The current policy position134 on applications for leave to enter or remain from stateless persons is set out in the guidance on how to treat asylum claims made by Palestinians. It provides: “No distinction is made between applications for leave to remain from stateless people and from people who have a nationality. Stateless people whose applications are successful are granted leave to enter or remain in the usual way. Those whose applications fail are expected to leave the United Kingdom, usually to return to their countries of habitual residence (see MA (Palestinian Arabs – Occupied Territories – Risk) Palestinian Territories CG [2007] UKIAT 00017…). The fact of being stateless is not, therefore, in itself a reason for granting leave to enter or remain in the UK and would not give rise to a grant of asylum or Humanitarian Protection.”135 (Emphasis added) Consequently, although the Secretary of State can use discretionary powers to grant leave to enter or remain to stateless persons,136 there is no requirement in domestic legislation or the Immigration Rules that leave to enter or remain should be granted to stateless persons on the basis that they are stateless.137 The qualitative and quantitative analysis reveals no discernable or consistent practice by the Secretary of State of using discretion in this way.138 Indeed, current UK law and practice provides only a very limited possibility for leave to enter or remain to be granted to persons who are unable to leave the UK, as will be the case for many stateless persons. They must show that the Secretary of State’s refusal to grant leave to remain is irrational on the basis that there is no possibility that they can depart from the UK.139 Thus, in deciding whether a stateless person should be granted leave to enter or remain in the UK, the fact that the individual is stateless is, in most cases, not considered to be relevant. The evidence indicates that, as a result, stateless persons are not identified within the operation of immigration control. This also means that statelessness has little bearing on their ability to access rights or other entitlements, despite the obligations in international law owed to them by the UK. 70 134 There is a very specific policy on the possibility of granting Discretionary leave to remain to British Overseas citizens (and other UK passport holders such as British protected persons and British subjects) who are otherwise stateless and who are left in limbo, see Immigration Directorate Instructions Chapter 7, Section 2, available at: http://www.bia.homeoffice.gov.uk/sitecontent/ documents/policyandlaw/IDIs/idischapter7/section2/section2.pdf?view=Binary. For a discussion of whether such people are stateless see Section 5.10 below. 135 Home Office, Operational Guidance Note, Israel, Gaza and the West Bank, February 2009, available at: www.bia.homeoffice.gov.uk/sitecontent/documents/policyandlaw/ countryspecificasylumpolicyogns/israelgazawestbank.pdf?view=Binary. 136 For example, by exercising the wide discretion to grant leave to enter or remain provided by the Immigration Act 1971, section 3, including in line with the Discretionary Leave API, Immigration Directorate Instructions, Chapter 1, Section 14 or, in the context of administrative removal or deportation, paragraphs 395C and 364 of the Immigration Rules. The authors are grateful to Paul Luckhurst, Counsel, Blackstone Chambers, for drawing this point to our attention. 137 See A.K. v. SSHD, [2006] EWCA Civ 1117. 138 There is anecdotal evidence from a semi-structured interview with a UKBA Senior Caseworker (15 August 2011) that such discretion may occasionally be exercised. A specific example given was of an asylum applicant from Estonia being granted Discretionary leave to allow him to make enquiries as to whether he was entitled to Estonian nationality. 139 See R (on the application of MS, AR & FW) v. Secretary of State for the Home Department, [2009] EWCA Civ 1310, United Kingdom: Court of Appeal (England and Wales), 4 December 2009, available at: http://www.unhcr.org/refworld/docid/4b2f7eec2.html, per Sedley LJ, citing with approval, Baroness Hale in Khadir, R (on the application of) v. SSHD, [2005] UKHL 39 “when the prospects of the person ever being able safely to return … are so remote that it would be irrational to deny him the status which would enable him to make a proper contribution to the community here”. Mapping statelessness