A stateless person, as defined by the 1954 Convention (▻https://www.unhcr.org/uk/un-conventions-on-statelessness.html) relating to the Status of Stateless Persons is “a person who is not considered as a national by any State under the operation of its law”.
Although the UK signed up the 1954 Convention, there was no formal mechanism for recognising and providing protection to stateless people until 2013.
After tireless campaigning from Asylum Aid and other organisations, the UK government introduced a procedure through which people could be recognised as stateless and granted the right to remain in the UK because of their statelessness.
Initially, there was an incredibly low rate of success on applications under the new procedure. As of April 2016, only 39 applications had been granted.
Legal aid is not generally available for the procedure in England and Wales. You may, however, be able to apply for Exceptional Case Funding which would mean a legal aid lawyer can take on your case.
The immigration rules
The Immigration Rules (►https://www.gov.uk/guidance/immigration-rules/immigration-rules-part-14-stateless-persons) set out the criteria and requirements the Home Office will use when making decisions on application for leave to remain as a stateless person.
The rules define a stateless person as:
- a person who is not considered as a national by any State under the operation of its law;
– is in the United Kingdom; and
– is not excluded from recognition as a Stateless person (see section below).
Since 6 April 2019, the Immigration Rules also says that you have to have:
sought and failed to obtain or re-establish your nationality with the appropriate authorities of the relevant country; and
in the case of a child born in the UK, has provided evidence that they have attempted to register their birth with the relevant authorities but have been refused.
Statelessness and asylum
The Home Office guidance says
“If you can’t return to another country because you fear persecution there, you should claim asylum first.”
Read more about claiming asylum in the Right to Remain Toolkit here: ▻https://righttoremain.org.uk/toolkit/asylumintro.
If you’ve already claimed asylum or have an outstanding human rights claim, the Home Office says you must wait until you have a decision on that claim before applying for the right to stay as a stateless person.
You can apply to stay as a stateless person if the claim refused.
How to apply
To apply for leave to remain as a stateless person, you apply online here: ▻https://www.gov.uk/government/publications/application-to-extend-stay-in-uk-as-stateless-person-form-flrs.
There is no fee for the application, and you do not need to pay the immigration health surcharge (read more about the surcharge here: ▻https://righttoremain.org.uk/toolkit/enteruk/#ihs).
You will need to submit evidence to show why you believe you are stateless and any evidence to show that you are not a national of your country of birth or ancestry (or any other).
Documents to include
As well as including 2 passport photos, the application form states that you must provide certain documents – if you have them – for you and your dependents:
– current passports and other travel documents, such as visas; and also any national identity cards you have and expired passports/travel documents
– official letters confirming your immigration status in the UK (with the reference number ASL.2150, ASL.2151 or ASL.2152)
– marriage certificates
Documents about your life before coming to the UK:
– documents that prove where you lived before coming to the UK
– identity documents (for example, birth certificate, extract from civil register, national identity card, voter registration document)
– documents regarding applications to acquire nationality or obtain proof of nationality, and any previous responses by States to enquiries about your nationality
– certificate of naturalisation
- certificate of renunciation of nationality
– military service record/discharge certificate
- school certificates
- medical certificates/records (for example, attestations issued from hospital on birth, vaccination booklets)
– sworn statements from neighbours:
- identity and travel documents of parents, spouse and children
documents from your applications for citizenship or requests for proof of nationality in other countries – the application form specifies that you need to provide a letter from the Embassy/High Commission (of the country in which you were born or any other country with which you are connected by residence) showing that they have refused to recognise you as a citizen and/or confirmed that you are not entitled to reside there.
After submitting your application, you may be interviewed.
The Home Office Policy Instruction (▻https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/843704/stateless-leave-guidance-v3.0ext.pdf) has this to say on the issue of interviews:
An interview will normally be arranged to assist the applicant to fully set out t heir case for being considered stateless and to submit any other relevant evidence. In other instances, questions about evidence submitted as part of the application may be resolved through additional written communications. Where the applicant does not complete all relevant sections of the application form, caseworkers may request the missing information by writing to the applicant or their legal representative if they have one.
A personal interview will not be required if there is already sufficient evidence of statelessness, it is clear that the individual is not admissible to another country, and is eligible for leave to remain on this basis.
An interview will not be arranged, and the application may be refused, where recent and reliable information including the applicant’s previous evidence or findings of fact made by an immigration judge, have already established that the applicant is not stateless or is clearly admissible to another country for purposes of permanent residence and where no evidence to the contrary has been provided.
So far, the Home Office has been slow in making decisions on statelessness applications.
If you are destitute (homeless and/or without money) at the time of making the application, you may be entitled to accommodation and financial support provided by the government, known as Section 4 support. Read more here: ▻http://www.asaproject.org/uploads/Factsheet-2-section-4-support.pdf.
If you are refused
There is no automatic appeal right for Home Office refusals of applications for leave to remain on the basis of being stateless.
You have the option of an administrative review. Read more about administrative reviews here: ▻https://righttoremain.org.uk/toolkit/refusal/#adminreview.
It may be possible to pursue a judicial review of the refusal. Read more about judicial reviews here: ▻https://righttoremain.org.uk/toolkit/jr.
Barriers to succeeding with an application
As was mentioned above, there is generally no legal aid available for the applications in England and Wales (though exceptional legal funding might be a possibility: ▻https://publiclawproject.org.uk/what-we-do/current-projects-and-activities/legal-aid/exceptional-funding-project).
A case at the Court of Appeal established that someone who cannot immediately be admitted to any other country but could be if they took certain steps is not entitled to leave to remain as stateless. Read more in this Free Movement blog post: ▻https://www.freemovement.org.uk/stateless-child-uk-refused-leave-to-remain.
The Home Office Office will consider “findings of fact established in previous decisions on any applications you have made for international protection, leave to enter, or leave to remain, together with the information about your circumstances which you submit with “. This means that “poor credibility” findings by the Home Office (read more on this here: ▻https://righttoremain.org.uk/credibility-in-asylum-claims) or by a judge in a previous asylum claim for example, may count against you if the decision is reliant on your testimony; or documents submitted for a stateless application may be doubted if the Home Office or judge stated that false documents had been submitted in a previous application.
It is useful to review all the documents/evidence you have submitted to the Home Office (including for previous immigration applications if applicable), and to request a copy of the Home Office’s file on you. This could be useful if it turns out the Home Office has internally already made a finding of statelessness in your case; or alternatively if you need to deal with previous statements you might have made that suggest you have citizenship somewhere.
There is a lengthy section in the application form about criminal convictions. This, and information obtained by the Home Office from elsewhere, could be used to refuse applications if they can argue that your convictions would exclude you from stateless recognition (on the basis of “war crimes, crimes against humanity or other serious criminality” – see below), and/or “danger to the security of the UK or a risk to public order” (again, see below) OR even through the “general grounds of refusal” which include convictions of certain lengths. See the grounds here: ▻https://www.gov.uk/guidance/immigration-rules/immigration-rules-part-9-grounds-for-refusal.
The Home Office’s criteria for excluding someone from protection because of statelessness goes beyond the criteria of the 1954 Convention. The UK immigration rules (►https://www.gov.uk/guidance/immigration-rules/immigration-rules-part-14-stateless-persons) state:
A person is excluded from recognition as a stateless person if there are serious reasons for considering that they:
(a) are at present receiving from organs or agencies of the United Nations, other than the United Nations High Commissioner for Refugees, protection or assistance, so long as they are receiving such protection or assistance;
(b) are recognised by the competent authorities of the country of their former habitual residence as having the rights and obligations which are attached to the possession of the nationality of that country [even if you do not have nationality of that country];
(c) have committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provisions in respect of such crimes;
(d) have committed a serious non-political crime outside the UK prior to their arrival in the UK;
(e) have been guilty of acts contrary to the purposes and principles of the United Nations.
The Home Office policy instruction states that you will be refused if you do not meet the definition of statelessness but also if they think:
there are reasonable grounds to consider that you would be a danger to the security of the UK or a risk to public order; or
you fall under any of the general grounds for refusal that are set out in the Immigration Rules.
If your application is granted
You will receive leave to remain for five years. Before 6 April 2019, the leave to remain granted was a period of 30 months, which was then renewable.
With this leave to remain, you are allowed to work and have access to public funds (such as benefits and homelessness assistance).
After five years, you can apply for indefinite leave to remain.
After that, you can apply for British citizenship, but there are significant financial obstacles to this. Read more here: ▻https://www.freemovement.org.uk/citizenship-for-sale-at-a-cost-stateless-people-can-ill-afford.
If you are recognised as stateless and given leave to remain in accordance with this, you can apply for a Travel Document (like a passport) which will be issued in accordance with the UK’s obligations under the 1954 Stateless Convention.
Read more here: ▻https://www.gov.uk/apply-home-office-travel-document.
The application form says that you must include your partner and children under 18 (your “dependants”) in your application if they’re already in the UK with you (they do not have to be stateless).
If they’re outside the UK, they can apply for permission to come to the UK (“entry clearance”) once your application has been approved.
Family members will be granted leave to remain for the same period as you.
You can find a best practice guide produced by ILPA and written for lawyers making stateless applications, here: ▻http://www.ilpa.org.uk/resource/32620/statelessness-and-applications-for-leave-to-remain-a-best-practice-guide-dr.
Liverpool Law clinic have a specialist service for stateless applications (though are limited in the number of cases they can take on). Find out more here: ▻https://www.liverpool.ac.uk/law/liverpool-law-clinic/immigration-and-asylum.
Asylum Aid have a referral form for legal advice for people who are stateless here: ▻https://consonant.org.uk