In March 2016, the SMA adopted a Judicial Position on the examination and
determination of identity and citizenship, as well as country of habitual residence or
regular place of residence in asylum cases. This Judicial Position provides guidance on
the various forms of evidence and methodologies that can be used to establish an
applicant’s identity and citizenship, or in the case of stateless applicants, their regular
place of residence. Furthermore, in June 2016, the SMA adopted a Judicial Position on
the notion of regular place of residence (vanlig vistelseort), which provides guidance to
case workers and decision makers on how to determine against which country, or
countries, a determination of a stateless asylum applicant’s claim should be made. This
Judicial Position reaffirms that “The one who claims to be stateless must make this
probable.” [Emphasis added].
Therefore, similar to Denmark, the stateless person has to raise their
statelessness during the interview. Moreover, the burden of proof lies, by and
large, with the applicant themselves. In contrast to UNHCR’s guidance on
the shared burden of proof in establishing statelessness, the SMA note in
their guidance to asylum seekers:
It is your responsibility to prove your identity. This means that you must present
documents that prove what your name is, when you were born and your citizenship. This
document must also include a photograph and be issued by an authorised authority.
[Emphasis added]. (Migrationsverket, 2016h)
Further increasing the barriers faced by refugees in proving their statelessness,
the SMA place restrictions on the use of documentation issued by certain states
or authorities in proving identity. These include people with documents from
Afghanistan,
Iraq,
Somalia,
Eritrea
and
‘stateless
Palestinians’
(Migrationsverket, 2016b). All of the above are countries/authorities with
known stateless populations or with nationality law, or the implementation
thereof, which sees the creation and perpetuation of statelessness.
SMA caseworkers initially rely on information or documentation that the
individual can provide. To supplement this, they can draw on several other
sources, such as their own background knowledge on the situation in the
county, COI on the LIFOS database, other external sources and language
analysis for the determination of origin (LADO). Caseworkers can also turn to
either the Migration Handbook, produced and continuously updated by the
SMA, legal positions (Rättsligt ställningstagande) made by the legal team of the
SMA, or rulings of the Migration Board of Appeal.
The Migration Handbook, at the time of writing, did not include a definition of
a stateless person, person with ‘unknown citizenship’ or whose ‘citizenship is
under investigation’ (Migrationsverket, 2015a). Meanwhile, only 27 legal
positions of the SMA available for caseworkers for guidance included a
reference to statelessness, as of October 2016 (LIFOS, 2016). While these detail
law and policy positions on individual cases of stateless Syrian and Palestinian
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