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Standard of Proof for Statelessness is Balance of Probabilities

Written by Asad Ali Khan, 01 November 2018

AS (Guinea) v Secretary of State for the Home Department [2018] EWCA Civ 2234 (12 October 2018)

The Court of Appeal has held that those asserting that they are stateless need to prove their case on the balance of probabilities. But if such persons are for good reason unable to produce documents or apply for nationality in the state with which they were most closely connected, the Home Secretary would make the necessary enquiries. Comparatively speaking, in refugee cases a different and lower standard of proof is appropriate. A national of Guinea, AS clandestinely entered the UK using someone else's passport and claimed asylum on the basis that he had opposed the Guinean government. He soon descended into drug abuse and resorted to crime to feed his habit and was convicted of robbery and theft in the UK. His asylum application was refused because it was considered that despite his opposition to the government, he was not at real risk of persecution upon return to Guinea. A deportation order was made and he asserted that even though he had been born and brought up in Guinea, he had never held any identity documents or a passport. He claimed to be stateless and the Guinean embassy refused to issue him an emergency travel document because embassy officials could not verify his identity. FFTJ Talbot concluded that AS had made no real attempt to establish his nationality. He had not contacted his family, the college where he studied, the Guinean birth registration authority or any agency for assistance.

In the Upper Tribunal, AS argued that FFTJ Talbot erred by imposing too high an evidential burden upon him and ought to have approached the appeal on the basis that he only had to establish a reasonable degree of likelihood or a real risk that he was stateless. He also complained that since the Guinean embassy did not provide him with an ETD, this key point alone established that he was stateless. The onus was not upon him to do more and FFTJ Talbot had set the bar too high by wrongly imposing upon him an obligation to establish that he was stateless on the balance of probabilities. He also contended that a person's statelessness is capable of amounting to an exceptional circumstance for the purposes of the Immigration Rules or is at least capable of having a material bearing on whether exceptional circumstances exist. However, the Upper Tribunal (Ockelton VP and UTJ Blum) remained unpersuaded and held that the question whether a person is stateless for the purposes of the Immigration Rules can only be determined by reference to the meaning of that term in the Convention Relating to the Status of Stateless Persons 1954.

The fact that the Convention is silent on the burden or standard of proof that a person is stateless says nothing about how an application for a determination whether a person is stateless is to be assessed. Even though the Handbook gives guidance that the lower standard of proof should be applied, this guidance is merely advisory. The Upper Tribunal held that by contrast the question whether a person is stateless raises similar issues to when someone asserts he is unable to obtain documents establishing nationality or enabling return to a state; this question must be answered on the balance of probabilities. The appeal was therefore dismissed. The Upper Tribunal said if it was wrong on the applicable standard of proof, it was still satisfied that any error by FTTJ Talbot could not have made a material difference to the exercise of discretion under paragraph 390A of the Immigration Rules. It therefore dismissed the appeal.

The Court of Appeal

UNHCR intervened in these proceedings. AS relied on two grounds of appeal, namely that (i) the tribunal misdirected itself in holding that the onus was on him to prove that he was stateless on the balance of probabilities, and (ii) the tribunal erred in law in finding that, if he was stateless, his predicament could make no material difference to the assessment of exceptional circumstances under paragraph 390A of the Immigration Rules. However, Lord Kitchin and McCombe and Lindblom LJJ dismissed the appeal on both grounds.

Standard of Proof

AS and UNHCR's point of departure was that guidance issued in the Handbook requires that parties should (a) apply a shared burden of proof, and (b) adopt the same standard of proof as that applied in refugee cases, such that statelessness must be established to a reasonable degree. The submission's rationale was twofold. It stressed, first of all, the fundamental importance of the substantive rights conferred on stateless persons by the 1954 Convention and the severe consequences of incorrectly rejecting an application for statelessness. Secondly, it also concerned the recognition of the practical difficulties inherent in proving statelessness. It was argued that these reasons are one and the same as those that give steer to the standard and burden of proof in refugee cases. So no policy basis existed for setting the bar to protection under the 1954 Convention higher than that under the Refugee Convention 1951.

Seven sub-grounds were developed out of the above analysis. Firstly, it was said that as an international treaty, the 1954 Convention must have an autonomous and international meaning because diverging interpretations would frustrate a uniformity of approach. Secondly, the point was made that the 1954 Convention must be interpreted in the light of its human rights and humanitarian objectives. Thirdly, it was said that the 1954 Convention contemplates that any individual person is either stateless or possesses the nationality of a nation state. Fourthly, a person seeking to establish statelessness is faced with the difficulty of trying to prove a negative, i.e. prove that he is not a national of any state. Fifthly, it was appropriate to consider the practice of other states in interpreting and applying the 1954 Convention.

Sixthly, jurisprudence dealing with the standard of proof in refugee cases was unhelpful because it was decided without reference to or consideration of the 1954 Convention and its objects and purposes. Seventhly, it was also the case that the Home Office's own statelessness guidance was unambiguous that "where the available information is lacking or inconclusive, the caseworker must assist the applicant by undertaking relevant research and, if necessary, making enquiries with the relevant authorities and organisations". Therefore, it was argued that the UK recognised the importance of a shared burden which alone pointed to a lower standard of proof than the balance of probabilities. Against the foregoing, the Home Office simply stated that the tribunal was correct in its approach.

Analysis

Notably, article 1(1) of the 1954 Convention defines a "stateless person" as one "who is not considered a national by any state under the operation if its law" and paragraph 401 of the Immigration Rules adopts this definition. In Adan [2000] UKHL 67, guidance issued by UNHCR concerning the application of the Refugee Convention was seen as having "high persuasive authority" but nonetheless "much relied on by domestic courts and tribunals". Similarly, in the case of Robinson [1997] EWCA Civ 3090 the same guidance was also dubbed "particularly helpful as a guide to what is the international understanding of the Convention obligations, as worked out in practice". Moreover, "law" in article 1(1) is to be read broadly to include, not just legislation, but also customary practice. Furthermore, in Pham [2015] UKSC 19 (discussed here), considering this aspect of the guidance the Supreme Court expressed some concern that parts of it were not easy to reconcile with the words of article 1 itself. Since the executive did not question the authority of the guidance, the court considered it appropriate to take the guidance into account.

Lord Kitchin found that the Upper Tribunal was right to accord considerable weight to the guidance and to treat it as advisory. He unreservedly accepted the UNHCR's submission that the 1954 Convention must be interpreted in light of its objectives and the consequences of an incorrect assessment of whether a person is or is not stateless may be serious. Yet his Lordship took the view that both the issue that needed adjudication and the steps that a person needs to take in order to establish statelessness are broadly very distinct from those that arise in relation to seeking recognition of refugee status. As he said:

46. … The steps necessary to establish statelessness will usually be steps that an applicant can readily take without any risk of harm. The applicant can gather together all reasonably available evidence about his or her identity and residence in the state in issue. Further, the applicant may make an application to the embassy or other representatives of that state for formal recognition of his or her status and may request the necessary documents to enable his or her return.

Someone who undertook all reasonable efforts to put their case evidentially and was refused can put his case to the tribunal. Those unable to take the necessary steps for good reason will, pursuant to official policy, be assisted by the Home Office in researching their matters and making the necessary enquiries with the relevant authorities.

Therefore, unnecessary speculation as to whether someone is or is not stateless is pointless since that person's status is ascertainable. Those seeking to establish refugee status are in a different situation because such a person will generally find it very difficult to establish anything beyond a reasonable degree of likelihood that persecution will occur upon return. Indeed, a mistake in that regard results in very severe consequences.

Jurisprudence and Outcome

Stemming from Valentina Bradshaw [1994] Imm Ar 359, a series of decisions concerning statelessness and the closely related concept of inability to return confirmed the validity of the court's analysis. Bradshaw, a Soviet citizen, had been granted indefinite leave to remain using fraudulent misrepresentations but asserted that she was stateless and so could not be removed. It was held that she had failed to establish that she was stateless and that before she could be said to be stateless within the meaning of article 1 of the 1954 Convention, she would have had to apply to those states which might consider her to be and might accept her as a national, and that she had not done so. Later in Revenko [2000] EWCA Civ 500, the so-called the Bradshaw principle was referred to without criticism and it was subsequently applied, with slight qualification, in Tewolde [2004] EWHC 162 and YL (Nationality, Statelessness, Eritrea, Ethiopia) [2003] UKIAT 00016.

In MA (Ethiopia) [2009] EWCA Civ 289, an Ethiopian of Eritrean origin claimed a real risk of persecution if she were returned to Ethiopia. But it transpired that she would not suffer persecution if the Ethiopian authorities were prepared to allow her to return. The issue before the court was whether the Home Office could rely upon the findings the tribunal had made about the prospects of the appellant being authorised to return, and whether the tribunal had applied the right test when considering that question. Speaking unanimously for the Court of Appeal, Elias LJ rejected the submission that the tribunal simply had to determine this question to the usual standard of proof. The question needed to be put to the test and the court saw no reason why the appellant should not herself make a formal application to the embassy to try to obtain the relevant documents. According to the court:

49. … If she were refused, or she came up against a brick wall and there was a failure to respond to the request within a reasonable period such that a refusal could properly be inferred, the issue would arise why she had been refused. Again, reasons might be given for the refusal.

Elias LJ stressed that it was unnecessary for the tribunal to speculate about the embassy's likely response. Equally, reliance on expert evidence designed to assist the tribunal to speculate in a more informed manner about that question was also unnecessary. Prior to claiming the protection of a surrogate state, an asylum claimant must first take all possible steps to secure protection from the home state. Bradshaw confirms this point and Elias LJ held that any alternative and speculative approach produces "absurd results".

In Nhamo [2012] EWHC 422, Sales J found that the fact the authorities of a state declined to accept that someone was its national was not determinative of the question of nationality. Although the evidence led to the conclusion that the claimant was indeed a South African national, she failed to put the matter to the test by applying for a South African passport or travel document. Bradshaw again supported the court's conclusion.

Abdullah [2013] EWCA Civ 42 concerned an appellant who claimed to be Bidoon but the Home Office wished to return him to Saudi Arabia where he accepted he was born but would be persecuted upon return. The Upper Tribunal held that there was no reasonable likelihood that he was Bidoon. However, there was a reasonable likelihood that he was Palestinian and not Saudi. Arguably Saudi Arabia would not admit him but that did not mean that he would be at risk of persecution if returned. The Court of Appeal held that it was for him to prove on a balance of probabilities that he was Palestinian and for that reason unable to return to Saudi Arabia.

In RM (Sierra Leone) [2015] EWCA Civ 541, the appellant claimed Sierra Leonean nationality and resisted deportation to Nigeria on grounds of sexual orientation. The First-tier Tribunal held on the balance of probabilities that he was Nigerian and it was unlikely that he was homosexual. Subsequently, the Upper Tribunal allowed his appeal because the Home Office conceded that the appellant only needed to show that there was a reasonable likelihood that he did not come from Nigeria and did come from Sierra Leone and that he would face the persecution he feared there. The Court of Appeal took a rather different view in light of MA (Ethiopia) and Abdullah – and indeed in the absence of authority – to hold that what standard of proof applies to the question of an applicant's nationality depends on the legal issue to which it is relevant. Whereas the lesser standard of proof applies to whether a person will suffer persecution, the standard is the balance of probabilities for questions such as the factual possibility in practice for him to be returned.

Thus, the risk of persecution in Nigeria for homosexuality did not depend on whether RM was a Nigerian national because of the tribunal's finding that there was no reasonable likelihood that he was a homosexual. There was no evidence that in the event of onward removal to Sierra Leone he would face persecution there. Lord Kitchin therefore held that:

57. These authorities reveal a consistent line of reasoning. A person claiming to be stateless must take all reasonably practicable steps to gather together and submit all documents and other materials which evidence his or her identity and residence in the state or states in issue, and which otherwise bear upon his or her nationality. The applicant ought also to apply for nationality of the state or states with which he or she has the closest connection. Generally, these are steps that can be taken without any risk. If, in the words of Elias LJ, the applicant comes up against a brick wall, then, depending on the reasons given, the adjudicator will decide whether the applicant has established statelessness, and will do so on the balance of probabilities.

In cases where an applicant is unable to take the necessary steps for good reason then the Home Office would undertake research on his behalf and make the necessary enquiries with the relevant authorities. Overall, Lord Kitchin could find no reason why the issue of statelessness could not be decided on the balance of probabilities. In comparative perspective, in refugee cases, it was necessary to evaluate what might occur in the future in another country, and whether the applicant faced a real risk of persecution there. In Lord Kitchin's view, that is a very different kind of assessment and justifies the adoption of a different and lower standard of proof.

His Lordship was not convinced that the conventional balance of probabilities test created a material problem. Even though it was appropriate to consider the practice of other states in interpreting the 1954 Convention, such practice was not a particularly persuasive factor because fewer than 25 signatory states had statelessness procedures and only six signatory states had adopted a standard of proof lower than the balance of probabilities.

The decision-maker and both tiers of the tribunal had approached the standard of proof correctly. Overall, AS was required to establish that he was stateless on the balance of probabilities. He had failed to do so and he "had been remarkably inactive about establishing his nationality and had failed to take many of the quite straightforward steps that he could have taken." The court did not find it necessary to rule on the second ground concerning the relevance of a finding of statelessness to the assessment called for by paragraph 390A of the Immigration Rules. Both AS and UNCHR accepted that where paragraph 399 or 399A are not engaged, the weight attaching to the public interest in deportation can only be outweighed, applying a proportionality test, by very compelling circumstances as held in Hesham Ali [2016] UKSC 60 (discussed here). Therefore, it was best to leave for another – more suitable – case the question of whether a finding of statelessness is capable of amounting to very compelling circumstances and, if so, the weight that should be attached to it.

Comment

Interestingly, Pham's case returned to the Court of Appeal as Pham [2018] EWCA Civ 2064 where Arden, Singh and Coulson LJJ unanimously held that it is possible to deprive a person of British citizenship on the ground that it was conducive to the public good, pursuant to section 40(2) of the British Nationality Act 1981, on the basis that he had repudiated his obligation of loyalty, even where he did not pose a current risk to national security. Obligations accompanied the right to nationality and it derived from feudal law where the obligation of the liege was to protect, and the obligation of the subject was to be faithful. After considering Rottman (C-135/08, EU:C:2010:104), the court held that the reciprocal right of citizenship meant that it is legitimate for a member state to wish to protect the special relationship of solidarity and good faith between it and its nationals and also the reciprocity of rights and duties which forms the bedrock of the bond of nationality.

Arden LJ said that the right to nationality was an important and weighty right which carried obligations. It was properly described as the right to have other rights, such as the right to reside in the country of residence and to consular protection. The court held that the words "conducive" in section 40 of the 1981 Act did not necessarily imply a current threat because in the case of Bouchereau (C-30/77, EU:C:1977:172) it was held that there may be circumstances in which past conduct alone is enough to constitute a present threat. This was the approach of Singh LJ in Robinson (Jamaica) [2018] EWCA Civ 85 (discussed here), a ruling being appealed to the Supreme Court. It will be interesting to learn whether AS and UNHCR will take their fight over the correct evidential threshold applicable in statelessness applications to the apex court as well. Finally, Lady Arden and Lord Kitchin were both sworn in as Justices of the Supreme Court on 1 October 2018. And Sales LJ will be sworn in on 11 January 2019.

About the author: Asad Ali Khan is BA, MSc, MA, LLB (Hons), BVC, LLM, Barrister-at-Law (Middle Temple), Advocate High Courts Pakistan. In addition to immigration, he works as international counsel in an English law firm and acts as a court expert in UK family law proceedings involving removal of children from the jurisdiction to Pakistan. He also writes frequently for The Company Lawyer on corporate conduct and governance related issues.

This blog post originally appeared on Asad Ali Khan's United Kingdom Immigration Law Blog and is reproduced here with permission and thanks.

Any views expressed are those of the author and do not necessarily represent the views of EIN