Author: Nath Gbikpi
People who do not have citizenship of any country in the world — the “stateless” — can get leave to remain in the UK because they have nowhere else to go. The criteria for this leave are found at Part 14 of the Immigration Rules. The Home Office also has guidance on Statelessness and applications for leave to remain.
In addition, practitioners should refer to the 1954 Convention Relating to the Status of Stateless Persons, and the UNHCR Handbook on Protection of Stateless Persons. The Home Office guidance states that, when there are differences between the Handbook and the guidance, the guidance will take precedence.
The guidance is likely to be updated soon to reflect changes in the Immigration Rules due to come into force on 6 April 2019. This post looks at statelessness in light of the amended Immigration Rules.
Who is stateless?
Paragraph 401 of the Immigration Rules adopts the definition of the 1954 Convention. A stateless person is defined as a “person who is not considered as a national by any State under the operation of its law”.
The guidance says that “a ‘State’ will be one recognised as such by the UK. This is regardless of the effectiveness of its government”.
Kosovo is not recognised as a state by Spain, but it is recognised as a state by the UK. Therefore, a national of Kosovo, who is recognised as a citizen by Kosovo, will not be considered stateless by the UK.
Venezuela is currently facing such an economic crisis that many Venezuelan nationals have been unable to get passports, because of a shortage of papers. Venezuela does, however, continue to be considered a state. A Venezuelan national will not be considered stateless, even if they cannot obtain a passport confirming their nationality.
Under operation of the law
Even if someone seems to be a citizen under the law of a particular state, they may still be considered stateless if they are not treated as a citizen in practice. The Home Office recognises that:
Where the national authorities have in practice treated an individual as a non-national even though:
the applicant appears to meet the criteria for automatic acquisition of nationality under the operation of a country’s laws
the applicant has cooperated with reasonable requests from the State
it is the position of the national authorities rather than the letter of the law that is likely to be decisive in concluding that a State does not consider such an individual as a national. For example, this may occur where discrimination against a particular group is widespread in government departments or where, in practice, the law governing automatic acquisition at birth is systematically ignored and individuals are required instead to prove additional ties to a State.
The requirements of the Rules
In summary, for someone to be granted leave on the basis of statelessness, they must:
- not be “excluded” from recognition as a stateless person
- meet the definition of statelessness
- make a valid application
- not be admissible to another country
- have obtained and submitted all reasonable evidence
- not fall for refusal on the grounds of being a danger to the security or public order of the UK; or on grounds set out at paragraph 322 of the Immigration Rules
In addition, for applications made on or after 6 April 2019, applications will need to show that:
- they have sought and failed to obtain or re-establish their nationality with the authorities of the relevant country
- if they are a child born in the UK, they have provided evidence that they have attempted to register their birth with the relevant authorities but have been refused.
1. Meeting the definition
The first requirement to be granted leave on the basis of statelessness is to meet the definition in the previous section: not being considered a citizen by any country in the world.
However, that is not the end of the game. Applicants must meet additional requirements set out below.