How does UNHCR help stateless persons (2/4)?

Last week we discussed UNHCR’s role in protecting stateless persons. In doing so, of course, it first needs to be determined who is stateless. For several decades this has been a difficult question. As the UN conventions on statelessness from the mid-20th century did not offer any guidance on how to determine statelessness, countries could easily evade their obligations under international law by relying on the principle of State autonomy in the area of nationality law and by not installing a proper statelessness identification mechanism.

Against this background, it is not surprising that the issue of identification has become a key issue in statelessness research. Thus, UNHCR, explaining the importance of identification in a video here, dedicates a separate chapter to this in its Handbook on Statelessness. Scholars such as Katja Swider, who dedicated a substantial part of her 2018 PhD thesis ‘A rights-based approach to statelessness’ to statelessness determination, as well as Katia Bianchini’s comparative work on recently established statelessness identification procedures in EU member states has done much to shed light on this neglected issue. Statelessness determination procedures are also a major focus area of advocacy groups such the European Network on Statelessness or the Americas Network on Nationality and Statelessness.

Coming back to the Handbook, UNHCR emphasizes that despite the lack of explicit guidance it is implicit in the 1954 Convention that States must identify stateless persons within their jurisdictions so as to provide them appropriate treatment in order to comply with their Convention commitment. While the information from the Handbook is too dense to summarize here, a few elements are worth highlighting.

First, UNHCR notes that “some stateless populations in a non-migratory context remain in their ‘own country’ and may be referred to as in situ populations”. We have seen this with the Dominicans of Haitian descent or the Rohingya in Myanmar, for example. UNHCR feels that “for these groups, determination procedures for the purpose of obtaining status as stateless persons are not appropriate because of their long-established ties to these countries. Based on existing international standards and State practice in the area of reduction of statelessness, such ties include long-term habitual residence or residence at the time of State succession. Depending on the circumstances of the populations under consideration, States might be advised to undertake targeted nationality campaigns or nationality verification efforts rather than statelessness determination procedures”.

Second, UNHCR emphasizes that some stateless persons may also be refugees. For reasons of efficiency and expertise, UNHCR therefore suggests that States can consider combining statelessness and refugee determination in the same procedure, while stressing that “confidentiality requirements for applications by asylum-seekers and refugees must be respected regardless of the form or location of the statelessness determination procedure”.

Finally, UNHCR notes that creating a dedicated procedure is not only in the interest of stateless persons but also in that of the State. “Doing so”, according to UNHCR, “enhances the ability of States to respect their obligations under the 1954 Convention. In countries where statelessness arises among mixed migratory movements, statelessness determination procedures also help governments assess the size and profile of stateless populations in their territory and thus determine the government services required. In addition, the identification of statelessness can help prevent statelessness by revealing the root causes and new trends in statelessness”.

Author: Dr. Olivier Vonk