460 • Identifying the Stateless in the United Kingdom 126 127 128 129 130 Interview with Solicitor 3 (Liverpool, 27 April 2016). Interview with Stateless Person 1 (n 117); Stateless Person 6 (n 116); Stateless Person 7 (n 110); Stateless Person 8 (n 110). Adrian Berry, ‘The Burden of Proof and Standard of Proof in Statelessness Cases’ (Nationality and Citizenship Law, 17 September 2019) <https://nationalityandcitizenshiplaw.com/2019/09/17/ the-burden-of-proof-and-standard-of-proof-in-statelessness-cases/> accessed 11 October 2019. Michelle Foster and Hélène Lambert, International Refugee Law and the Protection of Stateless Persons (Oxford University Press 2019) 116. UNHCR (n 4) para 89. Downloaded from https://academic.oup.com/ijrl/article/32/3/440/6065591 by guest on 04 July 2025 negative concept, and thus difficult to prove. Many situations are not straightforward – for instance, the case of Interviewee 5, who was born in South Sudan to Liberian parents, and migrated several times both as a child and as an adult. Secondly, the Immigration Rules state that the onus is on the applicant to prove his or her case according to the ordinary civil standard (the balance of probabilities) rather than the lower civil standard (reasonable degree of likelihood). As a consequence, it is not easy to convince the HO that applicants have made genuine efforts to obtain their documents in situations where their nationality or identity is unclear.126 Documentation may not be forthcoming simply because embassies often fail to reply to requests. The problems resulting from an extremely high burden of proof are exemplified by the research participants’ statements that they were uncertain what steps to take in order to obtain documents, particularly when they were in immigration detention. Generally, interviewees believed that approaching the embassy of their country of habitual residence or perceived nationality would be enough, even if they did not receive a written reply.127 However, the HO usually insisted on more concrete evidence of such attempts and asked to see documentary evidence in the form of written communications. In practice, applicants were expected to contact the authorities of the country of origin in writing and provide as many original documents as possible. Thereafter, they were expected to try to obtain a statement of non-nationality from the country concerned. Applicants could also be expected to use tracking services to contact relatives or friends in the country of origin who might be able to help to obtain documents. Unless applicants take these steps, they do not succeed in their applications.128 This approach diminishes the effectiveness of the procedure, making the recognition of statelessness extremely difficult, if not impossible, to attain. The very nature of statelessness means that applicants ‘are often unable to substantiate the claim [that they are stateless] with much, if any, documentary evidence. This is because stateless persons are often deprived of documentation, including birth registration, identity, and other documents’.129 On this matter, it would be helpful to follow UNHCR’s recommendation ‘to take [inability to obtain documentary evidence] into account, where appropriate giving sympathetic consideration to testimonial explanations regarding the absence of certain kinds of evidence’.130 In terms of the SDP’s accessibility and its responsiveness to needs, the research participants referred to objective and subjective difficulties in complying with the rules of the application process. These included the complexity of the legal language, answering the questions on the application form, as well as locating documents and statements to support the claim. In particular, interviewees found the form cumbersome, requiring