Refugees and migrants

KEY MESSAGES

• Statelessness and migration, including forced migration – involuntary displacement – have a strong interaction: statelessness can cause (forced) migration and (forced) migration can cause statelessness. 
• Children of refugees and migrants can be at risk of statelessness, for instance when there are limits to the conferral of nationality by a parent if the child is born abroad, or barriers to accessing birth registration in the host country.
• Being stateless can create additional vulnerabilities for refugees and migrants, especially if their statelessness is not identified or recognised and the response to their situation is not tailored accordingly. Statelessness can increase the risk of human trafficking and immigration detention. 
• The international law frameworks for the protection of refugees and stateless people have a shared history and take a similar approach, although the refugee convention has been more widely ratified and offers slightly stronger protection on some issues.
• Not all refugees are stateless, and not all stateless people are refugees. Where a person is both stateless and a refugee, it is important that both types of status are explicitly recognised. 

STATELESSNESS AS A CAUSE OF (FORCED) MIGRATION

Many of the largest stateless communities globally are subject to racial, ethnic, and religious discrimination. Exclusion from nationality as well as stripping people’s nationality leaves individuals and communities in vulnerable circumstances, unable to exercise any rights or enjoy protection. This means that stateless people often find themselves in highly precarious and vulnerable situations in their countries of origin or where they habitually reside: their statelessness is one element of the detrimental treatment they endure, often characterised by a wide range of other human rights violations. 

The level and extent of the human rights challenges faced by stateless people differs between countries and between different stateless groups and individuals. The discrimination faced by stateless people can be so severe that it amounts to persecution, and can put them at the centre of local tensions or internal conflict, forcing them to flee their homes or to cross international borders. Statelessness can therefore be a driver of migration and stateless populations are uniquely vulnerable to and at risk of forced displacement in the context of conflict, serious human rights abuses, collective expulsions and even natural resource management, for instance due to lack of land rights.

In situations where a stateless person is forced to flee their country to seek asylum abroad, the fact that they have no nationality can make the pursuit of international protection more challenging. Without a travel document – or perhaps even any identity document at all – stateless people may be forced to use illicit means to cross international borders, making them more vulnerable to human trafficking. Upon arrival, it may be more difficult to access international protection and assistance, because a stateless person might not be able to ‘show’ where they are from and this may affect the outcome of their asylum claim. Statelessness can also obstruct access to naturalisation, family reunification and resettlement programmes, making durable solutions harder to achieve. Statelessness determination procedures are key to ensuring the adequate identification and protection of stateless people in the context of (forced) migration.

STATELESSNESS AS A CONSEQUENCE OF (FORCED) MIGRATION

There are a number of reasons why people may become stateless or be at risk of statelessness after migrating or being displaced from their country of origin. Documents can get lost or destroyed during a conflict that has forced people to flee their country. Being undocumented is not synonymous to statelessness but it heightens the risk of a person becoming stateless. In countries where documentation systems are not digitised, it becomes difficult to re-acquire ID documents or find proof of nationality if documents are lost. Major political changes in the country of origin can also affect migrants and refugees who are outside the country when this happens. For instance, state secession and re-determining who belongs to the new state can exclude those who have migrated or are displaced, increasing the risk of becoming stateless. 

Some displaced communities have lived abroad for decades, with more than one generation born in exile abroad. The nationality laws of some countries prescribe loss of nationality on the basis of a certain period of residence abroad, when prolonged absence from the country is viewed as eroding the genuine bond with the country, or switching allegiance to another country. Statelessness can arise if a person in such circumstances has not acquired another nationality, for instance due to barriers to naturalisation in their country of residence. The nationality law of the country of origin may also limit the conferral of nationality by its citizens for children born abroad, which could leave children born to migrants or refugees at risk of statelessness. Even if the law allows for access to nationality by descent for a child born abroad, it can be difficult to establish nationality in cases where the child is unable to access birth registration in the host state – for instance because the procedures are complex or inaccessible for migrant or refugee parents. 

INTERNATIONAL LEGAL FRAMEWORKS FOR REFUGEES AND STATELESS PEOPLE

International refugee law and international statelessness law share common roots. After World War II, the UN commissioned a “Study of Statelessness”, to determine how to deal with the situation of the millions of people who were left displaced and denationalised (both refugees and stateless people). This laid the foundations for the development of the 1951 Convention relating to the Status of Refugees and the 1954 Convention relating to the Status of Stateless Persons (followed later by the 1961 Convention on the Reduction of Statelessness). Respectively, these instruments provide the international law definition of a refugee and a stateless person; setting out a minimum set of rights to be guaranteed to individuals who qualify under the definition. 

The rights set out in the two conventions are very similar, although the 1951 refugee convention offers stronger protection in some areas than the 1954 statelessness convention, including in relation to the prohibition of refoulement (forcible return) and protection against penalties for illegal entry. As such, “protection under the 1951 Convention generally gives rise to a greater set of rights at the national level than that under the 1954 Convention”. To date, the 1954 statelessness convention has also not attracted the same level of ratification as the 1951 refugee convention or other human rights treaties. As a result, there is more limited state practice on the application of the 1954 statelessness convention than the 1951 refugee convention, including jurisprudence of national courts. There has also been less academic writing about the international protection system for stateless people. 

STATELESS VS. REFUGEE

A refugee is someone who has been forced to flee his or her country because of persecution, war or violence. A refugee has a well-founded fear of persecution for reasons of race, religion, nationality, political opinion or membership in a particular social group. They may still hold the nationality of their home country – in fact, the majority of refugees have a nationality – but international law specifies that they should be given protection because it is unsafe for them to return home. A stateless person is someone who is not considered as a national by any state under the operation of its law. They may be residing in the country of their birth and ancestry, and in fact, most stateless people have never crossed an international border. They must be provided with protection, as specified by international law, due to the absence of the legal bond of nationality, and the rights and protections associated with it. It is also possible for a person to be a stateless refugee: if they meet the definitions under the 1951 refugee and 1954 statelessness conventions, they qualify for protection under both. 

According to the UNHCR Handbook on the Protection of Stateless Persons, if a person raises both a refugee and a statelessness claim, “it is important that each claim is assessed and that both types of status are explicitly recognised”. Identifying whether a refugee is also stateless is important in the context of preventing the perpetuation of statelessness, for instance by triggering safeguards for a child born to a stateless refugee to ensure that their right to nationality is realised. There may be instances “where refugee status ceases without the person having acquired a nationality, necessitating then international protection as a stateless person”.

[Last updated: October 2023]

Cover image by Greg Constantine