigration Rules HC 395, Part 11.
Though see
246
FA (Iraq) v. Secretary of State for the Home Department, [2010] EWCA Civ 696, United
Kingdom: Court of Appeal (England and Wales), 18 June 2010, available at: http://www.unhcr.org/
refworld/docid/4c1f76b02.html para. 16 on the imperfect transposition of the Qualication Directive
in UK law.
See Section 5.9.1.
247
See Section 3.4.
248
Participants 1, 4, 6, 10, 11, 17, 18, 26, 28, 29 and 36.
249
Within the meaning of Article 7 ICCPR, the relevant part of which provides that [n]o one shall be
250
subjected to torture or to cruel, inhuman or degrading treatment of punishment and, particularly,
Article 3 ECHR, which provides No one shall be subjected to torture, inhuman or degrading
treatment or punishment.
wage-earning employment,
251
practising a liberal profession,
252
or self-employment.
253

UNHCR guidance
254
provides that:
On the basis of the travaux and other provisions of the Convention, it is reasonable to
conclude that stay means something less than durable residence, although clearly more
than a transit stop, while lawful normally is to be assessed against prevailing national
laws and regulations:
- A judgment as to lawfulness should nevertheless take into account all the prevailing
circumstances, including the fact that the stay in question is known and not
prohibited, i.e. tolerated, because of the precarious circumstances of the person;
- Implying lawfulness in such circumstances is legitimate and necessary if a State is
to implement its international obligations under the Convention.
On this analysis, a stateless person may, depending on his or her circumstances, be lawfully
staying in the UK, even if he or she is admitted on temporary admission and has not been
granted leave to enter or remain.
255
That said, domestic caselaw indicates that if this matter
was ever considered by the UK courts
256
a stateless person would have to have their stateless
status recognised to benet from this protection.
257
Further, the same caselaw applies a more
restrictive view on the level of connection required to establish lawful presence or lawful
stay than that adopted by UNHCR.
258
An analysis of relevant provisions of international human rights law concludes that stateless
persons will only benet from protections
259
in respect of employment if they have gained lawful
access to the states jurisdiction.
260
This would apply to stateless persons granted temporary
admission or release. However, the relevant treaty provisions are not incorporated into UK
domestic law and cannot be directly relied on in domestic courts. In some circumstances,
the right to employment is protected within the sphere of private life guaranteed by Article 8
ECHR.
261
However, the UK courts have not examined the application of this provision to the
situation of stateless persons or unreturnable persons who are prohibited from working.
Most of the participants were prohibited from working by the conditions of their temporary
admission or release. Indeed, if a stateless person who is subject to immigration control works
1954 Convention, Article 17.
251
Ibid.,
252
Article 19.
Ibid.,
253
Article 18.
UNHCR,
254
Lawfully Staying A Note on Interpretation, 3 May 1988, available at: http://www.unhcr.
org/refworld/docid/42ad93304.html.
Szoma v Secretary of State for Work and Pensions
255
[2005] UKHL 64.
The current lack of incorporation of the provision means that this is presently unlikely.
256
Szoma v Secretary of State for Work and Pensions,
257
op. cit., paras. 24 and 25.
Ibid. The House of Lords held that persons who make an application for leave to enter or remain at
258
port on arrival and are granted temporary admission by the UK Border Agency can be considered
to be lawfully present on the UK territory. The Court did not consider what was required to
establish the greater level of attachment of lawful stay.
For example the International Covenant on Economic, Social and Cultural Rights (hereafter the
259
ICESCR), Article 6.
Van Waas, L.,
260
Nationality Matters: Statelessness under International Law, Intersentia, 2008, p.315,
but note the restrictive conclusion arrived at in applying this test.
See
261
Niemietz v. Germany, 72/1991/324/396, European Court of Human Rights, 16 Dec. 1992,
available at: http://www.unhcr.org/refworld/docid/3f32560b4.html and Tekle v. Secretary of State
for the Home Department, [2008] EWHC 3064 (Admin), United Kingdom: High Court (England and
Wales), 11 December 2008, available at: http://www.unhcr.org/refworld/docid/494678492.html.
without permission, then he or she may have committed an offence.
262
A small number of
participants were able to work because they had been granted leave to enter or remain which
did not have a limitation on employment.
263
One participant had been granted permission to
work even though his asylum claim was still outstanding.
264
There are no provisions in current UK law or policy which allows stateless persons to work
as a result of their stateless status. They are prohibited from working unless they gain the
entitlement upon another basis, such as being granted leave to enter or remain without a
restriction on employment, or unless the Secretary of State for the Home Department
exercises discretion in their favour.
265
The same is true of unreturnable persons. This should
be placed in the context of the UK Border Agencys increasing focus on the detection, arrest
and prosecution of non-nationals who work without permission.
266
The seven participants who
admitted to having worked without permission in order to avoid destitution were therefore at
increased risk of detection and prosecution if they continued to work.
5.3.2 Entitlement to benets, housing and the right to
a minimum standard of living
The 1954 Convention obliges state parties to provide the same treatment to stateless persons
as to nationals in respect of public relief and assistance
267
and, subject to additional
limitations, social security.
268
However, as in respect of employment, there is an additional
requirement that the stateless person be lawfully staying if he or she is to fall within the
scope of the obligation.
The UKs obligations in international human rights law require recognition of the right of
everyone to social security, including social insurance.
269
In addition, they recognise the
rights of individuals to minimum standards of living
270
and the highest attainable standard of
health.
271
In the case of undocumented stateless persons on the UK territory, these provisions
are mutually reinforcing, and in the event that the individual is prohibited from or is unable to
Immigration Act 1971, section 24 makes it an offence to, without reasonable excuse, fail to
262
observe any restriction imposed on him under Schedule 2 or 3 of this Act...as to employment or
occupation.
Participants 9, 14, 23, 26, 34, 35 and 37 had worked, while participants 8, 19, 28 and 33 had not
263
worked despite their immigration status permitting them to do so.
See Immigration Rules (HC 395), paragraph 360 and
264
ZO (Somalia) v Secretary of State for the
Home Department [2010] UKSC 36. The Immigration Rules prescribe that asylum-seekers are not
permitted to work unless their claim for asylum has not been decided for 12 months or, following
litigation, if they have made further representations after the refusal of their initial application and
any appeal, if no decision has been made on the further representations for 12 months. In August
2010, the provision was amended to restrict access to shortage occupation professions. These
provisions purport to comply with a minimum standard contained within Article 11 of the Reception
Conditions Directive.
For example, if granted temporary admission, under Immigration Act 1971, Schedule 2, paragraph
265
22 (2).
See, for example, Immigration Law Practitioners Association, Information Sheet: Illegal Working,
266
available at: http://www.ilpa.org.uk/resources.php/4600/illegal-working
267
Ibid.,
268
Article 24.
ICESCR, Article 9.
269
Ibid.,
270
Article 11.
Ibid.,
271
Article 12
work, may require access to alternative forms of support and accommodation to ensure that
core entitlements guaranteed by the right are not infringed.
272
The European Convention on Human Rights has been interpreted by both the European Court
of Human Rights and the House of Lords
273
to provide relevant obligations. For example,
the right not to be subjected to inhuman or degrading treatment
274
can be engaged where
asylum-seekers, who have no other means of support, are left destitute.
275
In 2011 the European Court of Human Rights considered this issue in a case brought by
an asylum seeker who had been transferred from Belgium to Greece under the Dublin
Regulation.
276
The Court held, in respect of living conditions, that:
The Court considers that the Greek authorities have not had due regard to the applicants
vulnerability as an asylum seeker and must be held responsible, because of their inaction,
for the situation in which he has found himself for several months, living in the street,
with no resources or access to sanitary facilities, and without any means of providing
for his essential needs. The Court considers that the applicant has been the victim of
humiliating treatment showing a lack of respect for his dignity and that this situation has,
without doubt, aroused in him feelings of fear, anguish or inferiority capable of inducing
desperation. It considers that such living conditions, combined with the prolonged
uncertainty in which he has remained and the total lack of any prospects of his situation
improving, have attained the level of severity required to fall within the scope of Article 3
of the Convention.
277
The relevant domestic caselaw also focuses on the treatment of asylum-seekers. Under the
Nationality, Immigration and Asylum Act 2002, section 55, the Secretary of State is prohibited
from providing asylum support to asylum-seekers who did not claim asylum as soon as
is reasonably practicable. An exception, contained in section 55(5), gave the power for
the Secretary of State to provide support, even in the case of a late claim to the extent
necessary to prevent a breach of the persons ECHR rights and to provide support where
the applicant has a dependent child under 18 years old. Once the provision was brought into
force and applied in practice, it received signicant judicial scrutiny, resulting in a landmark
decision of the House of Lords in R (Limbuela) v Secretary of State for the Home Department
See United Nations Committee on Economic, Social and Cultural Rights (hereafter the CESCR)
272
General Comment 3, The nature of State parties obligations, 12/14/1990: General Comment 18, The
Right to Work, E/C.12/GC/18.
Formerly the highest court in the UK. Its function has now been taken over by the Supreme Court.
273
Protected by Article 3 ECHR. The relevant part of ICCPR, Article 6 provides, No one shall be
274
subjected to torture or to cruel, inhuman or degrading treatment of punishment.
UK case law that preceded the coming into force of the Human Rights Act 1998, indicated that
275
such treatment could breach protections in the common law See M, R (on the application of) v
London Borough of Hammersmith & Fulham [1996] EWHC Admin 90 (8th October, 1996), per
Collins, J. The right to life is a fundamental human right. It is one that the law will protect. This
consideration was referred to in R v Inhabitants of Eastbourne (1803) 4 East 103, where Lord
Ellenborough C.J. said at p.107: As to there being no obligation for maintaining poor foreigners
before the statutes ascertaining the different methods of acquiring settlements, the law of humanity,
which is anterior to all positive laws, obliges us to afford them relief, to save them from starving....

276
M.S.S. v. Belgium and Greece, Application no. 30696/09, Council of Europe: European Court of
Human Rights, 21 January 2011, available at: http://www.unhcr.org/refworld/docid/4d39bc7f2.htm.
Ibid.,
277
para. 263.
(Shelter Intervenor).
278
In that case, the Court held that the Secretary of States failure to
provide support and accommodation to an asylum seeker for whom there was no apparent
alternative source of support constituted degrading treatment, in breach of Article 3 ECHR.
Consequently, section 55 could only be applied in cases where such an alternative means of
support was proven to exist. This decision is based upon the premise that the asylum seeker
cannot be expected to return to his or her country of origin in order to survive economically.
The expectation of return was not appropriate because the outstanding asylum claim alleges
that return would constitute a breach of the 1951 Convention, Article 33(1) or a breach of
Article 3 ECHR in the country of origin.
The importance of the fact that the applicant in Limbuela could not, lawfully, be expected
to return to her country of origin because her asylum claim was outstanding, can be seen in
subsequent litigation concerning a provision that empowered the Secretary of State to remove
support from failed asylum-seekers who had dependent children.
279
When the provision began
to be used on a pilot basis, the Asylum Support Tribunal held that the withdrawal of support
in these circumstances would not infringe Article 3 or Article 8 ECHR, because the support
would be reinstated if the appellant showed that he or she was taking reasonable steps to
leave the UK.
280
An application for Judicial Review challenging both the Tribunals decision
and the lawfulness of policy regime as a whole failed.
281
In the cases of asylum-seekers
whose claims had been considered, refused and whose appeal rights were exhausted, it was
considered acceptable to make support conditional upon compliance with removal even if
they had dependent children.
The courts have yet to consider the application of Article 3 ECHR to the situation of destitute
stateless persons on the UK territory. However, stateless persons share several similar
characteristics to those of asylum-seekers. They are often vulnerable and, as a matter of
fact rather than legal prohibition, are unable to leave the territory of their country of residence
because no other State will admit them. It is therefore likely that Article 3 ECHR will be engaged
where a stateless person is destitute, has no other means of support, and can be shown to be
in a comparable position to asylum-seekers.
5.3.3 Relevant domestic provisions
Most persons who are subject to immigration control in the UK are not entitled to state benets
(including social security).
282
There are multiple exceptions to this rule. However, there is no
exception that is expressly tailored to the situation of stateless or unreturnable persons.
Consequently, in most cases, stateless or unreturnable persons will only be entitled to
access a form of state benet if they qualify by meeting one of the exceptions to the general
rule.

278
Regina v. Secretary of State for the Home Department (Appellant), ex parte Adam (FC)
(Respondent); Regina v. Secretary of State for the Home Department (Appellant), ex parte Limbuela
(FC) (Respondent); Regina v. Secretary of State for the Home Department (Appellant), ex parte
Tesema (FC) (Respondent) (Conjoined Appeals), [2005] UKHL 66, United Kingdom: House of
Lords (Judicial Committee), 3 November 2005, available at: http://www.unhcr.org/refworld/
docid/43fc2d1a0.html.
Immigration and Asylum (Treatment of Claimants) Act, 2004, section 9.
279
ASA 05/08/9824 and ASA 06/09/05.
280
See Willman, S. and Knaper, S.,
281
Support for Asylum Seekers and other Migrants: A guide to legal
and welfare rights, Legal Action Group, 2009.
Ibid.,
282
p. 118.
The majority of participants in the study had claimed asylum and had had their claims for asylum
refused. This section will therefore primarily concentrate upon the entitlements to support and
accommodation for asylum-seekers. These provisions, combined with the current law and
policy in respect of the entitlement to work, provide the legal and policy framework that results
in such a high proportion of participants in the research being left destitute. However, as the
analysis continues, it will reveal that there is a provision in domestic law
283
that stateless or
unreturnable persons can seek to rely upon to obtain low level support and accommodation,
without having claimed asylum. There is, however, no evidence that participants in the study
beneted from this possibility. In any event, it is a provision which could only ever provide
support and accommodation for a short period. Support and accommodation on this basis
would not provide an adequate solution for the needs of stateless persons.
Asylum-seekers are, as a category, excluded from mainstream state benets by operation
of statute.
284
However, the Secretary of State for the Home Department was given the power
to provide support to asylum-seekers.
285
This power has been interpreted by the courts as
creating a duty on the Secretary of State to provide support where the criteria are met
286
and
is supplemented by a number of measures that aim to transpose provisions of the Reception
Conditions Directive.
287
However, this provision is only available to asylum-seekers, a
denition that does not include undocumented stateless persons seeking recognition of their
stateless status.
288
This provides one possible explanation as to why stateless persons may
be compelled to claim asylum even if they are not at risk of persecution.
In addition, the asylum seeker has to show, if applying for support, that he or she will be
destitute either due to a lack of adequate accommodation or if he or she cannot meet
the households essential living needs within 14 days, or if he or she has already been
receiving support, within 56 days. These terms have been subject to extensive scrutiny and
interpretation in Tribunals and Higher Courts.
With regard to the current analysis it is important to note two points. First, stateless or
unreturnable persons who do not make a claim for asylum or whose removal would breach
Article 3 ECHR are not entitled to asylum support. Secondly, for stateless and unreturnable
persons who make asylum claims that are subsequently refused and their appeal rights
exhausted, the entitlement to asylum support ends. An exception exists if he or she has a
dependent child under the age of 18 born before all asylum claims and appeals were rejected
but, as described above, there are circumstances in which that exception can be revoked.
289
Immigration and Asylum Act 1999, s4 (1). There are exceptions: for example those who had
283
subsisting asylum claims in February 2006 or April 2000 and fall within separate transitional
provisions. However, no participant in the study was eligible under these provisions.
See Immigration and Asylum Act 1999, s115.
284
Immigration and Asylum Act 1999, s95(1). Asylum-seeker in this context can be broken down into
285
the following parts - as persons who are 18 years or older, and; who have made a claim for asylum
as a refugee or a human rights claim under the Article 3 ECHR which has been recorded, and has
made the claim at the port of entry or at a designated place (most commonly the Asylum Screening
Unit at Lunar House in Croydon), and is awaiting the result of this claim or appeal (or is within the
timescale for lodging a further appeal), or has a dependent child under 18 born before all asylum
claims and appeals were rejected.

286
Hamid Ali Husain v. Asylum Support Adjudicator and SSHD, CO/105/2001, United Kingdom:
High Court (England and Wales), 5 October 2001, available at: http://www.unhcr.org/refworld/
docid/3dec98bf4.html.
See Asylum Seekers (Reception Conditions) Regulations 2005, Regulation 5.
287
See Immigration and Asylum Act 1999, s115.
288
Willman, S. and Knaper, S.,
289
op. cit., p.220.
At the point of losing their asylum support following refusal of their asylum claim, many
interviewees were able to mitigate their destitution, at least temporarily, by staying with
friends.
290
In many cases such help was provided for many months or even years, although by
its nature it remained precarious and often placed great strain on the personal relationships
involved. However, the need for such reliance stems from the lack of access for stateless
persons to relevant social and economic rights.
Case study: Kuwaiti Bidouns refused asylum
Ten Kuwaiti Bidouns were interviewed and thus formed a sizeable proportion of the
participants in the study. In Arabic, Bidoun means without, reecting the fact that this
group is excluded from Kuwaiti nationality. They face systemic discrimination in Kuwait.
291

Many Kuwaiti Bidouns are granted asylum in the UK. However, caselaw and guidance
indicates that decision-makers on asylum claims should draw a distinction between
documented and undocumented Bidouns on the basis that a signicant number of
Bidouns have been provided with social security cards between 1996 and 2000, which
facilitates some access to social entitlements.
292
However, it emerged from the research
that this guidance was not consistently or correctly applied and that as a result some
participants, despite evidence that they were in fact undocumented Bidouns, were not
recognised as refugees. This appeared to be reinforced by the failure or inability of the UK
Border Agency to enforce removal which in turn resulted in lengthy time spent in limbo,
at risk of destitution.
The case of Ghanim,
293
aged 67, raised common issues for those Bidouns who are not
granted asylum. After he claimed asylum he was initially accommodated in Dover and
then moved to Birmingham. He was given 50 per week to live on. But this was stopped
after his asylum appeal was dismissed in April 2006. In June that year he and his wife, who
was also in her late 60s, were evicted from their accommodation. Ghanim explained:
My wife and I had nowhere to go so we went and sat in the bus station for 5 hours.
Then a man came up to me and said that he had seen us there earlier and now
we were still there so he asked me what the problem was, what was my story? I
explained our situation and he immediately invited us to come and stay with him at
his house where we remained for three months.
Soon after this Ghanim was admitted to hospital with serious kidney problems and was
operated on. After his discharge from hospital, the Refugee Council made an application
for section 4 support which was granted in November 2006. However, after further
Participants 5, 6, 10, 12, 14, 15, 16, 17, 27, 28, 30, 35 and 36.
290
See Human Rights Watch,
291
Prisoners of the past: Kuwait Bidun and the burden of statelessness,
available at: http://www.hrw.org/reports/2011/06/13/prisoners-past and Refugees International and
Open Society Foundations, Without Citizenship: Statelessness, Discrimination and Repression in
Kuwait, 2011, available at: www.refugeesinternational.org/sites/default/les/120511_Kuwait_With_
Citizenship_0.pdf.

292
HE (Bidoon - Statelessness - Risk of Persecution) Kuwait v. Secretary of State for the Home
Department, CG [2006] UKAIT 00051, United Kingdom: Asylum and Immigration Tribunal /
Immigration Appellate Authority, 21 June 2006, available at: http://www.unhcr.org/refworld/
docid/46836aa0d.html.
It was not possible to obtain a full paper le for this participant but factual aspects were checked
293
on CID as well as the limited papers available.
submissions were refused in September 2010 and having once again lost his support
and having been evicted from his accommodation, he and his wife have been staying
with a friend. Ghanim describes how being stateless makes him feel lost. He said that
every day I feel like Im going to die, I feel that events will crush me. Sometimes I want
to die, to get rid of these things.
Other stateless Kuwaiti Bidouns interviewed describe similar experiences of being totally
reliant on friends following the refusal of their asylum applications.
294
Imad, aged 28, has
spent almost a year destitute and nds uncomfortable parallels between his situation
in the UK and the conditions he had ed in Kuwait. He explained: Firstly, I have no
papers, this is the same as back home. Secondly, I cant move or travel, also the same
as back home. Thirdly, I have no job. It is the same life as I was living in Kuwait, there is
no differenceI see myself as not a human. Because I have no documents I am not a
human. Of course it affects me as a human because since birth when I opened my eyes
for the rst time I have had no status. I dont want my children to have to feel the same
way I do. It is a tragedy. Amani,
295
aged 35, was destitute and in limbo immediately after
her asylum appeal was dismissed in September 2008 until she was interviewed for the
research in February 2011. She has also had three sets of further submissions refused,
despite producing expert evidence that she is a undocumented Bidoun as claimed. Her
assessment of her situation chimes with that of Imad. She says: the refusal is difcult.
Because of this my situation is the same as it was in Kuwait. I have no ID, no work, no
education, no freedom.
Section 4 accommodation and support for stateless and unreturnable refused
asylum-seekers
The majority of participants in the study were refused asylum-seekers. The government
expects them to leave the UK as they have been found to have no right to remain.
However, the Secretary of State is empowered to provide facilities and accommodation to
someone who was, but is no longer, an asylum seeker.
296
The Secretary of State has made
regulations that set out eligibility criteria which are applied in all cases except where the
applicant is being released from detention.
297
Applicants must pass a two-stage test. First,
the failed asylum-seeker must appear to the Secretary of State to be destitute.
298
There
are references in secondary sources that indicate that refused asylum-seekers have difculty
in proving that they are destitute.
299
Secondly, they must satisfy one of ve conditions. The
most relevant conditions for participants in this study were either that the person is taking all
reasonable steps to leave the UK or to place themselves in a position in which he or she is
able to leave the UK,
300
or that the provision of accommodation is necessary for the purpose
of avoiding a breach of a persons Convention rights, within the meaning of the Human Rights
Act 1998.
301
Participant 15.
294
295
as well as the limited papers available.
Immigration and Asylum Act 1999, section 4(2).
296
Immigration and Asylum (Provision of Accommodation to Failed Asylum-seekers) Regulations 2005.
297
The denition of destitution is the same as considered in the test for section 95 support.
298
Willman, S. and Knaper, S.,
299
op. cit., pp. 279-81.
The Immigration and Asylum (Provision of Accommodation to Failed Asylum-Seekers) Regulations
300
2005 No 930, Regulation 3(2)(a).
Ibid.,
301
Regulation 3(2)(e).
These provisions have been applied in a number of appeals against the refusal to provide
support to stateless and unreturnable persons.
302
These cases do not indicate any link between
statelessness, the lack of a prospect of removal, and eligibility for asylum support. Stateless and
unreturnable asylum-seekers are often asked to apply for voluntary assisted return. There is,
however, one particularly relevant decision which holds that a person who has applied for leave
to enter or remain on the basis that they are stateless should be granted section 4 support
because the failure to do so would leave him destitute, in breach of Article 3 ECHR.
303
A number of conclusions can be drawn about support for refused asylum-seekers. First of
all, the criteria for granting section 4 support were not drafted with the situation of stateless
refused asylum-seekers in mind, who will often be unable to secure travel documentation or
admittance to any country of former habitual residence. Requiring stateless persons to register
for voluntary return when such return is, in the individual case, objectively impossible appears
unduly onerous, and risks infringing human rights norms if applied too strictly. Secondly,
although the Tribunal has recognised that statelessness can be a juridically relevant fact
304

when assessing whether a failed asylum seeker should be entitled to support, it has done so
on the basis of further submissions requesting leave to remain on the basis of statelessness.
Other powers to provide support and accommodation
The Secretary of State also has the power to provide accommodation to those on temporary
admission, those given temporary release and those released on bail.
305
Although none of
the participants in the study appears to have received support on this basis, it appears that
the power is sufciently broadly drawn to allow the Secretary of State to provide support for
stateless persons, particularly if she considers that their human rights would be breached
if such support was not provided. This power could be used to ensure that those stateless
persons who do not claim asylum and are not permitted to work avoid destitution and the
social problems that can arise. However, none of the participants in the research beneted
from the application of this provision to their situation.
Evaluation of participants situations
In conclusion, 11 of the 34 participants interviewed for this project had experienced rough
sleeping or homelessness in the UK.
306
Six of these 11 participants experienced homelessness
after section 4 support was stopped or denied.
307
Eight participants had been granted leave to
enter or remain by the time that they were interviewed for this study. None of those with leave
to enter or remain were homeless or destitute because the leave that they had been granted
to not have restrictions on access to public funds. Two were in employment,
308
two were in full
time education
309
and three were receiving welfare benets or in the process of applying for
these.
310
The remaining 29 participants continued to live in limbo with no immediate prospect
of being granted leave to enter or remain.
See AST 06/03/12859 and AST 07/11/16508 cited in, S. and Knaper, S.,
302
op. cit., p. 282 and AST
10/05/23245, AST 09/07/20070.
AST 06/03/13043.
303
See UNHCR
304
Immigration Act 1999, section 4(1).
305
306
Participants 4, 11, 17, 18, 26 and 29.
307
308
309
Participants 8, 9, 28 and 33.
310
These gures are indicative of a legal and policy framework which does not offer stateless
persons the opportunity to be granted leave to enter or remain, if appropriate, on the basis
of their statelessness. The gures reect the fact that the current law and policy in relation
to entitlement to work, welfare benets and other areas of public assistance fails to provide
a sufciently robust social safety net to ensure that stateless persons in the UK avoid
homelessness and destitution. It indicates that, rst of all, a procedure that is able to identify
stateless persons and, where this is recognised, results in the grant of leave to enter or remain
in appropriate cases would be the primary tool to avoid the risk of human rights breaches
identied. Further, reforms to domestic law, policy or practice are required to ensure access
to welfare benets, asylum support and section 4 support for stateless persons. Entitlement
to work should be considered in order to ensure that stateless persons are not at risk of
destitution and street homelessness whilst a claim for recognition of their stateless status is
being considered. These changes would help to alleviate the considerable risk that stateless
persons face of human rights infringement linked to destitution.
5.4 Healthcare
International law provides protections for stateless persons in respect of access to healthcare.
Although the 1954 Convention does not make specic provision in respect of access to
healthcare, Article 24 mandates state parties to accord stateless persons lawfully staying on
the territory the same treatment as nationals in respect of social security. However, the UK
entered a reservation against that article
311
justied on the basis that the National Health Service
(Amendment) Act 1949 gave a power for the government to make regulations that would limit
access to the National Health Service only to those who are ordinarily resident in the UK. At
the time the reservation was entered, no such regulations were made and the UK stated that
it was prepared in the future, as in the past, to give the most sympathetic consideration to
the situation of stateless persons.
312
The reservation has not been withdrawn. However, as is
described below, regulations limiting access to secondary healthcare have been made, and
recently amended.
International human rights law does make specic provision in respect of access to healthcare.
Article 12 of the ICESCR obliges the UK to recognize the right of everyone to the enjoyment
of the highest attainable standard of physical and mental health. Although this is a right
that is subject to progressive realization, the treaty body that monitors compliance with the
Convention has given guidance on the scope of this obligation. It has stated that the right
to health must be understood as a right to the enjoyment of a variety of facilities, goods,
services and conditions necessary for the realisation of the highest attainable standard of
health.
313
These entitlements include timely and appropriate health care.
314
Such provision
has to be accessible to those in the jurisdiction of the State. No discrimination is permitted
on prohibited grounds in respect of access to healthcare, particularly in relation to vulnerable
The Government of the United Kingdom of Great Britain and Northern Ireland, in respect of
311
such of the matters referred to in sub-paragraph (b) of paragraph 1 of Article 24 as fall within the
scope of the National Health Service, can only undertake to apply provisions of that paragraph
so far as the law allows. See UNHCR, 1954 Convention: Signatories, Declarations and
Reservations, available at: http://www.unhcr.org/cgi-bin/texis/vtx/refworld/rwmain/opendocpdf.
pdf?reldoc=y&docid=4c0f4b1f2.
CESCR, General Comment No. 14,
312
The Right to the highest attainable standard of health, para. 38,
11 Aug. 2000, E/C.12/2000/4, available at: http://www.unhcr.org/refworld/docid/4538838d0.html.
Ibid.,
313
para. 9.
Ibid.,
314
para. 11.
and marginalised sections of the population.
315
It must be economically accessible, that is to
say affordable for all, with a special obligation to provide those who do not have sufcient
means with the necessary health insurance and health care facilities.
316
It must also be of
good quality.
317
Emergency healthcare, essential primary healthcare and non-discrimination in
the provision of healthcare are identied as core entitlements that States must meet.
318
Several participants interviewed revealed a range of health issues including a bowel
condition,
319
mental health problems and epilepsy,
320
mental health problems and alcohol/
drug dependency,
321
a kidney condition,
322
lymphatic cancer,
323
Hepatitis B,
324
Hepatitis C,
325

and chronic asthma and dental problems.
326
However, except for one case of denied access to
(non critical) dental treatment
327
no participants were refused access to healthcare or required
to pay for treatment before receiving it.
However, the research identied other evidence that stateless persons were not always able to
access healthcare as a result of previous Regulations and Department of Health Guidance.
328

The legality of this guidance was challenged in a case brought by a stateless Palestinian who
had claimed asylum when he arrived in the UK.
329
His asylum claim had failed, but he could
not leave the UK. He required treatment for lymphatic cancer, which was deemed urgent but
not immediately necessary secondary healthcare. The hospital required him to pay a charge
before he would be treated, on the basis that he had been neither ordinarily resident nor had
been lawfully present for 12 months. The Court of Appeal held that, although the hospital
was correct in its application of the Regulation and the Guidance, it maintained a discretion
to treat the applicant. The Court held that the Guidance ought to be reviewed to consider the
plight of those who cannot be returned and those for whom there is no prospect of paying
for the treatment.
Since the Court of Appeals judgment, new Regulations and Guidance have been brought
into force.
330
As before, if the person in need of treatment is not ordinarily resident he or she
may be charged for it. Specic sorts of treatment, such as accident and emergency services,
family planning or treatment for specic diseases which is necessary to protect public health,
cannot be charged for.
331
Importantly, these now provide that charges should not be applied
to failed asylum-seekers who are in receipt of section 4 support, on the premise that [s]ection
4 support is given to those failed asylum-seekers taking reasonable efforts to leave the UK but
for whom there are genuine recognised barriers to their return home.
332
The new Regulations and Guidance do not expressly cover the situation of the stateless
because, rst of all, not all stateless persons in the UK claim asylum and, secondly, evidence
In accordance with ICESCR Articles 2(2)
315
and 3 in particular and other prohibitions on
discrimination discussed in Chapter 5.
CESCR General Comment No. 14, para. 18.
316
Ibid., para. 12.
317
Ibid., para. 48.
318
Participant 3.
319
Participant 4.
320
Participant 1.
321
Participant 10.
322
Participant 19.
323
Participant 21.
324
Participant 36.
325
Participant 27.
326
Participant 27.
327
National Health Service (Charges to Overseas
328
Visitors) Regulations 1989 (SI 1989 No. 306 as
amended) and the guidance to the NHS Trust
Hospitals in England given by the Secretary of
State for Health.
R (YA) v Secretary of State for Health
329
[2009]
EWCA Civ 225.
See The National Health Services (Charges to
330
Overseas Visitors) Regulations 2011 No 1556
and Guidance on Implementing the Overseas
Visitors Hospitals Charging Regulations 2011.
See Guidance on Implementing the Overseas
331
Visitors Hospitals Charging Regulations 2011,
section 3.26.
Ibid., section 3.63.
332
set out above reveals that not all stateless and unreturnable refused asylum-seekers receive
section 4 support even though they cannot be returned. The Regulations and Guidance
should be applied in a way that stateless and unreturnable persons who are not deemed
ordinarily resident are able to access necessary and urgent secondary healthcare in
compliance with the UKs obligations under international human rights law.
5.5 Detention
In 1997, UNHCR noted that there was an emerging trend across the globe of stateless
persons being held in detention. The causes underlying the issue appeared to vary from
State to State and the magnitude of the problem was not clear. It was therefore identied as
an area that required further study with reference to principles of international law relating
to arbitrary detention, the right to return and agreements between States on conrmation of
nationality.
333
One third of the participants in the research had been detained under immigration powers.
334

The amount of time that each individual spent in immigration detention ranged from three
days to over ve years. Although the reasons for immigration detention varied greatly from
case to case and often depended on personal circumstances, these gures indicate that the
trend identied by UNHCR also exists in the UK. That said, the quantitative evidence analysed
in Chapter 3 is insufciently robust to draw conclusions about the scope of the problem.
335

The experiences of Fatima, set out below, show the risks stateless persons face of being
placed in immigration detention and, also, the personal impact that even a short period in
detention can have on the individual.
Name: Fatima (Participant 31)
Country of origin: Kuwait (Bidoun)
Date of arrival in UK: April 2008
Time in detention: 3 days
Fatima is a 27 year old stateless Bidoun from Kuwait who arrived in the UK and claimed
asylum in April 2008. Fatima describes having attended school in Kuwait until the Gulf
War in 1991, after which she and her family suffered increasing discrimination. None of
the family was entitled to Kuwaiti citizenship so they were forced to live a precarious
existence as illegal residents. Over the years, her father had made numerous but futile
attempts to obtain Kuwaiti citizenship. Instead they were issued with green identity
cards, which simply conrmed their irregular status and bestowed no entitlements to
rights or services.
The familys situation worsened after her brothers involvement in protests for Bidoun
rights came to the attention of the authorities. He ed the country but the authorities
continued to harass the family. In April 2008, concerned for her safety, her father arranged
for Fatima to leave the country.
UN High Commissioner for Refugees,
333
UNHCR Brief on Statelessness and Detention Issues, 27
November 1997, available at: http://www.unhcr.org/refworld/docid/4410638fc.html.
334
See Section 3.4.
335
She came to the UK, joining her brother who had, in the meantime, been recognised as
a refugee. Fatimas application for asylum was refused in May 2008, and her subsequent
appeal was also rejected in September 2008.
Since then Fatima has been required to report monthly to immigration ofcers in Hounslow,
but no efforts have been made to return her to Kuwait. She maintains that she has always
kept the UK Border Agency informed of any change of address. Initially she lived with her
brother but, in April 2009, she moved in with her husband whom she had recently married
in an Islamic ceremony. They were unable to marry in a civil ceremony as they were
awaiting a Certicate of Approval to Marry, a requirement since abolished. Her husband is
also a Kuwaiti Bidoun and has been recognised as a refugee in the UK. He will be eligible
to apply for indenite leave to remain in 2011.
In November 2009, Fatima was detained. In view of the fact that she had always complied
with immigration control and was reporting monthly, her arrest and detention came as a
terrible shock to Fatima and her husband. She describes what happened.
Very early in the morning ten or so immigration ofcers raided our at. They banged
violently on the door of our at, pointed torches through the letterbox and demanded
to be let in. They forced us out of bed without allowing us time to even get dressed.
We tried to explain that we were married but they would not accept this and shouted
at us that we had no right to get married without permission. They said that I would
be arrested as I had no right to remain in the UK. They told me that I had two minutes
to get ready and then I was taken away in front of all the neighbours who had come
out to see what was happening. My husband was not allowed to come with me. I was
terried by what was happening to me.
Fatima was held by immigration services overnight and then taken to a detention centre
where she was detained for three nights. She describes being interviewed and placed under
pressure to sign a voluntary return disclaimer, after which she was released. Disturbingly,
the reasons justifying her detention in the form given to her appear questionable and
do not take into account her statelessess. One reason given was that Fatima had not
left the UK when required to do so, when the reality is that she has never had any travel
documents to enable her to do this even if she was happy to go. Another was that her
removal was imminent, but a review of the le indicates that there had been no attempt to
try to document Fatima for removal before the detention occurred. A third reason justied
detention on the basis that she did not have enough close family ties despite in reality
having a husband and a brother resident in the UK. A further reason given was that Fatima
had failed to comply with the terms of her temporary admission. Fatima denies this, and
her claim is supported by the fact that she was reporting monthly at the time of her arrest
and that the UK Border Agency was aware of her home address.
To Fatima it appears inexplicable why her at was raided in this fashion, but the experience
continues to haunt her:
My biggest worry is that what happened when I was arrested and detained will
happen again. I always lock all the doors and windows because I am really afraid.
The rationale for detaining her in this fashion appears even more questionable in view
of the fact that the UK Border Agency has not taken any enforcement action since her
arrest. Fatima remains stuck in limbo, without status here but unable to be returned to
Kuwait because she is stateless. Similar to the perception of other Bidouns interviewed
she says that, I feel that I have no rights, either in Kuwait or here.
International obligations
International human rights law provides that everyone, including stateless persons, should
never be detained in an arbitrary manner. Detention will be arbitrary unless it is:
1) carried out in pursuit of a legitimate objective;
2) lawful;
3) non-discriminatory;
4) necessary;
5) proportionate and reasonable; and,
6) carried out in accordance with procedural safeguards in international law.
336
Article 5 ECHR provides an additional source of legal protection for stateless persons in the
UK against arbitrary administrative detention, and can be relied on in domestic law as a result
of the Human Rights Act.
337
At present the jurisprudence on the application of Article 5 ECHR
to stateless persons is limited.
338
However, there is notable judicial comment that implies that
the common law provides as much protection in respect of immigration detention as Article
5.
339
The case law of the European Court of Human Rights indicates that the requirements
to avoid arbitrariness for the purposes of Article 5 ECHR
340
are less demanding than those
required by Article 9 ICCPR.
341
See
336
Guidelines on the Detention of Stateless Persons: Consultation Draft Equal Rights Review,
Volume 7, (2011) http://www.equalrightstrust.org/ertdocumentbank/ERR7_guidelines%20draft.
pdf and UNHCR, Back to Basics: The Right to Liberty and Security of Person and Alternatives
to Detention of Refugees, Asylum-Seekers, Stateless Persons and Other Migrants, April 2011,
PPLA/2011/01.Rev.1, available at: http://www.unhcr.org/refworld/docid/4dc935fd2.html.
For an example of its application to the situation of a stateless person in detention, see
337
Al-Nashif v.
Bulgaria, 50963/99, Council of Europe: European Court of Human Rights, 20 June 2002, available
at: http://www.unhcr.org/refworld/docid/468cbc9d0.html.
The Court appeared to have had an opportunity to provide further guidance on the issue in a case
338
that had been communicated to the parties but a friendly settlement was reached. See Lakatosh
and others v. Russia Application No. 32002/10.
The common law is just as respectful of the liberty of the person, and just as distrustful of arbitrary
339
and secret decision-making by ofcials acting on behalf of Government, as the Convention:
see Walumba Lumba (previously referred to as WL) (Congo) 1 and 2 (Appellant) v. Secretary
of State for the Home Department (Respondent); Kadian Mighty (previously referred to as KM)
(Jamaica) (Appellant) v. Secretary of State for the Home Department (Respondent), [2011] UKSC
12, United Kingdom: Supreme Court, 23 March 2011, available at: http://www.unhcr.org/refworld/
docid/4e2d849c2.html, para. 206, per Lady Hale.
See, for example,
340
Saadi v. United Kingdom, 13229/03, Council of Europe: European Court of
Human Rights, 29 January 2008, available at: http://www.unhcr.org/refworld/docid/47a074302.html,
and Lokpo et Tour v. Hungary, Application no. 10816/10, Council of Europe: European Court of
Human Rights, 20 September 2011, available at: http://www.unhcr.org/refworld/docid/4e8ac6652.
html, paras. 16-18.
It should be noted that the Human Rights Committee has identied higher thresholds of what must
341
be satised for arbitrariness to be avoided under Article 9 ICCPR than the Strasbourg Court has
applied to Article 5(1)(f) of the ECHR. The ICCPR imports concepts of reasonableness, necessity,
proportionality and non-discrimination into the consideration of the compatibility of detention.
However, as a result of the lack of incorporation of Article 9 ICCPR into domestic law, these
provisions cannot be directly relied upon in the domestic courts. That said, the UK is obliged as
a matter of international law to perform its obligations and it may not invoke the provisions of its
internal law as justication for any failure to perform its obligations under Article 9. See UNHCR,
Back to Basics: The Right to Liberty and Security of Person and Alternatives to Detention of
Refugees, Asylum-Seekers, Stateless Persons and Other Migrants, op. cit., p.20.
The 1954 Convention does not make specic provision in respect of the detention of stateless
persons, although Article 26 relating to freedom of movement has been cited as providing
some potentially relevant obligations.
342
This provision, however, is not incorporated into UK
domestic law.
Domestic law and policy
The Immigration Act 1971 contains provisions which give immigration ofcers and the Secretary
of State for the Home Department the power to detain those subject to immigration control
who are liable to examination, administrative removal or deportation.
343
Immigration detention
is administrative and does not require prior judicial authorization. There is no mandatory
judicial scrutiny of the lawfulness or appropriateness of detention. Those detained under
the powers in the Immigration Act 1971 may apply to an Immigration Ofcer for temporary
admission or release, and can apply for a Chief Immigration Ofcer or to an Immigration
Judge for bail. Further, the legality of any detention can be challenged by way of application
to the High Court for a writ of habeas corpus or Judicial Review.
The evidence of the participants in the research indicates that stateless and unreturnable
persons are most likely to be detained under immigration powers for the purposes of their
removal or deportation.
344
The statutory power to detain in these circumstances is regulated
by the common law. The Hardial Singh
345
principles set out the nature of that regulation. They
have been summarised by the Court of Appeal as follows:
(i) The Secretary of State must intend to deport the person and can only use the power
to detain for that purpose;
(ii) The deportee may only be detained for a period that is reasonable in all the
circumstances;
(iii) If, before the expiry of the reasonable period, it becomes apparent that the Secretary
of State will not be able to effect deportation within a reasonable period, he should
not seek to exercise the power of detention; and,
(iv) The Secretary of State should act with reasonable diligence and expedition to effect
removal.
346
UNHCR
342
The Right to Liberty and Security of Person and Alternatives to Detention of Refugees,
Asylum-Seekers, Stateless Persons and Other Migrants, op. cit., pp.13-17.
See Immigration Act 1971, Schedules 2 and 3.
343
Participants 4, 7, 19, 31 and 35 were detained for the purposes of administrative removal and
344
participants 13, 14, 18, 24, 25 and 26 were detained for the purposes of deportation.
These were set out in
345
R v. Governor of Durham Prison, Ex parte Hardial Singh, [1984] 1 All ER
983, [1984] 1 WLR 704, [1983] Imm AR 198, United Kingdom: High Court (England and Wales), 13
December 1983, available at: http://www.unhcr.org/refworld/docid/3ae6b6ce1c.html, per Woolf, J.

346
R (I) v Secretary of State for the Home Department [2002] EWCA Civ 888, [2003] INLR 196,
para. 46, recently approved by the majority of the Supreme Court in Walumba Lumba (previously
referred to as WL) (Congo) 1 and 2 (Appellant) v. Secretary of State for the Home Department
(Respondent); Kadian Mighty (previously referred to as KM) (Jamaica) (Appellant) v. Secretary of
State for the Home Department (Respondent), op. cit.
The research did not uncover specic caselaw on the effect of an individuals statelessness
on the legality of detention. However, the Supreme Court in Walumba Lumba
347
has recently
claried the relevance of whether an individual can or is willing to return voluntarily to the
application of the Hardial Singh principles. Lord Dyson, with whom the majority of the Justices
agreed, delivered the leading judgment. He held:
It is necessary to distinguish between cases where return to the country of origin is
possible and those where it is not. Where return is not possible for reasons which are
extraneous to the person detained, the fact that he is not willing to return voluntarily
cannot be held against him since his refusal has no causal effect.
348
Although not all stateless persons will be unable to leave the UK voluntarily, as stateless
persons are more likely than others not to have the right to enter another state, they are more
likely to be able to show that return is not possible. However, several participants interviewed
for the research were detained for signicant periods even after it emerged that their claimed
country of origin had either denied or refused to conrm that they were entitled to nationality
and would not therefore be admitted.
349
The UK Border Agencys published policy sets out how the power to detain will be exercised.
The policy must be followed in the absence of a good reason not to.
350
The current policy
provides that in considering whether to detain an individual there is a presumption in favour
of temporary admission or release and that, wherever possible, [the UK Border Agency] would
use alternatives to detention.
351
It further provides that [d]etention must be used sparingly,
and for the shortest period necessary.
352
The policy requires that [a]ll relevant factors must be taken into account when considering
the need for initial or continued detention.
353
It references a number of factors that may be
relevant, but statelessness is not identied as a specic consideration. The factors that are
specied that are particularly relevant to the situation of stateless persons are:
What is the likelihood of the person being removed and, if so, after what timescale?
Is there a previous history of complying with the requirements of immigration control?
(e.g. by applying for a visa, further leave, etc)
What are the persons ties with the United Kingdom? Are there close relatives (including
dependants) here? Does anyone rely on the person for support? If the dependant is a
child or vulnerable adult, do they depend heavily on public welfare services for their daily
care needs in lieu of support from the detainee? Does the person have a settled address/
employment?
Walumba Lumba (previously referred to as WL) (Congo) 1 and 2 (Appellant) v. Secretary of State
347
for the Home Department (Respondent); Kadian Mighty (previously referred to as KM) (Jamaica)
(Appellant) v. Secretary of State for the Home Department (Respondent), op. cit.
Ibid.,
348
paras. 127-8.
For example, participants 13, 14, 18, 19 and 26.
349
See, for example,
350
Shepherd Masimba Kambadzi (previously referred to as SK (Zimbabwe))
(FC) (Appellant) v. Secretary of State for the Home Department (Respondent), [2011] UKSC 23,
United Kingdom: Supreme Court, 25 March 2011, available at: http://www.unhcr.org/refworld/
docid/4e2d8a782.html para. 36.
UK Border Agency Enforcement Instructions and Guidance, Section 55.1.1, available at:
351
www.ukba.
homeofce.gov.uk/sitecontent/documents/policyandlaw/enforcement/detentionandremovals/.
Ibid.,
352
Section 55.1.3 and see further Section 55.3.
Ibid.,
353
Section 55.3.1.
What are the individuals expectations about the outcome of the case? Are there factors
such as an outstanding appeal, an application for judicial review or representations which
afford incentive to keep in touch?
354
The policy sets out the frequency with which detention has to be reviewed and the grade
of ofcial who must authorize detention and carry out the review.
355
The failure to undertake
these reviews can render the detention unlawful but does not necessarily give rise to a claim
for anything more than nominal damages if, on examination, the detainee would have been
detained if a review had taken place.
356
However, if an ofcial of the wrong grade undertakes
the review, the detention is not unlawful.
357
Evaluation of the legal protection for stateless persons against arbitrary detention in the UK
Current UK domestic law does not contain any protections that are designed to specically
protect stateless persons against the risk of arbitrary detention. Furthermore, the research
has not found any references to a detainees statelessness being identied as a relevant
consideration or juridically relevant fact
358
in the assessment of the lawfulness of a decision
to detain. In addition, there is no time limit on the period of immigration detention in UK
law. Time limits have been identied as a valuable protection for stateless persons at risk of
arbitrary detention and are reected in the domestic law of a number of EU member states as
well as EU legislation.
359
The research identied that some participants may have been detained under an unpublished
policy which, in contrast to the Secretary of States published policy, created a presumption
of detention for all former foreign national prisoners subject to exceptions on compassionate
grounds. The Supreme Court ruled that detention under the unpublished policy was
unlawful.
360
Indeed such a policy would have had a disproportionate impact on stateless and
unreturnable persons as many, in theory, could have beneted from the provisions of the
published policy on the basis of the poor prospects that existed of them departing from the
UK.
This unpublished policy is, however, no longer applied and it is important to note that both
the Hardial Singh principles and the Secretary of States policy on immigration detention
provide stateless and unreturnable persons with valuable protections. In many ways the
provisions of the current policies are at odds with the prevalence and length of immigration
detention experienced by participants. If accurately and effectively applied, these protections
would provide substantial, although not sufcient, guarantees against the risk of the arbitrary
detention of stateless persons. However, the qualitative data indicates that that is not the
case. Consideration should therefore be given to forthcoming guidelines on the detention of
stateless persons which, at time of writing, will soon be published by the Equal Rights Trust,
Ibid.
354
Ibid.,
355
Section 55.8.
SK (Zimbabwe) v Secretary of State for the Home Department, op.cit.
356
Ibid.,
357
para. 60.
Cf. By analogy with states that do not have a statelessness determination procedure see UNHCR,
358
Geneva Summary conclusions, para. 30.
UNHCR,
359
Back to Basics: The Right to Liberty and Security of Person and Alternatives to Detention
of Refugees, Asylum-Seekers, Stateless Persons and Other Migrants, op.cit., pp 23-24; the Equal
Rights Trust, Unravelling Anomaly: Detention, Discrimination and Protection Needs of Stateless
Persons, July 2010, available at: www.equalrightstrust.org/ertdocumentbank/UNRAVELLING%20
ANOMALY%20small%20le.pdf; and London Detainee Support Group, Detained Lives, January
2009, available at: www.detainedlives.org/wp-content/uploads/detainedlives.pdf
Lumba (WL) v Secretary of State for the Home Department, op. cit.
360
paras. 16 and 17.
to see if they form a basis for the improvement of protection for stateless persons against
arbitrary detention.
361
In conclusion, a similar picture emerges as to the most effective way to ensure that stateless
persons are not subject to arbitrary immigration detention. If statelessness were identied
in a determination procedure which had the grant of leave to enter or remain as a possible
outcome, this would limit the risk stateless persons face of arbitrary detention.
In order to ensure that an individuals statelessness is taken into account in the decision
to detain, the UK Border Agency should amend its guidelines on immigration detention to
recognise an individuals statelessness as a factor that weighs against detention, on the basis
that it is likely to indicate that there are no reasonable prospects of removal. In any event, UK
Border Agency ofcials who make decisions to detain should be trained in how to identify
stateless persons and, if identied, how this should affect the application of the presumption
against detention.
Further, the fact that an individual is stateless may only become apparent through the process
of documentation for removal and in the light of responses received from consular authorities.
Consequently the issue of whether an applicant is stateless is a matter that should be regularly
considered afresh during any period of detention pending removal, taking into account
responses or lack of responses from consular authorities. Finally, consideration should be
given to enacting in legislation a reasonable maximum time limit on immigration detention,
in order to act as a protection against the risk of indenite detention, as found in many other
European States.
362
5.6 Failed forced removal
International law provides protections for stateless persons against removal in a number of
situations. Article 31 of the 1954 Convention provides substantive and procedural protections
in the context of the expulsion of stateless persons who are lawfully on its territory.
363
In
addition, stateless persons who are also refugees benet from the prohibition on refoulement
contained in Article 33(1) of the 1951 Convention. However, in an appeal decided in 1978
the Immigration Appeals Tribunal held that expulsion for reasons of immigration control was
Guidelines on the Detention of Stateless Persons: Consultation Draft Equal Rights Review,
361
Volume
7, (2011), available at: http://www.equalrightstrust.org/ertdocumentbank/ERR7_guidelines%20draft.
pdf.
As of 17 June 2008, two thirds of EU Member States had maximum period of pre-removal detention
362
of less than 18 months, whereas seven had not maximum period xed in law, see European Council
of Refugees and Exiles, Returns Directive: EU fails to uphold human rights, 18 June 2008, available
at: www.ecre.org/component/downloads/downloads/165.html.
Article 31
363
1. The Contracting States shall not expel a stateless person lawfully in their territory save on
grounds of national security or public order.
2. The expulsion of such a stateless person shall be only in pursuance of a decision reached
in accordance with due process of law. Except where compelling reasons of national security
otherwise require, the stateless person shall be allowed to submit evidence to clear himself, and to
appeal to and be represented for the purpose before competent authority or a person or persons
specially designated by the competent authority.
3. The Contracting States shall allow such a stateless person a reasonable period within which to
seek legal admission into another country. The Contracting States reserve the right to apply during
that period such internal measures as they may deem necessary.
always justied on the grounds of public order. Consequently the substantive protection
against expulsion in line with Article 31 of the 1954 Convention is not guaranteed. This
decision may, however, not stand judicial scrutiny in the future.
364
Stateless persons may also be protected against removal by international human rights law
where, in particular, there are substantial grounds for believing that there is a real risk that they
will be subject to torture, inhuman or degrading treatment in the country of return.
365
The failure of forced removal can also engage human rights obligations, particularly if the
applicant is subjected to inhuman or degrading treatment during the expulsion. This is a
risk that is particularly prevalent for stateless persons. Repeated attempts at expulsions to a
country that refuses to admit the individual concerned may amount to inhuman or degrading
treatment.
366
Indeed, the European Commission on Human Rights held that:
the repeated expulsion of an individual, whose identity was impossible to establish to a
country where his admission is not guaranteed, may raise an issue under Article 3 of the
Convention [] Such an issue may arise, a fortiori, if an alien is, over a long period of time,
deported repeatedly from one country to another without any country taking measures to
regularise his situation.
367
In addition, the Secretary of States power to remove stateless persons for whom there is
no reason to think that they will be admitted to the destination state is regulated by the
common law in the UK. Longstanding authority prohibits the setting of removal directions
where there is no rational basis to believe that the person being removed will be admitted to
the destination State.
368
The research identied three cases of failed forced removals where individuals had been
returned to the UK after the destination State had refused to accept him or her as a
national.
369
However despite a review of a further sample of les, it did not appear that there
was a consistent pattern that linked statelessness to failed forced removal. Nonetheless the
examples raise important issues.
Kelzani v. Secretary of State for the Home Department,
364
[1978] Imm AR 193, United Kingdom:
Asylum and Immigration Tribunal / Immigration Appellate Authority, 7 November 1978, available at:
http://www.unhcr.org/refworld/docid/3ae6b62e8.html. See Section 4.4.1 for further details.
In particular under the Convention against Torture, Article 3 the relevant part of which provides No
365
State Party shall expel, return (refouler) or extradite a person to another State where there are
substantial grounds for believing that he would be in danger of being subjected to torture; ICCPR,
Article 7 the relevant part of which provides that [n]o one shall be subjected to torture or to cruel,
inhuman or degrading treatment of punishment and the European Convention on Human Rights,
Article 3 which provides No one shall be subjected to torture, inhuman or degrading treatment or
punishment.
UNHCR,
366
UNHCR Handbook on the Determination of Statelessness Discussion Paper No. 4: What
Status Should Stateless Persons Have at the National Level, November 2010, copy on le with the
authors.

367
Harabi v The Netherlands Application No. 10798/84, 5 March 1986, p112 cited in Van Wass,
L.,Nationality Matters. Statelessness under International Law, Intersentia, 2008, p258.

368
R v. Secretary of State for the Home Department, Ex parte Khalil Yassine, Rahma Yassime,
Mohammad El-Nacher, Hicham Ali Hachem, Salam Bou Imad, Zouheir Bou Imad, [1990] Imm
AR 354, United Kingdom: High Court (England and Wales), 6 March 1990, available at: http://
www.unhcr.org/refworld/docid/3ae6b69210.html Note that the ratio in this judgment was given a
restrictive interpretation in AL & Others (Malaysia BOCs) Malaysia v. Secretary of State for the Home
Department, [2009] UKAIT 00026, United Kingdom: Asylum and Immigration Tribunal / Immigration
Appellate Authority, 3 July 2009, available at: http://www.unhcr.org/refworld/docid/4a5457862.html.
369
Participant 13, a Kuwaiti Bidoun, was refused entry by the Kuwaiti authorities. Participant
34, a British overseas citizen who was formerly a Malaysian national was refused entry by
the Malaysian authorities before being returned. Of particular concern is the fact that two
of the three individuals were detained following their return to the UK.
370
The way in which
Hassan, the third of these cases whose circumstances are set out below, was treated by the
UK Border Agency after he was returned to the UK following the failure of his forced removal
indicates that no consideration was given to whether he should now be considered to be
stateless, nor to any of the consequences that owed from his experiences.
Name: Hassan (Participant 19)
Country of origin: Chad
Date of arrival in UK: August 2002
Time in detention: 2 months
Current status: Indenite Leave to Remain (granted in February
2010 by the Case Resolution Directorate)
Hassan was born in Abeche, Chad, and experienced a normal childhood until becoming
involved in student politics during his nal year in High School. His political activities
brought him to the attention of the police who followed him and two friends to his home
after a meeting. One of his friends tried to escape but was shot dead in front of them.
When his mother tried to intervene she too was shot in the leg. Hassan and his remaining
friend were blindfolded and placed in separate cars, after which he was taken to a prison
where he was repeatedly tortured and interrogated.
After two months in detention his cousin paid a bribe to secure his release. His cousin
gave Hassan $1,000 dollars to cross the border into Niger from where Hassan travelled
via Algeria and he now believes France, before arriving and claiming asylum in the UK in
August 2002. However, his application was refused in October 2002 and his appeal was
also rejected in March 2003. Following the refusal of his application for leave to appeal in
June 2003, he was evicted from his accommodation.
Hassan describes how, after his support ceased, he had no option except to work
illegally. For about two years he did a variety of jobs to support himself and cover his rent
including stints working at different warehouses.
In September 2005, the Immigration Service raided the warehouse where Hassan was
working. He was arrested and detained in Tinsley House Immigration Removals Centre.
He had no solicitor at this time. Four weeks after being detained, he was woken up and
told that he was being taken to the airport to be returned to Chad. Hassan describes being
very frightened but he had given up hope so he did not resist removal. The plane ew
via Libya and, on arrival in Chad, the captain escorted him to the immigration authorities
and handed over his le of papers. One ofcial told him to wait in a room and then he
was joined by another man. Immediately they started to beat and punch him around the
head and back. They asked why he had gone to the UK to claim asylum. They beat him
so badly that he partially lost his hearing in one ear and both sides of his head became
badly swollen. At this point another ofcial ran a check on his computer and told the two
other ofcials that he was not even from Chad.
Hassan believes that this ofcial must have been sympathetic to his situation. Whatever
the reason, it saved his life.
370
The information was relayed by radio to the captain of the plane who was preparing to
take off. The captain postponed take-off so that Hassan could be placed back on the
plane. The captain spoke Arabic, and during the stopover at Tripoli airport he spoke with
and showed Hassan a letter faxed from the Chadian authorities at the airport. It stated
that Hassan he was not a national of Chad and that he should not be returned there.
When the plane landed back in Gatwick he was met and interviewed by immigration
ofcers. Despite telling them what had happened, he was taken back to Tinsley House
and detained there for two weeks before being transferred to Dover Immigration Removals
Centre for a further two weeks. He made a fresh claim for asylum. After being released
from detention Hassan once again found himself destitute. He applied for section 4
accommodation, but the application was refused. He considers himself lucky because he
was able to stay at a shelter called Coventry Peace House where he was also provided
with meals in the morning and evening. He had to leave the shelter every day. With
nowhere else to go, he went to the library.
I felt stateless for the period after I returned from Chad and before I got my ILR
[Indenite Leave to Remain]. During the time before I got my at sometimes I almost
felt that I preferred detention because at least I had my own room where I could be
during the day rather than being forced to be outside, never being able to relax.
Hassan was suffering with dizzy spells and the sides of his head were still swollen from the
beating in Chad. He went to see a doctor and was diagnosed with lymphoma cancer. He
received radiotherapy for one month and then had an operation in May 2006. The hospital
let him stay there to recuperate for a further three months because he had nowhere else
to go. After being discharged from hospital his solicitor made a support application and
social services agreed to provide a one bedroom at and a weekly support allowance
because of his health condition. When his health improved he started studying English,
Maths and IT studies at college. He still had checkups at the hospital every six weeks and
later every three months.
There was still no decision on the further submissions. Then in 2008 the application was
refused, the news of which hit Hassan hard. He had already been highly anxious about
his continuing limbo. Five years had passed since his initial asylum application had been
refused, and more than two years since the unsuccessful attempt to remove him to Chad.
He felt constant stress:
Because of what happened to me and all the stress, I feel that I have lost some of
my life. I feel older than I am.
He was eventually granted ILR by the Case Resolution Directorate in 2010. To this day
he does not know why he was kept in limbo for so long after it had become clear that he
had no country to return to, that he was stateless. At last he can now feel more positive
about the future. He is currently doing a degree in IT studies after which he plans to build
a career in this eld.
It is complicated. The future will be better than before because now I can at least
think in a positive way. But if you had asked me two years ago then I would have said
that there was no future, nothing.
Being without a nationality has increased the urgency of his desire to obtain British
nationality but despite now being eligible to apply, he is struggling to nd the money to
pay the fees. I want to apply for British citizenship. This is very important for me but at
the moment I cant afford the 780 application fee. I will try to borrow the money.
In conclusion, the cases of failed forced removal reveal the importance of identifying stateless
persons before enforcement action occurs and ensuring that they will be admitted to their
destination country. International human rights law obligations mandate that, in order to
ensure that the person being removed is not subject to inhuman and degrading treatment, the
removing state should consider whether the applicant will be admitted and that there is no
real risk that the deportee will not be removed to a third state with no prospect of admittance
there. This is in addition to the obligation to ensure that the deportee is not subject to torture,
inhuman or degrading treatment or punishment on arrival or if admitted. The evidence conrms
that stateless persons are more likely not to be admitted to the destination state as a result
of the fact that they are not nationals of the destination state, unless they enjoy the right of
residence there. Unreturnable persons are, by denition, in a similar position. This strongly
indicates that the determination of whether an individual is stateless before removal, in a
migration context, is necessary to help ensure that human rights obligations are met.
Furthermore, consideration should be given as to whether an individual is stateless in the event
they are refused admittance to their country of presumed nationality or habitual residence. In
appropriate circumstances, the grant of leave to remain would avoid the detention, period in
limbo and destitution that Hassan faced.
371
5.7 Immigration-related offences
The 1954 Convention does not make any provision to protect stateless persons from being
penalised for the illegal entry to or presence on the hosts state territory. This contrasts with
the 1951 Convention, Article 31, which does provide such protection for refugees and asylum-
seekers.
372
Stateless persons who are not refugees or asylum-seekers are at particular risk
of being convicted of an immigration offence because, rst of all, they will often not have
any travel documents and, secondly, as has been set out above, they are at particular risk
of being left in destitution or limbo which they may seek to escape by leaving the UK using a
false document.
Three participants in the study had been convicted of immigration-related offences.
373
The
story of one who used a false Romanian identity card to try to depart from the UK, resulting in
a conviction for using a false document, is set out below.
This may have been the Secretary of States policy in the past. See Chapter 4, section 4.4.2. AF
371
(Return) Estonia [2002] UKAIT 02544.
See
372
R v. Asfaw, [2008] UKHL 31, United Kingdom: House of Lords (Judicial Committee), 21 May
2008, available at: http://www.unhcr.org/refworld/docid/4835401f2.html.
373
Name: Kathem (Participant 14)
374

Country of origin: Iraq
Date of arrival in UK: February 2003
Kathem, aged 33, shares the predicament of a number of those interviewed. He was
served with a notice of intention to deport him yet, at the time of the interview, it had
proved impossible to remove him from the UK. His conviction was for using a false
document. But, in his case, he was using the document in a bid to escape a life trapped
in limbo and destitution in the UK.
Born to Jewish parents in Naseriah, Iraq, Kathem was brought up by his parents who ran
a small copy shop business. His father was born in Iraq and his mother in Nasrah, Israel.
Both had suppressed their Jewish identity in the wake of discrimination by Saddam
Husseins regime from the late 1960s, and according to Kathem he was not recognised
as an Iraqi citizen because he was Jewish. He describes having possessed only a blue
ID card entitling him to access healthcare, employment and the right to travel internally.
He recounts how when he made enquiries about applying for full citizenship he was told
that he was not eligible, and that if he wanted to leave the country then he would only
be provided with a single-use travel document. Life changed dramatically for Kathem
at the age of 16 when his father was arrested and killed by the authorities on suspicion
of allowing Shia groups to use the copy shop for political purposes. After this Kathem
became responsible for running the copy shop until he himself came under suspicion by
the authorities for the same reasons and he was forced to ee Iraq. He travelled to the UK
on a false document, and claimed asylum in February 2003.
His asylum claim was refused in September 2003, but he was granted exceptional leave
to remain for six months. Kathem moved to a new town where he obtained a job as a
machinist and started renting his own at. He began a ve-year relationship with an Italian
woman, who moved in with him along with her child from her previous relationship. He
describes how he applied for an extension of his leave shortly before it was due to expire.
Unbeknown to him, this application was refused in August 2004, but notication sent to
the wrong address. He only discovered this in 2007 after he instructed a solicitor to follow
up what was happening with his immigration case. When it transpired that he had no legal
entitlement to work he was forced to give up his job as a machinist, and after exhausting
his savings he eventually had no option but to quit his rented accommodation. He applied
for section 4 support but this was refused. By now destitute, he went to stay with a friend
living in Birmingham.
After becoming increasingly frustrated with his inability to work or progress his life,
Kathem was persuaded by relatives in France that he could make a fresh start and have
a better life by moving there. However, he was stopped by French immigration ofcers
trying to board a ferry at Folkestone using a false Romanian ID card. He was advised by
his solicitor to plead guilty and to expect a sentence of around three months. In fact he
was sentenced to one year in prison, and a deportation order was issued at May 2009. In
November 2009, after serving six months, his prison sentence ended, but his detention
was continued under immigration powers. He applied for bail, but this was refused at
374
as well as through selected immigration papers provided by the participant.
a hearing in April 2010. Months passed, and then in August 2010 an appointment was
made for him to be interviewed by the Iraqi delegation in the UK.
At the interview the ofcial from the Iraqi delegation was accompanied by a UKBA
immigration ofcer. The Iraqi ofcial asked me questions about my place of birth,
family background and what I knew about the Naseriah area. I answered all these
questions but at the end of the interview he turned to me and said in Arabic that there
was no way I would be accepted back. I translated to the immigration ofcer what
she had said but she just shrugged her shoulders.
Following a bail hearing in November 2010, Kathem was released from detention and
subsequently provided with section 4 support. He is required to report to the UK Border
Agency every week, but no attempt has been made to deport him. He remains in limbo.
Because of his conviction he is not eligible for regularisation under paragraph 395c of the
Immigration Rules.
Although international law does not make special provision to protect stateless persons who
risk prosecution for immigration-related offences, the qualitative evidence would suggest that
this represents a gap in the international protection regime. There is also evidence from the
qualitative data that the treatment of stateless persons in the UK may play a part in why
stateless persons may try to leave the UK travelling on false documentation and, additionally,
why they may work without permission in order to avoid destitution.
5.8 Private and family life
Article 8 ECHR requires that the UK respect the private and family life of everyone within its
jurisdiction. The right is qualied, and proportionate infringement can be justied if it is in
accordance with the law and pursued for a legitimate reason.
375
Given the length of time many participants have spent in the UK, it is unsurprising that many
had formed relationships subsequent to arriving in the UK that would fall within the scope of
either family or private life. Five such relationships were subsisting at the date of interview
376

and a further ve had ended.
377
It appeared that the lack of an immigration status and travel
document had contributed to the end of the relationship in one case.
378
Of those relationships still subsisting, a lack of immigration status had created a barrier to
marriage in two cases
379
where a Certicate of Approval for Marriage had been denied.
380

In two further cases, reliance on section 4 support and accommodation was preventing the
individuals concerned from living closer to their respective partners and/or children, and
thereby infringing their private and family life.
ICCPR, Article 17 provides that 1. No one shall be subjected to arbitrary or unlawful interference with
375
his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. 2.
Everyone has the right to the protection of the law against such interference or attacks.
376
Participants 7, 9, 14, 18, and 29.
377
Participant 29.
378
379
This scheme was abolished in May 2011. It required that those subject to immigration control apply
380
for permission to marry, paying a fee and obtaining a Certicate of Approval before a civil marriage
or registration of a civil partnership took place.
No choice is generally provided about where section 4 support is given. Although UK Border
Agency policy guidance suggests that family ties ought to be taken into account in assessing
where support is provided and that the UK Border Agency is under a statutory duty to
safeguard and promote the welfare of children, the policy still indicates that accommodation
should be provided outside of London and the South East in the absence of exceptional
circumstances.
381
Name: Derek (Participant 20)
Country of origin: Liberia
Date of arrival in UK: April 2006
Derek, aged 23, ed the civil war in Liberia in 1999 after his mother was killed, and he was
subsequently bought up in a refugee camp in Nigeria. He describes how he was never
granted permanent residence or citizenship before travelling hidden in a container ship to
the UK, arriving in April 2006 aged 19.
He claimed asylum and was detained in Harmondsworth Immigration Removals Centre,
where his claim was considered in the detained fast track procedure. He was moved to
Haslar Immigration Removals Centre after his asylum appeal was refused. After seven
months in immigration detention he was released because his removal could not be
effected. The UK Border Agency had received conrmation from both the Liberian and the
Nigerian consular authorities that they did not accept Derek as a national. Each asserted
that he was a national of the other country.
He was, at rst, granted section 4 support and accommodation. However, Derek
describes how this was stopped on four separate occasions because it was claimed that
he was not cooperating with attempts to remove him from the UK. This is in spite of the
fact that Derek has applied twice for assisted voluntary return but was told by the IOM,
which administered the scheme at that time, that it could not assist him further as he was
allowed a maximum of two applications.
Meanwhile, no new evidence has come to light that either Liberia or Nigeria would be
willing to treat him as a national, despite the fact that UK Border Agency ofcials continue
to submit requests for him to be issued with an emergency travel document.
At the time of his interview for the research, Derek found himself once again without
section 4 support and facing destitution. His solicitor sent a number of letters to the UK
Border Agency making further submissions, including on the basis that he is stateless,
but all have been refused. Derek remains in limbo.
Derek has a relationship with a British woman which started while he was in the UK. They
have a son, and Derek describes his anxiety to regularise his immigration status in order
that he can be a proper father. At the time of the interview he has to live apart from his
son, who lives with his mother and her parents in London. Derek has been dispersed to
live in Birmingham, where he has received section 4 support and accommodation. If he
UK Border Agency, Asylum Support Policy
381
Bulletin 31 Dispersal, available at: http://www.ukba.
homeofce.gov.uk/sitecontent/documents/policyandlaw/asylumsupportbulletins/dispersal/
pb31?view=Binary, paras. 1, 3 and 5.1 to 5.6.
does not live in the accommodation allocated he risks losing the low level support and
accommodation that he is provided with.
Im not able to see my son the way I want to see him. That is my biggest worry.
He sees his statelessness and lack of money as impacting on his ability to be a good
father.
It affects me very badly. I cant afford to do things for my son. Sometimes I sit at
home crying. I praise the Mum as she is doing everything.
When asked about his continuing limbo and how he sees the future Derek replies,
The future (laughing)... I dont know what to say about the future. I dont want to say
bad things to myself but I cant see any future. Its bad.
In conclusion, evidence from the participants indicates that the current legal and policy
framework in respect of the treatment of stateless persons can contribute to infringements
of protected family and private life. In particular, the provision of accommodation in dispersal
areas for two participants granted of section 4 support resulted in both being separated
from family members because they were only provided with housing in a different part of the
country. Once again it can be observed that, if an individuals stateless status was identied
and resulted, in appropriate cases, in a grant of leave to enter or remain, the risks of such
infringements would be signicantly diminished. In addition, maintaining family unity for
stateless persons who potentially face long periods relying on section 4 support could be
considered an exceptional circumstance which justied the provision of accommodation near
to the applicants family.
5.9 Refugee status determination
The UK Border Agency is sometimes obliged to assess whether an applicant is stateless
for the purposes of determining his or her application for asylum.
382
Guidance on the way in
which claims for asylum from stateless people ought to be considered is given in an Asylum
Policy Instruction. It provides:
Sometimes asylum seekers who are stateless might claim that they will not be re-
admitted to their previous country of residence and therefore should be granted asylum
in the UK. However, issues of statelessness and whether or not an individual is returnable
should not affect the decision makers decision on whether to grant asylum, as they are
not relevant factors in the refugee determination process.
383
Immigration Rules paragraph 334, by inference, incorporate Article 1 (A) (2) of the 1951 Convention
382
relating for the Status of Refugees which provides that refugees can include those not having
a nationality and being outside the country of former habitual residence [owing to a well founded
fear of being persecuted for reasons of race, religion, nationality, membership of a particular social
group or political opinion], is unable or, owing to such fear, is unwilling to return to it.
UK Border Agency, Asylum Policy Instruction,
383
Considering the Protection (Asylum) Claim and
Assessing Credibility available at: www.bia.homeofce.gov.uk/sitecontent/documents/policyandlaw/
asylumpolicyinstructions/apis/asylum-assessing.credibility.pdf?view=Binary, p 21.
UNHCR provides fuller guidance on the assessment of the asylum claims of stateless persons.
In particular:
In the case of stateless refugees, the country of nationality is replaced by the country
of his former habitual residence, and the expression unwilling to avail himself of the
protection... is replaced by the words unwilling to return to it. In the case of a stateless
refugee, the question of availment of protection of the country of his former habitual
residence does not, of course, arise. Moreover, once a stateless person has abandoned
the country of his former habitual residence for the reasons indicated in the denition, he
is usually unable to return.
Such reasons must be examined in relation to the country of former habitual residence
in regard to which fear is alleged. This was dened by the drafters of the 1951 Convention
as the country in which he had resided and where he had suffered or fears he would
suffer persecution if he returned....
A stateless person may have more than one country of former habitual residence, and he
may have a fear of persecution in relation to more than one of them. The denition does
not require that he satises the criteria in relation to all of them.
Once a stateless person has been determined a refugee in relation to the country of his
former habitual residence, any further change of country of habitual residence will not
affect his refugee status.
384
It appears from the case of Nischal that UNHCRs guidance on how to assess the country of
former habitual residence in the claims for asylum of stateless persons is not being uniformly
followed. In Nischals case, the Tribunal considered both India and Bhutan in this context,
rather than focusing solely on Bhutan as the UNHCR guidance requires.
385
However, the UK courts recognise that the discriminatory denial of nationality resulting in
statelessness can form the basis for a successful claim to asylum.
386
The Court of Appeal has
recently considered whether stateless people who are prevented from returning to their country
of former habitual residence by an occupying power are being persecuted, concluding that
they were not.
387
It has also considered the circumstances in which the discriminatory denial
by a state of nationality of rights arising out of nationality, such as the deprivation of identity
documents and the refusal to re-document a national, can ground a claim for asylum.
388
The
difculties that arise in assessing the asylum claims for Kuwaiti Bidouns have already been
outlined.
389
The remainder of this section will discuss the approach to the asylum claims of
Palestinians, many of whom will be stateless.
UNHCR,
384
Handbook on Procedures and Criteria for Determining Refugee Status under the 1951
Convention and the 1967 Protocol relating to the Status of Refugees, January 1992, available at:
http://www.unhcr.org/refworld/docid/3ae6b3314.html, paras. 101 and 103-5.
See for Nischals case study, Chapter 4.
385
For example, the Court of Appeal has held that a stateless person who is unable to return to his
386
or her country of habitual residence is not a refugee unless they are able to demonstrate a well
founded fear, see Ravenko v Secretary of State for the Home Department [2000] EWCA Civ 50.
MS (Palestinian Territories) v. Secretary of State for the Home Department,
387
[2009] EWCA Civ 17,
United Kingdom: Court of Appeal (England and Wales), 23 January 2009, available at: http://www.
unhcr.org/refworld/docid/497eea512.html.
EB (Ethiopia) v SSHD
388
[2007] EWCA Civ 809 and MA (Ethiopia) v SSHD [2009] EWCA Civ 289.
See Section 5.3.3.
389
5.9.1 Palestinians and refugee status
A particular issue arises in respect of the treatment of the claims for asylum made by
Palestinians, some of whom the UK recognises as stateless, many of whom are unreturnable.
Palestinians may be refugees on the basis that they can establish a valid claim under Article
1A(2) of the 1951 Convention. The Convention will not apply to Palestinians if they are in
receipt of protection and assistance from UNRWA (an organ or agency of the UN) by the
operation of Article 1D of the 1951 Convention. However, the second paragraph of Article 1D
provides that [w]hen such protection or assistance has ceased for any reason, without the
position of such persons being denitively settled in accordance with the relevant resolutions
adopted by the General Assembly of the United Nations, these persons shall ipso facto be
entitled to the benets of this Convention. This raises the question of how the claims for
asylum of Palestinians in the UK should be treated taking into account Article 1D.
This issue was considered by the Court of Appeal in 2002 in El-Ali.
390
The Court declined to
follow UNHCRs third-party intervention in that case and held that only Palestinians who had
been in receipt of UNRWA assistance when the Refugee Convention was adopted on 28 July
1951 were within the scope of Article 1D, and so only Palestinians who had been in receipt of
UNRWAs assistance before that date risked exclusion.
However, the Court also held that an individual who was excluded under Article 1D would
only be able to be entitled to the benets of the Convention if UNRWA ceased operating,
except in exceptional circumstance, for example where the refugee is actually prevented
from returning there by the relevant authorities.
391
Finally, the Court accepted the benets of
the Convention would apply automatically to the dened group.
The decision in El-Ali has been criticised in the leading academic text on international refugee
law
392
and is inconsistent with UNHCRs interpretation of the provision.
393
The Court of
Justice of the European Union has considered a preliminary reference from Hungary on the
interpretation of Article 12 of the EC Qualication Directive, which to a large degree reects
Article 1D. The Court came to a different conclusion than that of the Court of Appeal in relation
to the rst part of its reasoning to limit the persons to whom Article 1D applied to those
displaced before the 1951 Convention was adopted. It held that a person receives protection
or assistance from an agency of the United Nations other than UNHCR, when that person has
actually availed himself of that protection or assistance.
394
Consequently, the rst conclusion of the Court of Appeal in El-Ali should no longer be applied.
However, at the time of writing, the UK Border Agency has not reviewed its guidance on the
issue and maintains a restrictive interpretation to this provision.
395
The consequence of the
UKs approach to the Article 1D can be seen in the case of Yasser, set out below.

390
Amer Mohammed El-Ali v. The Secretary of State for the Home Department and Daraz v. The
Secretary of State for the Home Department (The United Nations High Commissioner for Refugees,
Intervener), United Kingdom: Court of Appeal (England and Wales), 26 July 2002, available at:
http://www.unhcr.org/refworld/docid/3f278a3a4.html.
See Goodwin-Gill, G.S. and McAdam, J.,
391
The Refugee in International Law, 2
nd
Edition, 2007, pp.
157-159.
Ibid.
392
See UN High Commissioner for Refugees,
393
UNHCR Revised Statement on Article 1D of the 1951
Convention, October 2009, available at: http://www.unhcr.org/refworld/docid/4add79a82.html.
See
394
Bolbol v. Bevndorlsi s llampolgrsgi Hivatal, C-31/09, European Court of Justice, 17 June
2010, available at: http://www.unhcr.org/refworld/docid/4c1f62d42.html, paras. 47 and 53.
There are reports that a further preliminary reference has been made to the Court of Justice of the
395
European Union which that should result in the court ruling on the issues left unresolved in Bolbol. Ibid.
Name: Yasser (Participant 2)
Country of origin: Lebanon (Palestinian)
Date of arrival in UK: December 2006
Yasser, aged 34, was born in the Shabreb refugee camp in Lebanon, where his parents
had ed from Palestine during the Nakba of 1948. While having an ancestral connection
with Palestine, therefore, he grew up as a stateless Palestinian in Lebanon. He describes
growing up without any identity papers or right to residence in Lebanon, where he was also
denied any possibility to apply for citizenship. He attended a school run by UNRWA.
His family received nancial support because his father fought for the Palestine Liberation
Army. After leaving school he did odd jobs to support himself. Yassers problems started
after the Israeli invasion of Lebanon in 2006, when he describes coming under pressure
to ght in the Palestinian Liberation Front. He refused, and felt he had no option but to
leave the country.
He arrived in the UK in December 2006 and claimed asylum. However, his asylum
application was refused in January 2007 and, after challenging that decision on appeal,
he exhausted his appeal rights in August 2007. His asylum support was stopped at this
point.
He made a number of further submissions between June 2008 and December 2010, and
his application for support and accommodation was granted in July 2008. However, in
December 2010 his support and accommodation was again stopped, only to be reinstated
in March 2011 after he successfully appealed. Throughout this time he has reported as
required to the UK Border Agency. No attempt has been made to remove him, and he
therefore remains in limbo.
Yasser describes seeing himself as a bird with nowhere to rest on the ground but which
cant spend his whole life in the sky.
He describes how so as not to get depressed I try to keep myself busy. For several years
he has worked as a volunteer at a charity which helps drug addicts and the homeless.
He mainly cooks for them but also helps with other activities. He is studying a course in
catering and hospitality.
One set of further submissions made by his solicitor argued that he should receive the
benets of the 1951 Convention under Article 1D. However, the Secretary of State has
refused these submissions, and continues to assert that Yasser can be returned to
Lebanon despite the absence of any evidence that removal would be possible.
Despite being anxious about his predicament, Yasser still holds out hope for the future.
I hope that I will live as other people with status do... The people here have freedom
which I was not used to before I came here.
The consequence of the UKs approach to the 1951 Convention, Article 1D is that Palestinians
who do not have the right of residence abroad whose asylum claims fail are left in limbo, with
the limited possibility of accessing section 4 support, if they apply to voluntary depart from
the UK. The risks of destitution and the consequent breaches of human rights are signicant.
To avoid this risk, the UK should amend its guidance on the application of Article 1D to accord
with UNHCRs interpretation of the Article.
5.10 The situation of British Overseas citizens
In recent years the situation of a number of British Overseas citizens (BOCs) from Malaysia
who are stuck in limbo in the UK has attracted interest and discussion.
396
In many ways it is
unique. Two individuals that are part of this group participated in the research. Their stories
are outlined in full below and provide an in-depth insight into the situation faced by this
particular population.
There are no ofcial gures of the numbers of individuals affected. Their situation is similar to
other unreturnable persons interviewed as part of the study, but it is also different because
they are British nationals, albeit with limited rights.
397
For this reason, they are not considered
stateless within the denition used by the current study.
398
However, unlike British citizens,
they are subject to immigration control. Notwithstanding their British nationality, the testimonies
of Ernest and Constantine, as set out below, raise a number of human rights issues similar to
other unreturnable persons.
Relevant provisions of British nationality law
There are certain categories of British national who do not have the right of abode and are
therefore subject to the provision of UK immigration law.
399
The British Nationality Act 1981,
section 4B, provides for those British nationals (specically BOCs, British subjects, British
Nationals (Overseas) and British protected persons) to register as British citizens if they do
See for example Daily Telegraph,
396
Malaysians left stateless in UK after passport gamble
backres, 13 October 2009, available at: http://www.telegraph.co.uk/news/worldnews/asia/
malaysia/6316612/Malaysians-left-stateless-in-UK-after-passport-gamble-backres.html.
For a full description of the situation and rights pertaining to categories of British nationality other
397
than British citizenship see generally Fransmans British Nationality Law, 3
rd
Edition, 2011 (hereafter
Fransmans). See also ILPA, Submission to Lord Goldsmith for the Citizenship Review: The Different
Categories of British Nationality, 21 December 2007.
See UNHCR,
398
Prato Summary Conclusions, para. 3. The issue under Article 1 (1) is not whether
or not the individual has a nationality that is effective, but whether or not the individual has a
nationality at all. Although there may sometimes be a ne line between being recognised as a
national but not being treated as such, and not being recognised as a national at all, the two
problems are nevertheless conceptually distinct. The former problem is connected with the rights
attached to a nationality, whereas the latter problem is connected with the right to nationality itself.
It is beyond the immediate focus of this study to provide a detailed analysis of the historical and
399
current situation facing the holders of these categories of British nationality. See footnote 397
supra.
not have any other form of citizenship or nationality.
400
Management data provided by the UK
Border Agency shows a signicant number of applications and a high grant rate for persons
both inside and outside of the UK.
401
However, the data provided reveals that the applications
made under this provision by BOCs in the UK who were born in Malaysia have a signicantly
lower grant rate.
402
A number of these applications are likely to have been made by persons who, like Ernest and
Constantine, renounced their Malaysian nationality after July 2002 and therefore fell to be
refused. It appears that many of this group renounced their Malaysian nationality following
receipt of incorrect legal advice. They were told that after renunciation they would subsequently
be eligible to apply to be registered as British citizens under the British Nationality Act, section
4B. When the applications were refused, this group found themselves left in limbo. Having
renounced their Malaysian nationality, it was subsequently impossible to reacquire it and, in
some cases, even to return to Malaysia. At the same time, they were not entitled, as of right,
to reside in the UK.
British Nationality Act 1981 s4B as inserted by the Nationality, Immigration and Asylum Act 2002,
400
s 12 (1) and amended by the Borders, Citizenship and Immigration Act 2009, s44 provides:
4B Acquisition by registration, certain persons without other citizenship
(1) This section applies to a person who has the status of
(a) British Overseas citizen
(b) British subject under the Act,
(c) British protected person, or
(d) British National (Overseas)
(2) A person to whom this section applies shall be entitled to be registered as a British citizen if
(a) He applies for registration under this section,
(b) The Secretary of State is satised that the person does not have, apart from the status
mentioned in subsection (1), any citizenship or nationality, And
(c) The Secretary of State is satised that the person has not after the relevant day
renounced, voluntarily relinquished or lost through action or inaction any citizenship or
nationality..
(3) For the purposes of subsection 2 (c), the relevant day means
(a) In the case of a person to whom this section applies by virtue of subsection 1 (d) only, 19th
March 2009, and
(b) In any other case, 4th July 2002.
Note the commentary on this provision in Fransmans, pp. 572-578, includes the analysis that
although s.4B is a provision that alleviates the position of British nationals who are for practical
purposes stateless, it operates in such a way as to exclude from its provisions not merely those
who apply after the relevant date (4 July 2002 for BOCs, British subjects and BPPs; 19 March 2009
for BN(0)s) to renounce or voluntarily give up any other citizenship or nationality, but also those who
lose any other citizenship or nationality through action or inaction.
Between 2001 and 2010 there were a total of 22,373 applications made under section 4B (by all
401
countries of birth), of which 20,240 (90.5%) were granted. Of the total number of applications,
11,355 (50.7%) were submitted by applicants in the UK while 11,018 were submitted by applicants
outside the UK territory. Of the total number of grants, 10,168 (50.2%) were made to persons in the
UK and 10,072 to those outside UK territory. Management data received from the UKBA Planning
& MI Team North West Region by email dated 19 September 2011 with the disclaimer that the
information has been provided from local management information and is not a National Statistic.
As such it should be treated as provisional and therefore subject to change.
Between 2001 and 2010 there were 201 in-country applications under section 4B made by
402
individuals born in Malaysia of which 102 have been granted. Management data received from
the UKBA Planning & MI Team North West Region by email dated 19 September 2011 with the
disclaimer that the information has been provided from local management information and is not a
National Statistic. As such it should be treated as provisional and therefore subject to change.
The treatment of British Overseas citizens from Malaysia in the UK
The treatment of this group varies. Some of those refused or ineligible to register as British
citizens were granted leave to remain under UK Border Agency policy which envisages a
grant of Discretionary leave to enter to some BOCs who met certain criteria and face being
left in limbo in the UK.
403
There is also evidence to show that not all BOCs who renounced
their Malaysian nationality have been able to demonstrate that they had taken all reasonable
steps to re-acquire their nationality, or to provide evidence of their inability to do so resulting
in their situation being unresolved.
404
However, as illustrated by Ernests testimony below, there are cases where individuals
have found it impossible re-acquire Malaysian nationality despite genuine, sustained and
documented attempts to do so. Moreover, Ernest was not only unable to automatically regain
his nationality but he was also prevented from returning to Malaysia with a permanent visa that
would have allowed him the possibility to eventually re-naturalise as a Malaysian national.
Name: Ernest (Participant 34)
405

Country of origin: Malaysia (BOC)
Date of arrival in UK: June 1999
Current status: BOC (but with no leave to remain in the UK)
Ernest, aged 54, was born in Malaka, Malaysia, in 1956. He became both a Malaysian
citizen and a CUKC (Citizen of UK and the Colonies) by birth. After completing school, he
worked his way up in the accounting department of a multinational company until in 1999
they offered to partly fund his further education in the UK. He initially arrived in the UK
with a six-month visit visa in June 1999 before applying to vary this to leave to remain as a
student in order to study a degree in chartered accountancy in Newcastle. In March 2003,
however, his application to further extend his leave to remain as a student was refused,
as was his appeal in November 2004.
Shortly before this, in September 2004, he had applied for and been granted a BOC
passport. Soon after this, in November 2004, his then solicitors advised him that the grant
of the BOC passport debarred him from continuing to possess Malaysian citizenship due
to that countrys prohibition on dual nationality. He was advised that upon renouncing
his Malaysian nationality he would be eligible to apply for British citizenship and with it
the right of abode in the UK. He went to the Malaysian High Commission in London to
renounce his citizenship and subsequently received a certicate from the Malaysian Home
Affairs Ministry conrming that he was no longer a Malaysian national. In February 2005,
Ernest made an application for registration as a British citizen, but this was rejected in
March 2005. He was instead advised to make an application for indenite leave to remain,
which he did in May 2005. However, the application was eventually refused in May 2007.
See UK Border Agency
403
Immigration Directorate Instructions Chapter 22, Section 2.9, available
at: http://www.ukba.homeofce.gov.uk/sitecontent/documents/policyandlaw/IDIs/idichapter22/
section2/section2.pdf?view=Binary. However, there is some uncertainty about how this policy was
applied in the past. See AL & Others (Malaysia BOCs) Malaysia, op.cit. paras. 88-94.
AL & Others (Malaysia BOCs) Malaysia, op. cit.
404
It was not possible to obtain a full le for this participant but relevant information was reviewed and
405
checked on CID as well as in papers provided by the participant.
He appealed but this was unsuccessful after two hearings in July and November 2007
respectively.
In March 2009 removal directions were set to Malaysia. Ernest and his wife were returned
on an EU laissez-passer as it was not possible to secure a travel document from the
Malaysian authorities. This removal was enforced despite Ernest having received that
same month a letter from the Malaysian Under-Secretary General of the Ofce of Home
Affairs conrming that Ernest had renounced his Malaysian citizenship on 31 September
2004. The letter said:
As per Article 24 of the Constitution of Malaysia he thereby forfeits all rights and
privileges bestowed to Malaysian citizens With regard to the above Mr [omitted]
can only enter Malaysia on a social visit pass, like all other foreign citizens.
This letter followed previous letters from the Malaysian authorities conrming that Ernest
was no longer entitled to citizenship, including letters dated 3 October 2007 and 30
January 2009.
Ernest describes how on arrival in Malaysia he was interviewed by Malaysian immigration
ofcials for over six hours, and that their initial intention was to return him immediately
to the UK given that he was unable to provide evidence of his plans beyond the 30 days
leave he was permitted as a visitor. However, he explained that he needed to obtain
evidence about his entitlement to Malaysian nationality in order to challenge the refusal
to allow him to remain in the UK and on this basis he was given a short stay foreigners
visa allowing him to remain in Malaysia for 30 days. He was subsequently given a 30-day
extension, but, when it was issued, he was also told after it expired he would be liable
to detention if he remained in Malaysia. Ernest describes how subsequently in May 2009
he therefore had no option but to leave Malaysia from where he caught a ight back to
the UK.
On his arrival at Newcastle airport he was interviewed but upon presenting evidence of his
unsuccessful efforts to re-acquire citizenship or any form of permanent leave to remain
in Malaysia he was granted temporary admission, initially for 30 days. In August 2009
he was granted a period of six months Discretionary leave to remain in the UK in order
to produce evidence that he could not return to Malaysia. His subsequent application to
extend this leave was refused in January 2011 despite him having made further efforts to
obtain conrmation from the Malaysian authorities regarding his entitlement to nationality,
including sending letters in June 2010 and February 2011. Ernest does not understand
why he is being asked to supply further evidence when an earlier letter from the Malaysian
Home Affairs Ministry dated 30 January 2009 stated:
This is to conrm that based on clarication of this Ministry, it has been established
that there is no entitlement for reapplication of Citizenship in accordance to section
18 (2) of the Constitution as applied by Mr [omitted]. This is due to the principle
condition that the applicant must hold a Permanent Resident status of Malaysia.
Based on your letter dated 10 October 2008, there is no evidence to establish that
Mr [omitted] is the holder of Malaysian Permanent Residence status. Therefore, he
is not entitled to reapply for citizenship status in accordance to the above stated
Constitution.
Anxious to seek some way out of his predicament, in February 2011 Ernest submitted an
application to the Malaysian authorities for a spouse visa given that his wife had retained
her Malaysian nationality. However, no decision has been made on this application
despite follow up letters, and notwithstanding the lack of responsiveness by the Malaysian
authorities, Ernest is anyway doubtful that he would be granted a spouse visa because
he would not meet the qualifying criteria (including due to his wifes inability to nancially
support him). Moreover, even if he were successful in obtaining a spouse visa he would
have to wait a further ve years as a dependant of his wife (unable to work or start a
business himself) before being eligible for permanent residence status, let alone to re-
acquire his Malaysian nationality.
Meanwhile he remains stuck in limbo in the UK, with no status or permission to work.
He and his wife currently live with their daughter as well as caring for his wifes elderly
mother, both of whom are British citizens. His most recent application for further leave to
remain in the UK was refused in June 2011. Ernest describes how the uncertainty of his
situation has placed huge stress on him and his family.
Every morning when I wake up I am worried and stressed, not knowing what will
happen to me. There are so many things I want to achieve but it is not possible
because I do not know where I stand.
While one of his daughters was able to acquire Indenite leave to remain in the UK as a
result of long residence and then to naturalise as a British citizen, his younger daughter
was refused because she was a dependant of his application. In the end the stress of
her life in limbo in the UK became too much and she decided to return to Malaysia to try
to make her own life there. She is now separated from the rest of the family, and Ernest
continually worries about her living as a single woman without family in Malaysia.
He describes feeling puzzled by his treatment given his connections with Britain:
I feel part and parcel of British life and want to live lawfully in and contribute to
the UK. I see other people getting on with their lives but I can do nothing to plan
ahead.
Ernests treatment by the UK Border Agency has been mixed. On the one hand, the fact that he
was granted six months Discretionary leave to remain after having to return from Malaysia to
the UK in 2009 to allow him to obtain further evidence would have facilitated the protection of
his human rights during that period. However, that period of leave to remain was not extended
and, despite the evidence that Ernest has obtained and the efforts that he has made, the UK
Border Agency does not consider that he meets the terms of the policy relating to BOCs and
Discretionary Leave and Limbo. This puts respect for his human rights at risk.
Similar risks can be seen in the account of Constantine, the second BOC participant in the
research. He was returned to the UK following a failed forced removal to Malaysia.
Name: Constantine (Participant 34)
406
Country of origin: Malaysia (BOC)
Date of arrival in UK: September 2005
me in detention: 4 days
Current status: BOC (but with no leave to remain in the UK)
Constantine, aged 28, was born in Penang, Malaysia, and acquired both Malaysian and
Commonwealth and UK Citizenship at birth. He attended school and university before
obtaining a student visa to study a postgraduate degree in mechanical engineering at
Sunderland University in September 2005. He extended this leave for a further year in
September 2006.
In 2007 he applied for and was granted a BOC passport. He used this to travel on three
occasions to Europe during 2008. On the rst two occasions he was able to travel to the
Netherlands and the Czech Republic without problem. However, on a third occasion, he
was stopped by immigration ofcers when returning from Germany. He was interviewed
and advised that he had no leave to remain in the UK. He was released and granted
temporary admission but told that he had one week to leave the UK. Constantine
describes being previously unaware that the grant of his BOC passport did not confer
any right to remain in the UK. He obtained advice from a solicitor who sought to challenge
the decision requiring him to leave the UK. Unable to work or resume his studies he was
reliant on nancial support from his parents and from two uncles living in London. He
was required to report to immigration ofcers weekly. At the same time as challenging his
removal he applied to renounce his Malaysian nationality on the advice of his solicitors.
On one occasion while reporting in February 2011, he was detained by immigration ofcers
without notice. He was told that his application for Judicial Review to prevent his removal
had been refused. Constantine describes how he was initially detained in Manchester
for one and a half days before being transferred to an Immigration Removals Centre in
Scotland for a matter of only a few hours. He was then transferred to a further Immigration
Removals Centre, near Stansted airport from where his removal was scheduled.
At each detention centre it took hours to check me in. I could not sleep and became
very stressed. I was still wearing the same clothes. They treated me like a criminal.
He was taken to Stansted airport where he was placed on a ight to Malaysia escorted
by three security guards. He was removed on an EU laissez-passer although his BOC
passport was returned to him.
On arrival in Malaysia, he was interviewed by Malaysian immigration ofcials. Constantine
recalls how they did not seem to know about BOC nationality and even asked him if he
was from Hong Kong. He told them that he had renounced his Malaysian nationality but
that the UK immigration authorities had nonetheless forced him to return to Malaysia.
The ofcials asked for evidence of this, which was faxed over by his solicitors in the UK.
When the ofcials received the fax he was told that as a non-citizen he was only eligible
to receive a visit visa valid for 30 days. The ofcials asked to know what he would do
after its expiry, one remarking whether he would after that live in space. When he was
It was not possible to obtain a full le for this participant but relevant information was reviewed and
406
checked on CID as well as in papers provided by the participant.
unable to explain what he would do after this period they made a decision to refuse him
entry to Malaysia and he was returned to the UK, still accompanied by the three security
escorts.
On his return he was interviewed for several hours and then granted temporary admission
which has since been extended month by month. He reports every month, but the UK
Border Agency has given no indication of what action they will take and he therefore
remains in limbo. Constantine is in the process of making further formal enquiries of the
Malaysian authorities to conrm that he is unable to re-acquire his Malaysian nationality.
Constantine describes not having citizenship of any country as causing him nightmares
and sees himself as an illegal immigrant.
I cant do what I want to. I cant study or work. I really cant say what the future
will hold. I hope that I will get Indenite Leave to Remain. It has been four years
now. I dont know why the UK authorities dont give leave to remain to people in my
situation, they could end our pain.
Constantine, like Ernest, is left in limbo. The attempt to remove him to Malaysia without
ensuring that he would be admitted risked breaching human rights obligations, and may have
been inconsistent with UK Border Agency policy.
407
A long term solution will only be found for individuals in this situation if there is clarity about
the way in which they will be treated by the Malaysian government and, in particular, whether
they will be able to re-acquire Malaysian nationality. Both the participants interviewed for
this research have been unable to obtain sufcient evidence to clarify the way they would be
treated to the satisfaction of the UK Border Agency, and neither was able to sustainably return
to Malaysia. A way of achieving certainty would be for the UK government to take a pro-active
approach with the Malaysian authorities to clarify how each case will be treated, with each
individual cooperating fully with those enquiries. At the same time, each persons rights could
be protected through a grant of Discretionary leave to remain, as Ernest was given after he
returned from Malaysia to the UK. If, after enquiries, the situation remained unchanged, then
further period of Discretionary leave to remain should be granted in accordance with the UK
Border Agency policy, which would lead to settlement and result in the end of the period of
protracted limbo.
See section 5.6 above and UK Border Agency
407
Enforcement Instructions and Guidance, Chapter
48.8 which provides: Removing BDTC, BOTC, BNO and BOC passport holders: A holder of a BNO
or BOC passport may be served with notice of illegal entry but removal is not straightforward. The
person concerned must apply for entry clearance to the appropriate Embassy or High Commission
of the country to which he is to be removed. If entry clearance is issued, he may then be removed.
If the Embassy or High Commission refuse the application and he can prove this by presenting a
letter from them, leave to remain in the UK may be granted by the Managed Migration Directorate
(MMD) if further efforts to obtain re-admission to his country of origin are unlikely to prove
successful. Available at: http://www.ukba.homeofce.gov.uk/sitecontent/documents/policyandlaw/
enforcement/detentionandremovals/chapter48?view=Binary.
Conclusions
The evidence provided by the participants in the study and the legal analysis indicates that
the majority of the human rights concerns faced by stateless persons on the UK territory
could be solved by the adoption of a statelessness determination procedure that had, as an
outcome in appropriate cases, the grant of leave to enter or remain without restrictions on
access to public funds or employment. The analysis in Chapter 4 reveals that this was, in
effect, the case between at least 1998 and 2002. Furthermore, it reects the UNHCR Geneva
Summary Conclusions:
When States recognize individuals as being stateless, they should provide such persons
with a lawful immigration status from which the standard of treatment envisaged by
the 1954 Convention ows. Having a lawful status contributes signicantly to the full
enjoyment of human rights.
In some cases stateless persons may have a right of residence in the State pursuant
to international human rights law, for example under Article 12 of the ICCPR. Current
practice demonstrates that most States with determination procedures grant a status in
national law, including the right of residence, upon recognition, often in the form of xed-
term, renewable residence permits.
While the 1954 Convention does not explicitly prescribe a right of residence to be accorded
upon a persons recognition as stateless, granting such a right is reected in current State
practice to enable stateless individuals to live with dignity and in security. Participants
agreed that this approach is the best means of ensuring protection of stateless persons
and upholding the 1954 Convention. Without such status, many stateless persons may
be deprived of the protection of the Convention. Nonetheless, it was also discussed
whether in a limited set of circumstances it may not be necessary to provide for residence
upon recognition. One view was that this would be the case for stateless persons in a
migration context who can immediately return to a State of former habitual residence
where they enjoy permanent residence as well as the full range of civil, economic, social
and cultural rights and have a reasonable prospect of acquiring nationality of that State.
Similarly, while a form of protection (including some kind of immigration status), may be
necessary in the short term, grant of residence may not be necessary where an individual
can acquire or re-acquire nationality of another State within a reasonable period of time
through simple, accessible and purely formal procedures, where the authorities do not
have any discretion to refuse to take the necessary action.
408
It is important to note that leave to enter or remain may not be required for all stateless
persons who are identied. As the expert meeting concluded above it may not be appropriate
in cases where the applicant can immediately return to a State where he or she has a right
of residence and where there will be a full enjoyment of human rights. Likewise, where an
applicant can acquire or re-acquire a nationality through a formality, although a short period
of stay may be necessary in such cases to ensure that human rights are respected.
Further, this chapter identied a number of human rights concerns that stateless and
unreturnable persons faced which could be addressed through appropriate changes to law,
policy and practice. In addition, specic changes to UK Border Agency guidance relating to
statelessness in refugee status determination procedures and, in particular, the guidance on
the application of 1951 Convention, Article 1D should be made.
UNHCR,
408
Geneva Summary Conclusions, paras. 25-27.
Recommendations
The Home Ofce should change its policy and grant leave to enter or remain to
stateless persons, in appropriate circumstances, to ensure that the UKs obligations
The UK government should ensure that provisions relating to the accessibility of
welfare benets, asylum support and section 4 support and the entitlement to work
do not result in stateless and unreturnable persons being at risk of destitution
and street homelessness to ensure compliance with the UKs obligations under
the 1954 Convention and international human rights law.
The Home Ofce and the UK Border Agency should amend the guidance on
immigration detention to expressly identify an individuals statelessness as a factor
that will weigh against detention on the basis that it is likely to indicate that there
are no reasonable prospects of removal. Legislation should also be considered
that would place a reasonable maximum time limit on immigration detention, to
act as an additional protection against the risk of indenite detention of stateless
persons. These changes would help meet the UKs international human rights law
obligations to stateless persons.
The UK Border Agency should improve its training in respect of statelessness
to ensure that ofcials are able to identify and register stateless persons and, if
identied, are aware of the consequences that ow in respect of immigration status,
entitlement to support and accommodation, the appropriateness of immigration
detention, and the approach that should be taken to removal.
The Home Ofce and the UK Border Agency should review guidance on the
application of Article 1D of the 1951 Convention to ensure that it accords with
UNHCRs interpretation of that Article.
UK civil society should develop accessible training for legal representatives on
statelessness and its treatment in UK law to help ensure that stateless persons on
the UK territory are identied.
The Department of Health Regulations and Guidance on charging for secondary
healthcare should be applied in a way that stateless and unreturnable persons
who are not deemed ordinarily resident are able to access necessary and urgent
secondary healthcare in compliance with the UKs obligations under international
human rights law.
British Overseas citizens currently in limbo in the United Kingdom, who after
having renounced their Malaysian nationality are unable to register as British citizens,
should be granted limited Discretionary leave to remain whilst the government
makes further enquiries of the Malaysian authorities. Each individual should
cooperate fully with those enquiries. If after examination on a case-by-case basis
no durable solution in Malaysia is possible, a longer period of Discretionary leave to
remain should be granted, as a rst step to achieving a long-term solution.
CHAPTER 6: THE REDUCTION AND
PREVENTION OF STATELESSNESS IN
BRITISH NATIONALITY LAW
6.1 Introduction
Two points should be stated at the outset of this chapter. First, the clear trend that emerged
from both the referrals to, and the participants in, this study was that statelessness on the
UK territory was primarily a migratory phenomenon. Although the reach of British nationality
law extends beyond the UK territory, particularly to the populations of former British colonies,
that aspect was outside the scope of the study.
409
Secondly, there were no children or young
persons who were referred to the study as potential participants. Therefore there is a lack of
qualitative data about the impact that statelessness has on children, particular those born in
the UK. That said, it is clear from the quantitative data analysed in Chapter 3 that there are
stateless children on the UK territory.
6.2 International obligations
The UK is party to a number of universal treaties that seek to address statelessness and provide
obligations in respect of British nationality law.
410
Most importantly, the UK was one of the rst
states to ratify and implement the 1961 Convention on the Reduction of Statelessness.
411
It is
also a party to the 1930 Convention on Certain Questions relating to the Conict of Nationality
Laws,
412
and to the Protocol Relating to a Certain Case of Statelessness
413
(a protocol to the
This chapter will examine the provisions in British nationality law that aim to prevent
and reduce statelessness, as compared with the UKs international obligations. These
are obligations that arise not only from international instruments that focus exclusively
on statelessness but also from international human rights law and, to a lesser degree,
European Union law.
It will analyse the extent to which the UK meets these obligations, recognising a number of
protections that already exist in British nationality law to avoid and reduce statelessness.
It will also recommend a number of measures to help improve compliance with relevant
obligations under international law.
See, for discussion, Fransmans, pp.792-796.
409
Ibid.,
410
Appendix 1, pp. 1479-1522.
The UK is one of 40 States Parties to have ratied the Convention. See:
411
http://treaties.un.org/
pages/ViewDetails.aspx?src=UNTSONLINE&tabid=2&mtdsg_no=V-4&chapter=5&lang=en.
179 LNTS 89, in force 1 July 1937, ratication for Great Britain and Northern Ireland and all parts of
412
the British Empire.
179 LNTS 15, in force 1 July 1937, ratication for the UK deposited January 14th, 1932.
413
1930 Convention).
414
The UK has also ratied the 1954 Convention, which makes provision in
respect of the naturalisation of stateless persons.
415
However, the UK has not signed the 1997 European Convention on Nationality, although it
was actively involved in the negotiations of the treaty.
416
In addition, the UK has not signed
the 2006 Council of Europe Convention on the Avoidance of Statelessness in Relation to
State Succession
417
which builds upon the general principles of nationality in relation to
state succession found in the European Convention on Nationality by providing specic rules
regarding state succession.
418
International human rights law recognises the right of every person to a nationality and its
provisions aid in the interpretation of the 1961 Convention.
419
This interplay is recognised in the
summary conclusions of a UNHCR organised expert meeting on the subject of Interpreting
the 1961 Statelessness Convention and Preventing Statelessness among Children. The
meeting concluded:
Article 15 of the Universal Declaration of Human Rights establishes the right of every
person to a nationality. This right is fundamental for the enjoyment in practice of the full
range of human rights. The object and purpose of the 1961 Convention is to prevent
and reduce statelessness, thereby guaranteeing every individuals right to a nationality.
The Convention does so by establishing rules for Contracting States on acquisition,
renunciation, loss and deprivation of nationality.
The provisions of the 1961 Convention, however, must be read in light of subsequent
developments in international law, in particular international human rights law.
420
The conclusions focused, particularly, on obligations arising from the Convention on the Rights
of the Child.
421
The UK ratied the CRC, but entered a reservation which provided that:
The United Kingdom reserves the right to apply such legislation, in so far as it relates to
the entry into, stay and departure from the United Kingdom of those who do not have the
right under the law of the United Kingdom to enter and remain in the United Kingdom, and
to the acquisition and possession of citizenship, as it may deem necessary from time to
time.
422
Article 1 of the Protocol provides that, In a State whose nationality is not conferred by the mere
414
fact of birth in its territory, a person born in its territory of a mother possessing the nationality of
that State and of a father without nationality or of unknown nationality shall have the nationality of
the said State.
415
ETS No 166.
416
CETS 200, Strasbourg, 19 May 2006.
417
Fransmans,
418
3
rd
Edition, p790.
See Vienna Convention on the Laws of Treaties 1969. Entered into force on 27 January 1980,
419
United Nations, Treaty Series, vol. 1155, p. 331, Article 32 (3).
UNHCR,
420
Interpreting the 1961 Statelessness Convention and Preventing Statelessness among
Children (Summary Conclusions), September 2011, available at: http://www.unhcr.org/refworld/
docid/4e8423a72.html hereafter the UNHCR Dakar Summary Conclusions.
United Nations, U.N.T.S. Vol 1577, p. 3, entry into force 2 September 1990. UK ratication 16
421
December 1991, (hereafter the CRC).
See The Joint Committee on Human Rights,
422
The Treatment of Asylum Seekers, Tenth Report,
Session 2006-7, 30 March 2009, HL Paper 81, HC Paper 60, available at: http://www.publications.
parliament.uk/pa/jt200607/jtselect/jtrights/81/8108.htm.
However, this reservation was withdrawn in December 2008.
423
The enforceability of the CRC
in domestic law with regard to the work of the UK Border Agency is now reected in domestic
legislation,
424
guidance issued under that legislation
425
and the jurisprudence of the Supreme
Court.
426
In addition, the UNHCR Dakar Summary Conclusions recognise the importance of the
principle of gender equality, in ensuring that women have the same rights as men to confer
their nationality on their children, as contained in the ICCPR and CEDAW.
427
The Convention
on the Rights of Persons with Disabilities also provides relevant obligations.
428
Turning to domestic law, the British Nationality Act 1981 and subsequent legislative
amendments provide a framework by which individuals automatically obtain, are granted or
deprived of British nationality. There are a number of provisions within that framework that
refer to statelessness and which generally aim to ensure compliance with the UKs applicable
international obligations.
429
6.3 The denition of statelessness in
British nationality law
The references to statelessness in British nationality law should be interpreted to have the
same meaning as in the 1954 Convention, Article 1(1), namely a person who is not considered
as a national by any State under the operation of its law.
430
This was conrmed by the Special
Immigration Appeals Commission in the case of Hamza, in the context of a case concerning
a deprivation of citizenship order and whether its enforcement would leave the appellant
stateless.
431
See ILPA,
423
Information Sheet: Childrens Welfare, 3 December 2008, available at: http://www.ilpa.
org.uk/resources.php/4635/childrens-welfare.
Borders, Citizenship and Immigration Act 2009, section 55.
424
UK Border, Every Child Matters Change for Children: Statutory guidance to the UK Border Agency
425
on making arrangements to safeguard and promote the welfare of children, available at: http://
www.ukba.homeofce.gov.uk/sitecontent/documents/policyandlaw/legislation/bci-act1/change-for-
children.pdf?view=Binary, paras. 2.6 and 2.7.

426
ZH (Tanzania) (FC) (Appellant) v. SSHD (Respondent), [2011] UKSC 4, United Kingdom: Supreme
Court, 1 February 2011, available at: http://www.unhcr.org/refworld/docid/4d5aa24212.html,
para. 23.
Convention on the Elimination of All forms of Discrimination Against Women,1249 UNTS 13, entry
427
into force 3 Sep. 1981, UK ratication 7 April 1986 and UNCHR, Dakar Summary Conclusions
paras. 7 to 9.
UN Convention on the Rights of Persons with Disabilities 2515 UNTC 3, in force 3 May 2008, UK
428
ratication 8 June 2009, Article 18.
See
429
Fransmans, p. 792.
See Section 4.3.
430
Hamza v. SSHD, op. cit.,
431
para. 5.
6.4 The prevention and reduction of statelessness
6.4.1 Children born on the UK territory
British nationality law contains a number of provisions that aim to prevent and reduce
statelessness. These supplement the general framework of nationality law in relation to birth
on the UK territory.
432
The general framework of British nationality law currently provides that if a child is born on
the UK territory he or she is a British citizen if either parent is a British citizen or is settled
433

in the UK, or would have been but for their death or if either parent is a member of the armed
forces.
434
Where either parent subsequently becomes a British citizen or settled, the child can
make an application before he or she reaches 18 years old to register as a British citizen as of
right.
435
The same is true of children who have a parent who joins the armed forces.
436
If a child
has remained in the UK for ten years since the date of birth, without being absent for more
than 90 days in any one year he or she is also eligible to register as a British citizen, subject
to a good character test.
437
Although six participants
438
had children who were born in the UK, none of these were stateless
at the time of the study. This was for one of three reasons. First, the child may have been born
to a parent who was settled.
439
Second the child was, after birth, able to register as a British
citizen because a parent was subsequently granted settlement.
440
Third, the child was able to
obtain a nationality through descent from the parent who was not stateless.
441
The UK is under an obligation to grant British nationality to children born in the territory who
would otherwise be stateless under the 1961 Convention, Article 1. States may implement
their obligations by granting nationality at birth or through an application procedure, which
may be made subject to certain conditions.
442
The UK has adopted the latter approach with
the general provisions in respect of the acquisition of British citizenship as of right being
supplemented by provisions that aim to reduce statelessness amongst children born in the
UK. One provision allows a child born in the UK who is and has been stateless since birth
Given the geographic scope of the study, this section will focus on provisions that are relevant to
432
the UK mainland territory.
British Nationality Act 1981, s 50(2) provides that references to a person being settled in the United
433
Kingdom are references to his being ordinarily resident in the United Kingdomwithout being
subject under the immigration laws to any restriction on the period for which he may remain.
Further provision as regards being settled in the UK is made by the British Nationality Act s 50(3),
(4). For a more detailed discussion see Fransmans, pp. 336-340.
British Nationality Act, section 1 (1), (1A). See
434
Fransmans, pp. 361-363.
British Nationality Act, section 1(3). See
435
British Nationality Act, section 1(3A). See
436
See
437
Fransmans, pp. 374-375. Discretion may be exercised to disregard excess absences, British
Nationality Act 1981, s 1(7).
438
439
Participants 9, 23, 28 and 32.
440
441
442
to register as a British citizen as of right.
443
The child must be under 22 years of age on the
date of application and must have spent the 5 years preceding the application in the UK or,
if mostly in the UK, with the remainder of the time spent in the British overseas territories,
subject to a residence requirement of 450 days in that period.
444
This provision aims to meet
the UKs obligations under the 1961 Convention.
445
There are additional protections for the children of British overseas territories citizens, British
Overseas citizens and British subjects who would otherwise be born stateless.
446
Even with these provisions in force, however, some stateless children born on the UK territory
will have to wait a minimum period of ve years before they are able to register as a British
citizen as of right under this provision. The fact that there are a small number of children born in
the UK stateless is conrmed by examining the management data provided by the UK Border
Agency.
447
Further data indicates that there were only 10 applications and ve grants under
the British Nationality Act, Schedule 2 paragraph 3, between 2001 and 2010.
448
This trend
was conrmed in a semi-structured interview with ofcials in the Nationality Directorate.
449

However, alongside this, it should be recognised, that the analysis of the data relating to
grants of 1954 Convention Travel Documents in Chapter 3 indicates that there were up to 200
children who applied for and were issued by the UK Border Agency with such documents
between 2002 and 2010.
450
Further, it is also clear from the management data provided by
the UK Border Agency that there were 145 children recorded on the UK Border Agencys CID
as stateless who were born in the UK, and who subsequently registered as British citizens
British Nationality Act 1981, Schedule 2, paragraphs 3. A making provision for a person born in the
443
UK or a British overseas territory after 1982 and who is and always has been stateless. He or she
must have spent no more than 450 days outside the UK and the British overseas territories in the 5
years ending with the date of application. The Secretary of State has discretion to disregard excess
absences. See Fransmans, pp. 375-6.
British Nationality Act, Schedule 2, paragraph 6.
444
UK Border Agency,
445
Nationality Instructions, Volume 1, Chapter 5, available at: http://www.ukba.
homeofce.gov.uk/sitecontent/documents/policyandlaw/nationalityinstructions/nichapter5/
chapter5?view=Binary.
See
446
Fransmans, p. 375. There are provisions for a person born in the UK to automatically acquire
British overseas territories citizenship, British Overseas citizenship or British subject status, where
born otherwise stateless and where born to a parent who holds that citizenship or status; see also
the British Protectorates, Protected States and Protected Persons Order 1982, art 7 for equivalent
provision in respect of British protected persons. British overseas citizenship, British subject status
and British protected person status do not however, without more, confer a right of abode in the
UK.
See Section 3.3.5 conrms that 74% of the 27 children under 5 years old issued Stateless Person
447
Travel Documents (between 2001 and 2010) were born in the UK which would suggest that they
were born stateless but not yet eligible to apply for registration as British citizens because of their
age.
Between 2001 and 2010 there were only 10 applications submitted and ve grants of citizenship
448
made under British Nationality Act Schedule 2 paragraph 3. Management data received from
the UKBA Planning & MI Team North West Region by email dated 19 September 2011 with the
disclaimer that the information has been provided from local management information and is not a
National Statistic. As such it should be treated as provisional and therefore subject to change.
Anecdotal information from a semi-structured interview with the Nationality Directorate (1 August
449
2011).
See Section 3.3.5, Figure 17.
450
when either parent became settled or a British citizen between 2001 and 2010.
451
There also
appear to be 210 children recorded on CID as being stateless who were registered as British
citizens under discretionary provisions between 2001 and 2010.
452
For the latter two data
sets, however, a caveat must be placed on the reliability of the data given that this study has
highlighted a general trend concerning the poor identication and recording of statelessness
on casework systems.
453
Consequently there appears to be a small population of stateless children who are born on
the UK territory and who either remain stateless, or who rely on discretionary provisions to
register as British citizens or, on the basis that their parents either become settled or naturalise
as British citizen, register as British citizens. From the available data it would appear that the
protections specically designed to meet the UKs international obligations towards stateless
persons are little used.
These particular protections in British nationality law can be compared to UNHCR Dakar
Summary Conclusions:
The rules for preventing statelessness among children contained in Articles 1(1) and
1(2) of the 1961 Convention must be read in light of later human rights treaties, which
recognize every childs right to acquire a nationality, in particular where they would
otherwise be stateless. The right of every child to acquire a nationality (CRC Article 7) and
the principle of the best interests of the child (CRC Article 3) together create a presumption
that States need to provide for the automatic acquisition of their nationality at birth by an
otherwise stateless child born in their territory, in accordance with Article 1(1)(a) of the
1961 Convention.
Where Contracting States opt for an application procedure to grant their nationality
to otherwise stateless children, developments in international human rights law create
a strong presumption that States should limit application requirements so as to allow
children to acquire nationality as soon as possible after birth.
454
In the light of these conclusions, it is therefore recommended that the UK reviews the provisions
of its nationality law to ensure the provisions that allow stateless children born in the UK to
acquire British citizenship meet its obligations under the 1961 Convention and, in particular,
the CRC. This is particularly important given the lifting of the reservation to the CRC relating
to nationality law in December 2008. In particular, the UK should apply the absence criteria
Between 2001 and 2010 there were 145 grants of citizenship made under the British Nationality
451
Act 1981, Section 1 (3) to children recorded on CID as Stateless Person (Article 1 of the 1954
Convention), ve recorded as Stateless and 95 as Unspecied Nationality. Management data
received from the UKBA Planning & MI Team North West Region by email dated 19 September
2011 with the disclaimer that the information has been provided from local management
information and is not a National Statistic. As such it should be treated as provisional and therefore
subject to change.
British Nationality Act 1981, section 3(1). Between 2001 and 2010 there were 210 grants of
452
citizenship under the discretionary powers contained in British Nationality Act, section 3(1) to
children recorded on CID as Stateless Person (Article 1 of the 1954 Convention), ve recorded as
Stateless and 105 as Unspecied Nationality. However, anecdotal information from a semi-
structured interview with the UKBA Nationality Directorate (1 August 2011) called into question how
many of these children are in fact stateless given the prevalence of inaccurate data recording on
CID. It was also suggested that there are relatively few applications received concerning stateless
children born to foreign surrogate mothers.
The fact that this was also an issue in the work of the Nationality Directorate was conrmed in
453
anecdotal information from a semi-structured interview with the Nationality Directorate (1 August
2011).
UNHCR,
454
Dakar Summary Conclusions, paras. 22-23.
exibly to ensure stateless children who are habitually resident are not refused registration on
the basis of excess absences.
455
Although the treatment of refugees is not a focus of this research, the situation of children
born to refugee parents on the UK territory raises an issue in respect of the prevention of
statelessness. Children of refugees who are born stateless fall under the safeguard set out
in Article 1 of the 1961 Convention and relevant provisions of UK nationality law. However,
children who have in principle acquired their parents nationality automatically at birth are
also left without an effective citizenship by virtue of the very fact that they are refugees and
therefore unable to exercise their nationality, for example through acquisition of proof of
nationality from a consulate. The children of refugees are, therefore, traditionally viewed as de
facto stateless. This can limit the possibility of transferring nationality by descent. The Council
of Europes Recommendation on the nationality of children recommends that States treat
children who are factually (de facto) stateless, as far as possible, as legally stateless (de jure)
with respect to the acquisition of nationality.
456
However, there are currently no provisions
that facilitate the acquisition of British citizenship for the children of refugees. It is therefore
also recommended that the UK should review its nationality laws to consider whether it would
be appropriate to make specic provision through operation of law at birth or by application
as envisaged by the 1961 Convention, Article 1, paying special regard to the circumstances
of refugee children.
457
6.4.2 Children born outside of the UK
British nationality law allows for the acquisition of British citizenship by descent if either
parent possesses British nationality and the child was born outside the territory in specied
circumstances. Children who are born outside of the UK or qualifying territories
458
now
acquire British citizenship by descent if either their father or mother was a British citizen
otherwise than by descent.
459
However, those who acquire British citizenship by descent do
not ordinarily pass British citizenship to a child if the child is born outside the UK or qualifying
territories. There is therefore a general prohibition against nationality passing to a second
generation born outside the UK. The prohibition also applies to, for example, children who
have registered as British citizens on the basis of purely discretionary provisions.
460
However,
persons who naturalise are British citizens other than by descent, and are therefore able to
pass their nationality to their children born outside of the UK.
There are exceptions to this rule for those who are in Crown Service or equivalent,
461
or in
the service of an EU institution.
462
For a child born before 1 July 2006, there is a requirement
for automatic transmission of citizenship in the paternal line that the father must have been
married to the mother at the time of the birth.
1961 Convention, Article 1(2)(b) sets a maximum qualication period of ve years habitual
455
residence. British Nationality Act, 1981 Schedule 2, paragraph 3 demands, within the ve year
qualication period that the applicant is not absent from the UK for more than 450 days although
paragraph 6 permits the state to disregard excess absences.
Recommendation CN/Rec (2009) 13 of the Committee of Ministers to member states on the
456
nationality of Children. Article 7.
UNHCR,
457
Dakar Summary Conclusions, paras. 17 and 18.
These are dened as the British overseas territories apart from the Sovereign Base Areas in Cyprus.
458
For the statutory denition of those born by descent see British Nationality Act, section 14 and
459
British Nationality Act, section 3(1).
460
See for details
461
See for details
462
These provisions are supplemented by a number of statelessness specic provisions. For
example, stateless children who are born outside the UK to a parent who has British citizenship
by descent may register as British citizens at any time whilst they are children.
463
There are
additional requirements relating to the parents presence in the UK in the three years before
the birth, as well as the fact that one of the parents parents has to have been a British citizen
otherwise than by descent or became or would have become so upon the commencement of
the British Nationality Act 1981.
In addition there are provisions that allow a stateless person born outside the UK and the
British overseas territories after 1982 to register in the same form of British nationality as his or
her parents. The individual must always have been stateless and one of his or her parents at
birth must have been a British citizen, a British overseas territories citizen, a British Overseas
citizen or a British subject. The stateless person must have spent no more than 270 days
outside the UK and the British overseas territories in the three years ending with the date of
application. The Secretary of State has discretion to disregard excess absences.
464
A further provision stipulates that birth outside the UK on a British registered ship or aircraft
or an unregistered ship or aircraft of the government of the UK constitutes birth in the UK if at
least one of the parents was a British citizen or the child would be stateless, and consequently
a child born in such circumstances will be a British citizen.
465
There is also a very specic
provision relating to those who would have been entitled to be a Citizen of the United Kingdom
and Colonies under legislation in force before 1983 if that legislation had continued, but are
otherwise stateless.
466
Finally there are protections which aim to ensure that children who are
born otherwise stateless are able to acquire a form of British nationality that does not provide
the right of abode in the UK.
467
These provisions in UK law can be compared to the relevant provisions of the 1961 Convention.
Guidance on the interpretation of the relevant provisions is contained in the UNHCR Dakar
Summary Conclusions which nd that:
Article 1 of the 1961 Convention places primary responsibility on Contracting States in
whose territory otherwise stateless children are born to grant them nationality to prevent
statelessness. The Convention also sets out two subsidiary rules. The rst is found in
British Nationality Act 1981, section 3(2) as amended by the Borders, Citizenship and Immigration
463
Act 2009, section 43.
British Nationality Act 1981, Schedule 2, paragraph 4 and 6; see also the British Protectorates,
464
Protected States and Protected Persons Order 1982, art 7 for equivalent provision in respect of
British protected persons. British Overseas citizenship, British subject status and British protected
person status do not however, without more, confer a right of abode in the UK. Between 2001
and 2010 there were 205 applications submitted and 150 grants of citizenship made under British
Nationality Act Schedule 2 paragraph 4. Management data received from the UKBA Planning
& MI Team North West Region by email dated 19 September 2011 with the disclaimer that the
information has been provided from local management information and is not a National Statistic.
As such it should be treated as provisional and therefore subject to change.
British Nationality Act 1981, section 50 (7); see also s 50(7A) for those born in the qualifying
465
territories to a British citizen or British overseas territories citizen parent and s 50(7B) for those born
in a British overseas territory other than a qualifying territory (in practice the Sovereign Base Areas)
to a British overseas territories citizen parent.
British Nationality Act 1981, Schedule 2, paragraph 5. Between 2001 and 2010 there were only 30
466
applications submitted and 15 grants of citizenship made under British Nationality Act Schedule 2
paragraph 5. Management data received from the UKBA Planning & MI Team North West Region
by email dated 19 September 2011 with the disclaimer that the information has been provided
from local management information and is not a National Statistic. As such it should be treated as
provisional and therefore subject to change.
See
467
Fransmans, pp. 642-645 and 648-649.
Article 1(4) and applies where an otherwise stateless child is born in a Contracting State
to parents of another Contracting State but does not acquire the nationality of the country
of birth automatically and either misses the age to apply for nationality or cannot meet the
habitual residence requirement. In such cases, responsibility falls to the Contracting State
of which the parents of the individual concerned are citizens to grant its nationality to that
individual. In these limited circumstances where Contracting States must grant nationality
to children born abroad in another Contracting State to one of their nationals, States may
require that an individual lodge an application and meet certain criteria set forth in Article
1(5) that are similar to those set forth in Article 1(2), with some distinctions.
The second subsidiary rule applies where children of a national of a Contracting State
who would otherwise be stateless are born in a non-Contracting State. This rule is set out
in Article 4. Although granting nationality in these circumstances is obligatory, Article 4
gives Contracting States the option of either granting their nationality to children of their
nationals born abroad automatically at birth or requiring an application subject to the
exhaustive conditions listed in Article 4(2).
Like Article 1, Article 4 of the 1961 Convention must be read in light of subsequent
developments in international human rights law. The right of every child to acquire a
nationality, as set out in CRC Article 7 and the principle of the best interests of the child
contained in CRC Article 3, create a strong presumption that Contracting States should
provide for automatic acquisition of their nationality at birth to an otherwise stateless
child born abroad to one of its nationals. In cases where Contracting States require an
application procedure, international human rights law, in particular the CRC, obliges
States to accept such applications as soon as possible after birth.
468
In the light of this interpretation it is recommended that the UK reviews the provisions of its
nationality law to ensure that the provisions that allow stateless children born outside the UK
to acquire British citizenship meet its obligations under the 1961 Convention and, in particular,
the CRC. This review should take into account the lifting of the reservation to the CRC relating
to nationality in December 2008. In particular, the residence test required for registrations
under British Nationality Act 1981 Schedule 2, paragraph 4 that the applicant should have
been in the UK for three years preceding the application to register, and not outside the UK
for more than 270 days in that period should be applied exibly. Excess absences must be
considered in a way that those who are habitually resident in the UK are not prohibited from
registering, as this may risk inconsistency with the obligation in the 1961 Convention, Article
4(2)(b). Further, consideration should be given to whether stateless children born to British
nationals abroad should acquire British nationality as of right, thereby completely eliminating
the occurrence of statelessness in such circumstances.
6.4.3 Foundlings
The 1961 Convention makes special provision to protect children who are discovered on the
territory of a state whose parentage is unknown. It provides: A foundling found in the territory
of a Contracting State shall, in the absence of proof to the contrary, be considered to have
been born within that territory of parents possessing the nationality of that State.
469
With the
purpose of meeting this international obligation, the British Nationality Act 1981 interprets
foundling to mean new born infants found abandoned after 1983. They shall unless the contrary
UNHCR,
468
469
is shown, be deemed to have been born in the UK to a parent who was a British citizen at the
time of birth. Consequently, such children will acquire British citizenship as of right.
470
The Nationality Instructions, which give guidance to caseworkers in the Nationality Directorate
who consider such applications, provide:
There is no denition as to what new-born means in terms of age, and we should
interpret the phrase generously. As a broad rule of thumb, we would expect it normally to
apply to a child no more than a few months old when found. But we should consider the
circumstances of each child, and there may be cases where it would be right to regard
a child as much as one year old as new-born for the purposes of s.1(2) of the British
Nationality Act 1981.
471
The UNHCR Dakar Summary Conclusions found that there is a divergence of state practice
in respect of the interpretation of the 1961 Convention, Article 2 where several Contracting
States limit granting nationality to foundlings that are very young (12 months or younger) while
most Contracting States apply their rules in favour of foundlings to older children, including
in some cases up to the age of majority.
472
In addition it was recommended that [a]t a
minimum, the safeguard for Contracting States to grant nationality to foundlings should apply
to all young children who are not yet able to communicate accurately information pertaining
to the identity of their parents or their place of birth. This ows from the object and purpose of
the 1961 Convention and also from the right of every child to acquire a nationality. A contrary
interpretation would leave some children stateless.
473
Article 18 on the Convention on the
Rights of Persons with Disabilities also provides relevant obligations.
Consequently, it appears that the UK adopts a restrictive approach in law compared to some
other states. It is therefore recommended that the UK reconsider its current practice relating
to who is considered to be a foundling in the light of State practice that provides higher
levels of protections, and to particularly consider whether the denition should extend to older
children who are unable to express their State of origin.
6.5 Proof of statelessness in nationality law
The approach to the proof of statelessness in British nationality law is distinct, but similar, to
the approach in immigration law.
The Special Immigration Commission has recently held, in assessing a case where statelessness
was raised in defence to an attempt to deprive an individual of his or her nationality, that
the burden of proof was on the applicant and that the standard of proof was the balance
of probabilities.
474
Thus, as a matter of law, the burden of proof is not shared between the
applicant and the decision maker.
475
British Nationality Act 1981, Section 1(2).
470
UK Border Agency, Nationality Instructions, Chapter 3, at para. 3.5.2.2, available at:
471
http://www.
ukba.homeofce.gov.uk/sitecontent/documents/policyandlaw/nationalityinstructions/nichapter3/
UNHCR,
472
Dakar Summary Conclusions, para. 43.
UNHCR,
473

474
Hamza v Secretary of State for the Home Department op. cit., paragraph 5. See Fransmans, pp.
590-591 and pp. 791-792 for an analysis.
See Chapter 4 for a more detailed discussion.
475
In a semi-structured interview with ofcials in the Nationality Directorate of the UK Border
Agency, it was noted that the burden of proof falls on the applicant, although it was suggested
that ofcials are able to help by identifying the questions at issue and the evidence that the
applicant would need to produce in order to prove that he or she was, in fact, stateless.
476

The ofcials noted that the applicant is expected to provide supporting evidence as required
by the prescribed application forms and guidance.
477
For those born abroad, letters from the
authorities of the country of the applicants birth as well as letters from the authorities of the
country or countries of nationality of their parents which conrm that the applicant is not a
national of that country are the primary sources of evidence that are expected. Where the
applicant has not provided relevant evidence along with their application, the caseworker
would contact the applicant, setting out what evidence was required asking for it within 21
days. The caseworkers in the Nationality Directorate sometimes research the nationality
law of foreign States, and have on occasion contacted experts in foreign nationality law.
However, in general, it was considered that the onus was on the applicant to submit relevant
evidence and it was not usual practice for caseworkers to make enquiries to the Country
of Origin Information Service. It was not common for caseworkers in the Directorate to
contact consular authorities in the UK or national authorities in respect of individual cases.
478

Guidance, however, does permit such action to be taken with the consent of the applicant
where applicants claim to have tried, unsuccessfully, to obtain a letter conrming non-
possession of another citizenship.
479
This approach to the evidentiary assessment of statelessness contains a number of elements
of good practice. The fact that ofcials research nationality law themselves and have used
expert witnesses to provide evidence of the application of nationality law in practice shows
that the Nationality Directorate is prepared to enter into evidence gathering. Furthermore,
the willingness to identify gaps in the evidence provided in support of an application and to
provide the applicant an opportunity to obtain further evidence is likely to make decision-
making more efcient. However, the lack of an established practice of the decision-maker
contacting the consular authorities of the State where the applicant has a relevant link is a
notable gap. This aspect of the approach is inconsistent with the UNHCR Geneva Summary
Conclusions, which emphasized the need for the applicant and the authorities to share the
burden of proof in assessing statelessness.
480
Given that the provisions in UK nationality
law relating to statelessness are intended to reect the UKs international obligations, the
current approach to the assessment of evidence risks being inconsistent with the object and
purpose of the relevant Conventions. Consequently, it is recommended that the approach to
the evidentiary assessment of statelessness in British nationality law be reviewed in the light
of forthcoming UNHCR Guidelines.
Anecdotal information from a semi-structured interview with the Nationality Directorate (1 August 2011).
476
477
BN5 Information about provisions for Reducing Statelessness, available at:
http://www.ukba.homeofce.gov.uk/sitecontent/documents/britishcitizenship/informationleaets/
bnchapters/bn5.pdf?view=Binary.
Anecdotal information from a semi-structured interview with the Nationality Directorate (1 August 2011).
478
UK Border Agency, Nationality Instructions, Chapter 12, Annex D Claims to have no Other
479
Citizenship or Nationality, available at: http://www.ukba.homeofce.gov.uk/sitecontent/documents/
policyandlaw/nationalityinstructions/nichapter12/ch12annexd?view=Binary.
UNHCR, Geneva Summary Conclusions, December 2010, available at:
480
http://www.unhcr.org/
refworld/docid/4d9022762.html, para. 13.
6.6 Naturalisation
The 1954 Convention, Article 32 provides that:
Contracting States shall as far as possible facilitate the assimilation and naturalization
of stateless persons. They shall in particular make every effort to expedite naturalization
proceedings and to reduce as far as possible the charges and costs of such
proceedings.
Stateless persons who seek to naturalise do so on the same terms as other non-nationals.
Consequently they are required to be settled and lawfully present in the UK for a period of three
or ve years (depending on whether or not they are married to/are the civil partner of a British
citizen), with restrictions on time spent outside the UK during the qualifying period.
481
There
are no statutory provisions or published policies that facilitate the assimilation or naturalisation
of stateless persons by abridging time qualifying periods or prioritising applications. The lack
of specic provisions for stateless persons is of particular concern. Stateless persons who
are granted leave to enter or remain in a category where it is envisaged that settlement and
naturalisation is a possibility are treated in the same way as other non-nationals. This limits
the possibility of stateless persons obtaining a durable solution to their statelessness in the
form of the acquisition of nationality. The predicament that stateless persons face is reected
in the case of Khalil.
Name: Khalil (Participant 37)
482
Country of origin: Palestinian (Lebanon)
Date of arrival in UK: October 2004
Time in limbo: N/A
Current status: Indenite leave to remain in the UK
Khalil, aged 33, is a Palestinian from Lebanon recognised as stateless by the UK Border
Agency. Fearing persecution from a political faction, he ed to the UK in October 2004
and claimed asylum on arrival. He faced numerous delays in the consideration of his
application and appeal. During that time he met his future wife, a British citizen. He was
eventually granted humanitarian protection in June 2007 and married a few months later.
However, his immigration status meant that he would have to wait ve years before he was
able to obtain settlement and, subsequently, apply to naturalise as a British citizen. There
was no procedure whereby he could expedite to naturalise as a British citizen and obtain
a durable solution to his statelessness through the acquisition of British citizenship.
Khalil said: It has been bizarre not being able to access my rights as a stateless person
or to more effectively progress my immigration status. He describes how as a result of
his statelessness he needs to belong somewhere and emphasises that this is not from
a nationalistic perspective but in order to be able to have somewhere to return to.
After switching his immigration status into a spouse category and making extensive
representations with the pro bono assistance of Asylum Aids legal team, Khalil obtained
British Nationality Act 1981, Schedule 1: see
481
Fransmans, Chapter 16.
Participant 37. Unlike other participants, Khalil agreed to take part in this research having been
482
provided with legal assistance by Asylum Aid, following a referral from UNHCR London.
indenite leave to remain in August 2011. This has provided him the opportunity to submit
an application to naturalise as a British citizen that is currently pending.
Khalil observes: Statelessness is not a choice, it is something that arises from a persons
history. It is not something that can just be manufactured. But he is at least now
more optimistic when asked about the future because he now hopes to acquire British
citizenship shortly.
Hopefully the future will be better for me as well as for other stateless individuals.
In addition, the participants in the study indicated that fees can act as a barrier to naturalisation
and, consequently, the acquisition of a permanant solution for stateless persons on the UK
territory. Three of the ve participants who are now settled in the UK, and therefore eligible
to apply for naturalisation, described the registration fee as an obstacle.
483
Abbas,
484
aged
36, a Palestinian who arrived in the UK in 2001 but spent six years in limbo between his
unsuccessful asylum appeal in 2004 and being granted settlement by the Case Resolution
Directorate. When interviewed for this study, he said I want to apply for British citizenship. I
want to apply for my son at the same time so this will cost me 780 plus 520, which is a lot
of money.
485
Another participant, who had also had been granted leave to enter or remain by
the Case Resolution Directorate commented: I have seen the light at the end of the tunnel
but now another shadow has arisen because I cannot afford the fees to naturalise as a British
citizen.
486
In the light of this analysis, it is recommended that the UK reviews its naturalisation provisions
and fees in order to identify what measures can be taken in accordance with its obligations
under the 1954 Convention, Article 32. In particular, consideration should be given to providing
a route whereby stateless persons who are granted leave to enter or remain can have an
accelerated access to settlement or naturalisation where the UK is the most appropriate
country for a settlement solution. Specic consideration should be given to ensure that fees
for naturalisation applications for stateless persons, especially children, are not prohibitive
and are reduced as far as possible.
6.7 Deprivation and loss of nationality
The 1961 Convention contains protections in respect of the deprivation and loss of nationality.
In this context deprivation means a process initiated by the government or the courts
whereas loss happens automatically on the occurrence of an event. The 1961 Convention
prohibits the deprivation of a persons nationality if it would render him or her stateless. It
also provides for procedural protections, including a right to a fair hearing before a court or
other independent body.
487
Upon signature, the UK elected to retain the right to deprive a
483
Participant 9.
484
Since Abbas was interviewed the fees have risen to 836 and 540 respectively. See UK Border
485
Agency UK Border Agency Fees from 6 April 2011, available at: http://www.ukba.homeofce.gov.
uk/sitecontent/documents/aboutus/fees-table-spring-2011.pdf.
Participant 33. It was not possible to obtain a full paper le for this participant but factual aspects
486
were checked on CID as well as through selected immigration papers provided by the participant.
487
naturalised person of his nationality on grounds relating to the persons duty of loyalty to the
state even where such would leave the individual stateless as was permitted.
488
Indeed, the
reason why the UK chose not to sign the European Convention on Nationality 1997 arises
from concerns that it would limit the power of the UK to deprive a person of British nationality
and render him or her stateless.
489
The British Nationality Act 1981, as amended, provides for the circumstances in which an
individual can be deprived of British nationality. They have expanded in recent years and the
Secretary of State can now deprive those who had acquired British nationality by right at birth
of that nationality.
490
In addition, the grounds of such deprivation have been broadened to
include where the Secretary of State is satised that deprivation is conducive to the public
good.
491
However, a provision of domestic law prevents the Secretary of State from making an
order on those grounds, if it would result in a person being stateless.
492
Rather, the Secretary
of State has the power to deprive nationality acquired by registration or naturalisation if it was
obtained by fraud, false representation or concealment of a material fact
493
even if this would
result in statelessness.
The current UK legislation on the deprivation of nationality provides greater protections than
those demanded by the 1961 Convention. Deprivation of nationality on grounds other than
that nationality has been obtained by fraud, misrepresentation or concealment of a material
fact is not permitted if it will result in statelessness. That said, UK law provides for a broader
power to deprive nationality than would be permitted under the 1997 European Convention
on Nationality
494
but the UK has not signed or ratied the 1997 Convention and is therefore
not bound, in international law by its provisions. Furthermore, the European Court of Justice
has found that additional obligations arise in EU law
495
in respect of the deprivation of British
nationality for British nationals who can be said to have European Union Citizenship.
496
They
demand that the principle of proportionality must be observed in the decision to withdraw
See Declarations and Reservations to the 1961 Convention on the Reduction of Statelessness as
488
of 20 September 2006, www.unhcr.org/416113864.html, page 3, paragraph 11. The declaration
provides that the UK retains the power to deprive a naturalised person of his nationality on
the following grounds, being grounds existing in United Kingdom law at the present time: that,
inconsistently with his duty of loyalty to Her Britannic Majesty, the person (i) Has, in disregard of
an express prohibition of Her Britannic Majesty, rendered or continued to render services to, or
received or continued to receive emoluments from, another State, or (ii) Has conducted himself in a
manner seriously prejudicial to the vital interests of Her Britannic Majesty.
Immigration Law Practitioners Association,
489
Brieng Borders, Citizenship and Immigration Bill,
House of Lords Committee Part 2 Citizenship Clause 39 The qualifying period Amendment to
Clause 39 (2), available at: http://www.ilpa.org.uk/pages/briengs-on-the-borders-citizenship-and-
immigration-bill-2009.html.
British Nationality Act 1981, Section 40 substituted by Nationality, Immigration and Asylum Act
490
2002 section 4.
British Nationality Act, Section 40 (2) substituted by Immigration, Asylum and Nationality Act 2006,
491
s56, in force 16 June 2006. For a discussion of when this test is met see Fransmans, p617-619.
British Nationality Act 1981, Section 40(4). See
492
Al-Jedda v Secretary of State for the Home
Department SC/23/2003, 5 November 2003 and Hamza, op. cit.
British Nationality Act 1981, Section 40(6).
493
See European Convention on Nationality, Article 7(1)(d) A State Party may not provide in its internal
494
law for the loss of its nationality ex lege or at the initiative of the State Party except in the following
cases:...(d) conduct seriously prejudicial to the vital interests of the State Party.
See
495
Janko Rottman v Freistaat Bayern C-135/08, European Court of Justice. 2 March 2010,
available at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=celex:62008cj0135:en:html.

496
Fransmans identies this protection as extending to British citizens, Gibraltarian British Overseas
Territories Citizens, or British subjects with the right of abode in the UK of that nationality status or
immigration status. See Fransmans, p. 604.
citizenship. Although the decision is not restricted to cases where the deprivation of
nationality results in statelessness, it also applies in the context where nationality has been
acquired by deception. In contrast, the 1961 Convention permits States parties to deprive
individuals of nationality even if it results in statelessness, if the nationality had been obtained
by misrepresentation or fraud, without any requirement for proportionality.
497
Those deprived of citizenship can appeal to the First-tier Tribunal (Immigration and Asylum
Chamber) or, where the Secretary of State certies the appeal on specied grounds relating
to national security or state interest, the appeal will be considered by the Special Immigration
Appeals Commission.
498
This right of appeal seeks to meet the obligation in Article 8(4) of the
1961 Convention.
499
The 1961 Convention also contains protections in respect of the loss of citizenship. British
nationality law complies with these international obligations. A British citizen may make
a declaration of renunciation,
500
but the Secretary of State will only register it if certain
safeguards are met. Those safeguards are that the person who is renouncing nationality
will after registration have or acquire some other citizenship. If the person concerned does
not acquire a new citizenship or nationality within 6 months of the date of registration, the
declaration of renunciation will be invalid and the person is deemed to have remained a British
citizen.
501
There are additional protections for children.
502
Further a British citizen may not lose
their nationality on the grounds of departure, residence abroad or a failure to register.
503
In the areas of loss and deprivation of nationality, the UK complies with the substantive
protections required by the 1961 Convention.
Conclusions
The evaluation of British nationality law and its capacity to reduce and prevent statelessness
indicates that substantive protections exist, and, in particular, appear to meet the UKs
international obligations in a number of important areas. However, there remain further steps
that could be taken in order to ensure that the rights ensured by British nationality law can be
extended to stateless persons, particularly in respect of stateless children.
1961 Convention, Article 8(2)(b).
497
British Nationality Act 1981, Section 40A. See
498
Fransmans, p. 619.
This provides: A Contracting State shall not exercise a power of deprivation permitted by
499
paragraphs 2 or 3 of this article except in accordance with law, which shall provide for the
person concerned the right to a fair hearing by a court or other independent body. However, the
procedural protections in an appeal to the Special Immigration Appeals Commission arguably
may not constitute a fair hearing. See, for example, not in a deprivation of nationality context, W.
(Algeria) & Ors v. SSHD [2010] EWCA Civ 898.
British Nationality Act 1981 section 12 (1), (2). See Fransmans, p. 608.
500
British Nationality Act 1981, section 12(3) complying with 1964 Convention, Article 7(1).
501
See
502
Fransmans, p. 608.
1961 Convention, Article 7(3) and 7(4).
503
Recommendations
The Home Ofce and UK Border Agency should review their approach and
guidance to assessing statelessness in the context of applications for British
nationality to ensure that the UK meets their obligations in international law, as
reected in forthcoming UNHCR Guidelines on the denition of stateless person
in Article 1(1) of the 1954 Convention and on the interpretation of Articles 1 to 4
of the 1961 Convention. In particular, it should ensure that the burden of proof is
shared between the State and the applicant and that the approach to assessing
evidence of statelessness is consistent with those Guidelines.
The Home Ofce and UK Border Agency should review the relevant provisions
of British nationality law to ensure that, for children either born in the UK or born
to British citizens abroad, the UKs obligations contained within the Convention
on the Rights of the Child in respect of a childs right to acquire a nationality are
properly considered when interpreting and applying the provisions of the 1961
Convention.
The Home Ofce and UK Border Agency should review their approach to
foundlings. In such cases, current provisions that can limit the presumption of
being born on the UK territory to new born infants should be reconsidered in light
of the object and purpose of the 1961 Convention of preventing statelessness and
more liberal practice of other States.
Given that the research uncovered quantitative data suggesting that there are
children who are born stateless on the UK territory, it is recommended that further
research should be undertaken to evaluate the numbers and prole of the children
affected.
The Home Ofce and the UK Border Agency should review existing naturalisation
law and policy with regard to Article 32 of the 1954 Convention in order to better
facilitate the assimilation and naturalisation of stateless persons. This should
include the introduction of provisions that allow for expedition of naturalisation
procedures for stateless persons as well as the reduction of relevant fees to ensure
that stateless persons prospects of naturalisation are not inappropriately limited.
CHAPTER 7: CONCLUSIONS AND
RECOMMENDATIONS
The research had multiple aims. It hoped to map the number and the prole of stateless and
unreturnable persons in the UK, putting a human face on the issue through interviews and
trying to gain a deeper understanding of the way they are treated by the UK Border Agency
through reviewing their immigration case les. It also sought to research the UKs obligations
in international law towards stateless persons and to analyse law, policy and practice to
evaluate the extent to which those obligations were being met.
Unfortunately, the data in the wide range of data sets examined was not of sufcient quality
to accurately estimate the number and prole of stateless persons on the UK territory. The
indirect data examined was not of a sufcient quality to even attempt an analysis of the
number of unreturnable persons. Any attempt to identify the number and prole of stateless
persons risks a signicant undercount because of poor identication and recording, lack of
clarity and inconsistency in the categorisation of statelessness within both published statistics
and the UK Border Agencys management data.
The data recorded in respect of stateless persons should be improved through adopting a
uniform denition, in accordance with forthcoming UNHCR Guidelines, through developing
clearer guidance specically for UK Border Agency ofcials on the identication of statelessness
and through increasing awareness and training. This could be complemented with small
but important changes to casework databases. The categorisation of stateless contained
in Home Ofce published immigration statistics since August 2011 needs to be rened. In
addition, the 2011 Census data should be analysed alongside other data sources to build the
best achievable current picture of the numbers and prole of stateless persons in the UK.
Despite these limitations it was possible to identify a number of key trends in the data
examined. First of all, there appears to be a number of stateless persons who come to the UK
with the grant of prior entry clearance or a visa, who are granted leave to enter on arrival, and
who either return to their country of origin or settle in the UK. This group seems to present few
challenges for immigration control, but it was not possible to estimate their number. However,
an examination of various data sets indicated a gure of around 400-500 persons per year,
either stateless or unknown nationality, making applications under immigration and EEA law.
A detailed examination of the published asylum statistics shows that there are around 150-200
asylum-seekers identied as stateless by the UK Border Agency each year. The grant rate in
these asylum applications is signicantly higher than average, with a recognition rate of 50%.
This leaves up to 100 stateless persons each year who are refused asylum and, according to
numbers disaggregated from the removals statistics, around 10% of these stateless persons
refused asylum are being removed from the UK each year. Without a means to determine their
status in the UK, it can only be concluded that the remaining individuals are left in limbo. This
pattern is supported by the prole of participants referred to the project and the interviews
and le reviews undertaken.
An in-depth analysis of the circumstances of the participants in this study revealed that
stateless and unreturnable persons without leave to remain face the risk of a number of human
rights challenges that are directly linked to their lack of immigration status. These range from
destitution and street homelessness to immigration detention. Although there are protections
in domestic law for this group, they appear to be inadequate because they are not specically
applied to or tailored in a way that addresses the unique situation of stateless persons and the
international obligations that they are owed, particularly under international human right law.
Between 1973 and 1980, the international conventions relating to statelessness were referred
to in the Immigration Rules. However, this reference was deleted, apparently on the basis of a
Tribunal judgment that today would likely be considered to have been made in error. Further,
between 1998 and 2002, a policy was in place to allow those identied as being stateless, if
appropriate, to be granted indenite leave to remain.
In the absence of the effective identication of stateless and unreturnable persons, the
evidence showed that they faced a number of complex and signicant human rights challenges.
These were most profound in the areas of immigration detention and access to employment
and social assistance. Although caselaw and guidance does engage with issues relating to the
prospects of removal of non-nationals who have not been granted leave to enter or remain, the
engagement with statelessness is limited. Statelessness should be understood as a relevant
consideration for which specic provision should be made to ensure that the UK respects its
obligations under the 1954 Convention and in international human rights law. Law and policy in
these areas needs to expressly take into account the specic needs of stateless persons and
be applied in a way that ensures that international law obligations are respected.
The study also revealed that, at present, in both immigration and nationality law, when an
individual asserts that he or she is stateless, the burden of proof is placed on the individual
rather than being shared between the state and the individual. In addition, despite references
in case law, there is little developed judicial or UK Border Agency guidance on how to assess
whether a state considers an individual as a national under the operation of its law. The guidance
that does exist does not correspond to the conclusions of expert meetings convened in 2010
and 2011 to facilitate the development of UNHCR Guidelines, in particular on the interpretation
of stateless person within Article 1(1) of the 1954 Convention. The UKs approach to identifying
stateless persons should be reviewed in the light of the forthcoming UNHCR Guidelines and
the UK Border Agency should devise guidance that is consistent with those Guidelines.
The development by the Home Ofce and UK Border Agency of a procedure for determining
stateless status as quickly and efciently as possible is the key measure that would help
alleviate many of the human rights challenges which stateless persons currently face in the
UK. This measure should be complemented by a change in Home Ofce policy which would
result in those entitled to the protection of the 1954 Convention, in appropriate cases, being
granted leave to enter or remain if they are currently without immigration status. There should
not be restrictions on entitlement to work or recourse to public funds for those granted such
leave. The combination of these changes would help to ensure that the UKs obligations
under the 1954 Convention and international human rights law were met. Furthermore, such
a procedure could help establish whether some undocumented non-nationals possess or are
entitled to a nationality, which could facilitate the operation of immigration control.
Turning to British nationality law, which includes specic provisions designed to meet
obligations under the 1961 Convention, the statistical evidence showed that it is generally
effective at preventing statelessness at birth. There is, however, evidence of a small number of
stateless children who were born on the territory and remained stateless for ve years before
being able to register as British citizens as of right. Furthermore, there is no accelerated or
prioritised route through which stateless persons on UK territory can naturalise as British
citizens, as addressed in Article 32 of the 1954 Convention. These are both areas that should
be reviewed in the light of the UKs international obligations.
UNHCR and Asylum Aid have developed a series of recommendations from this research,
addressed to those who are responsible for the areas where improvements can be made.
Some recommendations are addressed to government as a whole, where responsibility lies
across a number of Departments. The majority of recommendations are addressed to the
Home Ofce, which is responsible for policy in immigration and nationality matters and to the
UK Border Agency with operational responsibility in those areas, although there are a small
number that are addressed specically to each.
Recommendations
The identication of stateless persons and improving their treatment
The Home Ofce and the UK Border Agency should develop an accessible
procedure for identifying stateless persons on the territory in order to meet the
UKs legal obligations under the 1954 and 1961 Conventions and in international
human rights law.
The Home Ofce should change its policy and grant leave to enter or remain to
stateless persons, in appropriate circumstances, to ensure that the UKs obligations
The UK should incorporate the 1954 Convention into domestic law to ensure that
stateless persons in the UK are able to access their rights guaranteed under the
Convention.
The Home Ofce and UK Border Agency should develop guidance on the
identication of stateless persons and adopt a position in accordance with
forthcoming UNHCR Guidelines on the denition of stateless person in
international law. In particular this guidance should ensure that the burden of proof
is shared between the applicant and the State and that the approach to assessing
evidence meets the developing understanding of the interpretation and application
of Article 1(1) of the 1954 Convention. It should make it clear that statelessness may
only become apparent during the process of attempting to obtain documentation
to allow an individual to return to a foreign State, and in the light of responses
received from that States consular or other national authorities.
The UK government should ensure that legal aid is available to stateless persons,
who cannot afford to pay for a lawyer themselves, and are seeking to have their
status recognised. Legal aid is a necessary part of an efcient procedure for
determining statelessness and helps to ensure that the UKs legal obligations
under the 1954 Convention and international human rights law are met.
The UK government should ensure that provisions relating to the accessibility of
welfare benets, asylum support, section 4 support and the entitlement to work
do not result in stateless and unreturnable persons being at risk of destitution
and street homelessness to ensure compliance with the UKs obligations under
the 1954 Convention and in international human rights law.
The Home Ofce and the UK Border Agency should amend the guidance on
immigration detention to expressly identify an individuals statelessness as a factor
that will weigh against detention on the basis that it is likely to indicate that there
are no reasonable prospects of removal. Legislation should also be considered
that would place a reasonable maximum time limit on immigration detention, to
act as an additional protection against the risk of indenite detention of stateless
1
2
3
4
5
6
7
persons. These changes would help meet the UKs international human rights law
obligations to stateless persons.
The UK Border Agency should improve its training in respect of statelessness
to ensure that ofcials are able to identify and register stateless persons and, if
identied, are aware of the consequences that ow in respect of immigration status,
entitlement to support and accommodation, the appropriateness of immigration
detention and the approach that should be taken to removal.
The Department of Health Regulations and Guidance on charging for secondary
healthcare should be applied in a way that stateless and unreturnable persons
who are not deemed ordinarily resident are able to access necessary and urgent
secondary healthcare in compliance with the UKs obligations under international
human rights law.
UK civil society should develop accessible training for legal representatives on
statelessness and its treatment in UK law to help ensure that stateless persons on
the UK territory are identied.
British Overseas citizens currently in limbo in the United Kingdom, who after
having renounced their Malaysian nationality are unable to register as British citizens,
should be granted limited Discretionary leave to remain whilst the government
makes further enquiries of the Malaysian authorities. Each individual should
cooperate fully with those enquiries. If after examination on a case by case basis
no durable solution in Malaysia is possible, a longer period of Discretionary leave to
remain should be granted, as a rst step to achieving a long-term solution.
The Home Ofce and the UK Border Agency should review guidance on the
application of Article 1D of the 1951 Convention to ensure that it accords with
UNHCRs interpretation of that Article.
The reduction of statelessness in British nationality law
The Home Ofce and UK Border Agency should review its approach and guidance
to assessing statelessness in the context of applications for British nationality
to ensure that the UK meets its obligations in international law, as reected in
forthcoming UNHCR Guidelines on the denition of stateless person in Article
1(1) of the 1954 Convention and on the interpretation of Articles 1 to 4 of the
1961 Convention. In particular, it should ensure that the burden of proof is shared
between the State and the applicant and that the approach to assessing evidence
of statelessness is consistent with those Guidelines.
The Home Ofce and UK Border Agency should review the relevant provisions
of British nationality law to ensure that, for children either born in the UK or born
to British citizens abroad, the UKs obligations contained within the Convention
on the Rights of the Child in respect of a childs right to acquire a nationality are
properly considered when interpreting and applying the provisions of the 1961
Convention.
8
9
10
11
12
13
14
The Home Ofce and UK Border Agency should review their approach to
foundlings. In such cases, current provisions that can limit the presumption of
being born on the UK territory to new born infants and should be reconsidered in
light of the object and purpose of the 1961 Convention of preventing statelessness
and more liberal practice of other States.
Given that the research uncovered quantitative data suggesting that there are
children who are born stateless on the UK territory, it is recommended that further
research should be undertaken to evaluate the numbers and prole of the children
affected.
The Home Ofce and the UK Border Agency should review existing naturalisation
law and policy with regard to Article 32 of the 1954 Convention in order to better
facilitate the assimilation and naturalisation of stateless persons. This should
include the introduction of provisions that allow for expedition of naturalisation
procedures for stateless persons as well as the reduction of relevant fees to ensure
that stateless persons prospects of naturalisation are not inappropriately limited.
Statistics, IT Systems and Recording
To obtain a more complete understanding of the number and prole of persons
who may be stateless in the UK, the Home Ofce should undertake an analysis
of the 2011 Census data. This analysis should be compared with the analysis of
other data sources identied in this study to try to build the best achievable overall
picture.
The statistical recording and reporting of stateless persons as dened by Article
1(1) of the 1954 Convention should be made available as a disaggregated group in
published Home Ofce immigration statistics. Recent progress in this area should
be consolidated with further changes necessary to ensure that stateless persons
are not conated with refugees, and that both groups are distinct in published
statistics.
The UK Border Agency should consolidate the numerous categories relating to
stateless persons and those of unknown or unspecied nationality into distinct
groupings to facilitate more accurate recording and identication. In particular, the
Border Agency should have a consistent approach as to whether statelessness
should be identied as a specic nationality category on casework databases,
such as the Case Information Database (CID).
15
16
17
18
19
20
To ensure a more accurate registration and recording of stateless persons the UK
Border Agency could develop its IT systems. For example:
When stateless or unknown nationality is selected on the CID drop-down
menu, a country of birth or origin option should also be available for case
owners/screening ofcers to ll in; and,
When an individual knows their country of origin, but is uncertain about their
nationality but does not declare themselves to be stateless, this uncertainty
should be recorded in a systematic and easily accessible way to allow
statistical analysis. It should not be noted in the CID notes eld as this means
the issue becomes hidden. This should also be the case where an individual
asserts themselves to be stateless but this is not accepted by the UK Border
Agency, or there is not yet sufcient information to conrm this.
New UK Border Agency guidance relating to the recording of statelessness on
CID and other IT systems should be developed to ensure that ofcials use a
consistent approach and to avoid the risk of incorrect attribution of nationality or
the failure to record when an individual is stateless. This guidance should take into
account UNHCRs forthcoming Guidelines on the denition of stateless person
in international law to ensure that the UKs obligations under the 1954 and 1961
Conventions are met for all those who are stateless.
21
22
SCHEDULE OF PARTICIPANTS
The participants interviewed for the research are scheduled below, as referenced in the report
by their pseudonym and/or assigned number. It was not possible to prole all the case studies
in full because of space limitations as well in some instances where it was not possible to
verify relevant information provided during the interview. Further information can be found in
the methodology in Section 1.3.
Participant Pseudonym / Prole
1. Vladimir / Lithuania
2. Yasser / Palestinian (Lebanon)
3. Tauy / Belarus
4. Omar / Kenya
5. Amari / Palestinian
6. Nischal / Bhutan (Nepalese)
7. Thierry / France
8. Antwan / Palestinian
9. Abbas / Palestinian
10. Ghanim / Kuwaiti Bidoun
11. Amir / Palestinian (Kuwait)
12. Mustafa / Syrian Kurd
13. Ahmad / Kuwaiti Bidoun
14. Kathem / Iraq (Jewish)
15. Imad / Kuwaiti Bidoun
16. Hussain / Kuwaiti Bidoun
17. Bashir / Syria
18. Farid / Algeria
19. Hassan / Chad
20. Derek / Liberia
21. Li / China
22. Mary / Burundi
23. Mohammed / Kuwaiti Bidoun
24. Akbar / Iran
25. Ali / Iran
26. Kidane / Eritrea/Ethiopia
27. Amani / Kuwaiti Bidoun
28. Philip / Sierra Leone
(British protected person)
29. Steven / Mozambique
30. Nasser / Kuwaiti Bidoun
31. Fatima / Kuwaiti Bidoun
32. Nisreen / Kuwaiti Bidoun
33. Colin / Zimbabwe
34. Ernest / Malaysia
(British overseas citizen)
35. Constantine / Malaysia
(British overseas citizen)
36. Yusuf / Kuwaiti Bidoun
37. Khalil / Palestinian (Lebanon)
SEMI-STRUCTURED INTERVIEW
QUESTIONNAIRE
504
Start the interview by introducing yourself and explaining the purpose of the research.
Emphasise that Asylum Aid is an independent charity working on behalf of asylum-seekers
and that all information will be treated in condence. Read through and sign the consent form
(after ensuring that this is fully understood by the interviewee).
Record personal details: name/gender/age /current address and contact details.
1. Reasons for becoming stateless
I want to begin by asking you some introductory questions about your family as well as the
place where you were born and anywhere else you have lived before you came to the UK:
Where were you born (town and country)? Were your parents married? Where were your
parents born? Where were your grandparents born? Do you have brothers and sisters?
Are you a member of any particular ethnic group? Were your parents of the same ethnic
group?
Do you practise any religion? If so, did your parents have the same religion?
Are/have you been married? What is/was the nationality, place of birth, ethnic group and
religion of your spouse/s? Did marrying affect your nationality? Do you have children?
If so, where and when were they born and what is their nationality? Were you and your
partner married at the time your children were born?
Other than the country where you were born, where else have you lived before coming
to the UK? For each place please describe the length of time you lived there, school/
education/employment details, family members present and immigration status?
Have you ever applied for and been refused the citizenship of any country? If yes, please
give details, including by describing any documents that you provided in support of your
application. If you previously held citizenship please explain how and when you lost this.
Have you ever possessed a passport, birth certicate or identity document (that stated
your nationality), either from the country where you were born or any other country you
have lived in? If yes, how did you come to lose this?
Have you already or would you be able to apply for a replacement passport or identity
document? If not, why not? Could you go back home if you wanted? When was the last
time you went home to your country of origin? Have you ever contacted the consular
representatives of your country for assistance? If so, when/how often? Did you get the
assistance requested? Please describe.
As with all semi-structured interview formats, the listed questions are neither exhaustive nor
504
obligatory, and were used variably depending on the particular circumstances of each interviewee.
2. Immigration history since entering the UK
How did you get to the UK (and did anyone assist you)? When and where exactly did you
arrive in the UK? Did you identify yourself to be stateless? How was this recorded?
Did you have a valid visa to enter the UK or did you travel by other means? Please
describe.
If you travelled by other means, on what basis did you apply to remain in the UK? What
reasons did you give? Did these include the fact that you are stateless? Did a lawyer
assist you with your application (if so may we contact them and what are their details)?
What was the outcome of your application? If granted, what status were you given?
If refused, when was this and what were the reasons? Whether your application was
granted or refused, did the UK authorities accept that you are stateless?
Did you appeal against the refusal? If so when was your appeal and did this address the
issue of your statelessness? What was the outcome of your appeal? If granted, what
status were you awarded? If refused, what reasons were given and did the judge make a
nding as to whether you are stateless?
Did you make any further appeal/s? What was the outcome/s? Please give details.
Did you make any other/subsequent applications? What was the outcome? Please
describe
What is your current immigration status? Has UKBA ever set removal directions for you?
Has UKBA ever attempted to remove you unsuccessfully? Please give details.
3. Living conditions while in the UK
Have you experienced problems as a stateless person? If so, what have been the three
most difcult things for you during your time in the UK as a stateless person?
Have these difcult things changed over time? Please explain.
Where have you lived and how have you supported yourself during your time in the UK?
Have you worked or studied during your time in the UK? Please describe.
If you have received government assistance and/or accomodation, have there been any
periods of time when you did not receive this and what did this mean for you?
Have you ever been destitute during your time in the UK, without access to any support
or accommodation from anyone? Please describe, including when and for how long this
lasted?
Have you ever been detained during your time in the UK? [See additional questions
below]
If the person is or has been detained during their time in the UK:
- When were you detained and for how long? Were you detained more than once?
- What were the reasons for your detention/s? Were you detained under immigration
powers and/or because you were convicted of a criminal offence? Please give
details.
- Where were you detained? Please describe the conditions? Did you have access
to a lawyer to assist with your release from detention? How many times did you
apply for release from detention before you were released (or until now if you are
still detained)?
- Did the reasons given to either continue or end you detention include your
statelessness and/or difculties in removing you to your country of origin?
- What were the most difcult things for you during your time in detention?
- What happened to you after your release from detention?
4. Statelessness and the individual
What is your biggest worry?
Please complete the following sentence about yourself: I see myself as...
How does statelessness affect the way you see yourself?
Do you consider yourself to have special needs that other people do not have? Please
explain.
Do you know other stateless persons who are in a similar position to you?
How do you view the future? What do you think will be the outcome of your current
situation?
5. Ending the interview
These are all the questions I have. Is there anything else you would like to tell me that you
think is important?
Would you like to make any clarications? Is there anything you would like to ask me?
Thank the participants again and reiterate contact details in the event of questions or
concerns.
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This document is for general distribution. All rights reserved.
Reproduction and translation is authorised, except for commercial
purposes, provided that UNHCR/Asylum Aid is acknowledged as
the source.

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