2019 Statelessness & Citizenship Review 1(2) ANALYSIS A Standard of Proof The principal difficulty with the court’s reasoning is that it considers the risk of carrying out the enquiries into nationality. It does not engage with the consequences of an erroneous decision that a person holds a nationality. The court states breezily that there is ‘no material problem’ 41 in applying the balance of probabilities test and that obtaining evidence is ‘easy’. 42 However, the consequences of an erroneous decision regarding statelessness are in fact ‘very severe’: 43 a stateless person who has erroneously been determined to ‘hold’ a nationality or to be able to ‘re-establish’ their nationality, 44 will not enjoy the protections of the 1954 Convention. 45 Moreover, it is not easy to establish whether a person holds a nationality in many cases. 46 Earlier UK decisions cited by the court related to the possibility of removal and did not take place in a context of statelessness as a protection issue under the 1954 Convention. 47 The key case, R v Secretary of State for the Home Department Ex parte Valentina Bradshaw, 48 concerned a woman who resisted removal on grounds of statelessness following withdrawal of her resident permit due to fraud. Other cases involved people who asserted they were from a particular country where they would face persecution, but the SSHD asserted that they could return elsewhere. 49 MA (Ethiopia) v Secretary of State for the Home Department is one such case — the appellant there was likely either Eritrean or Ethiopian, not stateless. 50 41 42 43 44 45 ibid [58]. ibid [51], citing MA (Ethiopia) (n 37) [81]. See also (n 21). AS (Guinea) (n 1) [47]. Wording was added to the Immigration Rules (n 4) following this case: at [403](e). A stateless person who is refused a residence permit and has no other right to reside in the UK, faces withdrawal of all state support, combined with prohibitions on all work, driving, marrying or accessing any health care for free other than emergency treatment. A property owner is liable to pay a civil penalty if they rent property to a person with no lawful residence. The stated aim of these measures was ‘to create here in Britain a really hostile environment for illegal migration’: ‘Theresa May Interview: “We’re Going to Give Illegal Migrants a Really Hostile Reception”’, The Telegraph (online, 25 May 2012) <https://www.telegraph.co.uk/news/uknews/immigration/9291483/Theresa-May-interviewWere-going-to-give-illegal-migrants-a-really-hostile-reception.html>. See also R v Secretary of State for the Home Department, Ex parte Adam [2005] UKHL 66, where an asylum applicant was obliged to sleep in the street, save perhaps for a short and foreseeably finite period, or was seriously hungry, or unable to satisfy the most basic requirements of hygiene the [ECHR (n 16) art 3] threshold would, in the ordinary way, be crossed. 46 See, eg, Pham v Secretary of State for the Home Department [2015] UKSC 19 (‘Pham’). For an even more convoluted case, see E3 and N3 v Secretary of State for the Home Department [2017] SIAD 138, SIAC 146. AS (Guinea) [48]: the court referred to statelessness and ‘the closely related concept of inability to return’. [1994] Imm AR 359. AS (Guinea) (n 1) [52]–[53], citing R (on the application of Nhamo) v Secretary of State for the Home Department [2012] EWHC 422 [35]–[37]; Abdullah v Secretary of State for the Home Department [2013] EWCA Civ 42 [16]; RM (Sierra Leone) v Secretary of State for the Home Department [2015] EWCA Civ 541. MA (Ethiopia) (n 37). 47 48 49 50 340