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1. Nationality and the Right to Enter: Assessing the Impact of Refusal of Entry for the Purpose of Statelessness Determination

Author:
Cecilia Manzotti
Publication Date:
02-2024
Content Type:
Journal Article
Journal:
Statelessness & Citizenship Review
Institution:
Peter McMullin Centre on Statelessness, Melbourne Law School
Abstract:
This article considers the legal situation of migrants, including rejected asylum seekers, who are unable to enter what was, until then, regarded as their country of nationality. This is because that country, without explicitly disputing their nationality, either prohibits their entry or de facto prevents them from entering its territory by failing to issue travel documents or respond to requests for consular assistance for organising return. By examining the conceptualisation of nationality in international law on the one hand, and the international legal definition of a stateless person on the other hand, the article argues that the right to enter the territory of one’s state is so essential to the concept of nationality that refusal of entry and denial of consular assistance for arranging return should be regarded as evidence that the state does not consider a person as its national. Based on this argument, the article further assesses the suitability of the United Nations High Commissioner for Refugees’ guidance on statelessness determination in cases of direct or indirect denial of entry. Ultimately, this contribution aims to clarify the scope of the international legal definition of a stateless person by strongly grounding its interpretation in the conceptualisation of nationality in international law.
Topic:
Nationality, Migrants, Right of Entry, Refusal of Entry, Statelessness, and Asylum Seekers
Political Geography:
Global Focus

2. A Teleological and Child-Sensitive Interpretation of a Country of Former Habitual Residence for Stateless Children Born Outside Their Parents’ Country of Nationality or Former Habitual Residence

Author:
Sharelle Anne Aitchison
Publication Date:
07-2022
Content Type:
Journal Article
Journal:
Statelessness & Citizenship Review
Institution:
Peter McMullin Centre on Statelessness, Melbourne Law School
Abstract:
The notion of a country of former habitual residence — as the functional equivalent of a country of nationality for stateless individuals and the reference point for the ‘being persecuted’ inquiry in art 1A(2) of the Convention relating to the Status of Refugees — is an ill fit for stateless children born outside the country of nationality or former habitual residence of their parent(s). On a plain, ordinary reading of the definition, stateless children born in the country of refuge have neither a nationality nor a former habitual residence and fall outside the ambit of the refugee definition. In a similar fashion, stateless children born prior to arrival in the country of refuge (but not in the country of nationality or designated country of former habitual residence of their parent(s)) are unable to establish the country of reference element, as read with all other indicia of refugeehood. In the context of concurrent family claims, this predicament exposes an obvious inequity of access to refugee status and a consequent risk of refoulement to serious harm, as such children may face return to the country of nationality or former habitual residence of their parent(s). While the dominant tide of jurisprudence supports a literal interpretation of the notion, Michelle Foster and Hélène Lambert have identified a purposive pathway, better aligned with the humanitarian scope of the refugee definition. For such applicants, this interpretation allows for the determination of country of reference in combination with forward-looking considerations on their returnability and risk of persecution upon return. This article endorses such an interpretation and comprehensively charts a child-sensitive approach to applying the criteria for refugee status (historically formulated from an adult-oriented perspective), by exploring what child-specific interests might better inform the notion in the context of the individualised refugee assessment of concurrent family claims.
Topic:
Refugees, Family, Identity, and Nationality
Political Geography:
Global Focus

3. Customary International Law Requiring States to Grant Nationality to Stateless Children Born in Their Territory

Author:
William Thomas Worster
Publication Date:
07-2022
Content Type:
Journal Article
Journal:
Statelessness & Citizenship Review
Institution:
Peter McMullin Centre on Statelessness, Melbourne Law School
Abstract:
In the most recent few years, state practice and opinio juris are increasingly converging to affirm that states must grant nationality to children born in their territory if they would otherwise be stateless. In prior scholarship, this author has argued that there is a customary international law norm requiring states to grant nationality in such cases. Certainly, UNHCR’s #IBelong campaign is a significant part of this development, placing statelessness back on the international agenda, as well as encouraging states to adhere to the statelessness conventions, adopt birth registration and statelessness determination procedures and revise domestic law. Partly due to this campaign, states are increasingly adopting practice and domestic law that provides for nationality from birth for stateless children but are also increasingly stating their opinion that such an approach is desirable, necessary and morally compelling. In fact, it is effectively impossible to identify any state that claims it has the unfettered right to refuse to grant nationality to a stateless child born in its territory. This article will complete a brief survey of recent practice and expressions of opinion, mostly as documented by UNHCR as a part of the #IBelong Campaign to End Statelessness, to confirm that this norm continues to strengthen under customary international law.
Topic:
International Law, Law, Children, Citizenship, and Nationality
Political Geography:
Global Focus

4. Views Adopted by the UN Human Rights Committee Under Article 5(4) of the Optional Protocol, concerning Communication No 2918/2016

Author:
Rodolfo Ribeiro Coutinho Marques
Publication Date:
07-2022
Content Type:
Journal Article
Journal:
Statelessness & Citizenship Review
Institution:
Peter McMullin Centre on Statelessness, Melbourne Law School
Abstract:
InDecember 2021, the UN Human Rights Committee(‘HRC’)published its views in a ground-breaking case (Communication No2918/2016),1finding that the Netherlands had violated a child’s right to a nationality by registeringthem as having‘unknown nationality’in theircivil records. The HRCreasoned that, in so doing, the Netherlands hinderedthe child’s access to international protection as a stateless child.This was the first time that the HRChas ruled on the right of a child to acquire a nationality under art 24(3) of the International Covenant on Civil and Political Rights(‘ICCPR’).FACTSThe case revolved arounda petition by DZ, a child born in Utrecht in 2010 to a Chinese mother. In 2004, she was trafficked to the Netherlands as a minorbut managed to escape her traffickers at the Schiphol Airport in Amsterdam. She then applied for asylum, but her application was unsuccessful. In 2006, DZ’s mother was forced into prostitution. Two years later, she broke out of her captivity and reported the situation to the police, which gave her the right to a temporary status while the investigation was undergoing. After an unsuccessful, year-long investigation, her temporary residence permit was revoked, and her status changed to ‘illegal alien [sic]’.Moreover, DZ’s biological father, who did not recognise paternity, was not in contact with themor with DZ’s mother.*Teaching Assistant and PhD Candidatein International Law at the Graduate Institute of International and Development Studies.I would liketo thank Dr Katia Bianchini and Professor Laura van Waas for theirinsightful feedback and comments. The usual caveats apply. An earlier version of this case note was published on EJIL:Talk! as a blog post.1Human Rights Committee, Views Adopted by the Committee under Article 5(4) of the Optional Protocol,Concerning Communication No2918/2016, UN Doc CCPR/C/130/D/2918/2016(20 January 2021) (‘Communication No 2918/2016’).
Topic:
Human Rights, International Cooperation, United Nations, and Nationality
Political Geography:
Global Focus

5. Breaking the Presumption That Applicants of Statelessness Determination Procedures Are Foreign

Author:
Paola Pelletier Quinones
Publication Date:
07-2021
Content Type:
Journal Article
Journal:
Statelessness & Citizenship Review
Institution:
Peter McMullin Centre on Statelessness, Melbourne Law School
Abstract:
This article considers the situation of those who apply for a determination of their status as a stateless person but could, nonetheless, be nationals of the state in which they apply. Cases of in situ statelessness provide the most opportunity for the identification of these situations. After having identified 23 formal Statelessness Determination Procedures (‘SDP’) adopted as of 2020 from 23 countries, it is conclusive that these norms presume the applicant is foreign. However, eight countries have been mapped with safeguards in their SDP norms recognising the possibility that there could be identified applicants who may be nationals and what to do in cases of doubt. These safeguards are adopted by four countries in the Americas (Costa Rica, Panama, Paraguay and Argentina) and four countries in Europe (Georgia, Moldova, Ukraine and Turkey). These constitute good practices that should be taken into consideration by further SDP norms adopted in the future, modifications of current SDP norms and statistics. This issue constitutes a ‘red flag’ for raising awareness of discriminatory state policies that assume stateless applicants are foreign and should receive second-class citizenship (naturalization), rather than refer the case to the corresponding national civil registry authorities and facilitate the access to nationality. The objective of this article has not yet been analysed by doctrine or the United Nations High Commissioner for Refugees.
Topic:
United Nations, Refugees, Identity, Stateless Population, and Nationality
Political Geography:
Global Focus

6. The Right to a Nationality: No Time to be Complacent

Author:
Erika Feller
Publication Date:
03-2020
Content Type:
Journal Article
Journal:
Brown Journal of World Affairs
Institution:
Brown Journal of World Affairs
Abstract:
The right to a nationality is often taken for granted. Over the course of decades, UN member states have enshrined this right through fundamental instruments, notably the UN Covenant on Civil and Political Rights. Yet con- servative estimates hold that approximately 10 million people spread across every continent are denied a nationality.1 Some, but not all, are refugees. Collectively, these individuals are stateless—they lack any claim to a nationality recognized or assumed by any state. For many years, statelessness was a forgotten issue, relegated to the realm of state sovereignty prerogatives. Recently, states and the UN have begun to focus on the pressing nature of the problem. They have made progress in addressing statelessness as a global, collectively shared challenge. However, the UN target of eradicating statelessness by 2024, while a fine aspiration, continues to face significant hurdles. These obstacles include a serious dearth of informa- tion about the problem’s scope, discriminatory national legislation and policies that obstruct UN efforts, an ambiguous international legal framework, and the absence of solutions that are accessible to stateless individuals.
Topic:
Sovereignty, United Nations, Citizenship, Stateless Population, and Nationality
Political Geography:
Global Focus

7. The Right to a Nationality and the Right to Adequate Housing An Analysis of the Intersection of Two Largely ‘Invisible’ Human Rights Violations

Author:
Benjamin Gronowski
Publication Date:
12-2019
Content Type:
Journal Article
Journal:
Statelessness & Citizenship Review
Institution:
Peter McMullin Centre on Statelessness, Melbourne Law School
Abstract:
Millions of individuals around the world face challenges enjoying their right to a nationality, and millions more face challenges enjoying their right to adequate housing. While these human rights violations are recognised in general terms, little research has considered the extent to which these human rights abuses intersect as stateless persons face violations of specific socioeconomic rights, especially the right to adequate housing. This research attempts to fill that gap. This analysis explores the term adequate housing and the various legal instruments that enshrine this right, as well as the unique challenges faced by stateless persons in its enjoyment. This research argues that states have failed to respect, protect and fulfil the right to adequate housing for stateless persons in a number of contexts and that these failures are particularly acute for stateless persons with additional marginalised identities, which can then result in additional human rights violations. This analysis examines how previous policy solutions have failed to adequately consider the unique needs of inadequately housed stateless persons and calls attention to the need for more holistic and inclusive approaches to realise the right to adequate housing for all, which must include stateless persons.
Topic:
Human Rights, Housing, Stateless Population, and Nationality
Political Geography:
Global Focus