138 Gábor Gyulai The first pivotal issue is the burden of proof, meaning the question of who bears the burden of establishing whether or not the applicant is stateless. The Geneva Conclusions and UNHCR guidance both suggest a shared onus, with the applicant being obliged to cooperate with the determining authority.78 From a practical standpoint, it would be difficult to argue against this approach: stateless persons often face insurmountable difficulties in demonstrating their lack of nationality, and if they were left alone in this task, most of them would never have access to protection. Moreover, foreign authorities have diverging attitudes towards claims for the confirmation of citizenship coming from individuals and state offices. Research from Hungary,79 for instance, indicates that some foreign authorities will only respond to such a query if submitted by the person concerned (for reasons of data protection, for example). Others may disregard individual information requests (especially if coming from an individual not perceived as a citizen) and would attach more importance to ‘official’ claims submitted by a foreign state authority. Sometimes the very same state may apply either of these approaches, depending on the case (or the officer who receives the information request). As such, flexibility and ‘labour-division’ can seriously enhance the efficiency of the determination procedure. It is comprehensible, therefore, that most states resort to some sort of burden sharing. In France and Spain, the asylum authority, which processes statelessness claims, has the responsibility to establish whether or not the applicant is stateless, while the applicant solely has the obligation to cooperate in this process (by, for example, submitting all relevant evidence at her or his disposal). In Hungary, the principle burden of proof is incumbent on the claimant, but the competent authority is obliged to provide administrative assistance on request and has the general obligation to establish all relevant facts of the case. Another key issue in this context is the applicable standard of proof. The difficulty of proving statelessness has been mentioned repeatedly in this chapter. As with the issue of the burden of proof, flexibility and a protection-oriented approach is required in this respect, too. It is important to note that legislators and judges in civil law jurisdictions – unlike their counterparts in the common law context – usually refrain from a formalistic interpretation of the standard of proof.80 Nevertheless, a growing 78 79 80 Geneva Conclusions, para. 13. See also UNHCR, ��Guidelines on Statelessness No. 2: Procedures for Determining whether an Individual is a Stateless Person’, para. 37. Gyulai, ‘Statelessness in Hungary’, 26. All states operating a statelessness-specific determination and protection mechanism at the time of writing follow a civil law tradition. 9781107032446c05_p116-143.indd 138 6/16/2014 3:12:03 PM