AS (Guinea) v Secretary of State for the Home Department & Anor

For determining whether a person is stateless under Article 1(1) of the 1954 Convention relating to the Status of Stateless Persons and paragraph 401 of the Immigration Rules, the balance of probabilities applies. The lower refugee standard does not apply. An applicant should gather reasonably available evidence, apply to states with which he or she has the closest connection, and seek nationality or travel documents. If those efforts produce a refusal or a clear impasse, the tribunal may draw appropriate inferences. Where the applicant cannot take those steps for good reason, the Secretary of State should assist and make enquiries. The UNHCR Handbook may be considered and given considerable weight, but remains advisory. The relevance of statelessness to paragraph 390A was left open.

The appellant, a Guinean-born national facing a deportation order, applied for leave to remain as a stateless person and sought revocation of the order. The Secretary of State refused both applications. The First-tier Tribunal dismissed his appeal, finding that he had not established statelessness and had failed to take reasonable steps to establish his nationality.

The Upper Tribunal dismissed a further appeal. It held that statelessness had to be established on the balance of probabilities and that any error would not have affected the assessment under paragraph 390A of the Immigration Rules. The Court of Appeal considered the proper standard of proof and whether a finding of statelessness could affect the exceptional-circumstances assessment.

1. Appeal dismissed. Lord Kitchin delivered the judgment, with McCombe and Lindblom LJJ agreeing.
2. Article 1(1) of the 1954 Convention relating to the Status of Stateless Persons and paragraph 401 of the Immigration Rules have the same meaning. The Convention does not prescribe the burden or standard of proof for determining statelessness. The UNHCR Handbook is a permissible and useful source of guidance and may receive considerable weight, but it remains advisory. This was consistent with the approach to UNHCR guidance in R v Secretary of State for the Home Department, ex parte Adan [2001] 2 AC 477, R v Secretary of State for the Home Department, ex parte Robinson [1998] QB 929 and Pham v Secretary of State for the Home Department [2015] 1 WLR 1591.
3. The applicant must establish statelessness on the balance of probabilities. The refugee standard of a real risk or reasonable degree of likelihood is directed to predicting future persecution and is unsuitable for the generally ascertainable question of nationality or statelessness. The court followed the consistent reasoning in R v Secretary of State for the Home Department Ex parte Valentina Bradshaw [1994] Imm Ar 359, MA (Ethiopia) v Secretary of State for the Home Department [2009] EWCA Civ 289, R (on the application of Nhamo) v Secretary of State for the Home Department [2012] EWHC 422, Abdullah v Secretary of State for the Home Department [2013] EWCA Civ 42 and RM (Sierra Leone) v Secretary of State for the Home Department [2015] EWCA Civ 541.
4. An applicant should take all reasonably practicable steps to assemble evidence of identity, residence and nationality, and should apply to states with which he or she has the closest connection. If the applicant encounters a refusal or clear impasse, the tribunal may draw appropriate inferences. Where the applicant cannot reasonably take those steps, the Secretary of State should assist by undertaking research and making enquiries. The appellant had failed to take many straightforward steps and had not established statelessness.
5. It was unnecessary to decide whether statelessness could constitute very compelling circumstances under paragraph 390A. That question, and the weight to be attached to statelessness, was better considered in a case where it was necessary to decide it, having regard to the particular circumstances.

1. Court of Appeal (Civil Division). Dismissed the appeal from the Upper Tribunal.
2. Upper Tribunal (Immigration and Asylum Chamber), DA/01045/2014. Decision promulgated on 23 June 2016; dismissed the appeal from the First-tier Tribunal and upheld the finding that statelessness had not been established on the balance of probabilities.
3. First-tier Tribunal. Decision promulgated on 3 February 2015; dismissed the appeal against the refusal dated 23 May 2014 to revoke the deportation order.