AS (Guinea) v Secretary of State for the Home Department The court did not take note of Hoti where the ECtHR found it ‘apparent’ that the applicant was stateless, on limited evidence, some of which was the applicant’s own testimony. 51 B Need to Apply for a Nationality The Court of Appeal, in stating that the applicant must apply for a nationality, ignored two Supreme Court decisions regarding deprivation of British nationality on national security grounds — Secretary of State for the Home Department v AlJedda (‘Al-Jedda’), 52 and Pham v Secretary of State for the Home Department (‘Pham’). 53 This jurisprudence established that a person is stateless if they do not hold a nationality at the time of the deprivation. 54 Although Al-Jedda and Pham are deprivation cases, the Upper Tribunal in the case of R (on the application of Semeda) v Secretary of State for the Home Department 55 explicitly applied the reasoning in Pham to the immigration context, as did the Court of Appeal in R (on the application of JM (Zimbabwe)) v The Secretary of State for the Home Department. 56 It is clear that the UK is now out of step with international standards in the determination of statelessness. The ECtHR in its decision in Hoti noted that the applicant had at one point refused to apply for Croatian nationality. The Court did not demand that the applicant request a nationality before he could be recognised as a stateless person. In fact, it explicitly stated that the applicant did not have to request naturalisation in order to have a right under art 8 ECHR to resolution of his residence status, and found that he was stateless. 57 CONCLUSION The court’s decision shows a very limited understanding of the practical difficulties applicants face, and over-relies on assertions by the SSHD that they will assist the applicant. The need to apply for a nationality before requesting determination as a stateless person obviously raises the possibility that the person is stateless. Following this decision, in April 2019, the Immigration Rules were amended. In order to obtain a grant of leave to remain as a stateless person, following recognition of statelessness, the applicant must have ‘sought and failed to obtain 51 52 53 54 55 56 57 Hoti (n 5) [138]. [2013] UKSC 62 (‘Al-Jedda’). Deprivation decisions are made under powers in the British Nationality Act 1981. Statelessness is not defined in the Act. The Upper Tribunal of the Immigration and Asylum Chamber, in the unreported decision of The Secretary of State for the Home Department v GS, HK and AK (HU/00490/2019, HU/00507/2019, HU/00498/2019, 8 August 2019) prefers the Supreme Court interpretation of art 1(1) of the 1954 Convention in Al-Jedda, to that of the Court of Appeal in AS (Guinea) (n 1). Pham (n 47). ibid; Al-Jedda (n 52). In order to nullify the effect of these decisions, the government amended the deprivation legislation so that persons who may be eligible for a nationality are effectively not deemed to be stateless: British Nationality Act 1981, s 40(4A)(c). [2015] UKSC 19 [28]. [2018] EWCA Civ. The unregistered child of a Zimbabwean national, who could in the future be registered, was recognised as stateless. The government amended the statelessness Immigration Rules (n 2) in April 2019 to require evidence of an attempt to register: see at [403](f), as amended by Statement of Changes in Immigration Rules 2019 (UK) HC 1919 s 14.3 (‘2019 Statement of Changes’). Hoti (n 5) [131]. 341