AS (Guinea) v Secretary of State for the Home Department

Parties (including notable third parties)

AS (Guinea) (Appellant); Secretary of State for the Home Department (Respondent); United Nations High Commissioner for Refugees (Intervener)

---

Summary of Facts

The Appellant was born in Guinea in 1986 and applied for asylum in the UK in 2004, asserting that he was a national of Guinea. He committed various offences and was sentenced to imprisonment for two years in 2007. His asylum claim was refused and a deportation order was issued against him.

In 2013, the Appellant sought permission to remain in the UK on human rights grounds and on the basis that he was stateless. He submitted that he had never had any identity documents, a passport, and had never seen his birth certificate. He also claimed that he had been in contact with the Guinean embassy by telephone, correspondence and in person but that the embassy had told him that they had no evidence of his nationality.

The application for leave to remain was refused because the Appellant was the subject of a deportation order. The Secretary of State for the Home Department (‘SSHD’) refused to revoke the deportation order on the basis that the Appellant had failed to establish any fear of persecution in Guinea, had provided no evidence to suggest that he had been deprived of Guinean nationality, and it seemed that the only reason the authorities had not issued him with an emergency travel document was because, in the absence of the necessary documents, they had been unable to verify his true identity.

Before the First-tier Tribunal, the Applicant submitted he had done everything he could to establish his nationality, but the judge found that he had been ‘remarkably inactive’ about establishing his nationality and had not taken active steps which he could reasonably have taken to provide proof of his identity (paragraph 25-26)

---

Legal Arguments

The Appellant submitted two grounds of appeal: (1) That the Upper Tribunal misdirected itself in holding that the Appellant was required to prove that he was stateless on the balance of probabilities; and (2) That the Upper Tribunal erred in law in finding that if the Appellant was stateless, this made no material difference to the assessment of ‘exceptional circumstances’ under paragraph 390A of the Immigration Rules.

Legal arguments by the Appellant and the Intervener

The submissions of the Appellant, supported by UNHCR as an intervener, refer to UNHCR’s Handbook on the Protection of Stateless Persons (‘UNHCR Statelessness Handbook’), which states that parties should apply a shared burden of proof.

They argued that the lower standard of proof of establishing the facts to a reasonable degree, which is applied to refugee cases, should also be applied to statelessness cases. They relied on the following arguments:

• The 1954 Convention relating to the Status of Stateless Persons (‘1954 Convention’) must have an autonomous and international meaning, and the UNHCR Statelessness Handbook should be afforded considerable weight equivalent to the ‘high persuasive authority’ (paragraph 43) which is accorded to the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees;
• The 1954 Convention should be interpreted considering its human rights and humanitarian objectives and its purpose, including the protection of stateless persons as a vulnerable group;
• The lower standard of proof should apply to prevent people being left in limbo by being considered neither nationals nor stateless due to a lack of evidence;
• Establishing statelessness is difficult for the individual as it requires proving a negative and stateless persons are often outside their home country and undocumented. Therefore, the burden of proof should be shared because states have better resources to establish a positive status (i.e. that a person is a national of another state);
• The practice of other states should be considered, including states which have established a lower standard of proof; and
• Guidance for decision-makers issued by the SSHD recognise the importance of a shared burden and point to a lower standard of proof than the balance of probabilities.

The argument was then made that a finding of statelessness is material to a decision about whether to revoke a deportation order.

Legal arguments by the Respondent

The SSHD relied on the decisions already made by the lower courts, namely that the UNHCR Statelessness Handbook was 'advisory' and that the Appellant, on the facts, had not met the standard of proof.

Outcome

The Court determined that a person claiming to be stateless must provide evidence satisfying the standard of balance of probabilities and must apply for nationality as part of that evidence. It did not have to determine whether statelessness was relevant to the revocation of a deportation order because the appellant had not established that he was stateless.

In its reasoning, the court held that the UNHCR Statelessness Handbook ‘should be accorded considerable weight but that it remained advisory’ (as had been held by the Upper Tribunal) (paragraph 44).

Regarding the interpretation of the 1954 Convention, the Court stated (at paragraph 46):

'I accept without question that the 1954 Convention must be interpreted in light of its objectives and that the consequences of an error in the assessment of whether a person is or is not stateless may be serious. But it seems to me that the nature of the issue facing the adjudicator and the steps that an applicant needs to take in order to establish statelessness are generally very different from those that arise in relation to an application for recognition of refugee status.'

The view of the Court was that the steps to establish statelessness did not involve the same risk of harm and difficulties in assessing a risk of persecution involved in the application for recognition of refugee status. It noted that the steps necessary to establish statelessness can usually be taken without any risk of harm to the applicant, e.g. gathering evidence about their identity and residence, applying to an embassy for recognition of their nationality status or documents to return, and ‘there is therefore no need to speculate as to whether a person is or is not stateless; that person’s status can be ascertained (paragraph 46).

On the other hand, the Court noted that someone seeking to establish that they are a refugee are in a very different position, and ‘it will generally be very hard for such a person to establish anything more than a reasonable degree of likelihood that he or she will be persecuted if returned to the country of his or her nationality, and the consequences of an error may be very severe indeed’ (paragraph 47). The Court further held that in refugee cases an assessment must be made of what could happen in the future in another country and whether the applicant faces a real risk of persecution, which justifies the adoption of a lower standard of proof. The Court analysed a series of judgments on statelessness and inability to return to reach this conclusion.

The Court considered that ‘a person claiming to be stateless must take all reasonably practicable steps’ to submit all documents evidencing identity and residence and apply for nationality of the state with which they have the closest connection, as these steps can be taken without any risk (paragraph 57). The Court stated that ‘[if] the applicant comes up against a brick wall’, the adjudicator can establish statelessness on the balance of probabilities (paragraph 57). It acknowledged that occasionally there may be cases where it would not be reasonable to expect the applicant to take such steps, and where the Secretary of State should therefore assist the applicant in making enquiries, but statelessness would still be decided on the balance of probabilities.

While the Court accepted that the 1954 Convention considers it undesirable for anyone to be in a state of limbo where they are neither a national nor a stateless person, the Court did not think that the balance of probabilities test had created a material problem in this area. The Court did consider the practice of other states but noted this was not persuasive as fewer than 25 signatories had statelessness determination procedures and only 6 had a lower standard of proof than the balance of probabilities (paragraph 58).

The appeal was dismissed and the Court agreed with the SSHD that the higher standard of proof applies. The Court’s decision was not the subject of an appeal.

International, Regional and Domestic Instruments and Provisions Cited

Source	Instrument name	Provisions cited
International	The 1954 Convention relating to the Status of Stateless Persons	Article 1(1), Article 31(1)
International	1969 Vienna Convention on the Law of Treaties	31(3)(b)
Domestic	UK Immigration Rules Part 13	Part 13, paras 319A, 398, 399, 399A
Domestic	UK Immigration Rules Part 14	Part 14, paras 401 and 404

UNHCR Statelessness Guidelines cited

UNHCR Handbook on Protection of Stateless Persons

Key paragraphs of the Guidelines referred to

89, 90, 97, 98.

Court's application of Guidelines

The Court held that the UNHCR Statelessness Handbook should be accorded considerable weight but that it remained advisory. It considered some of the guidelines in the Handbook but did not always align its reasoning with the Handbook.

Available commentary

Malak Benslama-Dabdoub, ‘The Value of Statelessness Legal Protection when Representing Stateless Persons Seeking Sanctuary in the UK’ (2025) 39(1) Journal of Immigration Asylum and Nationality Law 69

• This article reflects on how the Court of Appeal rejected the UNHCR’s recommendation when deciding that the current standard of proof — balance of probabilities — was to be met when deciding if someone is stateless.  It notes that this is a higher standard of proof than seen in asylum cases. Under this standard, an applicant must show that they are ‘more likely than not’ stateless to meet the threshold.

Judith Carter, ‘AS (Guinea) v Secretary of State for the Home Department [2018] EWCA Civ 2234' (2019) 1(2)The Statelessness and Citizenship Review 33

• The article states that the decision of AS (Guinea) is an important case because it establishes the standard of proof to be applied in the UK in determining whether a person is stateless under Article 1(1) of the 1954 Convention.
• The author explains that, in deciding that the standard of proof to determine statelessness in the balance of probabilities, the Court rejected the Appellant’s and UNHCR’s arguments that it should be lowered (a standard elaborated upon by the European Court of Human Rights in Hoti v Croatia). Instead, the Court followed UK jurisprudence in the context of asylum and removal cases.
• The author argues that the principal difficulty with the Court’s reasoning is that it does not engage with the potentially severe consequences of an erroneous decision about whether a person holds a nationality. Moreover, it is not easy to establish statelessness in many cases.
• The article points out that earlier UK decisions cited by the Court did not address statelessness. In stating that the Applicant must apply for a nationality, the Court ignored earlier Supreme Court decisions in Al-Jedda and Pham. The Court did not take note of Hoti v Croatia.
• As a result, the article argues that the UK is now out of step with international standards on the determination of statelessness. 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.
• Furthermore, the author notes that following the decision, the Immigration Rules (April 2019) were amended, requiring applicants to have ‘sought and failed to obtain or re-establish their nationality’, although Carter notes this language is unclear and diverges from international instruments