The law relating to the identification of statelessness There is limited State practice on the assessment of eligibility for stateless status with reference to Article 1(1) of the 1954 Convention. Taking examples from States that operate statelessness determination procedures, in Spain it appears that in practice the burden of proof is shared between the authorities and the individual, with the individual under an obligation to “fully cooperate”, but there is no standard of proof identified. In Hungary the determining authority is obliged, as a result of general administrative law, to establish the relevant facts of the case. In practice, the determining authority takes an active role in searching for evidence. In France there is no explicit reference to a standard of proof, but the brief guidance published by OFPRA167 for applicants identifies that the proof must be “sufficiently precise and serious”.168 That said, the definition of “stateless person” in Article 1(1) is challenging and UNHCR aims to publish guidelines soon. The conclusions to the Geneva Expert Meeting organized by UNHCR in December 2010 provide guidance on the appropriate application of the provision: “The 1954 Convention requires proving a negative: establishing that an individual is not considered as a national by any State under the operation of its law. Because of the challenges individuals will often face in discharging this burden, including access to evidence and documentation, they should not bear sole responsibility for establishing the relevant facts. In statelessness determination procedures, the burden of proof should therefore be shared between the applicant and the authorities responsible for making the determination.”169 Despite the lack of a statelessness determination procedure in the UK, there is established caselaw on the evidentiary requirements for assessing whether an individual is stateless in the context of immigration law. The eligibility for nationality of another country is a matter for the municipal law of the foreign country.170 Consequently, as with all assessments of foreign law, it is a matter of fact.171 Where an applicant has asserted statelessness in immigration proceedings, the Scottish Outer House of the Court of Session held in the case of Bradshaw172 that “he or she would have to apply to those states which might consider her to be and might accept her as a national”. This places a high evidentiary burden on the applicant. It could be argued that the reasoning in Bradshaw is the result of the particular facts of the case, namely that the applicant asserted that she was statelessness on the basis of evidence of Ukrainian and Russian nationality law but, in circumstances where her credibility was otherwise in doubt, refused to put forward any further evidence in respect of her situation. The Bradshaw approach has been criticised by the leading commentary on British nationality law. It observes that “[a]lthough it was said that he who asserts statelessness must prove it, this case should be limited to its facts, as the test referred would be onerous and/or practically impossible in many cases and therefore inappropriate as a universal requirement”.173 However, 167 168 169 170 171 172 173 76 Office Français de Protection des Refugiés et Apatrides. This is the body in France which is responsible for deciding applications for asylum and for recognition of stateless status. Mandal, R., “UNHCR Handbook on the Determination of Stateless Status, Discussion Paper No. 3. Procedures for Determining whether a person is stateless”, Nov. 2010, on file with the authors. UNHCR, Geneva Summary Conclusions, para. 13. Stoeck v. Public Trustee, [1921] 2 Ch. 67. MA (Ethiopia) v. Secretary of State for the Home Department, [2009] EWCA Civ 289, United Kingdom: Court of Appeal (England and Wales), 2 April 2009, available at: http://www.unhcr.org/ refworld/docid/49da220e2, para. 63. R. (Bradshaw) v. SSHD, [1994] Imm AR 359. Fransman’s British Nationality Law, 3rd Edition, 2011, p. 591. Mapping statelessness