cooperation with UNHCR and non-governmental organisations, should raise
awareness about and publicize the existence of statelessness determination
procedures to enhance stateless persons’ access to these mechanisms.
8. Under its mandate for statelessness UNHCR can assist States which do not
have the capacity or resources to put in place statelessness determination
procedures, by conducting determinations itself if necessary and as a measure
of last resort. It can also play an advisory role in developing or supporting
State procedures.
9. The meeting emphasized one of the underlying principles of international
refugee protection: In all circumstances, States must ensure that confidentiality
requirements for applications by refugees who may also be stateless are upheld
in a statelessness determination procedure. Thus any contact with the
authorities of another country to inquire about the nationality status of an
individual claiming to be stateless should only take place after any refugee
claim has been rejected after proper examination (including the exhaustion of
any legal remedies). Every applicant in a statelessness determination
procedure should be informed at the outset of the right to raise refugee-related
concerns ahead of any enquiries made with foreign authorities.
Procedural safeguards
10. In order to ensure fairness and efficiency, statelessness determination
procedures must ensure basic due process guarantees, including the right to an
effective remedy where an application is rejected. States should facilitate to
the extent possible access to legal aid for statelessness claims. Any
administrative fees levied on statelessness applications should be reasonable
and not act as a deterrent to stateless persons seeking protection.
11. Where an individual has an application pending in a statelessness
determination procedure, any removal/deportation proceedings must be
suspended until his or her application has been finally decided upon.
Questions of proof
12. A determination should be made on the basis of all the available evidence.
13. The 1954 Convention requires proving a negative: establishing that an
individual is not considered as a national by any State under the operation of
its law. Because of the challenges individuals will often face in discharging
this burden, including access to evidence and documentation, they should not
bear sole responsibility for establishing the relevant facts. In statelessness
determination procedures, the burden of proof should therefore be shared
between the applicant and the authorities responsible for making the
determination. It is incumbent on individuals to cooperate to establish relevant
facts. If an individual can demonstrate, on the basis of all reasonably available
evidence, that he or she is evidently not a national, then the burden should
shift to the State to prove that the individual is a national of a State.
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