Statelessness Determination Procedures Caseworkers should be able to distinguish between applicants who show no interest in genuinely co-operating or providing necessary information or evidence, from those who may be unable to provide such evidence because of their particular circumstances, such as limited knowledge of the nationality law of their countries of former habitual residence, absence or loss of relevant documents etc. In such circumstances, where the available information is lacking or inconclusive, the caseworker must assist the applicant by interviewing him, undertaking relevant research and, if necessary, making enquiries with the relevant authorities and organisations. 58 Enquiries of the authorities of the country of former habitual residence which disclose the applicant’s personal details must be done with the written consent of the applicant, but if that consent is denied without good reason (for example, it has already been established that the person’s claimed fear of those authorities was not well-founded), it may be inferred that the applicant is not genuinely willing to cooperate and is failing to discharge the burden of proof, taking account of all the available information. 59 Hereafter we address who should bear the burden of proof in SDPs, and what standard of proof applies. 1 Burden of Proof In most jurisdictions, the legal burden of proof rests with the party bringing a claim. 60 In principle, this would mean that a stateless person bears the burden of proof. It is suggested, however, that, in statelessness determination procedures, the burden of proof be in principle shared, which means that both the applicant and examiner must cooperate to obtain evidence, to establish the facts and ultimately clarify whether an individual comes within the scope of the 1954 Convention. 61 It is not easy for people to prove that they are stateless. Most of the time, stateless persons have no documents or other evidence to prove that they are not considered a national by any state. In light of this, both the applicant and the determination authority must cooperate to obtain evidence to establish the facts. Authorities undertaking statelessness determination must consider all available evidence, oral or written, regarding an individual claim. This may include the analysis of nationality laws of other countries and how they are applied. 62 Substantiating statelessness can involve evidentiary challenges. Statelessness is rarely a well-documented situation or status, as there are no state authorities obliged to provide an individual with documentation. Therefore, establishing whether an individual ‘is not considered as a national … under the operation of … law’ may require considering a wide range of legal and factual evidence, 63 on the part of the caseworkers. It is therefore necessary for the burden of proof to be shared between the applicant and the authorities. 58 59 60 61 62 63 See Asylum Policy Instruction: Statelessness and Applications for Leave to Remain (Guidance, Version 2.0, UK Home Office 2016) [4.2]. ibid. See Nicola Monaghan, Law of Evidence (Cambridge University Press 2015) 35. Handbook on Protection of Stateless Persons (n 11) 34 [89]. Statelessness Determination Procedures (n 19) 5. Katja Swider, ‘Protection and Identification of Stateless Persons Through EU Law’ (Research Paper No 2014–05, Amsterdam Centre for European Law and Governance July 2014) 5. See also Handbook on Protection of Stateless Persons (n 11) 12–13 [23]–[24]. 96