“wage-earning employment”,251 “practising a liberal profession,”252 or “self-employment”.253 UNHCR guidance254 provides that: “On the basis of the travaux and other provisions of the Convention, it is reasonable to conclude that ‘stay’ means something less than durable residence, although clearly more than a transit stop, while ‘lawful’ normally is to be assessed against prevailing national laws and regulations: - A judgment as to lawfulness should nevertheless take into account all the prevailing circumstances, including the fact that the stay in question is known and not prohibited, i.e. tolerated, because of the precarious circumstances of the person; - Implying lawfulness in such circumstances is legitimate and necessary if a State is to implement its international obligations under the Convention.” On this analysis, a stateless person may, depending on his or her circumstances, be “lawfully staying” in the UK, even if he or she is admitted on temporary admission and has not been granted leave to enter or remain.255 That said, domestic caselaw indicates that if this matter was ever considered by the UK courts256 a stateless person would have to have their stateless status recognised to benefit from this protection.257 Further, the same caselaw applies a more restrictive view on the level of connection required to establish “lawful presence” or “lawful stay” than that adopted by UNHCR.258 An analysis of relevant provisions of international human rights law concludes that stateless persons will only benefit from protections259 in respect of employment “if they have gained lawful access to the state’s jurisdiction”.260 This would apply to stateless persons granted temporary admission or release. However, the relevant treaty provisions are not incorporated into UK domestic law and cannot be directly relied on in domestic courts. In some circumstances, the right to employment is protected within the sphere of private life guaranteed by Article 8 ECHR.261 However, the UK courts have not examined the application of this provision to the situation of stateless persons or “unreturnable” persons who are prohibited from working. Most of the participants were prohibited from working by the conditions of their temporary admission or release. Indeed, if a stateless person who is subject to immigration control works 94 251 1954 Convention, Article 17. 252 Ibid., Article 19. 253 Ibid., Article 18. 254 UNHCR, Lawfully Staying – A Note on Interpretation, 3 May 1988, available at: http://www.unhcr. org/refworld/docid/42ad93304.html. 255 Szoma v Secretary of State for Work and Pensions [2005] UKHL 64. 256 The current lack of incorporation of the provision means that this is presently unlikely. 257 Szoma v Secretary of State for Work and Pensions, op. cit., paras. 24 and 25. 258 Ibid. The House of Lords held that persons who make an application for leave to enter or remain at port on arrival and are granted temporary admission by the UK Border Agency can be considered to be “lawfully present” on the UK territory. The Court did not consider what was required to establish the greater level of attachment of lawful stay. 259 For example the International Covenant on Economic, Social and Cultural Rights (hereafter the ICESCR), Article 6. 260 Van Waas, L., Nationality Matters: Statelessness under International Law, Intersentia, 2008, p.315, but note the restrictive conclusion arrived at in applying this test. 261 See Niemietz v. Germany, 72/1991/324/396, European Court of Human Rights, 16 Dec. 1992, available at: http://www.unhcr.org/refworld/docid/3f32560b4.html and Tekle v. Secretary of State for the Home Department, [2008] EWHC 3064 (Admin), United Kingdom: High Court (England and Wales), 11 December 2008, available at: http://www.unhcr.org/refworld/docid/494678492.html. Mapping statelessness