Uganda. Cultural activities of Benet Community. © UNHCR/Esther Ruth Mbabazi In two cases brought against the Netherlands, the UN Human Rights Committee considered that the state had placed unreasonable demands on an unaccompanied 12-year-old asylum-seeker from China to seek recognition of Chinese nationality188; and that the state had violated the rights of another child by treating him as a Chinese national, even though both he and his mother had been denied recognition of Chinese nationality.189  States should establish a system for determining that a person is stateless in order to fulfil the obligations in relation to the right to a nationality, the avoidance of statelessness, and protection of stateless persons. Although a statelessness determination procedure is not specifically provided for in the 1954 Convention relating to the Status of Stateless Persons, it is part of a state’s good faith interpretation, as well as the logical result, of the legal frameworks that there must be a way to identify a person as stateless in order to provide protection as a stateless person (under the 1954 Convention) or grant nationality (under the 1961 Convention or the regional treaties). Even if there is no specific stateless person status, it is possible to argue that statelessness should be recognised as part of refugee status determination.190 The Swiss Federal Administrative Court ruled in 2017 that the applicants had a right to be recognised as stateless persons in addition to the grant of asylum-based residence status.191  The question of whether a person is stateless may also arise in deprivation cases. States wishing to deprive a person of nationality often assert that a person has another nationality even if the authorities of the other state deny that fact. UNHCR Guidelines on Statelessness No. 5 call for an inquiry into whether a person would be rendered stateless before nationality is deprived, with the burden of proof to be shared.192 The UK Supreme Court has declined to challenge the executive’s very legalistic interpretation of a right to nationality in another country in national security deprivation cases.193 In immigration cases, however, the UK Court of Appeal has confirmed that proof of statelessness depends in part on factual evidence, including refusal by the relevant consular authorities to confirm nationality (even though it has applied a more stringent standard of proof than that recommended by UNHCR).194  188 X.H.L. v. Netherlands, Human Rights Committee, Views on Communication No. 1564/07, CCPR/C102/D/1564/2007, adopted 22 July 2011 (finding the Netherlands’ decision to deport an unregistered minor to China to face economic and social exclusion to be degrading treatment and contrary to the protection of children required by Articles 7 and 24 of the Covenant), http://www.bayefsky.com//pdf/ netherlands_t5_ccpr_1564_2007.pdf. 189 DZ v. The Netherlands, supra n 53. Handbook on Protection of Stateless Persons, supra n 2, paras 57–124. See also “Due Process in Procedures for the Determination of Refugee Status and Statelessness and the Granting of Complementary Protection”, OEA/Ser.L/V/II, Doc. 255, Inter-American Commission on Human Rights, 5 August 2020, https:// www.oas.org/en/iachr/reports/pdfs/DueProcess-EN.pdf. 190 191 Judgment No. F-6147/2015, Summary, https://caselaw.statelessness.eu/caselaw/switzerland-federal-administrative-court-judgment-no-f-61472015. 192 UNHCR, Guidelines on Statelessness No. 5, supra n 103, para. 45, https://www.refworld.org/docid/5ec5640c4.html. The U.K. Supreme Court accepted the executive’s argument that deprivation of British citizenship from someone accused of terrorist offences would not render a person of Vietnamese origin stateless, even though the Vietnamese authorities had declined to confirm his nationality. Pham (Appellant) v Secretary of State for the Home Department (Respondent), UK Supreme Court, Judgment of 25 March 2015 [2015] UKSC 19, https://www.supremecourt.uk/cases/uksc2013-0150.html. This case is pending before the European Court of Human Rights. See also Rayner Thwaites, “Proof of Foreign Nationality and Citizenship Deprivation: Pham and Competing Approaches to Proof in the British Courts”, Modern Law Review, Vol.85, no.6 (2022), pp.1301-1328. A similar view was reached by the Supreme Court in the proceedings in the case of Begum (Respondent) v Secretary of State for the Home Department (Appellant) [2021] UKSC 7, declining to find that Shamima Begum was stateless on the grounds that she had a theoretical right to Bangladeshi nationality. Discussed in Eric Fripp, “Case Note: R (Begum) v Special Immigration Appeals Commission; R (Begum) v Secretary of State for the Home Department; Begum v Secretary of State for the Home Department [2021] UKSC 7, [2021] AC 765”, Statelessness & Citizenship Review, Vol. 4, no.1, (2022), pp. 169-176. 193 AS (Guinea) v Secretary of State for the Home Department, UK Court of Appeal, Judgment of 12 October 2018 [2018] EWCA Civ 2234, para 46; Judith Carter, “Case Note: AS (Guinea) v Secretary of State for the Home Department [2018] EWCA Civ 2234” Statelessness & Citizenship Review, Vol.1 no.2, (2019), pp.336-342. 194 56 U N H C R | L I T I G AT I N G T H E R I G H T T O A N AT I O N A L I T Y: A G U I D E F O R P R AC T I T I O N E R S