Education
Statelessness Applications in the UK under Appendix Statelessness
By David Zuther – Legal Associate
In This Article
1. Overview of Appendix Statelessness in the UK Immigration System
2. Validity Requirements for Statelessness Applications in the UK
3. Suitability Criteria for Statelessness Applicants in the UK
4. Eligibility Criteria for Statelessness in the UK
5. Proving Stateless Status and Meeting Requirements
6. Grants of Leave Under Appendix Statelessness
7. Contact Our Immigration Barristers
8. Frequently Asked Questions
9. Glossary
10. Additional Resources
1. Overview of Appendix Statelessness in the UK Immigration System
In this article, we explore Appendix Statelessness in the UK. At the end of 2022, the UN High Commissioner for Refugee (UNHCR) estimated that 4.4 million people around the world were stateless. Article 1(1) of the 1954 Convention relating to the Status of Stateless Persons defines a stateless person as someone who is ‘not considered as a national by any State under the operation of its law’.
Statelessness can result from various factors, including laws which discriminate against ethnic or religious minorities or on the basis of gender, problems resulting from state succession, or territorial changes. Those affected by it are in a vulnerable position, and may struggle to obtain any form of identity document, access public services, or exercise rights including owning property, travelling freely, or voting.
The international community has long recognised the undesirability of this phenomenon, and the 1954 treaty was in time supplemented by the 1961 Convention on the Reduction of Statelessness. The UK is a party to both treaties.
Provision for stateless persons in the UK immigration system is currently made through Appendix Statelessness to the Immigration Rules, which was introduced by a Statement of Changes laid before Parliament in December 2023, and which applies from 31 January 2024. Like its predecessor – Part 14 of the Immigration Rules, in force from 2013 – Appendix Statelessness allows individuals to apply for leave to remain in the UK on the basis that they are stateless. This article will examine the key provisions and concepts used in that Appendix.
It is important to note at this stage that British nationality law enables some persons who would otherwise be stateless to register as British citizens, subject to various requirements. This possibility is provided for in Schedule 2 to the British Nationality Act 1981. However, this blog will focus on the provisions relating to stateless persons in the Immigration Rules only.
Appendix Statelessness follows the usual design of the Immigration Rules and separates the requirements applicants need to meet into three categories – Validity, Suitability and Eligibility.
2. Validity Requirements for Statelessness Applications in the UK
Applicants must make a valid application. As for other immigration routes, there is a specified online form. Applicants must also be in the UK on the date of application, satisfactorily prove their identity, and provide their biometrics. There is no fee for applications under Appendix Statelessness.
3. Suitability Criteria for Statelessness Applicants in the UK
Applicants must not fall for refusal under Part 9 of the Immigration Rules (see explainer here).
However, in addition, Appendix Statelessness contains specific suitability provisions which are based on Article 1(2) of the 1954 Convention, which excludes individuals from the scope of its protection in a number of circumstances:
Paragraph S.2.2(a) of Appendix Statelessness reflects Article 1(2)(i) of the 1954 Convention (which in turns mirrors Article 1D of the 1951 Refugee Convention) in excluding those who are receiving protection or assistance from organs or agencies of the United Nations other than the UNHCR. In practice, this exclusion ground applies solely to stateless Palestinians receiving protection or assistance from the UN Relief and Works Agency (UNWRA). However, stateless Palestinians who were previously supported by UNRWA may still be eligible under Appendix Statelessness if that support has ceased for reasons beyond their control and not of their own choice (for a discussion of recent legal developments in relation to the situation in the Gaza Strip and Article 1D of the Refugee Convention, see our previous article Refugee Status for Palestinians Where UNRWA Assistance Has Ceased.
Paragraph S.2.2(b) reflects Article 1(2)(ii) of the Statelessness Convention, which, again, has an equivalent in Article 1E of the Refugee Convention. It applies where a person is resident in a country and, while not having that country’s nationality, is recognised by its authorities as having the rights and obligations which would come with citizenship of that country.
Finally, applicants must not be excluded from the scope of the Statelessness Convention (Article 1(2)(iii) and paragraph S.2.3. of Appendix Statelessness) because there are ‘serious reasons for considering’ that they have committed war crimes, crimes against peace or humanity, serious non-political crimes, or acts contrary to the purposes and principles of the United Nations. This, too, mirrors exclusion provisions under the 1951 Refugee Convention.
4. Eligibility Criteria for Statelessness in the UK
The first eligibility criterion under Appendix Statelessness requires an applicant to meet the definition in Article 1(1) of the 1954 Convention, set out above. However, there are several aspects to clarify.
In the first place, it is important to note that applicants are required to have taken all reasonable steps, but nonetheless failed to:
- acquire, or re-acquire, nationality with the competent authorities of any relevant countries
- establish a right to admission as a permanent resident, or a status leading to permanent residence, in any relevant countries
Where the applicant is a child, their parent(s) or legal guardian must show that these steps have been taken.
The requirement to prove that the applicant has taken all reasonable steps to acquire or re-acquire a nationality of, or a right of admission to, any country relevant to them, is a crucial aspect of the rules. It means that an applicant may be refused where they are ‘technically’ stateless, in the sense that at the time their application is considered, they do not hold the nationality of any country, but the decision-maker considers that it is within their power to change this, for example by registering their birth with the relevant authorities. This requirement, expressly set out in the Rules since 2019, was previously established in the case-law (see here and here).
5. Proving Stateless Status and Meeting Requirements
Applicants must prove they meet the relevant eligibility requirements on the balance of probabilities i.e., that it is more likely than not that they meet them. At the same time, the Home Office’s caseworker guidance is clear that there may be applicants who are simply unable to provide much evidence because their lack of resources or knowledge makes it harder for them to obtain information about the relevant country’s laws, and that this scenario should be distinguished from that of applicants who ‘show no interest in genuinely co-operating or providing supporting information.’
Decision-makers are instructed to assist applicants, including by directly enquiring with foreign authorities where necessary.
Interviews may form part of an application under Appendix Statelessness, if it is considered that hearing from the applicant would assist in determining their application. The guidance sets out that:
An interview provides an opportunity for the applicant to fully set out their case, present relevant supporting evidence and answer questions about key issues that remain outstanding. You should ask open-ended questions to encourage applicants to deliver as full an account as possible.
The guidance also expands on the terms ‘by any State’ and ‘under the operation of its law’. On the former, the guidance makes clear that it is ‘only necessary to consider states with which an individual may be linked, whether by birth on the territory, descent, marriage, through a child or habitual residence.’
On the latter, the guidance makes clear that ‘law’ encompasses ‘not just legislation, but also ministerial decrees, regulations, orders, judicial case law (in countries with a tradition of precedent) and, where appropriate, customary practice.’
Importantly, this also includes scenarios where the practice of the authorities of the state in question does not conform to the letter of its law. In other words, the guidance explains, where someone appears to meet the criteria for acquisition of that country’s nationality, but despite their efforts and compliance with any requests from that country’s authorities, those authorities have treated the applicant as a non-citizen, they will be stateless even though the law of the country in question suggests they should be a citizen. As the guidance notes, this may be the case where particular groups are the subject of systematic or widespread discrimination by state authorities.
Where there has been no contact with the national authorities in the applicant’s individual case, decision-makers are directed by the guidance to consider the state’s general practice, i.e., whether ‘the state has a good record in terms of recognising, in a non-discriminatory way, the nationality status of all those who appear to come within the scope of the relevant law.’ Again, evidence that the applicant belongs to a group routinely denied documents by the state authorities indicates that they may be stateless.
Finally, statelessness can encompass cases in which the applicant has voluntarily renounced their nationality leading to its loss. The guidance makes this clear:
The question of an individual’s free choice is not relevant when determining whether a person meets the statelessness definition under Article 1(1) of the 1954 Convention, even if it appears that the applicant may have been motivated by the prospect of securing permission to stay as a stateless person.
At the same time, decision-makers are instructed to ‘very carefully’ examine the applicant’s ability to re-acquire their nationality, or otherwise regain admission to their former country of nationality, in these cases.
The guidance also makes the following observations:
- where a foreign government has conferred citizenship on a person based on an error, or as a result of fraudulent behaviour by that individual, this does not affect the validity of that person’s citizenship (though of course, if any fraud or other bad faith conduct has come to the attention of the foreign authorities, this may result in action being taken to deprive the individual of their nationality)
- If an applicant is in the process of acquiring the nationality of a state, but this process is ongoing at the time the statelessness application is decided, they cannot be considered a national of that state
- Similarly, where there are ongoing procedures for the loss, renunciation, deprivation of a person’s nationality but those are not yet completed or some of the requirements for the loss, renunciation or deprivation of that nationality have not yet been met, that person remains a national of the state in question until the process is completed.
6. Grants of Leave Under Appendix Statelessness
If an applicant is unsuccessful, they will be able to seek an Administrative Review of the Home Office decision. Successful applicants will be granted leave for five years, and permitted to work, study, and access public funds.
A person can obtain settlement after having spent 5 years in the UK with permission as a Stateless person (or, alternatively, 5 years which includes time spent on other routes to settlement, as long as they held permission as a Stateless person for one year prior to their application). Applicants must continue to meet the eligibility criteria – i.e., remain stateless as defined in Appendix Statelessness – though the guidance suggests that there is no need to repeat evidence previously submitted.
Where a caseworker does not think a person satisfies the criteria to be granted settlement but that person does fulfil the criteria for permission to stay as a stateless person, they will be granted a further period of 5 years’ leave to remain.
An important point should be noted about family members: under the old Rules, contained in Part 14 of the Immigration Rules, family members (partners or children) could make applications for permission to stay under Part 14, and Part 14 continues to apply for those who had such permission prior to 30 January 2024.
However, from that date, family members of those newly making an application under Appendix Statelessness (if they are not stateless themselves, in which case a separate application under Appendix Statelessness is required) must now make an application under the provisions of Appendix FM. In any case, partners and children must be declared on an application under Appendix Statelessness – this is so that the Home Office can assess whether an applicant may be able to gain admission to a partner’s or child’s country of nationality.
For expert advice and assistance in relation to making a UK statelessness application, contact our immigration barristers in London on 0203 617 9173 or via the enquiry form below.
