UNHCR’s Handbook on Protection of Stateless Persons provides guidance to
governments, UNHCR staff and other actors regarding the modalities of establishing
statelessness determination procedures, including on questions of evidence which arise
in such procedures.
What kind of evidence is required?
Given the nature of statelessness, individuals are often unable to substantiate a claim for
statelessness status with significant, if any, documentary evidence. Many individuals are
unaware of the need, or are unable to conduct the necessary analysis of the nationality
laws of countries through which they have links through birth, descent, marriage or
habitual residence. In addition, contact with foreign authorities to request specific
information about an individual’s case or general guidance on a country’s nationality
laws, including both clarification as to the letter of the law and implementation, can be
fundamental in reaching a conclusion on whether an individual is stateless. In many cases,
States will only respond to such enquiries when they are initiated by government officials
of another State.
Statelessness determination procedures must therefore take into consideration the
difficulties inherent in proving statelessness. Statelessness determination procedures
require both the applicant and the examiner to cooperate to obtain evidence and establish
the facts – this is referred to as a shared burden of proof. Because of the difficulties
inherent in proving statelessness, the threshold of evidence required before statelessness
is determined should not be too high. States are therefore advised to adopt the same
standard of proof as that required in refugee status determination, namely, that a finding
of statelessness is warranted where it is established to “a reasonable degree” that an
individual is not considered as a national by any State under the operation of its law.
UNHCR’s Handbook on Protection of Stateless Persons provides further guidance on
how the burden and standard of proof are to be applied in statelessness determination
procedures.
Who should decide if an individual is stateless?
Qualified personnel who are specialized in the field of statelessness and who can
impartially and objectively examine the application and evidence supporting it should
be designated to make determinations of statelessness. A central authority responsible
for such determinations would reduce the risk of inconsistent decisions, would be
more effective in obtaining and disseminating information on countries of origin, and
would, by its focused work, be better able to develop its expertise in matters related
to statelessness. The determination of statelessness status requires the collection and
analysis of laws, regulations and the practices of other States. Even without a central
authority, decision-makers benefit from collaborating with colleagues knowledgeable
about nationality legislation and the issue of statelessness both within the government
and in other States.
How do individuals gain access to the procedure?
The 1954 Convention does not oblige States to grant a legal stay to an individual while
their request for recognition as a stateless person is being assessed. Practically, once
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