Blog post written by Tendayi Bloom, a Lecturer in Politics and International Studies at The Open University in the UK.
A person is considered to be legally stateless when she or he is not a citizen citizen of any State under the operation of its law. In today’s world, this can give rise to significant difficulties for individuals affected. And yet, stateless persons are often ignored in policy development, even when developing policy frameworks that will impact upon them in particular. Happily, the two new global compacts relating to human mobility being developed by UN member States do address statelessness, as we can see by the zero drafts that have just been released. The zero draft of the compact for migration (GCM) was released on 5th February 2018 and the zero draft of the compact on refugees (GCR) was released on 31st January. As I argued in an RLI blog piece in September 2017, it is crucial that statelessness is addressed in the GCM. These zero drafts provide an excellent starting point for a new approach to statelessness in the context of human mobility. But there is still work to do to engage with the pervasive impacts of statelessness.
Problematising Proof of Identity
Being able to prove one’s legal identity can be a crucial step in the process of securing a recognised citizenship and as such it is fantastic to see it included in GCM 4. Yet, it can also be a step in formalising exclusion. For example, many Palestinians have proof of legal identity (as a Palestinian Refugee), but it actually precludes them from access to the citizenship of the countries in which they live. GCM 4 and GCR 2.5 link proof of identity with the human right to a nationality, but neither specifies how. For example, GCR para 62 directs the reader, without explanation, towards Sustainable Development Agenda Target 16.9 (“by 2030 provide legal identity for all including free birth registrations”) as a measure to prevent statelessness. But SDG 16.9 is not primarily about addressing statelessness. The problematic relationship between this Target and statelessness has been raised by statelessness experts (e.g. Bronwen Manby). Amal De Chickera has presented how, while GCM 4 is an improvement on SDG 16.9, it has not gone far enough.
Related, GCM 4.a explains ‘sharing biometric registration’ as “a measure to avoid statelessness in accordance with the fundamental human right to a nationality”. It is initially unclear how these two relate. GCM 21.b provides an indication of why. It explains the importance of ensuring that people are identifiable, allocatable to a particular State, and so deportable. That is, to “[e]nhance cooperation on identification of citizens and issuance of travel documents for return and readmission in cases of persons that do not have the legal right to stay on another State’s territory”. This echoes the emphasis in the Secretary General’s Report ‘Making Migration Work for All’ that the primary problem with statelessness today is not the human rights implications, but that it impairs States’ abilities to ‘return’ irregular migrants. If this is the intention behind this reference to biometric data in GCM 4.1 then it should not be couched in human rights terms. If the aim is human rights based, then more detail is needed in order to ensure rights are not put at risk.
GCM 4.g, on ensuring local identification cards enabling individuals without other forms of identification to access services is welcome. And it must be seen alongside GCM 4.f, to abolish the link between citizenship and access to basic services. Indeed, it is necessary to problematise the necessity of identity documents for satisfying basic needs and accessing basic social structures. It will be important to ensure that the information included in the local identity document does not risk reinforcing other exclusions, such as those based on ethnicity or religion. Indeed, discrimination as an intentional cause of statelessness is not addressed, where citizenship is removed or withheld from individuals on the basis of ethnicity or religion for example. Proof of legal identity is often important in establishing citizenship but it is not enough to do so.
Statelessness as a cause and a consequence of vulnerability in migration
Statelessness can leave a person without any regular means of traveling across international borders. This can force stateless persons to travel irregularly, to use smugglers, and to be at risk of being trafficked. It is important to recognise explicitly the ways in which statelessness excludes individuals from regular migration pathways, including for example the labour mobility arrangements mentioned in GCM 5.a and GCM 5.b and visa regimes more generally as in GCM 5.d – and to actively find ways to ensure that affected individuals have access to safe travel options. This includes safe escape routes for those unable to obtain visas.
Lacking any recognised citizenship can also give rise to conditions that drive people to migrate despite the lack of regular pathways. Stateless persons may be excluded from regular labour markets where they live, from schooling (or from proof of educational accomplishments) and from health systems, even from property ownership and financial services. As such, today’s implications of statelessness also need to be considered among GCM 2’s structural factors that force people to move. In particular it is important to recognise the extent to which a lack of citizenship can block individuals from access to development, labour and poverty relief programmes (e.g. see GCM 2.d and GCM 2.g). While one answer to this is to ensure everyone has access to citizenship, it is also urgent to decouple basic rights from citizenship.
Vulnerable migrants may also be particularly at risk of statelessness: when forced to move in haste and to live in the shadows. Being unable to register births and marriages may further lead to a risk of statelessness. This is recognised in GCM 16.g, though access to regularisation must be available to both adults and children, regardless of whether a person is able to prove a citizenship and should ideally include access to citizenship where no other citizenship is available.
Other dimensions can also give rise to statelessness. For example GCM 4.b suggests a way to help tackle the problem that when women are prevented from conferring citizenship on their children, those children are at risk of statelessness. This also needs to be addressed in GCR B.2.6. Where urgent and large-scale movement means that families are split up and paternity difficult to establish there is a risk that this may lead to widespread statelessness (as in the case of those displaced from Syria for example).
Finally, the access to consular assistance mentioned in GCM 14 is an important element of avoiding statelessness, but it will not help those who are already stateless. Lacking citizenship of any State, stateless persons are unable to make use of the consular assistance and will lack access to home-country support when the country in which they live is in crisis. This is, then, the obligation of the international community.
While not all stateless persons are more vulnerable than those with recognised citizenship and it is not only vulnerable migrants that are at risk of statelessness, it is important to think explicitly about statelessness and the risk of statelessness in the context of GCM 7, on vulnerability in migration.
Recognising that not everyone can be ‘returned’
The ‘voluntary return’ of migrants to their countries of origin is highlighted throughout the zero drafts of both compacts, but it is necessary to recognise that some people cannot be ‘returned’. GCR, while sporting a section dedicated to ‘voluntary repatriation’ (GCR 3.1) does not explicitly mention the principle of non-refoulement (the principle that it is illegal for a State to return any one to a country where they may face persecution) which is a core principle of the 1951 Refugee Convention (Article 33). The principle of non-refoulement must appear explicitly in future drafts of both compacts.
In fact, GCM 5.f calls for States to “Provide temporary or permanent protection and reception schemes for migrants compelled to leave their countries of origin […] in cases when return is not possible”. This is reiterated in GCM 21.e which notes that expulsion may be precluded where there is a risk of torture or other ‘irreparable harm’. This recognises the importance of non-refoulement, but it also acknowledges the current asylum gap, the limbo between fleeing and formal recognition of refugee status.
While in some cases stateless persons risk persecution and death if returned (consider the case of the Rohingya, who have fled Myanmar into Bangladesh), in others return is not possible because there is no country of citizenship to ‘return’ them to. Failure to recognise this reality can put stateless persons (irrespective of whether or not they have migrated) at risk, for example, of arbitrary immigration detention. A recent large-scale study of the detention of stateless persons carried out by the European Network on Statelessness found that many individuals are being held in detention for long periods of time or at risk of frequent arrests because they cannot be deported and have no means by which to acquire documents. This has already been identified for some time by the UN and its organs and should be reflected in GCM 13.f, which refers to the prevention of arbitrary arrest and detention, but also in GCM 13.c’s suggested review of legislation and policies relating to migrant detention, examining their implications for stateless persons in particular and the safeguards that could be put in place.
This is a key example of how migration controls affect stateless persons irrespective of whether or not they have moved. This needs to be addressed in GCM 16, which aims at ‘full inclusion and social cohesion’ and, for example, GCM 17.e needs not only to remove barriers for migrants, but also for those effectively characterised as migrants irrespective of physical movement.
Statelessness and exclusions
The ‘Whole-of-Society’ approach pursued in the work towards the GCM may well be a key factor in the impressive document that has been produced thus far. However this approach must include all those affected by policies relating to human mobility. This should include consulting with stateless persons and their advocates to understand the implications on stateless persons irrespective of whether or not they have migrated. This is even more urgently needed for future drafts of GCR, which so far addresses statelessness in only a very limited way.
While it is exciting that, in contrast to GCR, statelessness is addressed in some depth in GCM, the work on this is still isolated within the document, focusing on access to ID. More work will be needed in order to address the ways in which statelessness can affect people across the objectives. That stateless persons are often left out of data should influence GCM 1.e, for example. The discussion of statelessness in GCR is more limited and less unpacked. This is an area in which there could be significant merit, not only in considering statelessness in each of the documents individually, but also in examining the ways in which the two intersect.
These compacts provide a unique opportunity to address cross-cutting issues and bring together norms that have already been established, across a range of treaties and bodies. As they are to be non-binding, there is even more impetus to be aspirational. It presents an opportunity for today’s community of States (and the agencies that support them) to make history by ensuring that everyone really does have access to a citizenship, but at the same time that those without citizenship are no longer barred from national and international frameworks that guarantee dignity, rights and flourishing.
Some Considerations for Moving Forwards
1. Both compacts must explicitly emphasise both that all persons must have access to citizenship and that those who are stateless must have access to dignity and rights.
2. It is crucial not to conflate rights-thinking and State-coordination-considerations, especially where these might be in tension. The intention behind ensuring individuals have access to proof of identity will alter the implications of action GCM 4.a, either constraining rights or expanding them.
3. Collecting, storing and sharing biometric data of marginalised persons, without qualification, risks further entrenching vulnerabilities, particularly of those who have no regular migration routes.
4. Regular pathways to migration need to be made available to those without any citizenship. This needs to be addressed in both GCM and GCR.
5. Statelessness today blocks people from access to social systems and development efforts, and from inclusion within the data on development. As such, statelessness needs to be considered explicitly when thinking about structural factors (GCM 2.d, 2.g) and data collection (GCM 1.e).
6. Non-refoulement is a core and non-negotiable tenet of international law. As a minimum, non-refoulement must be explicitly included in any document addressing policies relating to human mobility – and must appear explicitly in both compacts.
7. Stateless people may be unable to ‘return’ anywhere because no State can be assigned to receive them. They must not be punished for this. This includes stopping the arbitrary detention of stateless persons.
8. It is crucial to test the implications of migration policy for all those affected irrespective of movement. This includes stateless persons who are often treated as migrants even if they have not moved.
9. There is a need for more information and training on statelessness. GCM 12.b identifies the need for specialised training of all those working with migrants. This needs to include training in statelessness.
Elsewhere I have argued that the GCM provides an opportunity to see global migration policy principally as a coordination effort between States to enable safe, orderly and regular migration. Where it causes displacement, then, including displacement associated with statelessness, migration policy is failing. Currently, mechanisms ensuring human dignity and flourishing often presuppose citizenship. This needs to be challenged. But in the meantime, it is crucial that everyone has access to a citizenship and access to rights regardless of whether or not they have a citizenship.
Readers who want more information on how to bring their own perspectives of statelessness to the process can find more information here. Some useful resources on statelessness can be found here and here.
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.