Unravelling Anomaly

Jarlath Clifford acted as coordinator in the initial phase of the project and carried out preliminary research. ERT is very grateful to the Trustees and staff of the Foundation for their past and continued support of our work. Historically, it is de jure stateless persons who have benefited from the protection of the statelessness mechanism.

The Rights of the Stateless

The Statelessness Challenge

A Human Rights Blind Spot
The National Sovereignty Barrier

Overcoming this gap between principles and practice is one of the greatest challenges facing the international human rights regime. The international statelessness regime was established in the early 1950s, before international human rights law developed. Indeed, one of the strengths of human rights law is its flexibility, allowing for derogations in emergency situations.

Nationality, Equality and Non-discrimination

The Right to a Nationality
Equality and Non-Discrimination

Non-Discrimination
Treaty Body Standards
Regional and National Jurisprudence
The Practical Implementation of Equality Standards

UN Convention on the Rights of the Child, 1989 [Article 7(1)]The child is registered immediately after birth and has the right Every person has the right to the nationality of the State in whose territory he was born, if he is not on another nationality. No one shall be arbitrarily deprived of his nationality or the right to change it.

States are legally bound to minimize statelessness and to respect, protect and fulfill the rights of the stateless. All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In other words, the application of the principle of non-discrimination provided for in Article 26 is not limited to those rights provided for in Pact.55.

Both rights together are an essential prerequisite for promoting and protecting the human rights of stateless persons. All people are equal before the law and have the right to equal protection and benefits of the law. 60. Affirming the fundamental rights to equality and non-discrimination as independent rights as well as in conjunction with all other human rights is central to understanding and promoting the rights of stateless persons under international law.

Aliens enjoy the benefit of the general requirement of non-discrimination with regard to the rights guaranteed in the Convention, as set out in Article 2 thereof.

The International Statelessness Regime

Convention Relating to the Status of Stateless Persons

The Provisions of the Convention
The Convention Definition of Statelessness
Poor Ratification

Convention on the Reduction of Statelessness
The Role of the UNHCR

Critiquing the Categorisation of the Stateless

Categories of Stateless Persons

De Jure Statelessness

Case Study – The Rohingya in Myanmar

De Facto Statelessness

Scenarios of De Facto Statelessness
Case Study – Somalia and De Facto Statelessness

Grey Areas

Case Study – Kenya’s Stateless Populations

Persons not recognized as refugees who are not entitled to subsidiary protection and not entitled to the full protection of the 1954 Convention. Persons not recognized as refugees who are de facto stateless are not entitled to protection under the 1954 Convention, but they are entitled to a meaningful form of supplementary protection115. The two most important de jure stateless communities are the Palestinians and the Rohingya in Myanmar.

Many Rohingya should be recognized as refugees because of the persecution they face in their homeland. A recent UNHCR paper analyzes the historical development of the concept of de facto statelessness and proposes this working definition:. De facto stateless persons are persons outside the country of their citizenship who are unable or, for valid reasons, unwilling to avail themselves of the protection of that country.

Persons who, in the context of state succession, are granted the nationality of a state other than that of the state where they have their habitual residence.136. Or it could be due to arbitrariness and inefficiency of the consulate involved. In some contexts, the implementation of the principle of non-refoulement can lead to de facto statelessness.

Many of the Somali nationals in the UK should be recognized as refugees or given additional protection under the EU Qualifications Directive.

The De Jure - De Facto Dichotomy

The Ineffective Nationality Test

International and Regional

International and Regional Jurisprudence

The UN Treaty Body System

Non-Discrimination and Detention
Indefinite Detention Amounting to Cruel,

The European Convention on Human Rights

Many of the cases challenging detention, which are relevant to stateless persons, have been in the context of immigration detention. Many countries fail to guarantee the right to judicial or administrative review of the legality of detention, or the right to appeal against detention and deportation in cases of administrative immigration detention. 193 Office of the High Commissioner for Human Rights, Office of the High Commissioner for Human Rights, Administrative Detention of Migrants, p.

National courts have applied the ICCPR and reached similar conclusions to those of the Human Rights Committee. The European Convention on Human Rights contains more comprehensive provisions on freedom and security of the person than those of the ICCPR. 202 Report of the UN Working Group on Arbitrary Detention to the Human Rights Council, Report of the UN Working Group on Arbitrary Detention to the Human Rights Council, 56th Session, E/CN December 1999.

Both the prohibition order and the execution of the prohibition must be truly consistent with the purpose of the restrictions permitted by the relevant sub-paragraph of Article iv). Detainees should have the right of access to judicial or administrative review of the lawfulness of detention, as well as the right to appeal detention and deportation in cases of administrative immigration detention. In Saadi,221 the Grand Chamber of the European Court of Human Rights in a split decision held that Article 5 (1) (f) was not violated by the detention of an individual for the purpose of expediting an asylum application.

Consequently, he could not be removed and remained detained for more than three years and eleven months, prompting the Court's above decision.

Emerging Standards and Guidelines on

The UNHCR Position
European Law and Positions

The European Union Return Directive
The European Committee for the Prevention
The Council of Europe

Immigration Detention

Immigration Detention of Stateless Persons in the

Detention Regimes

The United States
The United Kingdom
Australia

Judicial Responses

The United States
Australia

Removing Stateless Detainees

The United States
Australia

Restriction of Liberty and Release into Destitution

An additional factor is that these three countries, and most others, rely on the 1954 Convention's definition of stateless persons as being de jure stateless, to the exclusion of the de facto stateless. ERT research indicates a general trend over the past decade in these three countries towards a tightening of immigration detention regimes, to the detriment of the stateless. The relevant policy documents have since been amended to reflect the judgment of the court.

Akram Al Masri raised the issue of indefinite detention of illegal non-citizens when there is no reasonable possibility of removal or deportation to another country. Al Masri was a stateless Palestinian asylum seeker from the Palestinian Authority-controlled part of Gaza. A spokesperson for the department was quoted in Australian media as saying that the welfare of a person removed from Australia “is the responsibility of the country to which they have been removed.

The justice or wisdom of the course pursued by Parliament cannot be examined in this or any other domestic court. One of the biggest challenges of stopping immigration in all three countries is the fact that it is nearly impossible to get stateless detainees out. The second part of the relevant section concerns non-citizens defined as deportable, i.e.

In assessing the reasonableness of the length of detention in Abdi, it was accepted that while the detention of prisoners with foreign nationals should not be used.

Immigration Detention of

Kenya
Egypt

The absence of legal aid for immigration detainees in Kenya is an additional, often insurmountable obstacle to the journey of stateless persons in immigration detention. Kenyan police denied many detainees access to family, legal counsel, diplomatic representatives and human rights groups, including the parastatal Kenya National Human Rights Commission. Despite the fact that two of the detainees were identified as stateless in a government report (Kenya Anti-Corruption Commission) in April 2006, nothing has been done about their situation three years later.

He wanted to go back to Somalia, but due to his lack of identity documents and the indifference of the authorities, he remained in immigration detention for more than two years. Egypt is not a Party to any of the Statelessness Conventions, and Egyptian law and policy do not recognize or anticipate the unique challenges of statelessness. If the appeal is rejected or if the appeal submission is not submitted within one month, the UNHCR considers the applicant as a closed file, which means that the applicant is no longer under the protection of the UN-HCR and deported to his country can be of origin.

Similarly, asylum seekers who have never registered with UNHCR are not considered persons of concern to UNHCR and are also vulnerable to deportation. However, unregistered asylum seekers and stateless persons (including those who have not had the opportunity to register because they have been apprehended at the border) have little chance of being helped by UNHCR, as the Egyptian authorities do not allow UNHCR access to them detention. The latest UNHCR statistics show that 74 non-Palestinian stateless persons were living in Egypt in 2007.403 ERT was told that a large number of stateless persons are currently detained in Egyptian prisons, but are not registered with UNHCR and are therefore not included in the statistics.

Generally, the sentence imposed by a court on a foreigner arrested and tried for illegal entry - a violation of Articles 2 and 3 of the Aliens Law - is one year in prison and a 1,000 Egyptian pound fine under Article 41 of the law.

Immigration Detention of Stateless

First Port of Call: Bangladesh

Immigration Detention
The Impact of Public Interest Litigation
Detention Conditions
Crackdown on Rohingya in Bangladesh

Rohingya Boat People in Thailand

Push-Backs from Thailand
The Aftermath
Detention in Thailand

Malaysia, a Final Destination

Detention Practices
Deportation
Positive Developments

Security Detention

National Security Detention at Guantanamo Bay

Non-Refoulement and De Facto Stateless Detainees
The Failed Promise of the Obama Administration

Criminal Detention

Discriminatory Criminal Detention in Country

Arbitrary Arrest, Extortion and Torture
Imprisonment, Hard Labour and Shackles

Criminal Detention Linked with Statelessness,

The Criminalisation of Immigration Offences

Positive Developments

Identifying the Stateless: Statelessness

Statelessness Determination Procedures

Standards on the Detention of Stateless Persons

National Limits on Detention

Recent Policy Changes in Australia

Recommendations and Conclusions

Of these two, it is the 1954 Convention that provides a framework for the protection of stateless persons. The fundamental protection afforded to all human beings by general human rights instruments is thus crucial for the protection of stateless persons. In contrast, the Convention on the Rights of the Child has been ratified by 193 states.

In addition to the right to freedom and personal security, also human rights norms relating to arbitrary, cruel, inhuman or degrading treatment. Only Guideline 9 of the UNHCR Guidelines on Detention of Asylum Seekers specifically focuses on statelessness.