The determination of statelessness
137
common procedural act in statelessness determination (contact with
and information gathering from foreign authorities) is strictly prohibited in asylum procedures, the regulatory framework ought to clarify
the relationship between these two. In most functioning protection
regimes, no legal rule has been created to this end. However, in the event
of parallel claims, the general practice is to prioritize the asylum application and suspend statelessness determination until a fi nal decision is
reached on that question. This approach is correct, in particular because
contact with authorities in the country of origin (a usual procedural step
in statelessness determination) is strictly forbidden until the validity of
the asylum claim is rejected by a fi nal decision. The Philippines was the
fi rst country to properly codify this rule in its regulatory framework
adopted in 2012, which stipulates that where during statelessness determination ‘a refugee claim appears to exist, the stateless status determination shall, with the consent of the Applicant, be suspended and the
application shall be considered fi rst for refugee status determination.
If the claim to refugee status is denied with fi nality, the stateless status
determination shall recommence automatically.’ 76 On the other hand,
a rather unreasonable approach has been taken in Mexico, where all
applicants for stateless status shall first go through the asylum channel,
even if they do not refer to any asylum-related protection ground. Such
an inflexible obligation causes unnecessary delays, costs and a waste of
resources.
5.4.5
The evidentiary framework
Establishing statelessness is often a cumbersome exercise and if the
evidentiary rules are too strict, this can easily undermine the protection objective of the 1954 Convention. The Geneva Conclusions therefore rightly point out that ‘determination procedures should adopt an
approach to evidence which takes into account the challenges inherent
in establishing whether a person is stateless’.77 There appears to be a general perception among states and other actors that in order to be qualified
as stateless an individual does not need to prove that she or he is not the
citizen of any single country of the world. Nevertheless, more concrete
principles are still in the making.
76
77
Department Circular No. 058 – ‘Establishing the Refugees and Stateless Status
Determination Procedure’, Department of Justice, 18 October 2012, s. 8.
Geneva Conclusions, para. 14.
9781107032446c05_p116-143.indd 137
6/16/2014 3:12:03 PM
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents