Despite attempts to reduce the incidence of statelessness through national citizenship laws and through the implementation of the 1961 Convention on the Reduction of Statelessness and other international instruments, UNHCR estimates that there are millions of people around the world who have no nationality. The 1954 United Nations Convention relating to the Status of Stateless Persons identifies who is a stateless person, promotes the acquisition of a legal identity for those persons, and ensures that stateless persons enjoy fundamental rights and freedoms without discrimination.
The 1954 UN convention relating to the status of stateless persons was drawn up in the aftermath of the Second World War when statelessness in Europe was rife. Most EU countries have ratified the convention, obliging them to offer the stateless basic rights and protection in much the same way as refugees. But while refugee rights are recognised internationally, with asylum procedures to determine who is entitled to such protection, only a handful of European countries have formal procedures to recognise the stateless.
Recognition of statelessness remains fraught with contradictions that are often Kafkaesque. With very few exceptions, statelessness determination procedures put the burden of proof on applicants, who must show that they are not citizens of any country to which they have habitual or family ties.
The 1954 Convention relating to the Status of Stateless Persons establishes the following legal definition for stateless persons:
A “stateless person” is someone who is not considered as a national by any state under the operation of its law (article 1 of the 1954 Convention relating to the Status of Stateless Persons).
This is a purely legal definition. It does not allude to the quality of nationality, the manner in which nationality is granted, or access to a nationality. The definition simply refers to an operation of law by which a State’s nationality legislation defines ex lege, or automatically, who has citizenship. Given this definition, to be determined “stateless”, a person has to prove a negative: that he / she has no legal bond with any relevant country.
This bond can best be seen as a form of official membership which confers upon the national certain rights (like the right to live in the country or participate in elections) as well as duties (like the duty of military service, where this is still in place). A person who is stateless lacks this membership and will be seen and treated as a foreigner by every country in the world. This phenomenon has also been described as “de jure statelessness”.
In trying to establish proof of statelessness, States should review the relevant nationality legislation of those States with which the individual has prior links (such as through birth, previous habitual residence, the State[s] of which a spouse or children are nationals, the State[s] of which the individual’s parents or grand-parents are nationals), consult with those States, and request evidence, as necessary. States should request the full cooperation from the individual concerned in providing all relevant facts and information.
UNHCR can facilitate consultations between States and can provide technical information on the relevant laws and their implementation in various States, as requested.
Documents from a responsible State authority certifying that the individual concerned is not a national is usually a reliable form of evidence of statelessness. However, such evidence may not always be available. The relevant authorities of the country of origin or country of former habitual residence may refuse to issue certified documents stating that the person is not a national, or they may simply not reply to inquiries. Some State authorities will feel they are not responsible for indicating which persons do not have a legal bond with the country. It thus might be assumed that if a State refuses to confirm that a person is its national, the refusal, in itself, is a form of evidence, as States normally would extend diplomatic protection to their itizens.
The preamble of the 1954 Convention reaffirms that stateless refugees are covered by the 1951 Convention relating to the Status of Refugees, and therefore are not covered by the 1954 Convention.
In addition to defining a stateless person, Article 1 of the 1954 Convention also defines those individuals who, despite falling within the scope of the definition (that is, despite the fact that they are stateless), are nonetheless excluded from the application of the Convention for particular reasons, either because they do not need such protection as they already benefit from specific legal schemes or international assistance, or because they are unworthy of international protection on the basis of their individual criminal acts.
These include persons:
• “who are at present receiving from organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees protection or assistance as long as they continue to receive such assistance.” The United Nations Relief and Works Agency for Palestinian Refugees in the Near East is the only UN agency currently relevant to this clause.
• “who are recognised by the competent authorities of the country in which they have taken residence as having the rights and obligations which are attached to the possession of the nationality of that country.” This means that if a stateless person has secured legal residence in a State and is accorded rights greater than those provided for under the 1954 Convention, particularly full economic and social rights equivalent to those that a national enjoys and is protected against deportation and expulsion, then there is no need to apply the provisions of the Convention to that individual, despite the fact that the person is stateless.
• “who have committed a crime against peace, a war crime, or a crime against humanity, as defined in international instruments; who have committed a serious non-political crime outside the country of their residence prior to their admission to that country; or who are guilty of acts contrary to the purposes and principles of the United Nations.”
End of statelessness
The condition of being stateless ends when the individual concerned acquires an effective nationality.
Handbook on the Protection of Stateless People
UNHCR has released a Handbook on the Protection of Stateless People that helps to explain the definition of statelessness and procedural considerations for determining whether a person is stateless. These documents serve as guiding principles for countries, but the remedies available to stateless persons vary by country.
In literature on statelessness, “citizenship” and “nationality” are usually used as interchangeable synonyms, both referring to the legal bond of membership described above. However, in some countries or contexts, the use of terminology may deviate from this. It is therefore important to make an effort to understand the exact meaning or content of the terminology in use in the country that is under study. For the purposes of interpreting and applying the internationally established definition of a stateless person in practice, it can also be important to keep the following in mind:
- For a person to be “stateless” it is not relevant how the person came to be without a nationality or whether there is the possibility for the person to acquire a nationality by taking some kind of action: the only thing that matters is whether, at the present moment, the person is considered as a national by any state.
- For a person to be “stateless” it is not relevant where he or she is located. Statelessness occurs in both migration and non-migration contexts. A stateless person may never have crossed an international border, having lived in the same country for his or her entire life.
- To determine whether a person is considered as a national by a state under the operation of its law, requires a careful analysis of how a state applies its nationality laws in practice, in that individual’s case. In some cases, an objective analysis of the law would lead to the conclusion that the person is a national, but the state may not in practice follow the letter of the law, so the analysis must be based on how the competent authorities interpret the law.
- To determine that a person is not considered as a national by any state does not require proving the lack of recognition as a national by all of the world’s states. Nationality is almost always granted based on certain factual links between a person and a state: either links through family or through territory. To work out whether a person is stateless, it is usually sufficient to look at whether they have the nationality of any of the places with which they have such links, i.e. country of birth, country of nationality of parents, country of habitual residence and country of nationality of spouse.
It is of interest to point out that a stateless person can also be a refugee, if in addition to not being considered as a nationality by any state they also meet the definition of article 1 of the 1951 Refugee Convention (i.e. have fled their country due to a fear of persecution). Generally speaking, stateless refugees are identified and treated as refugees - e.g. in UNHCR’s statistics on statelessness only non-refugee stateless populations are counted.
Finally, it is important to note that in the discourse on statelessness, much attention has also been devoted to the concept of “de facto statelessness”. While there is no agreed definition of this term, nor any international legal framework for dealing with “de facto stateless persons”, the expression has entered common use. It is most often invoked to describe a situation in which a person holds a nationality – is considered as a national by a state under the operation of its law – but this nationality is in some way ineffective. Where the main contention lies is in what way a nationality should demonstrate itself to be ineffective, in order to warrant the use of the label of “de facto statelessness”. At an expert meeting that considered this question in 2010 there was some consensus around the idea that a person should be outside their country of nationality – and without its protection – in order to be considered “de facto stateless”. There was also broad agreement at this meeting that many categories of people or types of cases that have been described as a situation of “de facto statelessness”, in fact fall within the scope of the definition of a stateless person as set out in article 1 of the 1954 Convention relating to the Status of Stateless Persons, as set out above.
The United States does not currently make determinations about whether someone is stateless.
In addition, the fact that a person is stateless does not provide her/him with any benefit or status under US law. If a stateless person in the United States is ordered removed, some of the hardships that s/he might face include:
• Inability to obtain travel documents;
• Long-term family separation due to that lack of travel documents;
• Possibility of being held in immigration detention for months or longer;
• Periodic reporting to immigration authorities on orders of supervision;
• Requirements to request travel documents from all countries to which s/he may have a claim to citizenship, either based on her/his parentage or place of birth;
• Requirements to contact third countries to ask their permission to be removed there, regardless of whether that individual has ties to that country;
• Requirement to apply annually for work authorisation.
IMAGE CREDIT: REUTERS / Danish Siddiqui