Statelessness: What could the UK do better?
The European Network on Statelessness (“ENS”) maintains and develops the Statelessness Index (https://index.statelessness.eu/) which is an online comparative tool to assess the laws, policies and practices of European Countries on the prevention and reduction of statelessness compared to international norms and good practice.
The UK is one of 24 European countries within the Index. The most recent briefing for the UK was published in November 2019 and can be found here.
The briefing is divided into sections on International and Regional Instruments, Stateless Population Data, Statelessness Determination and Status, Detention and Prevention and Reduction.
The main criticisms of the current approach taken in the UK can be summarised as follows:
The UK imposes additional criteria on stateless persons for them to qualify for leave to remain in the UK beyond being stateless and this is a departure from the 1954 Convention Relating to the Status of Stateless Persons. The additional requirements include having to show that you have also attempted to gain admission to your former country of habitual residence and have tried and failed to obtain or re-establish a nationality;
In 2014, the UK reintroduced the power to deprive a person of their nationality which is only possible as a result of its failure to fully adopt the 1961 Convention on the Reduction of Statelessness
The UK has few accurate sources for recording the number of stateless persons in the UK. It records instead the number of people granted leave to remain on the basis of being stateless which, because of the additional criteria that stateless people have to meet in order to get leave to remain, is by no means reflective of the number of stateless people in the UK overall
The UK’s procedure for determining statelessness falls short of the standards set out in the UNHCR Handbook (because there is no right of appeal and there are significant barriers to accessing legal aid in this area)
“Very high fees” for naturalisation applications are noted as a barrier to the reduction of statelessness in the UK
Statelessness is not always considered to be relevant in the context of detention which can be arbitrary, of indeterminate length and recurrent for stateless individuals
A child born in the UK to stateless parents will be stateless at birth and is only able to register as British after 5 years or if their parents become settled.
British nationality law was, however, positively noted to contain safeguards to prevent statelessness in the case of foundlings, adopted children, children born in the UK or abroad to British nationals, and children born in the UK to people with permanent residence.
An update to the UK Index by ENS in March 2020 stated as follows:
"The Index update shows that little has changed in the United Kingdom to address key identified gaps in law, policy and practice relating to statelessness, and in some cases, the limited protection afforded to stateless people has been reduced further.
An amendment to the Immigration Rules in 2019 added further criteria to the requirements for obtaining a residence permit in the UK for a stateless person. Most problematically, a stateless applicant is required to have 'sought and failed to obtain or re-establish their nationality with the appropriate authorities of the relevant country'. There have been recent cases of poor decision-making and failure to refer people to the procedure. New guidance for decision-makers has seen some improvements, highlighting the nexus between statelessness and human trafficking, for example, but there have also been regressions."