Blog post written by Tendayi Bloom, a Lecturer in Politics and International Studies at The Open University in the UK. Her work explores questions of noncitizenship, migration, statelessness and justice. Her work on statelessness can be found in a recent Discover Society blog series, and in a book, Understanding Statelessness, which she co-edited with Katherine Tonkiss and Phillip Cole. A more detailed treatment of Dr Bloom’s own position on the nature of the noncitizen-State relationship is developed in her forthcoming book, Noncitizenism: Recognising Noncitizen Capabilities in a World of Citizens.
Statelessness need not have anything to do with crossing borders, but it is essential to consider in the context of the global compact for migration.
Statelessness has been described as ‘rooted displacement’ or ‘displacement in situ’ because it effectively makes a person displaced wherever they are. Paragraph 72 of the New York Declaration, the outcome document from the summit addressing large movements of migrants and refugees, affirms:
‘We recognize that statelessness can be a root cause of forced displacement and that forced displacement, in turn, can lead to statelessness. We take note of the campaign of the Office of the United Nations High Commissioner for Refugees to end statelessness within a decade and we encourage States to consider actions they could take to reduce the incidence of statelessness. We encourage those States that have not yet acceded to the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness to consider doing so.’
According to Article 1 of the 1954 Convention Relating to the Status of Stateless Persons, a stateless person is ‘a person who is not considered as a national by any State under the operation of its law’. It is hard to know how many people this affects. In 2016 UNHCR estimates that 10 million people were stateless, while in 2017 the NGO ISI estimates the number is closer to 15 million, though both acknowledge that these are conservative estimates. There are some key ways in which the global compact needs to take statelessness into account.
Statelessness can drive people to migrate and alter the nature of migration – forced or not
Stateless persons can find themselves excluded from all key State institutions. They may be excluded from: the regular labour market, health services, property-ownership, education or recognition of educational accomplishments, civil registration, social security, and even the protection of the law. This means for example that a stateless person may be unable to work legally anywhere on earth. Statelessness can be caused by discrimination and persecution. It can also be associated with heightened persecution, including extremes of violence, even so-called ‘ethnic cleansing’ as is the case for Rohingya people living in Myanmar today.
Most stateless persons may find crossing international borders difficult or impossible. There is no globally agreed mechanism for a stateless person to migrate in a safe, legal and orderly way. They may have to seek out smugglers or bribe local officials in order to travel. This puts individuals at risk – and some stateless populations acutely so – of trafficking (see also UNODC toolkit). Stateless persons are also affected by administrative detention, often ‘pending deportation’. However, without any place to which to be deported, the detention risks being indefinite and arbitrary (e.g. see ENS reports and toolkits and #LockedInLimbo campaign letter).
A person may be driven by statelessness to seek better conditions overseas. For example, Ramadan, abandoned at birth in Macedonia, could not establish his citizenship. Unable to study or to see a future where he was, he travelled to Italy. But in Italy he is still stateless and has been unable to work or to register his marriage or the birth of his children. He is at constant fear of detention. Statelessness can also alter the nature of migration when it occurs overseas, whether or not the movement was forced. Consider Daniela’s parents, Cuban citizens, who only intended to live in South Africa for a couple of years on temporary worker contracts. Unable to secure any citizenship for their daughter, born in South Africa, the family have been stuck there. Daniela is now eight and still has no citizenship, so the family is unable to return home.
An adult can become stateless at home or while overseas as a result of colonisation, decolonisation and secession, when a new State is created or a State ceases to exist, or because of discrimination or other changes in law. Recent developments in a number of States risk that a person might have their only citizenship removed while they are abroad (e.g. Bahrain, Turkey, the UK). This is illegal under international law. And it not only interrupts that persons’ relationship with their State of (former) citizenship, it also affects the validity of visas, their ability to live and work overseas, and to travel, thus changing the nature of their mobility. Some people, made stateless while overseas years ago, still struggle in such a limbo (e.g. Mikhail Sebastian was stuck on holiday, Dr Railya Abulkhanova struggles to work). Others, who were made stateless at home, have been deported to countries with which they have no relationship (e.g. Dominican citizens denationalised and sent to Haiti).
Urgent and large-scale migration can put people at particular risk of statelessness
There are additional reasons why urgent and large-scale migration can put people at risk of statelessness. First, the person may lose their documents, putting them at risk of being unable to establish their citizenship connection with a particular State. Second, when a child is born in transit, there may be administrative difficulties involved in registration of birth and proving of citizenship, as well as disagreement as to the child’s eligibility for citizenship. Let’s start with the latter.
When a child’s birth is not registered, it may put them at risk of statelessness. This is particularly so in the context of migration since citizenship may not be automatic. Yet birth registration alone is not sufficient to prevent statelessness, nor is the provision of a legal identity (as in Sustainable Development Agenda 16.9). A child’s birth may be registered, while (as in the case of Daniela above) no State is willing to allocate citizenship. Meanwhile, a person may have a legal identity, but this legal identity itself may prevent them from accessing any citizenship, cementing their statelessness (e.g. some Bidoon in Kuwait, or some Palestinian refugees). In fact, international law requires that every child have access to a nationality and registration immediately from birth (UDHR 15, CRC 7, ICCPR 24, CRS). Only access to citizenship can alleviate the risk of statelessness.
One of the happy consequences of migration is that people can fall in love with partners they might otherwise not have met. However, where individuals are forced to surrender citizenship upon marriage and/or lose acquired citizenship upon divorce, this can create situations of statelessness as well as domination. International adoptions and surrogacy arrangements have also been found to give rise to statelessness where insufficient systems are in place to ensure the registration and the citizenship of the child.
Where individuals are made irregular and at risk of detention or deportation, and there is a risk of health service personnel reporting to immigration enforcement, parents may also be unwilling to register births in their host country, risking the statelessness of their children. In the context of forced movement, families may be reticent to approach the consulate of their country of origin, out of fear or trauma, again risking statelessness of their children.
Migration can often be gendered, as can access to citizenship. In today’s large-scale migration, women and children may be separated from partners, husbands and fathers. In 27 countries (including Syria), women cannot confer citizenship on their children on the same basis as men. Female-headed households may struggle to prove children’s paternity, the parents’ marital status, or even to register births at all, putting children at risk of statelessness. Additional risks of statelessness in the context of people fleeing Syria are detailed in a report of the Norwegian Refugee Council. In this context, there are several already stateless populations who may be at particular risk when forced to flee. As such, it is important to consider more generally the situation for stateless persons in States in crisis, without any consulate to which to turn, and without status in the country of residence.
Most (but not all) refugees are citizens of their countries of origin, but as that country is unwilling or unable to protect them, they have had to move. Such individuals are not stateless. Many stateless persons do not move (though research suggests that 1 in 3 stateless persons has been forcibly displaced), and if they do move, they may or may not be classed as refugees (e.g. see Hélène Lambert at p.25). For this reason, while some stateless persons are refugees, and some are migrants, key concerns relating to statelessness will be obscured if we speak only about refugees or migrants. The difficulties associated with statelessness need to be addressed explicitly in both compacts.
Representing stateless persons
The importance of data has been mentioned throughout the process towards the global compact for migration. Yet stateless persons are perhaps the group most likely to go uncounted. Even when they do not move, they are often absent from census data and development measures, and when they move, there may be no record of them. This can make it difficult to know their needs and to hear their views.
In 2014 UNHCR launched the #IBelong campaign to end statelessness by 2024, asserting that it is important to ensure that every person has access to a citizenship. But the reality of the world is complex, and it is unlikely that there will be a time soon when no one is stateless, or where everyone has a meaningful citizenship. Indeed, there are many today whose political memberships and affiliations are not well represented in the existing arrangement of States. In the world as it is, it may sometimes be necessary to recognise alternative statuses, including a ‘statelessness’ status. As such, basic and less basic rights cannot be dependent upon citizenship.
Stateless persons are largely unrepresented in national, regional or global processes. They are uncounted and disenfranchised, their very existence may even be denied. With no State to advocate on their behalf, it is crucial that the protection and empowerment of stateless persons insofar as this is related to migration (even where this is not immediately obvious), is part of the global compact. This must include special efforts to reach out to stateless persons and their advocates to query potential impacts on stateless persons of all aspects of the compact.
Considerations for the global compact for migration
- Citizenship is not a privilege. It is a right. Every person has the right to a citizenship from birth, no matter their ethnicity, the migration status or marital status of their parents, their criminal history, or the circumstances of their birth. This must underpin considerations for the compact.
- Citizenship should not be a prerequisite for rights. Human rights are for all humans, irrespective of citizenship or lack of citizenship. Where lack of citizenship may make access to rights more difficult, these difficulties need to be mitigated by the States involved.
Migration of stateless persons
- Access to safe, orderly and regular migration is particularly important for stateless persons, who may be displaced everywhere, and lack any legal migration route. Border control measures must take the reality of statelessness into account, and not penalise stateless persons.
- Trafficking is a particular risk for stateless persons. Anti-trafficking measures must include preventing statelessness and adding access to rights for stateless persons. Stateless victims of trafficking will also need a route to some status, ideally citizenship.
- Migration control measures like detention may disproportionately affect stateless persons, putting them at risk of extreme deprivations. Indefinite detention of stateless persons is arbitrary and unacceptable. Where civil registration services are associated with immigration control, there is a risk that births to irregular immigrants are not registered and that the children will not have a clear route to citizenship anywhere.
- Discrimination can cause statelessness, forcing people to move, and to do so irregularly. Discrimination on the basis of their irregular movement or their statelessness in the receiving country is continuous with this and should be addressed.
- Stateless persons should not be forgotten when a State is in crisis. International mechanisms are needed to ensure the protection of stateless persons when the State in which they live (whether their country of usual residence or not) is in crisis.
Migration and the risk of statelessness
- Registration of births and life events is crucial, but it is insufficient to avoid the risk of statelessness. States must ensure all births, adoptions, marriages and deaths, including those of and to migrants, on their territory are registered, and that all persons have a route to citizenship. Marriage and divorce must not affect an individual’s citizenship status.
- Short term migration programmes need to include mechanisms for allocating citizenship in the event of a birth. Parents should not be prevented from moving because of the statelessness of their children.
- International cooperation is needed to ensure that every child born in a situation of large-scale displacement has access to a citizenship from birth.
- Denationalisation where this would make people stateless is unacceptable, both for individual human rights, and for international cooperation that assumes that every State will take responsibility for its citizens. Persons should not be denationalised into statelessness, either at home or abroad. This is the same, whether that person is a citizen by naturalisation or by birth.
Statelessness as a push factor
- Gender discrimination can cause statelessness and can exacerbate the problems associated with statelessness. States should not discriminate against women in their nationality laws and special measures should be taken to address gendered migration of stateless persons, and where gendered migration may create additional risk of statelessness.
- Stateless persons are often excluded from sustainable development (e.g. when unable to work, to be educated, to own property, to access legal protections, etc.). If this is not addressed, it is impossible for the work towards the Sustainable Development Agenda to leave no one behind and it is likely that people will try to move to seek better opportunities, whether there are legal routes or not.
- It is not always obvious how particular polices will affect stateless persons, or those at risk of statelessness. As such, it is crucial that the process towards the Compact proceeds with input from stateless persons and from their advocates.
A final thought
When individuals have no formal citizenship and no route to a formal citizenship, and when access to human rights including the right to move are contingent on being a citizen somewhere, this is in effect a denial of this basic truth: that each of us must live somewhere and must satisfy our basic needs somewhere on earth.
Photograph 1: © UNHCR / Alimzhan Zhorobaev
Photograph 2: © Tendayi Bloom
The views expressed in this article belong to the author and do not necessarily reflect those of the Refugee Law Initiative. We welcome comments and contributions to this blog – please comment below and see here for contribution guidelines.