As (Guinea) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lindblom,Lord Justice McCombe,Lord Kitchin |
| Judgment Date | 12 October 2018 |
| Neutral Citation | [2018] EWCA Civ 2234 |
| Date | 12 October 2018 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2016/3473/A |
[2018] EWCA Civ 2234
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (IAC)
DA/01045/2014
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Kitchin
Lord Justice McCombe
and
Lord Justice Lindblom
Case No: C5/2016/3473/A
and
Adrian Berry (instructed by Birnberg Peirce & Partners) for the Appellant
Julie Anderson (instructed by Government Legal Department) for the Respondent
Chris Buttler and Ayesha Christie (Instructed by the United Nations High Commissioner for Refugees) for the Intervener
Hearing date: 10 th July 2018
This is an appeal by the appellant against the decision of the Upper Tribunal (Mr Ockelton, Vice President of the Upper Tribunal, and Upper Tribunal Judge Blum) promulgated on 23 June 2016 which dismissed the appeal of the appellant against the decision of the First-tier Tribunal (First-tier Tribunal Judge Talbot) promulgated on 3 February 2015 which itself dismissed the appeal of the appellant against the respondent's decision of 23 May 2014 refusing to revoke a deportation order issued on 12 February 2009.
The appeal raises two points of principle: first, the standard of proof applicable to the determination of whether a person qualifies for the status of a stateless person as defined in the 1954 Convention relating to the Status of Stateless Persons (“the 1954 Convention”); and secondly, the relevance of a finding that a person is stateless to an assessment carried out pursuant to paragraph 390A of the Immigration Rules.
We have had the benefit on this appeal of written submissions from the United Nations High Commissioner for Refugees (“UNHCR”) who was given permission to intervene in these proceedings for the purpose of making such submissions by Singh LJ by order dated 29 January 2018. Counsel for UNHCR attended the hearing of the appeal in case we might call upon them for further assistance and, at our request, made brief further oral submissions. We are grateful to them for so doing.
The legal framework
The 1954 Convention
The 1954 Convention, to which the United Kingdom is one of 89 parties, entered into force in June 1960. It establishes a framework for the international protection of stateless people and provides important minimum standards for their treatment. It also seeks to address the vulnerability that affects stateless people and the practical problems they face in their everyday lives, for as the respondent has recognised, the possession of nationality is essential for full participation in society and a prerequisite for the enjoyment of the full range of human rights. These aims and objectives of the 1954 Convention are reflected in the following paragraphs of the preamble:
“CONSIDERING that the United Nations has, on various occasions, manifested its profound concern for stateless persons and endeavoured to assure stateless persons the widest possible exercise of these fundamental rights and freedoms,
CONSIDERING that only those stateless persons who are also refugees are covered by the Convention relating to the Status of Refugees of 28 July 1951, and that there are many stateless persons who are not covered by that Convention,
CONSIDERING that it is desirable to regulate and improve the status of stateless persons by an international agreement ….”
The term “stateless person” is defined in Article 1:
“For the purpose of this Convention, the term “stateless person” means a person who is not considered as a national by any State under the operation of its law.”
There follows a series of provisions addressing the rights to be granted to or conferred upon stateless persons. Article 31 deals with expulsion and reads, so far as material:
“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….”
In 2012 UNHCR issued guidelines with the aim of assisting government officials, judges, practitioners and others involved in addressing statelessness. In 2014 these guidelines were incorporated into a handbook (“the Handbook”). Part two of the Handbook gives guidance about procedures for the determination of statelessness. One aspect of this guidance concerns the burden of proof. Here the Handbook advises (at D(3)):
“89 … In the case of statelessness determination, the burden of proof is in principle shared, in that both the applicant and examiner must cooperate to obtain evidence and to establish the facts. The procedure is a collaborative one aimed at clarifying whether an individual comes within the scope of the 1954 Convention. Thus, the applicant has a duty to be truthful, provide as full an account of his or her position as possible and to submit all evidence reasonably available. Similarly, the determination authority is required to obtain and present all relevant evidence reasonably available to it, enabling an objective determination of the applicant's status. This non-adversarial approach can be found in the practice of a number of states that already operate statelessness determination procedures.
90. Given the nature of statelessness, applicants for statelessness status are often unable to substantiate the claim with much, if any, documentary evidence. Statelessness determination authorities need to take this into account, where appropriate giving sympathetic consideration to testimonial explanations regarding the absence of certain kinds of evidence.”
Another concerns the standard of proof. The appellant and UNHCR attach great importance to this and so I will set it out in full:
“ D ASSESSMENT OF EVIDENCE
…
(4) Standard of proof
91. As with the burden of proof, the standard of proof or threshold of evidence necessary to determine statelessness must take into consideration the difficulties inherent in proving statelessness, particularly in light of the consequences of incorrectly rejecting an application. Requiring a high standard of proof of statelessness would undermine the object and purpose of the 1954 Convention. States are therefore advised to adopt the same standard of proof as that required in refugee status determination, namely, a finding of statelessness would be warranted where it is established to a “reasonable degree” that an individual is not considered as a national by any State under the operation of its law.
92. The lack of nationality does not need to be established in relation to every State in the world. Consideration is only necessary of those States with which an individual has a relevant link, generally on the basis of birth on the territory, descent, marriage, adoption or habitual residence. However, statelessness will not be established to a reasonable degree where the determination authority is able to point to clear evidence that the individual is a national of an identified State. Such evidence of nationality may take the form, for example, of written confirmation from the competent authority responsible for naturalization decisions in another country that the applicant is a national of that State through naturalization or information establishing that under the nationality law and practice of another State the applicant has automatically acquired nationality there.
93. Where an applicant does not cooperate in establishing the facts, for example by deliberately withholding information that could determine his or her identity, then he or she may fail to establish to a reasonable degree that he or she is stateless even if the determination authority is unable to demonstrate clear evidence of a particular nationality. The application can thus be rejected unless the evidence available nevertheless establishes statelessness to a reasonable degree. Such cases need, however, to be distinguished from instances where an applicant is unable, as opposed to unwilling, to produce supporting evidence and/or testimony about his or her personal history.”
(Footnotes omitted)
A little later, at paragraphs 97 and 98, the Handbook gives this guidance about enquiries directed to and responses from foreign authorities:
“97. Flexibility may be necessary in relation to the procedures for making contact with foreign authorities to confirm whether or not an individual is its national. Some foreign authorities may accept enquiries that come directly from another State while others may indicate that they will only respond to requests from individuals.
98. Where statelessness determination authorities make enquiries with foreign authorities regarding the nationality or statelessness status of an individual, they must consider the weight to be attached to the response or lack of response from the State in question.”
(Footnotes omitted)
I should also mention at this point that although 89 countries are party to the 1954 Convention, fewer than 25 countries have established dedicated statelessness determination procedures. The United Kingdom adopted such procedures in 2013 by amendment to the Immigration Rules, as I will explain in a moment.
The Immigration Rules
Turning now to the Immigration Rules, Part 13 addresses deportation, revocation of a deportation order and rights of appeal. The rules read, so far as relevant:
“ Revocation of a deportation order
390. An application for revocation of a deportation order will be considered in the light of all the circumstances including the following:
(i) the grounds on which the order was made;
(ii) any representations made in support of revocation;
(iii) the interests of the community, including the maintenance of an effective immigration control;
(iv) the interests of the applicant, including any...
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