Identifying the Stateless in the United Kingdom • 459 4.3 Inability to vindicate rights and barriers to accessing justice in the SDP The data highlight several weaknesses relating to both the design and implementation of the SDP framework: (1) unfair burden and standard of proof; (2) inaccessibility; (3) long waiting periods; and (4) unfairness of review mechanisms. First, contrary to HO guidance, decision makers rarely assist applicants to gather evidence. This creates an objective barrier for applicants: statelessness is essentially a 120 121 122 123 124 125 Interview with Solicitor 1 (London, 9 June 2016). Valeria Cherednichenko, ‘A Ray of Hope for Stateless Sahrawis in Spain?’ (ENS, 22 October 2013) <https://www.statelessness.eu/blog/ray-hope-stateless-sahrawis-spain-1> accessed 8 March 2020. Ana Aliverti, ‘Briefing. Immigration Offences: Trends in Legislation and Criminal and Civil Enforcement’ (The Migration Observatory, University of Oxford 2016). Equal Rights Trust (n 107) 239. Bianchini (n 8) 22–23. See n 103 and part 3. Downloaded from https://academic.oup.com/ijrl/article/32/3/440/6065591 by guest on 04 July 2025 could return to either Nigeria or Cameroon.120 In the case of Stateless Person 6, the HO refused his application on public order grounds without making a finding on his statelessness, leaving him with no status and no rights in the country. However, the HO did not dispute that Stateless Person 6 was born in a refugee camp in the Western Sahara and that he was a stateless Saharawi.121 In both scenarios, relevant facts that would have served as evidence of statelessness were ignored, rendering the decisions unsubstantiated and clearly wrong. A third problematic issue relates to the use of the ‘exclusion clause’ to refuse cases on the basis of security or public order. Three research participants, including the Saharawi person, had their cases refused on this ground. This is particularly unjust when the crime committed is an immigration offence, as certain migrant profiles (especially undocumented individuals and those without a support network) trigger application of the clause.122 It should be noted that, under both international and UK law, unlike refugees, stateless persons can be penalized for illegal entry or presence and are therefore at greater risk of criminalization for breach of immigration laws.123 Thus, a vicious cycle follows: deprivation, statelessness, lack of documents and support may lead to criminal behaviour. In turn, criminal convictions further reduce the few opportunities to obtain lawful status, creating a hopeless situation for persons affected by statelessness. Criminal convictions also trigger deportation orders and, along with them, immigration detention.124 Although it appears that immigration officials do not deal with the feasibility of deportation, further research is needed to understand the approach taken in these situations and how it could be improved to ensure better compliance with human rights standards. In conclusion, poor decisions have dangerous consequences – this is one of the main challenges that stateless persons face when accessing substantive justice.125 Additionally, exclusion on account of immigration-related offences disregards the needs and situation of the stateless, exposing them to the risk of immigration detention. Furthermore, the procedural aspect of access to justice in the SDP is also affected by shortcomings, as will now be explained.