20 | Training handbook . Statelessness 1. Introduction 2. Guidance 3. Legal context 4. Research strategy (...) 5. Appendices Judicial guidance: Proof of foreign law The decision of AS (Guinea) v Secretary of State for the Home Department33 is an important United Kingdom case because it establishes the standard of proof to be applied in the UK in determining whether a person is stateless under art 1(1) of the 1954 Convention Relating to the Status of Stateless Persons (‘1954 Convention’). Traditionally, it's believed that proving foreign law necessitates expert testimony. However, the case law KV (Sri Lanka) [2018] EWCA Civ 2483 introduces a more adaptable stance. It indicates that in certain situations, particularly concerning Commonwealth countries employing common law, courts might interpret foreign legislation directly. 57. “[...] A person claiming to be stateless must take all reasonably practicable steps to gather together and submit all documents and other materials which evidence his or her identity and residence in the state or states in issue, and which otherwise bear upon his or her nationality. The applicant ought also to apply for nationality of the state or states with which he or she has the closest connection. Generally, these are steps that can be taken without any risk. If, in the words of Elias LJ, the applicant comes up against a brick wall, then, depending on the reasons given, the adjudicator will decide whether the applicant has established statelessness, and will do so on the balance of probabilities. Of course, from time to time, there may be cases where it would not be reasonable to expect the applicant to take this course, and in those cases the Secretary of State will assist the applicant by making enquiries on his or her behalf but again there is no reason why the issue of statelessness cannot be decided on the balance of probabilities. [...]” In Pham [2015] UKSC 1934, although not a para 403 case, it stands as the leading authority on the definition of statelessness in UK law and acknowledges: 38. “[...] In conclusion on issue (i), I would accept that the question arising under article 1(1) of the 1954 Convention in this case is not necessarily to be decided solely by reference to the text of the nationality legislation of the state in question, and that reference may also be made to the practice of the government, even if not subject to effective challenge in the courts. However, there is in my view no evidence of a decision made or practice adopted by the Vietnamese government, which treated the appellant as a non-national “by operation of its law”, even adopting the broadest view of those words as interpreted by the UNHCR; nor in any event of one which was effective at the date of the Secretary of State’s decision. The appeal under this ground must accordingly be dismissed.” 31.”In English proceedings, matters of foreign law are treated as matters of fact which must be proved to the satisfaction of the court or tribunal. Traditionally, the general rule in court proceedings has been that this cannot be done simply by putting the text of a foreign enactment before the court or by citing foreign decisions or books of authority, but can only be done by adducing evidence from an expert witness. The reason generally given for this requirement is that, without the assistance of an expert witness, the court is not competent to interpret such materials: see e.g. Phipson on Evidence (18th Edn, 2013) para 33-75; Dicey Morris & Collins on The Conflict of Laws (15th Edn, 2012) vol 1, para 9-014. Sometimes this is undoubtedly true. When, for example, the foreign law in question derives from a system which does not share a common heritage with our own and is contained in sources written in a foreign language whose meaning and/or relationship to each other is not easy to understand, it would plainly be unsafe for an English judge to reach conclusions about the effect of the foreign law without expert assistance. But equally plainly, this is not always true. An English judge does not generally need expert assistance in order to understand and interpret an enactment or decision of a court of another Englishspeaking country whose law forms part of the common law. Decisions of such courts are frequently cited in the English courts and treated as persuasive authority on questions of English law with no suggestion that the court needs the aid of an expert witness in order to interpret such materials. There is no reason why the court should be any less competent to interpret such materials when they are relied on to prove the content of the foreign law concerned.” 33. EWCA Civ 2234 AS (Guinea) Appellant - and – Secretary of State for the Home Department Respondent - and – United Nations High Commissioner for Refugees Intervener, [2018] EWCA Civ 2234, United Kingdom: Court of Appeal (England and Wales), 12 October 2018 34. Pham v Secretary of State for the Home Department , [2015] UKSC 19, United Kingdom: Supreme Court, 25 March 2015 © Asylos, 2023 Back to contents