lack of response must after a reasonable period (3-6 months) be presumed to be confirmation that the country in question does not recognise the individual as a citizen.90 Where a response from a foreign authority includes reasoning that appears to involve a mistake in applying the local law to the facts of the case or an error in assessing the facts, the reply must be taken on face value. It is the subjective opinion of the other state that is critical in determining whether an individual is its national for the purposes of the stateless person definition.91 Under no circumstances is contact to be made with authorities of a state against which an individual alleges a well-founded fear of persecution unless it has definitively been concluded that he or she is neither a refugee nor entitled to a complementary form of protection. Standard of Proof The standard of proof or threshold of evidence necessary to determine statelessness must take into consideration the difficulties inherent in proving statelessness, particularly in light of the consequences of incorrectly rejecting an application. Requiring a high standard of proof of statelessness would undermine the object and purpose of the 1954 Convention. States are therefore advised to adopt the same standard of proof as that required in refugee status determination, namely, a finding of statelessness would be 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. 92 In the South African context, because there is no formalised procedure for stateless persons to obtain protection under the law, no standard for proof of statelessness exists. Even under section 2(2) of the Citizenship Act, which provides citizenship to persons born in South Africa who do not have the citizenship or nationality of any other country, there is no regulation93 or guidance on assessing such claims. To require proof of statelessness is to require proof of a negative – that a person is not considered as a national by any state. This presents significant challenges; a non-national will not ordinarily 90 91 92 93 52 UNHCR Definition Guidelines (n 7 above) para 34. UNHCR Definition Guidelines (n 7 above) paras 38-39. UNHCR Definition Guidelines (n 7 above) para para 39. In July 2014 LHR obtained a court order in the North Gauteng High Court of South Africa compelling the Minister of Home Affairs to make a regulation to section 2(2) of the South African Citizenship Act to facilitate its implementation. In this same order a South African born stateless child was declared to be a South African citizen by birth. Promoting citizenship and preventing statelessness in South Africa: A practitioner’s guide