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International Refugee Law and the Protection of Stateless Persons$

Michelle Foster and Hélène Lambert

Print publication date: 2019

Print ISBN-13: 9780198796015

Published to Oxford Scholarship Online: May 2019

DOI: 10.1093/oso/9780198796015.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2019. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 17 August 2019

Statelessness as Persecution

Statelessness as Persecution

Examining the Causes and Consequences of Statelessness through the Lens of Refugee Law

Chapter:
(p.144) 5 Statelessness as Persecution
Source:
International Refugee Law and the Protection of Stateless Persons
Author(s):

Michelle Foster

Hélène Lambert

Publisher:
Oxford University Press
DOI:10.1093/oso/9780198796015.003.0005

Abstract and Keywords

Chapter 5 analyses the meaning of ‘being persecuted’ for a Convention reason as it applies to stateless persons, by examining its interpretation and application in the case law of the leading common law and civil law jurisdictions. It begins by addressing deprivation of nationality (namely, denial of nationality and active withdrawal of nationality), and denial of the right to enter one’s country. It then considers other forms of harm related to an absence of nationality such as the right to education, right to work, right to health, right to liberty, and right to family and private life. It concludes by examining instances where claims for refugee protection failed but complementary protection may nevertheless be relevant. This may be the case where, for instance, no nexus exists between persecution and the Convention reasons, where the level of harm was not sufficient to constitute persecution, or where Article 1F applied to exclude a stateless (refugee) person from protection.

Keywords:   ‘being persecuted’, Convention reason, deprivation of nationality, right to return, right to enter one’s country, inhuman and degrading treatment, right to education, right to work, right to health, family and private life, complementary protection

In this chapter we turn our attention to the core of the refugee claim, namely the content of the concept of persecution. It is here that we seek to interrogate in depth the degree to which the Convention relating to the Status of Refugees (‘Refugee Convention’), in accommodating and reflecting contemporary human rights norms, may provide a broader ambit of protection to stateless persons than may have been considered possible in the early decades of its operation. While refugee law jurisprudence examining this issue is ‘in its early stages’,1 it is timely to explore the approaches adopted to date, with a view to developing a clearer framework for decision-makers grappling with these issues. As greater attention internationally is focused on the plight of the stateless, including those in transit and seeking protection elsewhere, the need for a thoughtful and informed framework in refugee law is becoming more acute.

In Parts 1, 2, and 3, we examine the extent to which denial or deprivation of nationality, and/or the denial of the right to return, may be considered a violation of human rights sufficient to constitute serious harm in refugee law.2 In this regard, we seek to problematize the simplistic statement that being stateless is not sufficient to constitute refugee status by exploring whether, in cases where discrimination is at the heart of the predicament of a stateless person, refugee status may indeed be warranted. In Parts 4, 5, and 6, we explore the ramifications of statelessness, focusing particularly on the denial of social and economic rights, and consider in what circumstances such violations in relation to stateless persons will amount to persecution on the grounds of nationality. We do not consider separately the meaning of the term ‘nationality’ for the purposes of the Refugee Convention grounds, given that it is very well accepted that nationality includes its converse, namely not having (p.145) a nationality.3 In addition, cases involving stateless applicants rarely turn on the nature of the Convention ground; rather it is often readily accepted that the ground nationality is apt, or in the alternative race, or membership of a particular social group.4 However, the question of when a particular form of harm can be said to be ‘for reasons of’ a Convention ground is sometimes contentious and will be discussed below, particularly in relation to Parts 1–3.

In Chapter 4 it was established that statelessness per se does not give rise to refugee status. In other words, inability to return does not automatically confer refugee status on a stateless person. However, it does not therefore follow that the predicament of being stateless, or its consequences, cannot constitute persecution. In other words, challenging the notion that there is a ‘sharp’5 or ‘clear distinction between stateless persons and refugees’6 is at the heart of this chapter.

Our analysis of a wide range of jurisprudence suggests that decision-makers have, in many contexts, failed adequately to appreciate the significant overlap between statelessness and refugeehood, leading to an impoverished consideration of when denial of nationality, withdrawal of nationality, and/or denial of re-entry may amount to persecution. In part, this appears to be explicable on the basis of an inadequate understanding of the causes of statelessness—almost an assumption that it is accidental,7 ‘unfortunate’,8 unavoidable, or simply the result of a legitimate exercise of state sovereignty in relation to nationality laws. The fact that the formulation of nationality laws was traditionally an issue solely within the discretion of a sovereign state and that ‘statelessness is often the result of the operation and conflict of nationality laws and does not necessarily signify persecution in terms of the Refugee Convention’,9 appear to have obfuscated the fact that statelessness can—in many situations—be understood as the result of persecutory acts. As the New Zealand Refugee Status Appeals Authority (‘RSAA’) has noted, while statelessness (p.146) ‘is sometimes simply the product of misfortune’,10 in other cases ‘the stripping of nationality can be an act (often the final act) of persecution’.11 Failure adequately to appreciate this in refugee law may simply be reflective of the wider international community’s failure to prioritize statelessness as a human rights issue until recently;12 indeed, our understanding of statelessness has developed very substantially in recent years and we can attribute significant gains in knowledge to the past decade alone. In this chapter, we seek to integrate these developments as appropriate into refugee law doctrine.

Part 1: Denial of Nationality as Persecution

This Part relates to persons who never had a nationality. Despite the right to a nationality being enshrined in several human rights treaties and recognized as ‘amongst the most important rights a state can assign to individuals’,13 this is the category of case that has proven most challenging in the refugee context. That is, where a person claims that the failure of their country of origin to afford them nationality constitutes persecution, their claim most acutely challenges the notion that states are untrammelled in devising and applying their own nationality laws.

Not only has this issue challenged and troubled decision-makers, but key refugee law texts have failed comprehensively to grapple with the question of whether denial of nationality can constitute persecution,14 meaning there is little by way of academic analysis to redress gaps in the jurisprudence.

Few cases have addressed this issue in isolation, but many of those applicants that have asserted that their statelessness emanates from a persecutory policy or treatment have been met with scepticism. A common thread running through these cases is conclusory reasoning in the form of the statement, ‘[r]efugee status is not accorded to persons merely because they are stateless’.15

An examination of the jurisprudence reveals three key challenges. First, many refugee law decision-makers appear unfamiliar with or unaware of the pertinent international law norms, and specifically the significant constraints imposed by (p.147) human rights law on state discretion in relation to nationality laws. Second, many cases suggest a failure properly to apply modern human rights norms in practice. Third, even where a norm is properly identified and applied, there is a question as to whether denial of citizenship is sufficient on its own to constitute persecution.

Turning to the first issue, perhaps the clearest exemplification of the international law challenge is in BA v Secretary of State for the Home Department,16 where the appellant had submitted to the UK Upper Tribunal (formerly the Asylum and Immigration Tribunal) that it ‘should regard denial of nationality as in itself a persecutory act’.17 The Tribunal did not accept this submission, holding that, ‘It may be that the right to a nationality is an emerging norm, but it has plainly not yet become part of international law. Given this state of affairs, we cannot see that denial of nationality as such amounts to persecution.’18

This conclusion regarding the inadequacy of international law was drawn without explicit reference to any international legal instruments or scholarship. Tribunals in other jurisdictions have adopted a similar stance in concluding that, ‘[n]ot automatically obtaining the nationality of a country by being born on its soil is not, in our opinion, a breach of a fundamental right any more than not obtaining it by filiation’;19 it is ‘a legal issue decided by individual countries and is not persecutory’.20 In a New Zealand decision, the RSAA began its consideration of the international law issues with the statement that ‘questions of nationality are principally within the jurisdiction of a state’,21 and that ‘international law does not impose a duty on States to confer their nationality’.22 This led to the conclusion that ‘broadly speaking, statelessness is considered to be the result of the operation and conflict of nationality laws, not the result of persecution’.23 And in Australia the Federal Court observed, in upholding the decision of the tribunal below, that ‘[t]o the extent that the nationality claims [the discriminatory denial of nationality] depend upon conventions other than the [Refugee] Convention, they were not within the range of matters required to be considered’,24 suggesting a wholesale misunderstanding of the relevant legal framework.

In our view, however, an analysis that rests on the notion that international law has not yet evolved to the point of recognizing a universal ‘right to nationality’ that can be invoked by any individual in relation to any particular country in every situation—a proposition with which we agree—does not dispose of the issue. Rather, all cases that have raised this issue in the refugee context have at their core an (p.148) allegation that the denial of nationality in relation to the applicant’s group is linked to a protected status, usually race, but sometimes another ground such as gender.

It is in this context that it is vital for decision-makers to delve deeper into the evolving developments in international human rights law in relation to the right to nationality outlined in Chapter 3.

For example, Article 9(1) of the Convention on the Elimination of Discrimination Against Women (‘CEDAW’) obligates states party to ‘grant women equal rights with men to acquire, change or retain their nationality’.25 Notwithstanding this, gender discrimination in nationality laws remains prevalent globally, with a recent United Nations High Commissioner for Refugee’s (‘UNHCR’) survey revealing that ‘equality between men and women relating to conferral of nationality upon children has not yet been attained in 25 countries, and these countries are located in almost all parts of the world’.26 In addition to the impact on women of such discrimination, ‘gender inequality in nationality laws can create statelessness where children cannot acquire nationality from their fathers’.27

The International Convention on the Elimination of All Forms of Racial Discrimination (‘ICERD’) obligates states to ‘prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights’, which includes ‘(iii) [t]he right to nationality’.28 While Article 1(3) of the ICERD seeks to carve out an exception for nationality and citizenship laws, this is applicable only so long as ‘such provisions do not discriminate against any particular nationality’.29 The Committee on the Elimination of all Forms of Racial Discrimination has further explained that in accordance with the ICERD states must, ‘ensure that particular groups of non-citizens are not discriminated against with regard to access to citizenship or naturalization, and to pay due attention to possible barriers to naturalization that may exist for long-term or permanent residents’.30

Coupled with the well accepted jus cogens status of racial discrimination,31 it is difficult to sustain the argument that citizenship laws that exclude a certain group (p.149) based on race or ethnicity could be justified as within the sovereign discretion of the state.

In terms of grounds other than gender or race, the International Covenant on Civil and Political Rights (‘ICCPR’) contains a general equality clause which explicitly prohibits any discrimination on grounds such as ‘race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’,32 extending the prohibited grounds beyond those listed in CEDAW and the ICERD. Finally, Article 7(1) of the Convention on the Rights of the Child (‘CRC’) provides that, ‘[t]he child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality’ which, when read with Article 2(1) CRC, also prohibits discrimination ‘of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status’.33 Of course, not every distinction constitutes discrimination; hence not every distinction in domestic citizenship laws will contravene international norms. The point is rather that it cannot be assumed that states are unconstrained by international law in the formulation and application of their nationality laws.

The regional human rights treaties reveal a more complex picture. While there is an explicit ‘right to a nationality’ in the American Convention on Human Rights,34 and a free-standing right to equality guarantee in the African Charter on Human and Peoples’ Rights,35 which would apply to the formulation and application of nationality laws, the European Convention on Human Rights (‘ECHR’) contains neither of these provisions. However, states parties to the Refugee Convention governed by the European Union Directive—which references the ECHR in interpreting ‘being persecuted’—can and should nonetheless refer to wider international human rights norms in interpreting the notion of ‘being persecuted’.36

In sum therefore, while it remains the case that it is difficult to point to an absolute right to a nationality in international law, where there is evidence of discrimination (p.150) on a protected ground in formulating nationality laws, human rights obligations are engaged. In light of the well-entrenched refugee law doctrine that persecution is constituted by the sustained or systemic violation of human rights norms,37 such norms must be considered in the context of refugee status determination where denial of nationality is relevant.

However, articulation of the clear norms that pertain to these cases does not respond to all the challenges raised because in many cases, decision-makers are willing to concede that, ‘the denial of citizenship by reason of nationality, race, religion or membership of a particular social group may constitute persecution’,38 yet appear reluctant to closely examine the historical or socio-political background to a particular country’s nationality laws. Further in some cases, decision-makers refer only to the domestic citizenship legislation in question, or the stated policy of the home country, without further examining whether this apparently neutral law or policy is in fact applied in a discriminatory fashion. Yet when we consider UNHCR’s analysis that suggests more than 75 per cent of the world’s known stateless populations belong to minority groups, we may immediately question the predominant approach in refugee law that appears to assume that failure to acquire nationality and persecution are mutually exclusive categories.

As the UNHCR observes, ‘[d]iscrimination on the basis of ethnicity, race, religion or language is a recurrent cause of statelessness globally’.39 In some cases, discrimination against minorities in relation to the conferral of citizenship ‘is prescribed by law’,40 for example, as is the case in Myanmar in which the Muslim Rohingya, ‘the largest known stateless group in the world’,41 are excluded from a list of ‘national ethnic groups’ which automatically acquire citizenship at birth pursuant to the 1982 Citizenship Law.42 More frequently, such discrimination ‘is based on formal or informal policies and practices that affect certain groups disproportionately’.43 Yet refugee decision-makers appear remarkably resistant to interrogating the purported neutrality of citizenship laws and policies of sovereign states.

Several prominent populations frequently come before decision-makers across the range of jurisdictions examined, and one particularly noteworthy group that provides an instructive case study on this point is the Bidoon from Kuwait; bidoon, meaning ‘without nationality’.44

(p.151) In cases across several jurisdictions, despite evidence having been presented to the relevant authority suggesting that discrimination lies at the core of Kuwait’s citizenship law and policy, decision-makers generally have taken a similar position to the NZ Tribunal in Refugee Appeal No 72635, in which it concluded:45

Our finding on the extensive evidence is that the appellant is stateless for one reason only, namely because Kuwaiti citizenship law is based on jus sanguinis. … The jus sanguinis model is common throughout the world, and the Middle- East in particular. … The difficulty faced by the appellant is that his status of ‘stateless’ under Kuwaiti law is the result of the operation of the jus sanguinis principle, not his race, nationality or membership of a particular social group.46

In a subsequent decision, the UK Tribunal similarly rejected the submission that the refusal of the Kuwaiti authorities to ‘determine the nationality applications of the Bidoon is persecution’,47 on the basis that the Kuwaiti ‘authorities’ position is that significant numbers of the Bidoon in fact have nationalities of other countries, and that investigations are ongoing, albeit very slowly, to establish their backgrounds and to decide whether or not they are entitled to nationality’.48 The UK Upper Tribunal relied on the fact that Kuwait had established a committee to review the status of the Bidoon as sufficient to reject the denial of citizenship as persecution argument, notwithstanding the Tribunal’s concession that the Bidoon Committee’s work was ‘tortuous’. The fact that the Committee’s work remained ‘ongoing’ was sufficient, regardless of the effectiveness of its work.49 This was in spite of the evidence before the Tribunal that ‘there was a gap between the law and its application in Kuwait’,50 that there was evidence of corruption in the work of the Kuwaiti committee,51 and that there was no credible evidence that the majority of Bidoon were in fact nationals of other countries, as claimed by the Kuwaiti government.

A decision by the Canadian Tribunal shortly thereafter similarly concluded that the applicants’ statelessness was not due to discrimination, citing UK Operational Guidance that repeated the Kuwaiti government’s allegation that ‘the vast majority of Bidoons were concealing their true identities and were not actually stateless’.52 The Tribunal thus concluded that ‘obtaining Kuwaiti citizenship depends on a person’s ancestral ties to the country’, essentially ‘a law of general application’,53 and not on racial discrimination.54

The consistency of this resistance properly to question the formal policy of another state, particularly in the context of refugee law in which decision-makers frequently do precisely that in order to properly assess the cogency of a refugee claim, suggests something peculiar at play in these cases. In our view, this sui generis approach in denial of nationality as persecution cases is embodied in the conclusion (p.152) of the Australian Refugee Review Tribunal (‘RRT’), which found that, notwithstanding the evidence of discrimination before the Tribunal, ‘the actions of the Kuwaiti Government towards Bedoun are not persecutory but a sovereign right of a nation to determine its citizens’.55 It is this assumption of and deferral to absolute sovereignty that underpins these analyses in both the particular context of Kuwait and in others as well.56

By stark contrast to these decisions, a rare application of international legal norms—albeit implicit rather than explicit—can be identified. In a lucid and insightful decision from New Zealand also concerning the Bidoon from Kuwait, Member Shaw questioned the neutrality of the Kuwaiti law. The judgment began with the observation that Kuwait faced an ‘extraordinary situation’ in that by 1988 up to one-third of the population was ‘stateless’—‘a situation not encountered in other Middle Eastern countries’, which commonly employ the jus sanguinis principle as a basis of nationality law.57 In the Member’s view, ‘[c]learly something more was operative in the creation of statelessness’.58 Indeed, a thorough examination of country information revealed that ‘the statelessness of the bidoons is intimately linked to the fact that discriminatory notions have informed both the content and implementation of Kuwait’s Citizenship Law’.59 Such discrimination was identified as gender discrimination in that ‘women’s right to citizenship in Kuwait is limited and contingent’,60 and discrimination based on race and nationality in that in Kuwait ‘citizenship has been used by the ruling elite “to organise and define the internal power relationships” ’.61 Gender discrimination was also identified by the Australian Tribunal in a decision concerning the refugee claim of a stateless woman from Lebanon whose child would also be stateless by virtue of Lebanon’s nationality law that prevents Lebanese women from passing their nationality to their child.62 In rejecting the argument that these were laws ‘of general application’ which were ‘appropriate to achieve a legitimate object’ (the test adopted in Australian refugee law), (p.153) the Tribunal found that the relevant laws ‘have a discriminatory character, which singles out women and their children for adverse treatment and disadvantage’63 and ‘that the use of highly discriminatory laws against Lebanese women and their children does not amount to an appropriate measure’.64

This reasoning represents a sophisticated analysis that rejects the sense of inevitability and helplessness surrounding the issue of statelessness—embodied in the earlier NZ RSAA’s lament that ‘statelessness is a phenomenon as old as the concept of nationality’65—by adopting a modern approach that recognizes the non-discrimination norms that pertain to and make unlawful many situations of statelessness.

The relevance and importance of the international human rights framework is underscored by the work of the international bodies charged with supervising the key international human rights regimes most relevant to refugee law determination. The conclusions of these committees have the potential to provide guidance to refugee decision-makers as to the degree to which individual states comply with their obligations—thus ensuring a dynamic and evolutionary approach to assessing ‘being persecuted’ in refugee law and an accurate understanding of the pertinent legal issues in the context of individual countries. For example, the Committee on the Elimination of Racial Discrimination, the international body charged with supervisory responsibility in relation to states parties to the ICERD, observed as recently as 2017 in relation to the situation of the Bidoon in Kuwait, that:

the Committee remains deeply concerned by the situation of Bidoon, many of whom have lived in Kuwait for generations but are deemed ‘illegal residents’ by the State party. It expresses serious concern at persistent reports that Bidoon do not enjoy equal access to social services, due process and legally valid civil documentation, including birth registration documents … the Committee recommends that the State party: (a) Find a durable solution to the problems faced by Bidoon, including by considering naturalizing those who have lived in Kuwait for long periods and have a genuine and effective link to the State.66

As explained above, while there are many situations in which a more thorough examination of the evidence would likely suggest that persecution underpins failure to accord nationality, there are other situations that are more complex. Perhaps the most contentious relates to stateless Palestinians residing in countries such as Israel, the United Arab Emirates, or Lebanon, where decision-makers have stressed the right of states to grant nationality and have generally refused refugee status.67 In a British decision this was justified on the basis that:

(p.154)

there is no country which is excluding them from nationality to which they would be otherwise entitled. There is no state of Palestine to offer them citizenship and neither is there any international obligation on the State of Israel, who retain a large measure of control over the Occupied Territories, to offer them citizenship.68

Similarly, in Refugee Appeal No 1/92 Re SA, the appellant submitted to the NZ RSAA that the fear of persecution was based on (denial of) nationality and it referred to a passage from James Hathaway’s The Law of Refugee Status: ‘Persons who are denied full citizenship in their own state (such as Palestinians in Israel) could qualify as nationally defined refugees insofar as their inferior political status can be shown to put them at risk of persecution.’69

The Tribunal rejected the argument based on the information in its possession that it ‘cannot accept that Israel denies Palestinians citizenship in “their own state”, particularly when there is clear evidence that those Palestinians who remained in Israel after 1948 have been granted the status of Israel citizens’.70

As for the situation in Israel in more recent years, the Tribunal was convinced that the ‘denial’ of nationality was simply the product of:

  1. (a) The fact that there is no sovereign Palestinian State

  2. (b) The fact that Israel recognizes West Bank inhabitants as Jordanian citizens.71

The Tribunal therefore concluded, ‘Palestinians are not denied full citizenship, but even if they are, such denial arises not from a denial by the Israel authorities, but rather as a result of the international law governing the administration of occupied territory by a military occupant and the absence of a Palestinian State.’72

However, in France, in a case concerning a Palestinian born in Egypt to an Egyptian mother and Palestinian father, and who lived in Egypt until he was thirty, the Cour Nationale du Droit d’Asile concluded that the absence of provisions on acquiring Egyptian nationality for persons of Palestinian origins in the Egyptian legislation, coupled with the grave consequences this had on the applicant for many years, meant that the applicant had a well-founded fear of being persecuted in Egypt for political and ethnic reasons.73

(p.155) While this category of case is difficult, it is important for refugee decision-makers to take account of developments in international law. There is growing awareness of the right ‘to one’s own country’ that although possibly not amounting to a right to nationality, suggests that states may not be untrammelled in their ability to deport and refuse re-entry, an issue that is explored in Part 3. In addition, even if the denial of nationality may be defended, the consequences particularly in relation to exclusion from economic life, may not be justified, a point we explore further in Part 5.

A third key issue identified in our analysis of cases concerning denial of nationality is whether, even if the denial is found to violate international human rights norms, the denial of nationality is alone capable of constituting persecution—particularly given the need for a forward-looking assessment—or must be supplemented by other consequential forms of rights violations in order to constitute persecution.

There is significant authority that suggests that ‘the denial of citizenship by reason of nationality, race, religion or membership of a particular social group may constitute persecution’.74 Bearing this in mind, courts in several jurisdictions have been willing to recognize that the denial of nationality may amount to persecution if it is on a Refugee Convention ground and its effects are particularly serious.75

However, in many cases the relevant decision-maker does not further analyse or apply this notion because he or she fails to find the requisite discrimination present.76 In one decision, the notion that the denial of persecution could in and of itself amount to persecution was rejected on the (erroneous) basis that such denial did not engage international law.77

More commonly, however, there is a suggestion or hint that the denial of nationality, even if in violation of international law, is not sufficiently serious and must therefore be supplemented by other consequential human rights violations. In many other cases decision-makers simply examine all the aspects of the claim of (p.156) persecution in one holistic assessment,78 without parsing out the independent claim in relation to nationality. For example, in a claim involving a Rohingya man from Myanmar, the NZ RSAA explained, in finding that he qualified for refugee status that he:

is not recognised as a citizen of Myanmar and therefore is deprived of the rights enjoyed by citizens: the right to leave the country and to return, the right to register his marriage and his children’s births, the right to travel within Myanmar, the right to establish his own business and his children’s rights to tertiary education.79

The same approach has been adopted in a similar factual context in French jurisprudence.80

This compilation of all harms into one analysis means that decision-makers rarely pause to consider deeply the meaning of not having a nationality. Nor, in cases where it is implied or held that it is not sufficient, is there any detailed reasoning to explain why it is not sufficient to constitute persecution in its own right. This is particularly problematic in the context of claims by children.81

The question of the gravity of harm occasioned by the fact of not having a nationality appears to be more straightforward in cases involving active withdrawal of nationality, considered in Part 2. We acknowledge that it may be more difficult as a matter of law to establish that the denial as opposed to withdrawal of nationality violates human rights norms in a particular case;82 however, once there is a violation, the gravity of not having a nationality should arguably be considered as equally serious. Hence the discussion below may well be relevant and instructive in the future consideration of this issue in the context of denial of nationality as well as active withdrawal.

Part 2: Withdrawal of Nationality as Persecution

This Part concerns stateless persons who had a nationality that was subsequently withdrawn by a state authority including by operation of the law. It excludes situations where an individual voluntarily requested the loss of nationality.

Two key issues arise in the context of considering refugee claims centred on withdrawal of nationality. The first question is whether the withdrawal of nationality is (p.157) a violation of international law, and in particular human rights law, so as to engage a consideration of whether it amounts to ‘being persecuted’ for the purposes of refugee law. Second, if it is a violation of international human rights law, the question is whether it is sufficiently serious to constitute persecution.

In terms of the first issue, an analysis of jurisprudence across a wide range of jurisdictions reveals that very little controversy has arisen, presumably because the factual background in these cases immediately suggests an illegitimate exercise of state power. It appears to be appropriately accepted by decision-makers that where withdrawal of nationality is due to a protected ground, such as race, gender, ethnicity, or political opinion, it cannot be justified as a matter of international law. This is also reflected in the limited scholarship that has considered this issue.83

In US jurisprudence, for example, appellate courts have readily intervened to rectify misguided deferral to state sovereignty in the context of withdrawal of citizenship. In Haile v Gonzales,84 the Immigration Judge (‘IJ’) had rejected the asylum claim in part on the principle ‘that a country has the sovereign right to bestow or deny citizenship as it sees fit’,85 citing previous authority in support.86 However, on appeal, the US Court of Appeals for the Seventh Circuit identified the issue as ‘whether Ethiopia has the sovereign right to discriminate against ethnic Eritreans by stripping them of their citizenship’,87 concluding that the IJ’s reasoning was ‘problematic’ because it ‘fails to acknowledge the fundamental distinction between denying someone citizenship and divesting someone of citizenship’.88 Indeed, the Court considered that there was no authority for the view that ‘a government has the sovereign right to strip citizenship from a class of persons based on their ethnicity’.89 Rather, ‘It is arguable that such a program of denationalization and deportation is in fact a particularly acute form of persecution. … Historically, denationalization has been a precursor to even worse things—it was one of the first steps taken by the Nazi regime against the Jews.’90

The Seventh Circuit cited with approval the work of a human rights group that had expressed concern about the ‘increasing use of denationalization as a political weapon’ particularly given that ‘the victims of this form of persecution are unable to challenge it as it occurs under the guise of states’ sovereign rights’.91

(p.158) Similarly, the Court of Appeals for the Second Circuit intervened when the Board of Immigration Appeals (‘BIA’) failed to assess the argument that the loss of citizenship in that case was not simply an administrative oversight but rather a case of the ‘Kazak government’s use of the registration requirement as a pretext to de-nationalize non-ethnic Kazakhs’.92

The reason for this more straightforward acceptance in the cases of withdrawal as opposed to denial may simply be a matter of clearer evidence on point, since a withdrawal is, of course, more difficult to justify than a failure to provide nationality from the outset. As such, there is very little discussion about the international law framework in these cases; rather, the discussion moves quickly to whether the harm amounts to being persecuted for the purposes of refugee law.

Notwithstanding the straightforward nature of the cases to date on this question, it is conceivable that refugee decision-makers may be presented with more challenging scenarios from the perspective of international law in the future. In particular the recent uptake in denationalization as a method of responding to the ‘war on terror’ and ‘foreign fighters’,93 could potentially give rise to refugee claims on the part of those who have been denationalized, particularly when we consider that deportation or banishment is a key motivation for these recent policies.94 However, any such claim would require careful analysis. As Matthew Gibney explains, states ‘have always possessed some grounds through which to take away citizenship, including fraud, disloyalty, acquisition of another citizenship, marriage to a foreigner, and threat to public order’.95 Indeed, as we explained in Chapter 3, there are limited circumstances where deprivation of nationality is lawful at international law.96 The 1961 Convention outlines various circumstances in which a state may withdraw nationality, although most are ‘conditional upon their possession or acquisition (p.159) of another nationality’.97 As stated in Article 8(1) of the 1961 Convention, ‘[a] Contracting State shall not deprive a person of his nationality if such deprivation would render him stateless’. Thus, where an individual has been denationalized under a security or public order measure, he or she is likely to retain an alternative nationality given that most relevant domestic legislation applies to dual nationals.98 Refugee status would thus be denied unless the applicant could also establish a fear of being persecuted in the alternative country of nationality.

Where, however, denationalization results in statelessness, a careful assessment would need to be undertaken of the legitimacy of this measure given that it is only in exceptional circumstances that a State may legitimately denationalize so as to render an individual stateless.99 Where the instance of denationalization could not be justified at international law, a finding of persecution may be appropriate. Further, such persecution may well be linked to a person’s political opinion, race, or particular social group.100

In relation to the second key question, namely gravity of harm, while there is some mixed jurisprudence, the balance clearly favours the view that withdrawal of nationality may well constitute persecution in and of itself. However, as in the case of denial of nationality, many decision-makers do not assess the gravity of the denial of nationality separately from other forms of harm.101 There are some cases in which withdrawal of nationality was found not to amount to persecution in and of itself. For example, in the case of a stateless Bidoon from Kuwait, the Federal Magistrates Court of Australia concluded that ‘loss of nationality per se is not sufficient to satisfy the requirements arising from the Refugees Convention for protection’ (as held in Diatlov), because ‘persecutory behavior on the part of the Kuwaiti authorities’ is also required.102 Similarly, in a case involving a Faili Kurd born in Iran it was held by the Australian Federal Court that, ‘discrimination does not, without more, amount to persecution. Specifically in the context of refusal of nationality, it is not that refusal which could be said to be persecutory but rather the conduct which might flow from it.103

(p.160) In the UK, the Court of Appeal held persecution to be a matter of fact, not law.104 Consequently, it is not possible ‘to state as a universal proposition that deprivation of nationality must be equated with persecution’.105 In the words of Stanley Burnton LJ:

the deprivation of a person’s nationality can amount to persecution. It will do so if the consequences are sufficiently serious. And clearly, deprivation may be one aspect of ill treatment by the state that in its totality amounts to sufficiently serious ill treatment as to constitute persecution … the question whether deprivation of nationality constitutes persecution, assuming the deprivation is for reasons referred to in Article 1A(2), will depend on the consequences of the deprivation for the person in question in the state in question.106

However, in the preponderance of cases, withdrawal of nationality leading to statelessness, on a ground protected by the Refugee Convention, is accepted to amount to persecution, in principle, without needing to show more in terms of additional harm. A number of these cases concern Ethiopians who have or are perceived to have Eritrean origins (through their mother or father) and who according to the Ethiopia–Eritrea Claims Commission, based on the 2003 Proclamation of Ethiopian Nationality, are no longer considered by Ethiopia to be Ethiopian nationals after they were forced to flee during the war.

In EB (Ethiopia) v Secretary of State for the Home Department, the UK Court of Appeal recognized that persons without nationality are entitled to refugee status if they can show that they have been stripped of their nationality on discriminatory grounds (i.e. linked to a Refugee Convention reason).107 For the UK Court of Appeal, the reasons behind the decision of the state authorities to deprive a national of their nationality is crucial to a finding of persecution. Both Longmore LJ and Jacob LJ accepted that EB had been deprived of her citizenship by reason of her father’s Eritrean origins (i.e. race) and was therefore unable to exercise her citizen’s individual rights (i.e. to leave freely and to re-enter freely one’s country, and the right to vote). She was entitled to refugee status; as a matter of law no further ill-treatment was required.108

The Gauteng High Court of Pretoria (Republic of South Africa) similarly acknowledged that the applicant, ‘as a “dual national”, i.e. an Ethiopian who is perceived to have Eritrean origins (through her mother), who left Ethiopia for another country, is no longer determined by Ethiopia to be an Ethiopian national. This constitutes an arbitrary deprivation of her nationality, and renders her stateless.’109

(p.161) In the court’s view, the applicant would fear persecution by reason of her race and/or tribe and/or membership of a particular social group if she were to be returned to either Ethiopia or Eritrea; she therefore qualifies for refugee status.110

In the United States, courts have long acknowledged nationality as a ‘man’s basic right, for it is nothing less than the right to have rights’.111 In Haile v Holder, a case involving an Ethiopian citizen of Eritrean ethnicity threatened with ‘denationalization’ and expulsion to Eritrea who fled to the United States and claimed asylum, the US Court of Appeals for the Seventh Circuit rejected the ‘denationalization plus’ position of the Board, considering instead that the stripping of one’s nationality because of a Refugee Convention ground, even without more, constituted persecution.112 The Court considered that, just like the Nazi treatment of Jews, ‘his denationalization was persecution and created a presumption that he has a well-founded fear of being persecuted’.113

In a number of US cases, withdrawal of nationality was discussed but not decided, as the cases were referred back to the lower court, whose responsibility it is to determine the meaning of the term of ‘persecution’. Thus, the US Court of Appeals have remanded to the Board of Immigration Appeals a number of cases where the BIA had failed to consider whether the revocation of citizenship that led to the petitioner being stateless had been ethnically motivated and therefore constituted persecution (past and/or future).114 In Stserba v Holder, for instance, the Court held that ‘[a]lthough not every revocation of citizenship is persecution, ethnically targeted denationalization of people who do not have dual citizenship may be persecution’.115 It further held: ‘In recognition of each state’s sovereign right, denying citizenship to a noncitizen applicant is not necessarily persecution. There is, however, a “fundamental distinction between denying someone citizenship and divesting someone of citizenship”.’116

The Court considered denationalization resulting in statelessness to be an ‘extreme sanction’ and further held: ‘a person who is made stateless due to his or (p.162) her membership in a protected group may have demonstrated persecution, even without proving that he or she has suffered collateral damage from the act of denationalization’.117

In both Gebkirstos v Gonzales and Giday v Gonzales, the Courts stated that ‘a program of denationalization and deportation would indeed seem to constitute persecution’ and remanded to the BIA for reconsideration.118

Other cases where withdrawal of nationality leading to statelessness, on a ground protected by the Refugee Convention, was found to amount to persecution, without needing to show more in terms of additional harm, can be found in France, Germany, and New Zealand. For instance, the French Cour Nationale du Droit d’Asile (‘CNDA’) considered that a person’s statelessness constitutes persecution, where statelessness is the concrete legal consequence of a decision taken by the national authorities to deprive an applicant of his nationality and the act was undertaken on the basis of one of the grounds protected in the Refugee Convention.119 The German courts too have held deprivation of nationality to constitute a severe violation of human rights amounting to persecution, if based on a Convention ground.120 The Federal Administrative Court recalled its previous case law that withdrawal of citizenship may constitute persecution relevant to asylum because persecution is more than just interference with life, limb, and liberty.121 However, such an act is not persecution if it merely represents an administrative sanction for a breach of duty that applies to all citizens alike.122 Finally, in New Zealand, the RSAA has long acknowledged that statelessness can arise from nationality being withdrawn for discriminatory reasons,123 such as for reason of (lack of) nationality and membership of the social group of Bidoons.124

In Refugee Appeal No 76077, the NZ RSAA explained: ‘while it is one thing for a state to withhold nationality, it is quite a different matter when a state, having conferred nationality upon a person, then withdraws it by what in the case of the wife might be characterised, … as a “wilful act of neglect, discrimination or violation” ’.125

The NZ RSAA then held nationality to be ‘a matter of “profound significance” ’126 and with important and specific consequences, which it explained is the reason why (p.163) the state of Israel took the trouble to remove her nationality arbitrarily.127 It concluded that ‘the arbitrary revocation of the wife’s citizenship was for reason of her Christianity and specifically because she is a Messianic Jew’, and that ‘the serious harm to which she would continue to be exposed if she were to be returned to Israel is … for a convention ground, namely religion’.128

The reference to citizenship, or its withdrawal, being of ‘profound significance’ is worth reflecting on, as few cases have examined in depth why (or why not) deprivation of citizenship is in and of itself sufficiently significant to meet the persecution threshold. In one of the few exceptions to this phenomenon, in Stserba v Holder, referred to earlier in this section, the US Court of Appeals for the Sixth Circuit reflected on why revoking citizenship on account of ethnicity ‘may be persecution’,129 observing that ‘[r]egardless of the practical ramifications that befall a denationalized person, the inherent qualities of denationalisation are troubling’.130 Drawing on US constitutional jurisprudence that has considered revocation of citizenship as cruel and unusual punishment in contravention of the Eighth Amendment, the Court cited the US Supreme Court’s view that the essence of denationalization is ‘the total destruction of the individual’s status in organized society’; it is ‘a form of punishment more primitive than torture’.131

The German Federal Administrative Court has emphasized the fact that deprivation of citizenship ‘deprives the individual in question of his or her fundamental status as a citizen’;132 it ‘excludes him or her from the state’s system of protection and peace’.133

In a case concerning racial discrimination with respect to the conferral of nationality in the Dominican Republic, the Inter-American Court of Human Rights observed that it ‘considers that the failure to recognize juridical personality harms human dignity, because it denies absolutely an individual’s condition of being a subject of rights and renders him vulnerable to non-observance of his rights by the State or other individuals’.134

Such judicial reflection is consistent with the empirical research that has been undertaken and highlighted in recent years, as the international community has focused more intently on understanding the urgency of the need to address the plight of stateless persons. Gibney explains that by ‘taking away an individual’s citizenship, the state inflicts a kind of civic death upon one of its members’.135 Indeed, the evidence of those who are stateless suggests ‘daily indignities and suffering’,136 and ‘the devastating psychological toll of statelessness’,137 and suggests a strong desire to belong that has independent meaning and force from the consequential harm (p.164) caused by not having a nationality. Conversely, research carried out in relation to formerly stateless persons who have ultimately acquired citizenship has elicited evidence that interviewees were now ‘treated as a human being’, felt like ‘I exist’, and that their group could ‘recover their pride and self-respect’.138 This insight is not new: Hannah Arendt wrote not only of the ‘right to have rights’139 but also argued that ‘the loss of a polity itself expels him [man] from humanity’.140 Hence to cursorily dismiss the ‘enormity’ and ‘horrible punishment’141 that denationalization represents does not adequately account for and properly evaluate the weight of this human rights violation.

This is even more so when we consider that it is well-accepted refugee law doctrine that harm need not be physical; indeed, psychological harm may constitute persecution.142 Recognition of the ongoing serious harm caused by denationalization itself also obviates any concern that denationalization is relevant only to past persecution. As the German Federal Administrative Court has acknowledged, deprivation of citizenship ‘causes ongoing, significant harm to the individual concerned’.143 In a similar vein, the NZ RSAA observed that, ‘[t]he serious harm … is not confined to the moment when her citizenship was lost. The impact of that action endures.’144

We now turn to an examination of the refusal of the right to re-enter one’s country of former habitual residence as a separate element of persecution. Indeed, as observed by Stanley-Burton LJ, ‘[d]eprivation of nationality may lead to inability to return to one’s country of nationality, but they are not identical’.145

Part 3: Refusal to Re-Enter as Persecution

The question whether denial of re-entry can amount to persecution in the case of a stateless applicant for refugee status has been the subject of considerable discussion and jurisprudential analysis in recent years, yet there remains confusion in understanding the relevant human rights framework that underpins such cases. Moreover, scholarly analysis is very limited,146 albeit that recent work has acknowledged that ‘arbitrary exclusion of habitually resident stateless persons appears an area to which international refugee law may have greater relevance than has been acknowledged hitherto’.147 In this Part we examine the extent of such relevance.

(p.165) In Chapter 4 we explained that an inability to return does not, in the case of a stateless person, exclude the possibility of protection under the Refugee Convention. On the other hand, mere inability to return is not, in itself, intended to operate as the entirety of the criterion for refugee status in the case of stateless persons. In this Part, we explore a distinct issue, namely whether denial of entry to a stateless person (by the country of former habitual residence) may amount to persecution in a particular case.

Senior courts and tribunals in Australia, New Zealand, the US, the UK, Canada, Ireland, Germany, Austria, France, and Belgium have all decided cases on whether denial of the right to return (re-enter) constitutes persecution. Our analysis of this wide range of cases suggests that in many respects the above issues have been conflated. In particular, a finding that the presence of the semi-colon in Article 1A(2) does not mean that an inability to return automatically translates into qualification for refugee status148 has often been extrapolated into a conclusion that inability to return cannot amount to persecution.149 Yet as the Federal Court of Canada has recognized, ‘denial of a right to return may in itself constitute an act of persecution’.150

It is important to note at the outset that we are here not concerned with cases in which the applicant could have applied for the necessary travel document/s to allow him or her re-entry into the country of his or her habitual residence but failed to do so for no good reason (namely a reason not relevant to the Refugee Convention).151 In other words, we are not here concerned with a practical obstacle that can be removed. Rather, our focus is where the state of origin/former habitual residence has or will refuse entry.

At its heart, the confusion surrounding these issues in the refugee law context is grounded in the assumption that while citizens have a right to enter and return to their country of nationality, non-citizens have no such right.

This is highlighted in UK jurisprudence where, for example in Lazarevic v Secretary of State for the Home Department, it was acknowledged that if a state ‘arbitrarily excludes one of its citizens, thereby cutting him off from enjoyment of all (p.166) these benefits and rights enjoyed by citizens and duties owed by a State to its citizens, there is in my view no difficulty in accepting that such conduct can amount to persecution’.152

However, seldom are the courts ready to accept ‘a true analogy between a state’s denial of entry to one of its own citizens and denial of entry to a stateless person (who, unlike a citizen, has no right of entry into the country)’.153 This is said to be on the basis that, in the words of the UK Court of Appeal,

[t]he denial does not interfere with a stateless person’s right in the way that it does with the rights of a national. There is a fundamental distinction between nationals and stateless persons in that respect. It is one thing to protect a stateless person from persecutory return to the country of his former habitual residence (as the Refugee Convention does), but it would be quite another thing to characterise a denial of re-entry as persecutory. The lot of a stateless person is an unhappy one, but to deny him a right that he has never enjoyed is not, in itself, persecution. Stateless persons are themselves the subject of an international treaty, namely the Convention relating to the Status of Stateless Persons (1954).154

The problem is that this view is simply not accurate as a matter of international law. It is widely understood that citizens (including naturalized citizens) have the right to enter and return to their country of nationality.155 Accordingly courts have recognized that either a direct or indirect refusal, for example in the form of the discriminatory removal of identification documents, can constitute persecution within the meaning of the 1951 Refugee Convention if ‘done as it was with the motive of making it difficult for EB in future to prove her Ethiopian nationality’ and if done by the authorities.156 This is because the ability ‘freely to leave and freely to re-enter one’s country’ is considered a basic right.157

(p.167) Yet it is not the case that no parallel right exists in relation to non-citizens. Rather, Article 12(4) of the ICCPR is the key to a principled resolution of these issues because it explicitly extends the right to enter (and remain) to one’s own country, which is not restricted to one’s country of citizenship: ‘No one shall be arbitrarily deprived of the right to enter his own country.’ This guarantee—in the very widely ratified ICCPR—is perhaps the single most important provision touching on the refugee status of stateless persons and yet is rarely engaged or analysed in the refugee case law.158

In its General Comment No 27, the UN Human Rights Committee held exile from one’s own country to be prohibited by Article 12(4):

The right of a person to enter his or her own country recognizes the special relationship of a person to that country. The right has various facets. It implies the right to remain in one’s own country. It includes not only the right to return after having left one’s own country; it may also entitle a person to come to the country for the first time if he or she was born outside the country (for example, if that country is the person’s State of nationality). The right to return is of the utmost importance for refugees seeking voluntary repatriation. It also implies prohibition of enforced population transfers or mass expulsions to other countries.159

Most importantly, ‘his own country’ in the context of Article 12(4) ICCPR allows for a relevant link not dependent upon the possession of nationality or citizenship:

The scope of ‘his own country’ is broader than the concept ‘country of his nationality’. It is not limited to nationality in a formal sense, that is, nationality acquired at birth or by conferral; it embraces, at the very least, an individual who, because of his or her special ties to or claims in relation to a given country, cannot be considered to be a mere alien. This would be the case, for example, of nationals of a country who have there been stripped of their nationality in violation of international law, and of individuals whose country of nationality has been incorporated in or transferred to another national entity, whose nationality is being denied them. The language of article 12, paragraph 4, moreover, permits a broader interpretation that might embrace other categories of long-term residents, including but not limited to stateless persons arbitrarily deprived of the right to acquire the nationality of the country of such residence. Since other factors may in certain circumstances result in the establishment of close and enduring connections between a person and a country, States parties should include in their reports information on the rights of permanent residents to return to their country of residence.160

(p.168) Finally, the UN Human Rights Committee defined the concept of arbitrariness as follows:

In no case may a person be arbitrarily deprived of the right to enter his or her own country. The reference to the concept of arbitrariness in this context is intended to emphasize that it applies to all State action, legislative, administrative and judicial; it guarantees that even interference provided for by law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the particular circumstances. The Committee considers that there are few, if any, circumstances in which deprivation of the right to enter one’s own country could be reasonable. A State party must not, by stripping a person of nationality or by expelling an individual to a third country, arbitrarily prevent this person from returning to his or her own country.161

Thus, the right to return (and remain) of certain non-nationals to their own country or permanent home is guaranteed under Article 12(4).162 However, when:

the country of immigration facilitates acquiring its nationality, and the immigrant refrains from doing so, either by choice or by committing acts that will disqualify him from acquiring that nationality, the country of immigration does not become ‘his own country’ within the meaning of article 12, paragraph 4, of the Covenant.163

However although there are circumstances in which a state will not qualify as a person’s ‘own country’ for the purposes of Article 12(4), once it does so there are no defences or exceptions that would justify the violation of Article 12(4).164 This is because Article 12(3), which permits restrictions, applies only to Article 12(1) and (2), but not to Article 12(4).165

Hence the key questions in refugee law are whether (1) the attachment of the applicant to the country of former habitual residence is sufficient to have attained the status of ‘own country’; and (2) whether the denial of the right to return is arbitrary.

Since the UN Human Rights Committee issued the General Comment referred to above in 1999, it has continued to elucidate the scope and meaning of Article 12(4) through jurisprudence and concluding observations in relation to individual states parties. Such guidance may be of particular pertinence to refugee decision-makers in understanding and identifying the factors relevant to an assessment of (p.169) ‘own country’, as well as providing insight into the Committee’s views in relation to particular populations.

One particularly noteworthy decision is Nystrom v Australia, in which the Human Rights Committee took the view that the deportation of a Swedish national by Australia to Sweden was arbitrary, based on the strong and special ties he had with that country: he had a family in Australia, he spoke English, and he had stayed in the country virtually all his life. In contrast, the only tie he had with Sweden was that of nationality. Thus, his ‘own country’ was Australia and not that of his nationality.166

The Committee explained that ‘there are factors other than nationality which may establish close and enduring connections between a person and a country, connections which may be stronger than those of nationality’.167 The Committee indicated that relevant factors include ‘long standing residence, close personal and family ties and intentions to remain, as well as …the absence of such ties elsewhere’.168 This broader approach to interpreting Article 12(4) has been reiterated in subsequent decisions.169

While Stefan Lars Nystrom was not stateless, such a predicament would presumably have only served to strengthen his claim that Australia constituted his ‘own country’, given that the strong links to Australia would not in that case need to be balanced against the strength of connection to another country of nationality. Indeed, in the subsequent decision in Warsame v Canada, the fact that the applicant had no proof of any Somali citizenship such that he had a ‘lack of any other ties than at best formal nationality with Somalia’ was a persuasive factor in finding that Canada was his ‘own country’.170

The relevant factors identified above—‘close and enduring connections’, ‘long standing residence’, and ‘close personal and family ties’—are not trivial to satisfy. Yet given the fact that many of the world’s stateless persons have lived all or virtually all of their lives in their country of birth, it is clear that Article 12(4) has significant relevance to the refugee status determination of many of those stateless persons who seek protection outside their country of former habitual residence.

Once it has been concluded in a particular case that a country of former habitual residence constitutes the applicant’s ‘own country’, a refusal by that country of the right of the applicant to return is very likely to be arbitrary. This is because the Human Rights Committee has emphasized that there are ‘few, if any, circumstances (p.170) in which deprivation of the right to enter one’s own country could be reasonable’.171 And where there is evidence of discrimination, as is the case in many refugee claims, the deprivation is clearly arbitrary.

The question whether this human rights violation is sufficiently serious to constitute persecution has been less controversial in the case-law. In Vaca v Colombia, the Human Rights Committee explained that the violation of a person’s right to remain, return, and reside in her country under Article 12 ICCPR ‘necessarily has a negative impact on [her] enjoyment of the other rights ensured under the Covenant’.172

Accordingly, denial of the right to return has been found to be capable of constituting persecution for the purposes of refugee law in various jurisdictions, either as a matter of principle,173 or in fact in a particular case,174 although in some cases this is one factor among a range of human rights violations that together constitute persecution.175 Although rarely discussed in depth, it is manifest that denial of re-entry to the country in which one has established a home results in a range of consequential human rights violations that almost certainly constitute persecution. As emphasized by the Australian Tribunal in a case concerning a man of Nepali ethnicity who had been expelled from Bhutan—his country of former habitual residence—‘the applicant’s exclusion from the right to Bhutanese citizenship and the right to return to the country where his family had lived for generations, as well as all the (p.171) disadvantages that emanated from the depravation of these rights amount to persecution for the Convention reason of ethnicity’.176

In addition, such harm is clearly ongoing and forward-looking. As concluded by the NZ RSAA, in relation to stateless Palestinians who were unable to return to their country of former habitual residence, Saudi Arabia, the applicant’s ‘exclusion from Saudi Arabia, itself a form of persecution, is ongoing’.177 Similarly, in relation to the claim of an ethnic Rohingyan man from Myanmar, the NZ RSAA had no difficulty in finding, by reference to Article 12(4) of the ICCPR, that the ‘breach of these core human rights enshrined in Article 12 is sufficient on its own to constitute discrimination amounting to persecution’.178

In the United States, Deborah E Anker recounts that the issue was particularly acute in cases involving Palestinians during the Gulf War, an era that witnessed many Palestinians forcibly expelled and then denied re-entry to various countries of former habitual residence in the Middle East.179 She cites the Immigration and Naturalization Service (INS) General Counsel’s Memorandum, which stated that ‘expulsion or denial of reentry qualifies a person as a refugee eligible for asylum if the expulsion violates basic human rights and therefore amounts to persecution’.180

In Ireland, although the High Court accepts that practical obstacles alone are not sufficient for a stateless person who is unable to return to his or her country of former habitual residence to be considered a refugee, it nevertheless granted leave to bring judicial review on the ground that the reason the applicant was outside Kuwait was because he had been refused entry for a Refugee Convention reason, and this refusal itself may amount to ‘persecution’.181

(p.172) The UNHCR has observed that where a stateless individual has been ‘trafficked out of their country of habitual residence’,

the lack of documentation coupled with lack of citizenship may render them unable to secure return to their country of habitual residence. While this alone does not make someone a refugee, the individual concerned may be eligible for refugee status where the refusal of the country of habitual residence to allow re-entry is related to a Convention ground and the inability to return to the country leads to serious harm or a serious violation, or violations, of human rights amounting to persecution.182

Notwithstanding the acceptance that a denial of the right to return may constitute persecution, some decision-makers have dismissed refugee claims in this context due to a failure to establish a nexus between the denial of re-entry and a Refugee Convention ground. However, sometimes this conclusion flows from an erroneous assumption that non-citizens—even those who have lived in a state since birth—have no rights in relation to return.183 On such reasoning, ‘any difficulty in re-entering would be as a result of laws of general application’,184 ‘rather than any Convention ground’.185

On the other hand, in some cases the denial of re-entry has been linked to political opinion in the particular context of the applicant’s predicament,186 but in most cases race or ethnicity is said to account for the risk. For example, in the case of a Palestinian man denied re-entry to Gaza by the Israeli government, the Australian Tribunal observed that while it ‘is an arguable point as to whether the identity of Palestinian is a political, racial or national identity’, ‘in common usage it now overlaps with all three of these and so satisfies the requirement for a Convention ground to be made out’.187 However, an alternative ground may simply be nationality or (p.173) lack of nationality in such cases. In other words, if a person has a right to return to his or her own country and yet a state prohibits such return due to the applicant’s statelessness, then the risk of harm can be attributed to (lack of) nationality. To so conclude does not mean that any person who is unable to return to a country of former habitual residence is automatically a refugee, since the test for establishing ‘own country’ is likely to require a higher threshold than habitual residence. However, it remains an issue that warrants much closer and more thoughtful consideration in the refugee context.

In sum, we agree with the conclusion of Michelle Foster and James Hathaway that a correct application of Article 12(4) to the refugee context has the potential to ‘open the doors to refugee status for a significant subset of the stateless population’.188

Part 4: Denial of Civil and Political Rights as Persecution

This chapter has thus far considered the question whether the denial or withdrawal of nationality, or denial of the right to return, can constitute persecution for the purposes of the Refugee Convention. We now turn to consider the consequences of being stateless and begin with the denial of other civil and political rights. It is well documented that if returned to their country of origin or of former habitual residence, many stateless persons ‘face almost insurmountable obstacles to securing access to their rights, including birth certificates and other identity documents, education, worker rights, health care, freedom from arbitrary detention, family unity, and freedom of movement’.189 In the jurisprudence, violation of civil and political rights tantamount to persecution in relation to stateless persons typically involves physical injury, arrest, detention, and/or deportation/expulsion. In many cases, such violations occur in connection with denial or withdrawal of nationality, denial of the right to return, and/or denial of socio-economic rights as persecution. Hence, it is common to have one or more of these issues overlapping in the jurisprudence of national courts, and it is therefore sometimes difficult to assess the discrete issue of civil and political rights violations in a vacuum. However, we consider this issue discretely in this section in order to identify and analyse particular challenges that pertain to stateless persons when they raise these issues as part of a claim to refugee status.

Common types of treatment found to amount to persecution in the jurisprudence of domestic courts entail indignities and violence (e.g. harassment,190 beating and extortion, torture, kidnapping, killing) and/or arbitrary arrest and detention,191 (p.174) either on their own192 or taken cumulatively with, for instance, the requirement to carry an ID document (in the case of a stateless Faili Kurd in Iran193); the serious difficulties (high insecurity) associated with living in a refugee camp;194 travel restrictions, including restrained possibilities to leave the country;195 targeting by authorities based on national security concerns;196 the loss of all one’s belongings followed by expulsion;197 being stateless and deported;198 being stateless, dispossessed of property, and having housing destroyed.199 It is noteworthy that the majority of cases involving stateless applicants where denial of civil and political rights is found to amount to persecution, and indeed many of those involving socio-economic rights, concern Palestinians. Such cases may be complicated by the presence of Article 1D of the Refugee Convention, a potential ground of exclusion from Convention protection, but this is an issue that is explored in depth in Chapter 6. In (p.175) the remainder of this chapter we focus only on the question whether the feared harm amounts to persecution.

4.1 The role of nationality in the enjoyment of rights

In some instances, denial of a single civil and political right will be sufficient to trigger ‘persecution’. For instance, in Ouda v INS, the US Court of Appeals for the Sixth Circuit held that ‘[t]he mere fact that the Oudas were ordered by the government to leave Kuwait because they were perceived enemies of their country is sufficient alone to establish past persecution’.200 However, generally, more is needed.

In numerous cases, denial of civil and political rights has been found not to amount to persecution, based on what is arguably a narrow interpretation of which denials of rights rise to the level of persecution under the Refugee Convention. For instance, the Federal Court of Australia rejected the arguments put forward by the applicant that denial of the rights attached to nationality, such as the right to own a passport or personal ID card, the right to obtain a birth certificate (a violation of Article 8 CRC), the right to obtain a marriage certificate, the right to vote or participate in Iran’s political processes (a violation of Article 21 Universal Declaration of Human Rights (‘UDHR’) and Article 23 ICCPR), the right to seek a legal remedy before the law (a violation of Article 10 UDHR), the right to freedom of movement and residence etc., fell within the scope of Article 1A(2) of the Refugee Convention.201 The Court held:

To the extent that the nationality claims depend upon conventions [i.e. human rights treaties] other than the [Refugee] Convention, they were not within the range of matters required to be considered by the Reviewer. The way in which the nationality claims would be viewed, therefore, would be confined only to the denial of those basic services and economic hardship that threatened a person’s capacity to subsist.202

Although in part a reflection of the Australian legislative framework,203 the judgment is concerning for its failure adequately to engage with the ramifications for the stateless individual of what essentially amounts to a denial of legal personhood.

In another case, also involving a stateless Faili Kurd from Iran, the FFCA did not accept that ‘a restriction on movement was sufficiently serious to constitute persecution in a Convention sense’—the applicant was not able to move freely around Iran and was confined to a particular area.204 The fact that he was also discriminated (p.176) against in education, health care, and other areas did not alter this assessment.205 The Court furthermore agreed with the Australian Tribunal that the applicant had been seriously harmed in the past on two occasions for reasons of his ethnicity, but considered these incidents to have happened in the past and to have been the result of random encounters.206 Hence, no well-founded fear of persecution was found to exist.

The absence of physical injury, arrest, detention, or questioning is a powerful factor against a finding of persecution, even if discrimination and harassment exist.207 Sometimes even credible evidence of physical mistreatment (e.g. being hit and spit at, and being used as a human shield when searching neighbours’ houses) was not enough to amount to persecution; the treatments in question being described as ‘minor injuries’ and periods of detention as ‘brief’.208

In many respects, the assessment of whether certain violations are sufficiently serious so as to amount to persecution requires a similar analysis in every refugee claim, regardless of whether or not the applicant is stateless. However, one key issue that differentiates the claims of stateless applicants from those with a nationality is an explicit or implicit assumption by some decision-makers that because an applicant is stateless, he or she is not entitled to enjoy certain rights in the country of former habitual residence; hence on this reasoning the denial of such rights cannot amount to persecution.

In some cases in which harm is not considered sufficiently serious so as to amount to persecution, there appears to be an implicit assumption that stateless persons are not entitled to enjoy the same rights as citizens in their country of origin; hence some differential treatment is expected to be tolerated.

In other cases, the analysis is more explicit, in some instances following from an earlier conclusion that the lack of nationality is not itself persecutory because it is the result of non-discriminatory nationality laws. The reasoning appears to be that if an applicant is not entitled to obtain the nationality of the country of origin, he or she is equally devoid of an entitlement to rights protection in the home state. For example, in Ahmed v Ashcroft, the US Court of Appeals for the Third Circuit rejected the claim of a Palestinian man who had submitted that in Saudi Arabia—his country of birth and former habitual residence—he was subjected to a variety of restrictions including those on owning property or a business, unequal work rights, and restrictions on tertiary study, and security of residence. Rather than assessing the claim on the basis of whether these harms were human rights violations that constituted persecution, the Court affirmed the views previously expressed by courts in other US circuits that because the restrictions applied not just to ethnic Palestinians but more broadly to all foreigners, this was not a risk of being persecuted, since ‘[t]o find (p.177) persecution under these circumstances would require a finding that jus sanguinis is persecution per se’.209

Yet these are not at all synonymous points. Rather, as observed in Chapter 3, international human rights law is unequivocal in requiring states to respect and guarantee rights even in relation to non-citizens. In other words, the fact that a state may not be required to grant nationality to a particular individual does not remove all responsibility for the rights of that individual. Rather, Article 2 of the ICCPR obligates states to respect and ensure the rights in the Covenant to all people within a state’s territory and subject to its jurisdiction, ‘without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’, which the Human Rights Committee has clarified means that rights in the ICCPR are ‘not limited to citizens of States Parties but must also be available to all individuals, regardless of nationality or statelessness, such as asylum seekers, refugees, migrant workers and other persons, who may find themselves in the territory or subject to the jurisdiction of the State Party’.210 A person who has ‘found themselves’ in the territory by virtue of birth and/or long-standing residence is undoubtedly entitled to equal access to the rights in the Covenant.211 Importantly, the relevance of such widely ratified human rights treaties to the persecution analysis is sound notwithstanding that the home state in question may not be party to the relevant treaty. This is because reference to such treaties in the refugee context is for the purpose of illuminating the terms in the Refugee Convention, not in order to enforce other international treaties.212

4.2 Generalized harm

Another challenge that emerges in claims by stateless applicants is that courts have a tendency to conclude that ‘generally harsh conditions shared by many other persons’ does not amount to persecution, such as the treatment of Palestinians during the 1967 war and the destruction of thousands of their homes in 1976.213 Treatment (p.178) that affects all Palestinians or all non-nationals (i.e. generalized violence) is used in some jurisdictions to deny refugee status (e.g. Canada, United Kingdom) whereas in other jurisdictions the lack of a pattern of widespread treatment may be used against applicants (e.g. United States, United Kingdom).

Yet such interpretation is difficult to reconcile with accepted refugee law doctrine. The conventional approach is exemplified in the UNHCR Guidelines on International Protection No 12 on claims for refugee status related to situations of armed conflict and violence, which clearly contemplate persecution against whole communities or civilians generally.214

Finally, in terms of nexus, in cases where denial of civil and political rights was found to amount to persecution, one of the five grounds of the Refugee Convention was relied on (sometimes in combination) and accepted by courts, namely (imputed) political opinion, race, nationality/ethnicity (e.g. Palestinian), membership of a particular group, and religion. Hence this is an issue that rarely raised much discussion in the case law.215

Part 5: Denial of Socio-Economic Rights as Persecution

It has been observed that statelessness ‘may well be the most important factor making for economic harm’.216 There is clear and well-documented evidence of discrimination against and exclusion of stateless populations globally in the context of access to work, financial ownership, access to the housing market, social security and public education, and the frequently experienced social ostracism that is visited upon stateless people.217

Yet refugee claims by stateless persons rarely focus primarily, or even in some cases at all, on the socio-economic harm to which they would likely be subjected on return. Where socio-economic deprivation is raised in refugee claims by stateless applicants, it is most often combined with denials of civil and political rights, as is the case in many other contexts. One of the most common claims across multiple (p.179) jurisdictions relates to Palestinians living in refugee camps in, for example, Lebanon, where the threat of ill-treatment at checkpoints, arbitrary arrest, and detention, combined with severe discrimination, significant economic hardship, employment restrictions, extreme poverty, bans on buying property, and no access to public social services has been found to amount to persecution in several jurisdictions.218 Other successful cases have involved stateless Kurds from Syria, where denial of both civil and political rights and socio-economic rights taken cumulatively were found to amount to persecution.219

5.1 Socio-economic deprivation

In cases involving stateless Bidoon born in Kuwait, decision-makers have generally found undocumented (but not documented220) Bidoon to suffer treatment amounting to persecution on the ground that without documents, they cannot access any form of social services, including education, health care and benefits.221 Indeed in a decision of the UK Tribunal intended as a ‘country guideline’ decision, the Tribunal found that in Kuwait, ‘the authorities, having acted to exclude most Bedoon from Kuwaiti nationality and from lawful residence status, have then confined access to basic civil, political, social, economic and cultural rights to those having either Kuwaiti nationality or (as lawful residents) foreign nationality’.222

The Tribunal insisted on the importance of assessing state policy in relation to stateless populations in an historical context.223 In the case of Kuwait, the Tribunal found that the ‘steps taken by the Kuwaiti authorities to marginalize the Bedoon have been part of a deliberate state policy to drive large numbers of the Bedoon out of (p.180) the country’,224 and that the ‘dramatic fall’ in the number of Bidoon in Kuwait over preceding decades with ‘some 120,000 persons having left in circumstances often tantamount to forced deportation—speaks for itself’.225 The Tribunal bore in mind ‘that at international law the prohibition of forced deportation is widely considered to have the status of ius cogens’.226 In a more recent decision, the tribunal maintained that the treatment—mainly in the form of socio-economic deprivation—of undocumented Bidoon amounts to persecution, finding that the definition of persecution in Article 9 of the EU Qualification Directive accommodates discrimination,227 where measures involve ‘persistent and serious ill-treatment without just cause’,228 are ‘of a substantially prejudicial nature’, and ‘affect a significant part of the individual’s or group’s existence’.229 A similar analysis has been adopted in other jurisdictions in assessing identical claims, including in New Zealand, where the RSAA concluded that the accumulation of discriminatory measures against the Bidoon in Kuwait ‘effectively rendered [the applicant] a non-person in his own country’ and was clearly persecution.230

While the level of segregation and exclusion described by the UK Tribunal above in relation to undocumented Bidoon is not present in relation to every stateless population, it is also not confined to the situation of the Bidoon. Others include the response of Kuwait to the Gulf War, which entailed ‘embarking on a systematic effort to decrease its population of non-Kuwaiti residents’,231 with ‘Palestinians in particular … targeted’,232 notably through severe economic discrimination.233 A particularly poignant contemporary example is the treatment of the Rohingya in Myanmar, in which there is ‘an inextricable link between the serious discrimination, marginalization, denial of a wide range of basic rights, and the deprivation of citizenship’,234 and the forced deportation from August 2017.

One key challenge for stateless applicants is that often the very heart of the claim is founded on the deprivation of socio-economic rights yet, as has been analysed in previous scholarship, decision-makers have a tendency to undervalue the impact and significance of such harm on applicants as a general matter.235 Cases in this category are sometimes dismissed on the basis that the treatment feared is simply discrimination and/or harassment, rather than persecution.236

(p.181) For example, in cases involving stateless Palestinians living in refugee camps in Lebanon who suffer discrimination across a wide range of socio-economic rights but nonetheless have enough to eat, accommodation, access to basic education, and some health care, some decision-makers have found that they do not qualify for refugee status.237 In the words of the UK Upper Tribunal: ‘There has to be shown to be a severe deprivation with denial of shelter, food and the most basic necessities of life for the appeal to succeed.’238

In a different case, the UK Upper Tribunal considered that ‘[t]he difficulties faced by Palestinians in the Occupied Territories (economic situation, food insecurity travel restrictions etc) taken cumulatively are not such that the minimum level of severity for persecution or serious harm is reached’;239 this applies even in the case of a Palestinian male between sixteen and thirty-five who would have to endure greater travel restrictions and possible violence; for the Tribunal, the risk of being ‘stopped and subjected to persecutory ill-treatment remains speculative’.240

On the other hand, in some instances the assessment that severe socio-economic harm amounts only to discrimination and not persecution has been overturned on appeal.241 For example, in a refugee claim by a husband and wife who claimed (p.182) refugee protection based on their fear of persecution in Lebanon as stateless Palestinians, the Federal Court of Canada agreed with the appellant’s submission that ‘the stateless-Palestinians of Lebanon have been and continue to be the beneficiaries of an on-going cycle of exclusion, suffering, deplorable neglect, misery, insecurity and despair’,242 and were living in ‘abject poverty’.243 Yet it was ‘clear that the Panel simply did not carefully analyze the overwhelming documentary evidence in light of the particular circumstances of the Applicants’, and hence the decision was set aside by the Court.244

There are relatively few cases where the denial of socio-economic rights has been found to amount to persecution, individually or cumulatively, for this reason alone. This is partly due to the fact that, as mentioned above, most cases in reality involve a range of rights violations. However, it is also explained by a general failure across many jurisdictions adequately to understand the nature and importance of socio-economic rights.245 And yet the centrality of the denial of socio-economic rights to the plight of stateless persons in many contexts today is clear and indisputable. As the New Zealand Removal Review Authority has recognized, a person without a nationality may be ‘forced to lead a marginalised, impoverished and insecure existence’.246 Indeed, the UNHCR explains that the impact of such an existence may have intergenerational impacts, in observing ‘the fact of their marginalization—from education and livelihood, as well as restrictions on movement—may constitute the worst of the daily persecution [stateless persons] suffer, because they may create intergenerational extreme poverty and prevent stateless people from achieving any sort of economic stability’.247

A negative determination in cases involving socio-economic persecution in refugee law is sometimes based on the view that such rights are ‘third category rights’,248 a concept that mistakenly implies that socio-economic rights are normatively inferior, and hence their violation less significant, than ‘category 1 and 2’ civil and political rights.249 Yet this categorical and hierarchical approach to rights is out of step with contemporary international human rights norms that recognize the interdependence of all rights and the lack of a normative hierarchy.250 Indeed, the hierarchical approach to determining persecution in refugee law has been explicitly criticized in refugee jurisprudence in some jurisdictions.251

(p.183) There are, of course, numerous examples of progressive decision-making in which the potentially devastating consequences of the denial of socio-economic rights has been recognized and acknowledged. For instance, in El Himri v Ashcroft, the US Court of Appeal for the Ninth Circuit noted that, following the Gulf War, Palestinians who remained in Kuwait were ‘denied the right to work, to go to school, or even obtain drinking water’.252 Accordingly,

[e]ven if the El Himris were fortunate enough to avoid violent persecution upon their return to Kuwait, they would not be able to avoid the state-sponsored economic discrimination that has been enacted against Palestinians living in Kuwait since the end of the Gulf War. This court has held that extreme economic discrimination constitutes persecution.253

In another positive decision involving the same situation, the US Court of Appeals for the Sixth Circuit observed that following the Gulf War, the applicant’s father ‘was not allowed to return to work because he was a Palestinian who was perceived as supporting Iraq when he continued teaching during the war. Indeed, the Kuwaitis engaged in a general campaign to prohibit Palestinians from working, attending school, buying food, obtaining water or obtaining drivers’ licenses.’254

While as indicated above, decisions regarding Palestinians, whether residing in refugee camps or in an urban environment, produce mixed outcomes, there are numerous decisions that rely heavily on the socio-economic deprivation suffered by such applicants in concluding that refugee status is warranted. For example, refugee status was granted in Australia to a Palestinian from Lebanon because of the restrictions placed on his ‘ability to work in Lebanon which would cause him significant economic hardship and which … would impact on his ability to financially support himself, and also the other severe discriminatory measures imposed upon him because of his Palestinian ethnicity’.255 The Australian Tribunal found that the labour situation in Lebanon for Palestinians had not improved following the lifting of the ban of jobs available to Palestinians in 2005: ‘[a]lthough the applicant was able to get some education in Lebanon in the camp with the financial assistance of the UNRWA … [his] employment opportunities are/will be severely limited in his country’.256

Similarly, the Canadian Tribunal found that the stateless Palestinian applicant would experience in Lebanon ‘such concerted and severe discrimination, including deprivation of medical care, employment opportunities and adequate housing and food, so as to amount to persecution’.257

(p.184) In a different context in a case decided by the US Court of Appeals for the Sixth Circuit, it was the ‘sweeping limitations’ on the applicant’s profession as a paediatrician (i.e. the invalidation of her Russian diplomas), particularly where that profession is a highly skilled one in which the person invested education or training, that was considered to be persecution.258

In many cases, however, denial of socio-economic rights has not been found to amount to persecution. For instance, in a number of cases concerning stateless Faili Kurds in Iran, Australian courts have acknowledged that discrimination against Iran’s Kurdish minority is widespread. However, they concluded that no matter how difficult their life might be, the threshold of persecution is not met if evidence exists of access to education and health care in Iran, to some work albeit informally (e.g. as a shepherd), and to some finances (e.g. being able to fund travel to Australia).259 Thus, for the Australian courts/tribunals, one needs to establish that denial of social and economic rights would in the future result in ‘significant economic hardship, denial of access to basic services and denial of a capacity to earn a living’, threatening the applicant’s capacity to subsist.260 ‘Denial’ in this context is understood to mean a total lack of access to private health care,261 education,262 and employment (including unlawful employment).263

Even where an applicant may have been subjected to violations of civil and political rights as well as socio-economic deprivation, claims are not always successful. For example, in one case the applicant experienced detention and on a separate incident violence, yet these were dismissed as ‘isolated acts’ that did not indicate a ‘pattern of human rights abuses against ethnic Russians in Estonia’.264 In fact, ‘programs existed for integrating ethnic Russians into Estonia’ and no evidence existed that ‘the Estonian government would decline to protect their rights because (p.185) of their Russian ethnicity’.265 Hence, the treatment they feared was not persecution and refugee status was denied.

In sum, socio-economic deprivation is often the most devastating consequence of statelessness; hence refugee law’s historical failure adequately to accommodate claims anchored in socio-economic deprivation has been particularly detrimental to stateless persons seeking refugee protection. However an increasing willingness by many decision-makers to fully assess such claims, particularly in light of a more sophisticated and contemporary understanding of the nature and importance of socio-economic rights, suggests that there is yet capacity for refugee law to better protect stateless persons on the move.

5.2 The impact of statelessness on children

One particularly glaring gap in analysis is in relation to the impact of statelessness on children. Although statelessness ‘impacts especially negatively upon women and children’,266 in most refugee claims involving a stateless family, decision-makers fail to consider the impact of return on children independently of the adult family members. While research into the causes and ramifications of statelessness globally has increasingly identified childhood statelessness as a particularly urgent issue, this has received almost no recognition in the refugee context. The UNHCR’s research reveals that for children ‘not being recognized as a national of any country can create insurmountable barriers to education and adequate health care and stifle job prospects’,267 and a recent report highlights the ‘devastating psychological toll of statelessness’268 for young people. Similarly, an extensive study on stateless children by the Institute on Statelessness and Inclusion outlines in compelling detail the fact that for children the absence of nationality ‘is strongly correlated with serious rights violations and profound human suffering’.269 The impact of such deprivation is particularly acute in the case of children in light of their unique developmental needs and the often irreversible and enduring impact of childhood deprivation. As Laura van Waas and Amal de Chickera observe, ‘to be stateless as a child can stunt opportunity, erode ambition and destroy the sense of self-worth’.270 Yet, while it is increasingly accepted in refugee law jurisprudence that a child may ‘apprehend a level or degree of physical or psychological harm that will not qualify as persecution in the case of an adult but which may amount to persecution when considered from (p.186) the perspective of a child’,271 this insight has generally not been applied to refugee claims by stateless persons and in this regard represents an anomalous approach that is ripe for reconsideration by refugee decision-makers.

There is some limited guidance available, for example, the UNHCR’s ‘Guidelines on International Protection: Child Asylum Claims’ includes in its list of child-specific forms of persecution, ‘stateless children as a result of loss of nationality and attendant rights’.272 The Guidelines further observe that ‘a violation of an economic, social or cultural right may amount to persecution’273 and that this ‘could for instance, be the case where children with disabilities or stateless children lack access to birth registration and, as a result, are excluded from education, health care and other services’.274 This analysis was applied in a recent Australian Tribunal decision that overturned the initial rejection of the application for refugee status of a stateless woman from Lebanon and her stateless son. The Tribunal observed that due to Lebanon’s discriminatory nationality laws, the mother was unable to pass on her nationality to her son, who was thus stateless. The Tribunal found that the child ‘will be denied education, health care, residence, and work rights in Lebanon, as well as civil rights associated with nationality, such as the right to vote’.275 The Tribunal found that ‘the denial of health care and a right to work in Lebanon threaten the [child’s] capacity to subsist (the test in Australian law for persecution)’.276 The Tribunal further found that ‘the discrimination and restrictions the [child] will face in Lebanon amount to an intolerable situation for him there and should be considered serious harm [and hence persecution]’.277

In our view, consistent with this progressive Australian decision, closer attention needs to be paid by advocates and decision-makers to the distinct position of stateless or potentially stateless children should they be returned to their own or their parents’ country of origin.

5.3 Stateless persons as rights holders

Another particular challenge that has presented in some cases involving socio-economic rights deprivation in relation to stateless persons is reminiscent of the challenge identified earlier in relation to civil and political rights, namely the notion that as non-citizens, stateless applicants do not have an entitlement to socio-economic rights in their country of origin, and hence cannot claim to fear persecution on that basis.

(p.187) In some cases, decision-makers have queried, but not reached a definitive view on the scope of protection that should be afforded to stateless persons in their home country. For example, in assessing the refugee claim of a stateless Palestinian family from Jordan, the New Zealand RSAA observed, in relation to the children, that ‘being the dependent children of a Gaza-Palestinian, [they] do not have any right to acquire the citizenship status of their mother’, a Jordanian citizen,278 hence they would remain stateless. The refugee claim was based on the fact that, inter alia, ‘as stateless Palestinians in Jordan, each will face discrimination in accessing public services such as health and education’.279 However, the Tribunal observed that ‘caution here is warranted’,280 because ‘[t]he question arises as to what is the obligation of Jordan under the ICESCR [International Covenant on Economic, Social and Cultural Rights] towards the husband and the children as non-nationals’.281 The Tribunal cited academic authority that suggested that ‘the ICESCR does not embody a general norm of non-discrimination against aliens’,282 although also observed that ‘[t]his is not to say that foreign nationals are without any rights whatsoever’.283 Ultimately, the Tribunal found it was not necessary to ‘resolve the extent to which State parties owe obligations under the ICESCR to non nationals’,284 on the basis that the claim in relation to such rights was ‘entirely speculative’ in the case of the children.

In other cases, decision-makers have reached firmer (negative) conclusions, in some cases relying on Article 2(3) ICESCR, which provides that, ‘[d]eveloping countries, with due regard to human rights and their national economy, may determine to what extent they would guarantee the economic rights recognized in the present Covenant to non-nationals’. In the United Kingdom, the Tribunal has applied this provision in the context of Lebanon to conclude that ‘the treatment of aliens or stateless persons different from and less favourable than that accorded by the state to its own citizens, does not of itself amount to persecution’.285 This decision is open to criticism, however, on the basis that the correct interpretation of Article 2(3) was not analysed by the UK Tribunal at all, other than to call into question the applicant’s reliance on a UN Special Rapporteur’s view that ‘Article 2(3) must be narrowly construed’.286 The Tribunal observed that it was ‘not sure to what extent a report of the UN Special Rapporteur can be said to qualify or give binding guidance on the meaning of a provision in an international agreement’,287 yet did not consider the views of the UN Committee that can give such guidance or otherwise examine the issue.

(p.188) The Committee on Economic, Social and Cultural Rights has strongly affirmed the overarching principle of non-discrimination, in noting, in its General Comment No 20 on non-discrimination in economic, social, and cultural rights, that:

The ground of nationality should not bar access to Covenant rights, e.g. all children within a State, including those with an undocumented status, have a right to receive education and access to adequate food and affordable health care. The Covenant rights apply to everyone including non-nationals, such as refugees, asylum-seekers, stateless persons, migrant workers and victims of international trafficking, regardless of legal status and documentation.288

While this is clearly subject to Article 2(3), the travaux préparatoires of the ICESCR—a legitimate source of treaty interpretation289—reveals that Article 2(3) was inserted ‘to allow former colonies which had recently gained independence, and whose economies were consequently dominated by the influence of non-nationals, to protect the position of their nationals’.290 Hence it is indeed well accepted, as indicated by the UN Special Rapporteur cited above, that it ‘should be interpreted narrowly’.291 On its terms it is limited to economic rights—essentially employment—and, in any event, has never sought to be invoked by any country.292

In our view therefore, Article 2(3) cannot legitimately be relied upon to reject the refugee applications of stateless persons whose claim involves a violation of socio-economic rights regardless of the economic status of their country of origin. In other words, any assessment of the well-founded fear of persecution on return should be assessed in the same way as in any case—that is by reference to whether the potential harm amounts to persecution—and not by reference to an (incorrect) assumption that stateless persons are not entitled to enjoy human rights in their own country and therefore cannot be at risk of persecution for the purposes of refugee law.

In sum, in our view, the Refugee Convention is capable of accommodating a wider range of claims by stateless applicants than has been accepted by national courts to date. A greater understanding of the discrimination at the heart of the predicament of many stateless applicants, and that they are indeed rights holders at international law, would produce a more principled and inclusive application of the Convention.

In the final Part of this chapter we turn briefly to consider claims by stateless applicants for protection under complementary protection regimes that are based not on the Refugee Convention but other non-refoulement obligations at international law.

(p.189) Part 6: Complementary/Subsidiary Protection293

Several jurisdictions, including Member States of the European Union, Australia, New Zealand, the United States, and Canada, have in place provisions for complementary or subsidiary protection alongside those provisions for refugee status incorporating the 1951 Refugee Convention; these are based on the ICCPR, the Convention Against Torture (‘CAT’), the ECHR, or codifying state practice.294 How these provisions apply to stateless asylum applicants has so far remained largely unexplored. This section examines the relatively scarce case law on the subject and identifies areas for future judicial exploration and application.

With the exception of one case in which the Australian Tribunal considered that ‘the complementary protection provisions did not apply to the applicant’ because he was stateless,295 the general position of tribunals and courts is that stateless persons are eligible for complementary/subsidiary protection provided the necessary requirements are met.

In some respects, these requirements are less stringent than under the Refugee Convention. Indeed, a Refugee Convention nexus or reason for the harm feared is not required for complementary protection.296 Thus, in France subsidiary protection status for stateless persons is used where a risk of treatment contrary to Article 3 ECHR upon return exists but there is no Convention ground.297

Furthermore, the threshold of ‘degrading treatment or punishment’ in the ECHR and ICCPR appears to be lower (at least in theory) than that of persecution, as it includes, for instance, hardship.298 However, in practice, persecution (under the Refugee Convention) and serious harm (under complementary/subsidiary protection) is often equated, which can lead to two results: (1) undocumented Bidoon from Kuwait, Kurds from Syria, or stateless Palestinians from Iraq, having their (p.190) appeals against decisions refusing them refugee status and subsidiary protection status normally allowed;299 or (2) some tribunals struggling to recognize that the criteria for complementary/subsidiary protection are met once the refugee criteria have failed (e.g. in Australia300 or in the United Kingdom301). And indeed, scarce are the cases granting complementary/subsidiary protection where refugee protection has failed.

The requirements for complementary/subsidiary protection are also more stringent than those for refugee protection. Indeed, removal must be imminent before a violation of a provision of the ICCPR, CAT, or the ECHR upon return can be found (i.e. the applicant needs to be a ‘victim’).302 As a result, the issue of whether serious obstacles exist to re-admission remains central to the question of whether there is a real risk of serious harm.303 This is not the case in refugee law, where an inability to return does not, in the case of a stateless person, exclude the possibility of protection under the Refugee Convention.304

Finally, it is important to remember that complementary protection provides protection against refoulement only; it does not guarantee a legal status (e.g. refugee status under the Refugee Convention or subsidiary protection status under the EU Qualification Directive305), unless this exists in domestic law.

Be that as it may, protection against refoulement in international human rights law is absolute, which means that no contracting parties to the ECHR, ICCPR, or CAT can return a stateless person to a country where they may be tortured (or subjected to other ill-treatment), even if they constitute a risk to the national security or public order of the country or community in which they seek protection. In contrast, Article 1F of the Refugee Convention (or Article 12 of the 2011 EU Qualification Directive) allows for exclusion from refugee status on certain grounds. Article 33(2) further permits states to ‘refouler’ a person to a country where their life or freedom (p.191) may be threatened if they constitute a danger to the security of the country or the community of that country. No such limitations exist in international human rights law treaties.306 For instance, in Auad v Bulgaria, a case involving a stateless person of Palestinian origin who had been granted humanitarian protection but was subsequently issued with an order for expulsion for being a suspected terrorist, the European Court of Human Rights (‘ECtHR’) noted that national security considerations were irrelevant; the relevant issue was whether his expulsion would give rise to a real risk of ill-treatment.307

Thus, provisions protecting against torture, inhuman or degrading treatment, or punishment are highly relevant in the context of the expulsion of stateless persons. The Austrian Constitutional Court has ruled that where a person is stateless and his only real ties are with the country in which he was born and has lived all his life, legislation and/or practice that would allow the expulsion of such a person, on grounds of criminal conviction, to the country of nationality of his mother or father would violate Article 3 ECHR, and would remain unlawful until such a time as the person concerned has managed to acquire the nationality of another country.308 Similar rulings exist in Belgium, where orders to leave the territory have been annulled on the ground that being stateless constitutes ‘exceptional circumstances’ against the rule that a person must normally apply for a residence permit from their country of origin or residence abroad.309

In most cases where complementary/subsidiary protection was discussed, the treatment faced by stateless applicants was found not to meet the requisite threshold, namely real risk of serious harm. These cases can be grouped into three categories.

The first group concerns cases in Australia where the treatment feared must amount to ‘extreme humiliation’, which is defined in s 5(1) of the Migration Act 1958 (Cth) as ‘[a]n act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable’.310 As a result, the discriminatory treatment faced by stateless Bidoon in Iraq or Kuwait was found not to amount to ‘significant harm’, even when taken cumulatively.311 The Federal Circuit Court of Australia further accepted that ‘in some circumstances discrimination on the grounds of race could be inherently degrading and capable of amounting to extreme humiliation’,312 begging (p.192) the question why it failed to recognize this to be the case in all circumstances, considering that the norm against racial discrimination has been recognized by the International Court of Justice to be an obligation erga omnes.313

The second group concerns stateless applicants who are found not to meet the requisite threshold to constitute serious harm in the event of an expulsion because they fled a situation of generalized violence.314 In Europe, only the most extreme cases of general violence would give rise to such treatment.315

The third group concerns applicants in the United States who, if they fail in their application for asylum, then necessarily fail to satisfy the more stringent standard of proof for withholding of removal under the Immigration and Nationality Act (which corresponds to Article 33 of the Refugee Convention).316 In addition, because applicants usually rely on the same evidence to support their claim of protection under the CAT (i.e. risk of torture), these also fail because the US courts require that ‘it is “more likely than not” that [the applicant] herself would be subject to such treatment’.317

A particularly important point is that, as highlighted in Chapter 3, no international court has so far recognized arbitrary deprivation of nationality itself or indeed statelessness, as amounting to inhuman or degrading treatment under Article 3 ECHR.318 Rather, related acts such as detention or risk of expulsion that could be connected to statelessness have been found to violate Article 3 ECHR.319 The same is true of national courts.320 This is surprising in light of the increasing recognition both of the international human rights law constraints on state discretion in relation to the denial or deprivation of nationality and the very significant consequences of being denied or deprived of a nationality. Hence, in our view, there is great scope for strategic litigation based on Article 3 ECHR, for example to explore the ambit of protection that may be afforded stateless persons from return under complementary protection regimes.

(p.193) Part 7: Conclusion

In this chapter we have examined in depth the question that is widely understood to constitute the heart of the refugee claim, namely whether the harm feared on return constitutes persecution for the purposes of the Refugee Convention. We have analysed both harm that is particular to stateless persons, connected to the lack of nationality itself, and harm that also befalls a wider range of applicants, analysing the latter through the prism of the particular challenges that stateless applicants face in litigating their refugee claims. Our analysis of jurisprudence across a wide range of jurisdictions suggests that while some courts have taken into account wider developments in international law, especially human rights law, to assess properly the predicament of stateless persons, there has been a tendency in many cases for decision-makers to dismiss claims based on incorrect assumptions about the entitlement of stateless persons to enjoy a wide range of human rights. There is therefore in our view great scope for more progressive and principled application of the Refugee Convention to stateless persons, consonant both with developments in the wider system of international law and with the international community’s greater understanding and insight into the human rights violations faced by stateless persons today.

Notes:

(1) Maryellen Fullerton, ‘Comparative Perspectives on Statelessness and Persecution’ (2015) 63 UKanLRev 863, 864. She goes on to explain that the limited case law leaves ‘a multitude of issues yet to be addressed’: at 899.

(2) This chapter, particularly in Parts 1 and 2, builds on a pilot study by Hélène Lambert, United Nations High Commissioner for Refugees (‘UNHCR’), ‘Refugee Status, Arbitrary Deprivation of Nationality, and Statelessness within the Context of Article 1A(2) of the 1951 Convention and its 1967 Protocol relating to the Status of Refugees’ (UNHCR Legal and Protection Policy Research Series PPLA/2014/01, October 2014). See also Hélène Lambert, ‘Comparative Perspectives on Arbitrary Deprivation of Nationality and Refugee Status’ (2015) 64 ICLQ 1.

(3) James C Hathaway and Michelle Foster, The Law of Refugee Status (2nd edn, CUP 2014) (hereafter Hathaway and Foster, The Law of Refugee Status 2), 397–99. Although see Australian Refugee Review Tribunal (‘Australian Tribunal’) decision 1114181 [2013] RRTA 2 (4 January 2013) (hereafter 1114181).

(4) For instance, in SZPZI v Minister for Immigration & Anor [2011] FMCA 530 (22 July 2011) (hereafter SZPZI) the Federal Magistrates Court of Australia found that the tribunal had fallen into error in failing to consider whether the group ‘undocumented residents’ constituted a social group for the purposes of the Refugee Convention: at [50], [52]–[54]. In 1000094 [2010] RRTA 277 (16 April 2010) (hereafter 1000094) the Australian Tribunal found the stateless applicant to fall within the particular social group ‘Palestinian refugees in Lebanon’: at [157]–[158].

(5) Refugee Appeal No 72635 [2002] NZRSAA 344 (6 September 2002) [152] (hereafter Refugee Appeal No 72635): ‘The Refugee Convention distinguishes sharply between stateless persons and refugees.’

(6) Refugee Appeal No 73861 [2005] NZRSAA 228 (30 June 2005) [58] (hereafter Refugee Appeal No 73861).

(7) In N99/31199 [2000] RRTA 1058 (20 November 2000) (hereafter N99/31199) the Australian Tribunal found that the deprivation of citizenship by the Kuwaiti government in relation to the Bidoon applicant ‘would not be a result of persecution by the Kuwaiti State but because, through an accidental combination of missed opportunities, the applicant is stateless’.

(8) In N99/31199, the Australian Tribunal also referred to the applicant’s predicament as resulting from ‘an unfortunate combination of circumstances’.

(9) Refugee Appeal Nos 73861, 73862 [2005] NZRSAA 228 (30 June 2005) [58] (hereafter Refugee Appeal Nos 73861, 73862).

(10) Refugee Appeal 74880 [2005] NZRSAA 294 (29 September 2005) [75] (hereafter Refugee Appeal No 74880).

(11) ibid.

(12) Michelle Foster and Hélène Lambert, ‘Statelessness as a Human Rights Issue: A Concept Whose Time Has Come’ (2016) 28 IJRL 564 (hereafter Foster and Lambert, ‘Statelessness as a Human Rights Issue’); Rosemary Byrne, ‘James C. Hathaway and Michelle Foster. The Law of Refugee Status’ (2015) 26 EJIL 564.

(13) Committee on Feminism and International Law, ‘Final Report on Women’s Equality and Nationality’ (International Law Association Conference, London, 2000) 10. See also Warren CJ, dissenting, in Perez v Brownell (1958) 356 US 44, 64 (hereafter Perez v Brownwell) (nationality ‘is nothing less than the right to have rights’).

(14) See account by Eric Fripp, Nationality and Statelessness in the International Law of Refugee Status (Hart 2016) 313–16 (hereafter Fripp, Nationality and Statelessness). We acknowledge that the second edition of Hathaway and Foster, The Law of Refugee Status (n 3) discusses these issues in the context of freedom of movement, but we contend that there is a need to focus on deprivation itself as the issue.

(15) N99/31199 (n 7); Abauaelian v Gonzales, 132 Fed Appx 121 (9th Cir, 2005).

(16) BA v Secretary of State for the Home Department [2004] UKIAT 00256 (hereafter BA).

(17) ibid, [62].

(18) ibid, [63]. We note that no authority was cited. The United Kingdom Asylum and Immigration Tribunal (‘UK Tribunal’) did, however, consider the applicants at risk of persecution in relation to the other rights that would be affected. See below at n 59.

(19) X (Re), 2002 CanLII 52637 (CA IRB) 3 (emphasis added).

(20) ibid, 3.

(21) Refugee Appeal No 72635 (n 5) [70], and that it ‘is not necessary in the present context to determine what limits international law places on the right of States to regulate nationality’: at [73].

(22) ibid, [83].

(23) ibid, [90].

(24) SZTFX v Minister for Immigration and Border Protection [2015] FCA 402 (30 April 2015) [47] (hereafter SZTFX).

(25) Convention on the Elimination of Discrimination Against Women (opened for signature 1 March 1980, entered into force 3 September 1981) 1249 UNTS 13 (emphasis added).

(26) UNHCR, ‘Background Note on Gender Equality, Nationality Laws and Statelessness 2018’ (8 March 2018) 2 (hereafter UNHCR, ‘Background Note on Gender Equality’). For a history of gendered exclusions from citizenship, see Leti Volpp, ‘Feminist, Sexual and Queer Citizenship’ in Ayelet Shachar, Rainer Bauböck, Irene Bloemraad, and Maarten Vink (eds), The Oxford Handbook of Citizenship (OUP 2017) 53.

(27) UNHCR, ‘Background Note on Gender Equality’ (n 26) 2.

(28) International Convention on the Elimination of All Forms of Racial Discrimination (adopted 21 December 1965, entered into force 4 January 1969) 660 UNTS 195, art 5(d)(iii).

(29) ibid (emphasis added). ‘Nothing in this Convention may be interpreted as affecting in any way the legal provisions of States Parties concerning nationality, citizenship or naturalization, provided that such provisions do not discriminate against any particular nationality’: art 1(3).

(30) UNHCR, ‘CERD General Recommendation XXX on Discrimination against Non-Citizens’ (1 October 2002) para 13.

(31) See UN General Assembly (UNGA), ‘Report of the International Law Commission on the Work of its Fifty-Third Session’ UN GAOR 53rd Session Supp No 10 UN Doc A/56/10 (Commentary to Draft Article 26 on Responsibility of States for Internationally Wrongful Acts) (2001) ch IV(E)(2) 85 para 5, in which the International Law Commission (‘ILC’), in unequivocal terms, states that those ‘peremptory norms that are clearly accepted and recognized include the prohibitions of aggression, genocide, slavery, racial discrimination, crimes against humanity and torture, and the right to self-determination’.

(32) International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171, art 26.

(33) Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3, art 2(1) and 7(1) (emphasis added).

(34) American Convention on Human Rights (adopted 22 November 1969, entered into force 18 July 1978) 1144 UNTS 123, art 20(1). Article 20 also states: ‘2. Every person has the right to the nationality of the state in whose territory he was born if he does not have the right to any other nationality. 3. No one shall be arbitrarily deprived of his nationality or of the right to change it.’

(35) African Charter on Human and Peoples’ Rights (adopted 27 June 1981, entered into force 21 October 1986) 1520 UNTS 217, art 3.

(36) Article 9 of the Qualification Directive mentions the European Convention but not in an exclusive manner: Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (recast) [2011] OJ L 337/9, art 9(1)(a) (hereafter Qualification Directive 2011/95/EU). Further, the Directive is clear that is it ‘based on the full and inclusive application of the Geneva Convention of 28 July 1951 relating to the Status of Refugees’: at [3].

(38) BZADW v Minister for Immigration and Border Protection [2014] FCA 541 (26 May 2014) [21] (hereafter BZADW). See also 071626084 [2007] RRTA 304 (21 November 2007) 25 (hereafter 071626084). This explains the divergence between the New Zealand Refugee Status Appeals Authority’s (‘RSAA’) decision in Refugee Appeal No 72645/01 [2001] NZRSAA 298 (24 September 2001) and Refugee Appeal No 74467 [2004] NZRSAA 283 (1 September 2004) (hereafter Refugee Appeal No 74467) as discussed below. See at [100]: ‘Our divergence is not one of principle so much as a different perspective on the historical/factual background.’

(39) UNHCR, ‘ “This Is Our Home” Stateless Minorities and Their Search for Citizenship’ (November 2017) Preface (hereafter UNHCR, ‘This Is Our Home’).

(40) ibid.

(41) ibid, 6.

(42) ibid; Burma Citizenship Law (Myanmar) Pyithu Hluttaw Law No 4 of 1982, 15 October 1982 [Chairman of the Council of State (Burma) trans, Working People’s Daily, 16 October 1982].

(43) UNHCR, ‘This Is Our Home’ (n 39) 1.

(44) See e.g., the explanation of the origin of the term set out in BA (n 16) [5].

(45) Refugee Appeal No 72635 (n 5).

(46) ibid, [182]–[183], as cited in Refugee Appeal No 74467 (n 38) [84]. This was also applied so as to reject the application in a similar fact case in Refugee Appeal No 74449 [2003] NZRSAA 332 (26 August 2003) [50] (hereafter Refugee Appeal No 74449).

(47) NM v Secretary of State for the Home Department [2013] UKUT 356(IAC) [96] (hereafter NM).

(48) ibid, [97].

(49) ibid.

(50) ibid, [8].

(51) ibid, [47].

(52) X (Re), 2014 CarswellNat 5790, 5791 [20].

(53) ibid, [20], [26].

(54) ibid, [20].

(55) N99/31199 (n 7) (emphasis added). We note that this reluctance to see the discriminatory basis of Kuwaiti citizenship law also appears to have been the approach taken by the Australian Tribunal and upheld by the Federal Court in BZADW (n 38) [21].

(56) In particular, decision-makers often ‘gloss over’ the evidence of discrimination. See e.g., in relation to the claim of a Palestinian stateless man from Lebanon, and his wife who based her claim on her marriage to a stateless person, where the Canadian Tribunal considered the gender discrimination central to Lebanese citizenship laws which prevented her citizenship passing to her husband, but concluded that that this was ‘a law of general application’: GRF(Re), Nos AAO-01454, AAO-01462, AAO-01463 [2001] CRDD No 88 (12 July 2001) 11. See also Fedosseeva v Gonzales, 492 F 3d 840 (7th Cir, 2007), in which the Seventh Circuit Court rejected the applicant’s argument that Latvia’s failure to accord her citizenship due to her Russian ethnicity was discriminatory, on the basis of ‘significant changes’ that had occurred in Latvia, including ‘its admission to the European Union and NATO and an increase in the number of Russian members of the Latvian parliament’: at 848. However, as in the Bidoon case described above, this appears to rely on sui generis developments at the expense of a close analysis of the application of nationality laws in the particular case.

(57) Refugee Appeal No 74467 (n 38) [87].

(58) ibid, [87].

(59) ibid, [88]. See also BA (n 16), in which the UK Tribunal acknowledged that ‘in Kuwait the authorities, having acted to exclude most Bedoon from Kuwaiti nationality and from lawful residence status, have then confined access to basic civil, political, social, economic and cultural rights to those having either Kuwaiti nationality or (as lawful residents) foreign nationality’: at [64].

(60) Refugee Appeal No 74467 (n 38) [90].

(61) ibid, [94].

(62) 1617142 (Refugee) [2017] AATA 990 (7 June 2017) [52] (hereafter 1617142).

(63) ibid, [68].

(64) ibid, [69].

(65) Refugee Appeal No 72635 (n 5) [183], citing Ad Hoc Committee on Refugees and Stateless Persons, ‘A Study of Statelessness’ (1949) E/1112.

(66) UN Committee on the Elimination of Racial Discrimination (‘CERD’), ‘Concluding Observations on the Combined Twenty-First to Twenty-Fourth Periodic Reports of Kuwait’ (19 September 2017) UN Doc CERD/C/KWT/CO/21–24, paras 27–28.

(67) Another very prevalent case study is Palestinian applicants from various countries in the Middle East that apply jus sanguinis and hence do not grant citizenship to Palestinians. In these cases, decision-makers generally reject claims: see e.g., Ahmed v Ashcroft, 341 F 3d 214 (3rd Cir, 2003), applying Faddoul v INS, 37 F 3d 185 (5th Cir, 1994) (hereafter Faddoul) and Najjar v Ashcroft, 257 F 3d 1262 (11th Cir, 2001). See also Elfarra v Ashcroft, 88 Fed Appx 141 (8th Cir, 2004) (hereafter Elfarra).

(68) AB v Secretary of State for the Home Department [2005] UKIAT 00046 (1 February 2005) [35] (hereafter AB). They were nevertheless granted leave to remain by the Secretary of State because there was no realistic prospect of return to any part of the Occupied Territories. See also SHM v Refugee Appeals Tribunal [2009] IEHC 128; KK IH HE v Secretary of State for the Home Department [2004] UKIAT 00293 (hereafter KK); MM and FH v Secretary of State for the Home Department [2008] UKAIT 00014 (hereafter MM and FH) reaffirming KK.

(69) Refugee Appeal No 1/92 Re SA [1992] NZRSAA 5 (30 April 1992) (hereafter Refugee Appeal No 1/92), citing JC Hathaway, The Law of Refugee Status (Butterworths 1991) 144.

(70) Refugee Appeal No 1/92 (n 69).

(71) ibid.

(72) ibid. The NZ RSAA further explained that states may derogate from certain human rights (including the right to nationality) in situations of emergency provided the derogation measures respect the principles of proportionality, non-discrimination, and consistency, although this is questionable as a matter of international law and no clear authority supports this position. The Tribunal found the appellant’s fear of persecution to be unfounded.

(73) Cour Nationale du Droit d’Asile [French National Court of Asylum] (‘CNDA’), decision no°11030207 C+, 22 May 2014.

(74) BZADW (n 38) [21]. See also JV (Tanzania) v Secretary of State for the Home Department [2007] EWCA Civ 1532 [10] (hereafter JV (Tanzania)): a denial of citizenship ‘may amount to persecution’ if ‘the denial is actuated for a Convention reason’.

(75) United Kingdom: JV (Tanzania) (n 74): a denial of citizenship may amount to persecution only if the denial is for a Refugee Convention reason; hence, in all such cases, a judge would be asking the key question: ‘why did the Tanzanian authorities deny the appellant’s claim to Tanzanian citizenship?’. If the answer to that question is that ‘the appellant’s claim was denied because of the authority’s [erroneous] interpretation of the legislation and not for any other, certainly not for any capricious or discriminatory reason’, then the ‘case should be struck down as frankly perverse’: at [10]. Germany: Oberverwaltungsgericht Sachsen-Anhalt [German High Administrative Court], 3 L 374/09, 25 May 2011 (translated summary from European Database of Asylum Law): the denial of nationality may only constitute political persecution if it is linked with characteristics relevant to asylum. The denial of nationality which merely represents an administrative sanction for a breach of duty that is incumbent on all citizens alike cannot be considered a persecution. France: CNDA, decision no°10015655 C, 5 January 2011 ((hereafter Decision no°10015655 C) (refugee status granted to a Rohingya from Myanmar (Burma) based on the legislation in force since 1982, which denies Rohingya of their citizenship rights, coupled with the ill-treatment of Rohingya (as an ethnic group) by the Burmese authorities); CNDA, decision no°640897/08021356, 14 December 2009 Mlle H (hereafter Decision no°640897/08021356) (refugee status granted based on the refusal of the Russian authorities to grant nationality to an (orphan) stateless person from North Korea because of her ethnicity, coupled with her ill-treatment for many years).

(76) JV (Tanzania) (n 74) [10].

(77) BA (n 16) [63].

(78) See for instance, 071626084 (n 38).

(79) Refugee Appeal No 76254 [2008] NZRSAA 82 (16 September 2008) [34] (hereafter Refugee Appeal No 76254).

(80) See Decision no°10015655 C (n 75), finding that the applicant had a well-founded fear in Myanmar ‘on the basis of his ethnicity owing to the personalized persecution he was victim to, as well as the law in force since 1982 which denies Rohingya of their citizenship rights and the treatment of Rohingya by the Burmese authorities’. See also Decision no°640897/08021356 (n 75).

(81) See Jason Pobjoy, The Child in International Refugee Law (CUP 2017) 101–57 (hereafter Pobjoy, The Child in International Refugee Law).

(82) As the US Court of Appeals for the Seventh Circuit noted in Giday v Gonzales, 434 F 3d 543 (7th Cir, 2006) (hereafter Giday), there is a ‘distinction between denying citizenship to a non-citizen resident and stripping a person of citizenship already attained’: at 554, citing Haile v Gonzales, 421 F 3d 493, 496 (hereafter Haile v Gonzales).

(83) See e.g., Deborah E Anker, Law of Asylum in the United States (Thomson Reuters 2017) 356–57 (hereafter Anker, Law of Asylum in the United States 2017).

(84) Haile v Gonzales (n 82).

(85) ibid, 494.

(86) On appeal, the US Court of Appeals for the Seventh Circuit noted that the Immigration Judge had relied on a Fifth Circuit decision in Faddoul (n 67) and also De Souza v INS, 999 F 2d 1156 (7th Cir, 1993): see Haile v Gonzales (n 82) 496, but emphasized that those cases involved denial not deprivation of citizenship.

(87) Haile v Gonzales (n 82) 494 (emphasis in original).

(88) ibid, 496 (emphasis omitted).

(89) ibid.

(90) ibid. See also Giday (n 82) 554, in which the Seventh Circuit discussed Haile v Gonzales with approval. For academic literature on the persecutory nature of the Ethiopian Government’s actions, see John Campbell, ‘The Enduring Problem of Statelessness in the Horn of Africa: How Nation-States and Western Courts (Re)Define Nationality’ (2011) 23 IJRL 656.

(91) Haile v Gonzales (n 82) 496, citing Open Society Justice Initiative, ‘Statelessness, Discrimination and Denationalization: Emerging Problems Requiring Action’ (29 April 2005). We note that in this case the Court remanded the case to be assessed according to the Court’s reasoning; hence a final decision on the merits was not issued by the Seventh Circuit.

(92) Jourbina v Holder, 532 Fed Appx 1 (2nd Cir, 2013) 2 (hereafter Jourbina). The case was on this basis (and others) remanded for reconsideration.

(93) There is now a considerable body of scholarship examining recent legislative changes: see e.g., Matthew Gibney, ‘ “A Very Transcendental Power”: Denaturalisation and the Liberalisation of Citizenship in the United Kingdom’ (2013) 61 Political Studies 637; Matthew Gibney, ‘Should Citizenship Be Conditional? The Ethics of Denationalization’ (2013) 75 Journal of Politics 646; Audrey Macklin, ‘Citizenship Revocation, the Privilege to Have Rights and the Production of the Alien’ (2014) 40 Queens LJ 1; Sandra Mantu, ‘ “Terrorist’ Citizens and the Human Right to Nationality’ (2018) 26 Journal of Contemporary European Studies 28; Sangeetha Pillai and George Williams, ‘Twenty-First Century Banishment: Citizenship Stripping in Common Law Nations’ (2017) 66 ICLQ 521; Rayner Thwaites ‘The Security of Citizenship?: Finnis in the Context of the United Kingdom’s Citizenship Stripping Provisions’ in Fiona Jenkins, Mark Nolan, and Kim Rubenstein (eds), Allegiance and Identity in a Globalised World (CUP (2014) 243.

(94) Audrey Macklin, ‘Introduction’ in Audrey Macklin and Rainer Bauböck eds, The Return of Banishment: Do the New Denationalisation Policies Weaken Citizenship (EUI Working Papers 2015) 1. This also raises additional international law concerns, see Guy Goodwin-Gill, ‘Deprivation of Citizenship Resulting in Statelessness and its Implications in International Law’ (Opinion Piece, 12 March 2014); Guy Goodwin-Gill, ‘Deprivation of Citizenship Resulting in Statelessness and its Implications in International Law: Further Comments’ (6 April 2014) <https://www.law.oxoac.u/research-and-subject-groups/human-rights-law/publications?page=10> accessed 9 December 2018.

(95) Matthew J Gibney, ‘Denationalization’ in Ayelet Shachar, Rainer Bauböck, Irene Bloemraad, and Maarten Vink (eds), The Oxford Handbook of Citizenship (OUP 2017) 359. See further his discussion of denationalization’s history at 364–67 (hereafter Gibney, ‘Denationalization’).

(96) See Chapter 3, Part 2.3.1.4.

(97) Convention on the Reduction of Statelessness (adopted 30 August 1961, entered into force 13 December 1975) 989 UNTS 175, arts 5, 6, 7(hereafter 1961 Convention).

(98) However, we note that the decision of the UK Supreme Court in Pham v Secretary of State for the Home Department [2015] UKSC 19 reveals how illusory this protection may be if two countries effectively engage in a ‘race to denationalize’. Lucia Zedner explains that although in the UK ‘resort to citizenship deprivation and deportation by the UK government has increased very rapidly’, the government is careful to point out that ‘all were considered to have another alternative nationality’: ‘Citizenship Deprivation, Security and Human Rights’ (2016) 18 EJML 222, 231.

(100) See e.g., the argument put by Tufyal Choudhury in ‘The Radicalisation of Citizenship Deprivation’ (2017) 37 Critical Social Policy 225.

(101) See e.g., VO3/16458 [2004] RRTA 592 (2 September 2004) 5 (hereafter VO3/16458).

(102) DZABG v Minister for Immigration [2012] FMCA 36 (25 January 2012) [133], [135] (hereafter DZABG). See also MZXAN v Minister for Immigration [2006] FMCA 847 (30 June 2006) (hereafter MZXAN), where the applicant was stateless and a former resident of Zambia and the Court referred to Savvin v Minister for Immigration & Multicultural Affairs (1999) 166 ALR 348. See also, in the United States, Maksimova v Holder, 361 Fed Appx 690 (6th Cir, 2010) [6]–[7] (hereafter Maksimova).

(103) SZTFX (n 24) [40].

(104) MA (Ethiopia) v Secretary of State for the Home Department [2009] EWCA Civ 289, [2010] INLR 1 [59] (hereafter MA (Ethiopia)).

(105) ibid, [59].

(106) ibid, [66].

(107) EB (Ethiopia) v Secretary of State for the Home Department [2007] EWCA Civ 809, [2008] 3 WLR 1188 (hereafter EB).

(108) ibid—holding MA (Ethiopia) (n 104) to have been decided wrongly. See Shauna Gillan, ‘Refugee Convention: Whether Deprivation of Citizenship Amounts to Persecution’ (2007) 21 JIANL 347. For an application of EB by the UK Upper Tribunal, see ST v Secretary of State for the Home Department CG [2011] UKUT 00252 (IAC) (hereafter ST): ‘removal of the ID card was itself ill-treatment that was capable of amounting to persecution. As a matter of law, no further ill-treatment needed to be found’: at [76].

(109) M v Minister of Home Affairs (6871/2013) [2014] ZAGPPHC 649 (22 August 2014) [154]. The Court was here quoting from the applicant’s arguments; however, the court agreed with the applicant’s submissions later in the judgment: see at [159].

(110) ibid, [159].

(111) Perez v Brownell (n 13) (Earl Warren dissenting). See also Trop v Dulles, 356 US 86 (1958) (hereafter Trop), where the US Supreme Court described deprivation of nationality as ‘the total destruction of the individual’s status in organized society’ and found it to be a cruel and unusual punishment: at [101]–[102]. See also Maryellen Fullerton, ‘The Intersection of Statelessness and Refugee Protection in US Asylum Policy’ (2014) 2 JMHS 144.

(112) Haile v Holder, 591 F 3d 572 (7th Cir, 2010) (hereafter Haile v Holder). In Stserba v Holder, 646 F 3d 964 (6th Cir, 2011) (hereafter Stserba), the US Court of Appeals Sixth Circuit held that stripping a person of nationality on a protected ground, rendering them stateless, could amount to persecution.

(113) Haile v Holder (n 112) 756. The petition for review was granted and the case was returned to the Board for determination consistent with the opinion of the Court of Appeal. In a number of cases, courts of appeal have not found it necessary finally to resolve the issue, but have accepted in principle that denationalization can amount to persecution. See e.g., Mengstu v Holder, 560 F 3d 1055 (9th Cir, 2009) 1058; Gebkirstos v Gonzales, 177 Fed Appx 584 (9th Cir, 2006) 585 (hereafter Gebkirstos).

(114) Jourbina (n 92); Stserba (n 112); Gebkirstos (n 113); Giday (n 82); Haile v Gonzales (n 82).

(115) Stserba (n 112) 973.

(116) ibid (emphasis in original). Denaturalization proceedings impose a ‘rigorous burden of proof’ on the government..

(117) Stserba (n 112) 974 (emphasis omitted).

(118) Gebkirstos (n 113) 2; Giday (n 82) 554.

(119) CNDA, decision no°09002572 C+, 23 December 2010—the case failed because the applicant did not demonstrate that he was not entitled to claim Mauritanian citizenship pursuant to the law or by virtue of the fact that his mother is a recognized Mauritanian citizen. In two other cases, the deprivation of Rohingyas’ nationality in Myanmar was taken into account as one factor amounting to persecution, alongside the denial of civil, political, economic, social, and cultural rights in the form of restrictions, prohibitions, and discrimination: CNDA, decision no°12013646 C, 26 June 2013 (hereafter Decision no°12013646 C); CNDA, decision no° 09019611, 14 February 2011.

(120) Bundesverwaltungsgerichts [German Federal Administrative Court], 10 C 50.07, 26 February 2009 (hereafter 10 C 50.07)—this judgment confirms the approach of the High Administrative Court of Mecklenburg-Vorpommern.

(121) ibid, [17]–[18].

(122) ibid, [24].

(123) Refugee Appeal No 76077 [2009] NZRSAA 37 (19 May 2009) [112] (hereafter Refugee Appeal No 76077)—referring to Refugee Appeal No 72635 (n 5) [80].

(124) Refugee Appeal No 74467 (n 38) [94]; Refugee Appeal No 76506 [2010] NZRSAA 90 (29 July 2010) (hereafter Refugee Appeal No 76506).

(125) Refugee Appeal No 76077 (n 123) [103]—referring to Refugee Appeal No 72635 (n 5) [81].

(126) Refugee Appeal No 76077 (n 123) [105].

(127) ibid, [106].

(128) ibid, [112].

(129) Stserba (n 112).

(130) ibid, 974.

(131) ibid, citing Trop (n 111) 101–02.

(132) 10 C 50.07 (n 120) [19].

(133) ibid, [19].

(134) Case of the Yean and Bosico Children v Dominican Republic (Preliminary Objections, Merits, Reparations and Costs) Inter-American Court of Human Rights Series C No 130 (8 September 2005).

(136) UNHCR, ‘This Is Our Home’ (n 39) 1.

(137) UNHCR, ‘I Am Here, I Belong: The Urgent Need to End Childhood Statelessness’ (November 2015) 1 (hereafter UNHCR, ‘I Am Here, I Belong’).

(138) Brad K Blitz and Maureen Lynch (eds), Statelessness and Citizenship: A Comparative Study on the Benefits of Nationality (Edward Elgar 2011) 200.

(139) Hannah Arendt, The Origins of Totalitarianism (Harcourt 1951) 177.

(140) ibid, 297.

(141) See Brett Stark and Jodi Ziesemer, ‘The Right to Have Rights: Loss of Citizenship, Asylum, and Constitutional Principles’ (2016) 30 GeoImmigLJ 429, 446, citing the US Supreme Court in Kennedy v Mendoza-Martinez, 372 US 144 (1963) 573.

(142) On this point, see reference to mental or psychological harm in UNHCR, ‘Representing Stateless Persons before U.S. Immigration Authorities’ (August 2017) 15 (hereafter UNHCR, ‘Guidelines on Representing Stateless Persons’).

(143) 10 C 50.07 (n 120) [22].

(144) Refugee Appeal No 76077 (n 123) [111].

(145) MA (Ethiopia) (n 104) [73].

(146) Deborah Anker is an exception in that she refers briefly to the issue, in Law of Asylum in the United States 2017 (n 83) 356.

(147) Fripp, Nationality and Statelessness (n 14) 321.

(148) See Chapter 4, Part 1.1 ‘The “semicolon” ’.

(149) See e.g., MZXAN (n 102) [25]–[32]; DZABG (n 102) [136]–[137].

(150) Maarouf v Canada (Minister of Employment and Immigration) [1994] 1 FC 723 (13 December 1993) (hereafter Maarouf). See also Kadoura v Canada (Minister of Citizenship and Immigration) [2003] FCJ No 1328 (10 September 2003) [14] (hereafter Kadoura).

(151) Thus, MA (Ethiopia) (n 104) establishes that a person seeking to rely upon the denial of a right of return must take ‘all reasonably practicable steps to seek to obtain the requisite documents’ to facilitate his or her return: at [50]. See e.g., Kelzani v Secretary of State for the Home Department [1978] Imm AR 193 and YL v Secretary of State for the Home Department [2003] UKIAT 00016 (hereafter YL). In Chief Executive of the Department of Labour v Yadegary [2008] NZCA 295 (13 August 2008), the applicant, a national from Iran, had intentionally destroyed his Iranian passport and declined to apply for a replacement on the ground of fear of persecution. His application for refugee status was refused. Since no agreement existed between New Zealand and Iran whereby he could be removed without his consent, he couldn’t be returned to Iran, at least not until a diplomatic solution had been reached. The Court considered that in these circumstances a lengthy detention was unlawful. See also in France CNDA, decision no°08017005, 23 December 2009. See in Canada Salah v Canada (Minister of Citizenship and Immigration) [2005] FC 944 (6 July 2005) [7]–[8].

(152) Lazarevic v Secretary of State for the Home Department [1997] EWCA Civ 1007 (Hutchison LJ).

(153) As observed by Richards LJ, obiter dicta, in AK v Secretary of State for the Home Department [2006] EWCA Civ 1117 [47] (hereafter AK).

(154) MA (Palestinian Territories) v Secretary of State for the Home Department [2008] EWCA Civ 304 [26] (Maurice Kay LJ) (hereafter MA (Palestinian Territories)). This had also been the conclusion in the decision below: MA v Secretary of State for the Home Department [2007] UKAIT 00017 [122] (hereafter MA). We note that in MT (Palestinian Territories) v Secretary of State for the Home Department [2008] EWCA Civ 1149, the UK Court of Appeal could ‘see the force’ of the appellant’s argument that his denial of re-entry to the West Bank was because he was a stateless Palestinian Arab, which constituted persecution; however, the Court felt bound by the decision in MA: see at [46]–[47], and at [58], where the Court recognized that ‘[r]efusal of re-entry to a stateless person to the country of his former habitual residence is a subject that raises difficult issues of law’. See also SH (Palestinian Territories) v Secretary of State for the Home Department [2008] EWCA Civ 1150 [31]. See further HS v Secretary of State for the Home Department [2011] UKUT 124 (IAC) [185] (hereafter HS), finding that the Tribunal was bound by the previous UK authority in relation to this point.

(155) Abdelrazik v Canada (Minister of Foreign Affairs & International Trade) 2009 FC 580 (4 June 2009). In Abdelrazik, Zinn J held that the Canadian Government breached the applicant’s right to enter Canada (protected under s 6(1) of the Canadian Charter of Rights and Freedoms) as a recognized refugee and naturalized Canadian citizen, and urged Canada to issue him with an emergency passport in order that he may return to and enter Canada, and to arrange transportation for him from Khartoum to Montreal within 30 days.

(156) EB (n 107) [63].

(157) ibid, [67]. See also, ST (n 108), applying EB. In MA (Ethiopia) (n 104), Stanley Burnton LJ agreed that ‘if the appellant were able to establish that she has been arbitrarily refused the right to return to Ethiopia for a Convention reason, that would in my view amount to persecution’ because ‘the right to live in the home country and all that goes with that’, is one of the most fundamental rights attached to nationality: at [60]. However, the case failed on the facts due to weak evidence.

(158) In MA (Palestinian Territories) (n 154) the Court of Appeal referred to art 12(4) but observed that ‘[a]s we have only had limited written submissions on this point, I am reluctant to say more about it in this judgment’: at [28]. For a relatively rare example of reliance in refugee law on art 12, see Refugee Appeal No 76254 (n 79) [35]–[38]. In Australia, the Tribunal recognized the significance of art 12(4) in the context of a Palestinian man from the Gaza Strip who would be denied re-entry by Israel on return to his country of former habitual residence, observing that ‘If the Applicant was denied entry then this could constitute persecution’: V00/11398 [2001] RRTA 419 (2 May 2001) (hereafter V00/11398).

(159) UN Human Rights Committee, ‘CCPR General Comment No 27: Article 12 (Freedom of Movement)’ (2 November 1999) UN Doc CCPR/C/21/Rev.1/Add.9 , para 19.

(160) ibid, para 20.

(161) ibid, para 21.

(162) See also UN Human Rights Committee, ‘Communication No. 538/1993: Stewart v Canada’ (16 December 996) UN Doc CCPR/C/58/D/538/1993, paras 12.3, 12.4, 12.5.

(163) ibid, paras 12.5, 12.8. For an application of this view, see UN Human Rights Committee, ‘Communication No 675/1995: Taola v New Zealand’ (2 November 2000) UN Doc CCPR/C/70/D/675/1995, para 11.5.

(164) Of course, art 12 may be subject to a derogation in an emergency that threatens the life of the nation but in any event cannot discriminate—see art 4. This was emphasized in V00/11398 (n 158), which highlighted the prohibition on derogation on discriminatory grounds.

(165) ‘The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant’: International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 12(3). In the refugee context this was acknowledged in Refugee Appeal No 76254 (n 79) [37].

(166) UN Human Rights Committee, ‘Communication No 1557/2007: Nystrom v Australia’ (1 September 2011) UN Doc CCPR/C/102/D/1557/2007, para 7.5 (hereafter Nystrom). The Human Rights Committee further held ‘that there are few, if any, circumstances in which deprivation of the right to enter one’s own country could be reasonable’: at paras 7.5, 7.6. See also >UN Human Rights Committee, ‘Communication No 1959/2010: Warsame v Canada’ (1 September 2011) UN Doc CCPR/C/102/D/1959/2010, paras 8.4–8.6 (hereafter Warsame).

(167) Nystrom (n 166) para 7.4.

(168) ibid.

(169) See Warsame (n 166) as cited in Sarah Joseph and Melissa Castan, The International Covenant on Civil and Political Rights: Cases, Materials, and Commentary (3rd edn, OUP 2013) 415 (hereafter Joseph and Castan, The International Covenant). The fact that the UN Human Rights Committee has broadened the approach beyond the original General Comment 27 is clear from the views of the dissenting members in Nystrom and Warsame: at 415–16.

(170) Warsame (n 166) para 8.5.

(171) ibid, para 8.6. This was also confirmed in UN Human Rights Committee, ‘Communication No 859/1999: Vaca v Colombia’ (15 April 2002) UN Doc CCPR/C/859/1999 (hereafter Vaca).

(172) Vaca (n 171) para 7.4.

(173) In Canada, it has been well accepted since Thabet v Canada (Minister of Citizenship and Immigration) [1998] 4 FC 21 (11 May 1998) that the denial of a right to return ‘can in itself be an act of persecution’: at [31]. Hence, the decision-maker is ‘compelled to ask itself why the Applicant is being denied entry to a country of former habitual residence because the reason for the denial may, in certain circumstances, constitute an act of persecution by the state’: at [32]. See also, ‘being denied a right to return … may in itself constitute an act of persecution by the state’: X (Re), 2000 CanLII 21408 (CA IRB) 4 (hereafter X (Re) 2000), citing Maarouf (n 150) 739–40, and other decisions (see n 8). See also Kadoura (n 150) [16]; Rahman v Canada (Minister of Citizenship and Immigration), 2016 FC 1355 (8 December 2016) [23] (hereafter Rahman) and Chehade v Canada (Minister of Citizenship and Immigration) 2017 FC 282 (16 March 2017) [20].

(174) In Ouda v Immigration and Naturalization Service, 324 F 3d 445 (6th Cir, 2003) (hereafter Ouda), the US Court of Appeals for the Sixth Circuit observed, with approval (in relation to this asylum claim of Palestinians from Kuwait), that ‘[a]sylum applicants have argued that a country’s refusal to accept them is further evidence of persecution’: at 452, citing various decisions. The Court found in this case that ‘[t]he mere fact that the Oudas were ordered by the government to leave Kuwait because they were perceived enemies of their country is sufficient alone to establish past persecution’: at 454. In ST (n 108), the UK Upper Tribunal found that although the question whether denial of a right to return constitutes persecution is an issue of fact, ‘the denial of a right to return is very likely to constitute persecution, in very many cases’: at [89]. We note that this was in the context of arbitrary deprivation of nationality. Similarly, in MA (Ethiopia) (n 104) the Court held that the arbitrary refusal of return ‘would in my view amount to persecution’: at [60]. This was also in the context of a deprivation of citizenship; however, the refusal was considered independently. Sometimes the claim is considered cumulatively; for instance, the Australian Tribunal explained in one case that, ‘the Jordanian government’s refusal to renew the applicant’s passport is amongst a long list of discriminatory treatments it subjects Palestinian refugees to’: 0805551 [2009] RRTA 24 (15 January 2009) [56]. In Tesfamichael v Minister for Immigration and Multicultural Affairs [1999] FCA 1661 (2 December 1999), the Australian Federal Court acknowledged that to ‘expel a national from that person’s country of nationality, perhaps leaving behind family and property, would fall within the category of harm sufficient to constitute persecution’: at [54].

(175) V00/11398 (n 158).

(176) 071626084 (n 38).

(177) Refugee Appeal Nos 73861, 73862 (n 9) [117] (Member Shaw), and at [128] (Member Millar): ‘I find their exclusion from Saudi Arabia to be part of ongoing persecution and therefore their fear of persecution is well-founded.’ See also at [125].

(178) Refugee Appeal No 76254 (n 79) [38]. It went on to note that in the appellant’s case there were also additional sources of discriminatory treatment that amounted to persecution: at [38].

(179) Deborah E Anker, Law of Asylum in the United States (Thomson Reuters 2013) 305 (hereafter Anker, Law of Asylum).

(180) ibid, 305–6, citing Memorandum from INS Office of the General Counsel, ‘Legal Opinion: Your Memorandum of June 6, 1992: Palestine Applicants’ to Margaret Ramos, Supervisory Asylum Officer, Houston Asylum Office (19 August 1992). She argues that ‘expulsion of a noncitizen or non-national, under certain circumstances, also can amount to persecution’: at 304. Indeed, the UN HRC has reflected on the plight of Palestinians, finding that in relation to Palestinians ‘travelling in and between East Jerusalem, the Gaza Strip and the West Bank’, Israel is urged to ‘respect the right to freedom of movement provided for under article 12, including the right to return to one’s country’: UN Human Rights Committee, ‘Concluding Observations of the Human Rights Committee: Israel’ (18 August 1998) UN Doc CCPR/C/79/Add.93, para 22.

(181) AAAAD v Refugee Appeals Tribunal [2009] IEHC 326 (17 July 2009) [86]. A slightly different issue arose in Belgium, where the Conseil du Contentieux des Etrangers recognized the refugee status of a national from Uzbekistan on the ground that his presence in Belgium for more than eight years, and his claim that as a result he had lost his Uzbek nationality, and no longer had a valid passport or a residence in Uzbekistan, meant that he would not be able to re-enter Uzbekistan without the authorities knowing that he applied for asylum in Belgium (‘illegal exit abroad’). He would therefore be at risk of persecution: Conseil du Contentieux des Etrangers (‘CCE’) [Belgian Aliens Litigation Council], X v Commissaire général aux réfugiés et aux apatrides, arrêt no°22144, 28 January 2009 (hereafter CCE, arrêt no°22144). But see LM v Secretary of State for the Home Department [2012] UKUT 00390 (IAC), which held that such return and the treatment feared does not usually constitute persecution unless the applicant has a particular profile or distinguishing features (refugee status) or if the applicant is likely to be detained on return (subsidiary protection status based on Article 3 European Convention on Human Rights (‘ECHR’)).

(182) UNHCR, ‘Guidelines on International Protection: The Application of Article 1A(2) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees to Victims of Trafficking and Persons at Risk of Being Trafficked’ (7 April 2006) UN Doc HCR/GIP/06/07, para 44.

(183) See e.g., SHM v Refugee Appeals Tribunal [2009] IEHC 128 (12 March 2009), which concerned the refugee claim of a woman born in Libya to Palestinian parents and who had been raised in Libya but, having left to study, was prohibited from return. Despite acknowledging the strict inhibitions on freedom of movement imposed by the Libyan government on Palestinians, the High Court of Ireland observed that the Libyan government’s policy ‘may constitute discrimination or it may equally be consistent with the exercise of Libya’s legitimate right to regulate immigration’: at [56].

(184) WZAPN v Minister for Immigration [2013] FMCA 6 (31 January 2013) [60] (hereafter WZAPN). See also X (Re) 2000, (n 173) 8, and X (Re), 2016 CanLii 105364 (CA IRB) [32]: ‘the denial of the right to return under an immigration law of general application does not amount to persecution’.

(185) WZAPN (n 184) [60]. See also BZADW (n 38) [27], [32]..

(186) See NZ RSAA Refugee Appeal Nos 73861, 73862 (n 9) [128]. See also Unabhängiger Bundesasylsenat [Austrian Independent Federal Asylum Senate], DA v Federal Asylum Authority, decision no°203.029/0-II/28/98, 10 November 1999 (on file with authors). In this case, the Court held that ‘[a] state’s refusal to allow a citizen re-entry into his territory is a severe violation of the personal sphere amounting to a significant break of relations between the state and his citizen, leaving the latter in a hopeless situation’; and that ‘this measure would be directly aimed at the applicant’s attributed oppositional opinion and on her personal background as a woman of “western” upbringing’.

(187) V00/11398 (n 158). See also Rahman (n 173) [30].

(189) UNHCR, ‘Guidelines on Representing Stateless Persons’ (n 142) 17.

(190) See e.g., the decision of the Australian Tribunal in 1113683 [2012] RRTA 611 (9 August 2012) [56] (hereafter 1113683).

(191) See e.g., the decision of the Australian Tribunal in 1000094 (n 4) [155]–[156], and also in 1108899 [2012] RRTA 133 (7 March 2012) [57]–[58] (hereafter 1108899). See also Qassim v Minister of Immigration, Refugees, Citizenship Canada (2018) FC 226 (28 February 2018) at [55]–[59].

(192) In Rahman (n 173), the Federal Court found that the risk ‘of arbitrary and indeterminate detention’ could amount to persecution ‘in itself’: at [23]. In a 2015 Canadian decision, the Immigration and Refugee Board found that the stateless Palestinian was at risk of persecution in the form of severe violence if returned to Syria: X (Re), 2015 CarswellNat 3687 [15]–[16] (hereafter X (Re) 2015). See also in Australia: 1317610 [2014] RRTA 472 (28 May 2014) (stateless Bidoon born in Kuwait). New Zealand: Refugee Appeal No 73873 [2006] NZRSAA 77 (28 April 2006) (stateless Palestinian from Egypt); Refugee Appeal No 74236 [2005] NZRSAA 351 (2 December 2005) (stateless Palestinian living in Lebanon); Refugee Appeal No 76254 (n 79) (ethnic Rohingya from Myanmar). United States: Marouf v Lynch, 811 F 3d 174 (6th Cir, 2016) (stateless Christian Palestinians living in the West Bank—past persecution still presumed to exist). Canada: X (Re), 2013 Can LII 99310 (CA IRB) (Sunni Muslim born in Lebanon as a Palestinian refugee); Asali v Canada (Minister of Public Safety & Emergency Preparedness), 2007 FC 991 (1 October 2001) (Palestinian children living in the West Bank at risk of being shot and used as human shields). United Kingdom: SA and IA v Secretary of State for the Home Department [2009] UKAIT 00006 (hereafter SA); NA v Secretary of State for the Home Department [2008] UKAIT 00046 (hereafter NA 2008). France: CNDA, decision no°14014878, 9 November 2015 (Palestinian formerly residing in Syria). Belgium: CCE, arrêt no°22144 (n 181) (stateless person from Uzbekistan who would be arrested, interrogated, and possibly tortured if returned for having applied for asylum in Belgium).

(193) SZPZI (n 4).

(194) See e.g., Australia: 1108899 (n 191) (Palestinian refugee in Lebanon). Belgium: CCE, Houssam v Commissaire général aux réfugiés et aux apatrides, arrêt no°27366, 14 May 2009, and CCE, X v Commissaire général aux réfugiés et aux apatrides, arrêt no°26112, 21 April 2009 (both cases related to Palestinians in Lebanon). Hungary: Fővárosi Törvénytár [Hungarian Metropolitan Court], HAI v Office of Immigration and Nationality (OIN), decision no 3.K. 30.602/2013/15, 29 August 2013 (stateless Palestinian living in a refugee camp in Lebanon). Canada: X(Re) 2015 (n 192) (stateless Palestinian in Syrian camp, at high risk of being killed due to his ethnicity).

(195) See Immigration and Refugee Board of Canada, Refugee Appeal Division, RAD File No MB6-00677 (27 October 2016) at [69].

(196) See e.g., 1113683 (n 190) (stateless Palestinian in Lebanon ‘fitting’ the profile of persons collaborating with an armed group); Refugee Appeal No 75694 [2006] NZRSAA 97 (24 May 2006) (stateless person from Ethiopia identified for deportation).

(197) 071626084 (n 38) (stateless former resident of Bhutan identified for deportation).

(198) In Refugee Appeal No 73861 (n 6) (stateless Palestinians born and living in Saudi Arabia), the Tribunal held: ‘The appellant’s predicament is not simply that inherent in the condition of being stateless. He has suffered past persecution. Following his arrest, he was denied a fair trial, arbitrarily detained, subjected to ill-treatment in the form of solitary confinement, beatings and sexual assaults and arbitrarily stripped of his right of residency and deported. His exclusion from Saudi Arabia, itself a form of persecution, is ongoing. His inability to return to Saudi Arabia arises directly from his persecution’: at [117]—refer to Part 3 of this chapter.

(199) France: Decision no°10015655 C (n 75) (Rohingya from Myanmar detained for two years); Decision no°12013646 C (n 119) (Rohingya from Myanmar subject to abuses and numerous restrictions, prohibitions, and discriminations on the enjoyment of civil, political, and socio-economic rights). See also CNDA, decision no°09019611, 14 February 2011.

(200) Ouda (n 174) 454.

(201) SZTFX (n 24) [52] (the applicant was a Faili Kurd born in Iran).

(202) ibid, [47].

(203) The Australian Migration Act 1958 (Cth) s 5J(5) provides that ‘being persecuted’ requires ‘serious harm’ and that: ‘Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph: ‘(a) a threat to the person’s life or liberty; (b) significant physical harassment of the person; (c) significant physical ill-treatment of the person; (d) significant economic hardship that threatens the person’s capacity to subsist; (e) denial of access to basic services, where the denial threatens the person’s capacity to subsist; (f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist’.

(204) Australia: SZSVT v Minister for Immigration [2014] FCCA 768 (17 April 2014) [15] (hereafter SZSVT); 071454724 [2007] RRTA 200 (30 August 2007) (hereafter 071454724)—being held at ‘checkpoints is discriminatory and harassment which delayed the applicant going to play sport or his work but it is not significant nor is it so serious’: at [67]. Canada: Khalifeh v Canada (Minister of Citizenship and Immigration), 2003 FC 1044—constant harassment at checkpoints between Jericho and Jerusalem, delays, but no detention or arrest.

(205) SZSVT (n 204) [16].

(206) ibid, [17].

(207) Pavlovich v Gonzales, 476 F 3d 613 (8th Cir, 2007).

(208) Aburuwaida v US Attorney General, 446 Fed Appx 207 (11th Cir, 2011) (stateless Palestinian from the West Bank and Gaza) (hereafter Aburuwaida).

(209) Ahmed v Ashcroft, 341 F 3d 214 (3rd Cir, 2003). This is not an isolated example: see also United States: Aboushehata v United States AG, 143 Fed Appx 302 (11th Cir, 2005) 7–8; El Bitar v Ashcroft, 109 Fed Appx 179 (9th Cir, 2004) 6–7.

(210) UN HRC, ‘General Comment No 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant’ (26 May 2004) UN Doc CCPR/C/21/Rev.1/Add.13, para 10.

(211) Of course, there are limited exceptions, as some are explicitly granted to citizens (right to vote). The fact that there is such a distinction tends to confirm rather than undermine the position that in general ICCPR rights are not confined to citizens.

(213) United States: Al-Fara v Gonzales, 404 F 3d 733, 740 (3rd Cir, 2005)—in this case, the US Court of Appeals Third Circuit cited Congress’s (erroneous) interpretation that a refugee and a displaced person are two very different categories: the latter but not the former includes ‘individuals who flee widespread conditions of indiscriminative violence resulting from civil war or military strife in a country’: at 740. United Kingdom: YL (n 151)—applicant of Eritrean ethnicity claiming to be of Ethiopian nationality or stateless: detention in ‘circumstances close to persecution’ was not persecution; E-Ali v Secretary of State for the Home Department [2002] UKAIT 00159: in rather outdated reasoning, the then UK Asylum and Immigration Tribunal found that despite having been detained and investigated by the Lebanese authorities, this treatment did not constitute persecution for a Refugee Convention reason (the appellant was a stateless Palestinian born in Kuwait but living in Lebanon).

(214) UNHCR, ‘Guidelines on International Protection No 12’ (2 December 2016) UN Doc HCR/GIP/16/12, paras 17–18.

(215) See e.g., BA (n 16), where the UK Tribunal found that ‘[s]ince the Bedoon have a tribal identity and are not simply a collection of (mainly) stateless persons, they face persecution by reason of a Refugee Convention ground of race. They can also be seen to form a particular social group’: at [90]. While it is well accepted that persecution for reasons of statelessness may constitute persecution on the grounds of nationality for the purposes of the Refugee Convention (see Hathaway and Foster, The Law of Refugee Status 2 (n 3) 397–98), this was questioned in a 1998 Federal Court decision, Husein Ali Harris v Minister for Immigration and Multicultural Affairs [1998] FCA 78 (12 February 1998) (Moore J). However, the Australian Tribunal in 1114181 (n 3) observed that ‘With respect, this judgment appears to be at odds with the approach taken to other Convention grounds such as religion, as there is authority for the proposition that persecution “for reasons of religion” can also include persecution because the applicant does not have a particular religion’: at [79]. Ultimately, the claim was successful on the basis that ‘the Bidoons of Kuwait do appear to the Tribunal to constitute a particular social group’: at [82].

(216) William E Conklin, Statelessness: The Enigma of the International Community (Hart 2014) 126 (hereafter Conklin, Statelessness).

(217) ibid, 126–34.

(218) Australia: 1010968 [2011] RRTA 203 (9 March 2011) [52]–[55]; 1005911 [2010] RRTA 923 (20 October 2010) [110]–[117]. Canada: X (Re), 2002 CanLII 52679 (CA IRB); X v Canada (Immigration and Refugee Board), 2001 Can LII 26883 (CA IRB); X v Canada (Immigration and Refugee Board), 2001 Can LII 26842 (CA IRB) (threat of arbitrary arrest of detention together with deprivation of medical care, employment opportunities, and adequate housing and food amount to persecution, taken cumulatively).

(219) Bulgaria: Върховен административен съд [Bulgarian Supreme Administrative Court], Madjid v Head of the State Agency for Refugees, 11261/2009, 28 October 2010 (applicant belongs to the group ‘maktumen’—‘second-class’ Kurds in Syria without recognized citizenship and without recognition of their birth on the territory of Syria—who do not have any rights in Syria). See in another context, VO3/16458 (n 101) 5.

(220) Those with documents are generally denied refugee status on the ground that the restrictions imposed on their employment, political expression, and access to services represent mild discrimination that does not amount to persecution or serious harm (even if taken cumulatively): Australia: BZADW (n 38) [31], [33]; 1303526 [2013] RRTA 815 (19 November 2013) [25]–[26] (hereafter 1303526). New Zealand: Refugee Appeal No 74449 (n 46) [49].

(221) New Zealand: Refugee Appeal No 76506 (n 124) [83]; Refugee Appeal No 74880 (n 10) [21]–[23]. United Kingdom: NM (n 47); Queen on the application of (ZA) (Kuwait) v Secretary of State for the Home Department [2011] EWCA Civ 1082 (the degree of discrimination faced by undocumented Bidoon is sufficient to amount to persecution); HE v Secretary of State for the Home Department [2006] UKAIT 00051 (hereafter HE) (the level of discrimination faced by undocumented Bidoon in so many aspects of their lives in Kuwait amounts to persecution); BA (n 16) (the treatment of undocumented Bidoon amounts to persecution based on the denial of their civil and political rights as well as socio-economic rights).

(222) BA (n 16) [64].

(223) ibid, [66].

(224) ibid.

(225) ibid.

(226) ibid.

(227) NM (n 47) [93].

(228) ibid.

(229) ibid.

(230) Refugee Appeal No 74467 (n 38) [103]. See also Refugee Appeal No 74880 (n 10) [84].

(231) El Himri v Ashcroft, 378 F 3d 932 (9th Cir, 2004) 936 (hereafter El Himri).

(232) ibid. See also Anker, Law of Asylum (n 179).

(233) See also Ouda (n 174), involving a stateless Palestinian in Kuwait after the Gulf War.

(234) UN High Commissioner for Refugees (UNHCR), Statelessness and the Rohingya Crisis (10 November 2017) <https://www.refworld.org/docid/5a05b4664.html> accessed 9 December 2018.

(235) Michelle Foster, International Refugee Law and Socio-Economic Rights: Refuge from Deprivation (CUP 2007) Chapter 3 (hereafter Foster, International Refugee Law and Socio-Economic Rights).

(236) In countries such as Bangladesh, although Biharis are considered to be an impoverished group, it has been found in some cases that they are not significantly more impoverished than Bangladeshi in general: New Zealand: Refugee Appeal No 72024 [2000] NZRSAA 281 (13 July 2000) [28]. See also Canada: X (Re), 2005 CanLII 77811 (CA IRB) (Tibetan in India). In New Zealand, the RSAA is of the view that: ‘Discrimination per se does not amount to persecution … The discrimination must result in some form of serious harm in respect of which it can be said there is also a failure of state protection’: Refugee Appeal No 73958 [2005] NZRSAA 151 (26 May 2005) [72] (hereafter Refugee Appeal No 73958). The US Court of Appeals for the Sixth Circuit also held: ‘Economic deprivation may rise to the level of persecution, though it may do so “only when the resulting conditions are sufficiently severe” … that they “constitute a threat to [the] individual’s life or freedom” ’: El Assadi v Holder, 418 Fed Appx 484 (6th Cir, 2011) [5]–[6] (hereafter El Assadi) (stateless Palestinian woman, living in Saudi Arabia). See also Asad v Ashcroft, 135 Fed Appx 839 (6th Cir, 2005) (not being able to find a job because of one’s gender or ethnicity ‘is not sufficient objectively to establish a well-founded fear of future persecution’: at [17]); Elfarra (n 67) (‘Persecution is the infliction or threat of death, torture, or injury to one’s person or freedom, on account of race, religion, nationality, membership in a particular social group, or political opinion. … being denied the right to pursue the educational goals of one’s choice and having economic or professional hardship is not persecution’: at [3]). In this case, it concluded that ‘these reports do not suggest that women cannot work at all or that they face economic deprivations of sufficient severity to rise to the level of persecution’; hence asylum was not granted: El Assadi, [6]–[7].

(237) Canada: Younes v Canada (Citizenship and Immigration), 2013 FC 1122 (hereafter Younes) (stateless Palestinian from Lebanon receiving assistance from the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNWRA), faces harassment and discrimination but not persecution). See also X (Re), 2012 CanLII 100060 (CA IRB) [24]–[28]; X (Re), 2010 CanLII 96825 (CA IRB); X (Re), 2008 CanLII 88011 (CA IRB). United Kingdom: JA v Secretary of State for the Home Department [2005] UKIAT 00045 (27 January 2005) (Palestinian living in Iraq; nothing to suggest that Palestinians are being targeted by Iraqi citizens: at [13]); KK (n 68): ‘discriminatory denial of third category rights in Lebanon for the Palestinians … does not amount to persecution’: at [106], ‘though poor, the appellants would not be destitute in Lebanon’: at [107].

(238) United Kingdom: HS (n 154) [224], see also [222]–[223]: problems of access to electricity and clean water as well as products are encountered by other residents of Gaza; these problems do not reach the level of risk of persecution or serious harm. The risk to their life or person is minimal—it is not exceptional; NA v Secretary of State for the Home Department [2005] UKIAT 00094 (hereafter NA 2005).

(239) MA v Secretary of State for the Home Department [2007] UKAIT 00017 [127]–[129].

(240) ibid, [140]. See also JA v Secretary of State for the Home Department [2005] UKIAT 00045—no immediate danger at the point when the Adjudicator was considering the evidence: at [13].

(241) For instance, the Canadian Tribunal held, in relation to a stateless person from Saudi Arabia, descended from a displaced nomadic tribe, that the Refugee Protection Division had been in error because it ‘should have considered whether the Appellant will face discrimination in his access to medical care in the future due to his lack of employment, which may result in a lack of medical insurance’: Immigration and Refugee Board of Canada, Refugee Appeal Division, RAD File No MB6-00677 (27 October 2016) at [72].

(242) Younes (n 237) [12].

(243) ibid, [13].

(244) ibid, [12].

(246) Removal Appeal No 45942 [2007] NZRRA 69 (31 August 2007) [30]. This determination did not involve the Refugee Convention, but rather a claim to remain based on ‘exceptional humanitarian considerations’: see at [3].

(247) UNHCR, ‘Guidelines on Representing Stateless Persons’ (n 142) 18.

(248) KK (n 68) [106].

(249) There also appears to be an element of ‘floodgates’ reasoning in some cases; see e.g., HS (n 154) [224].

(251) In Refugee Appeal No 75221 [2005] NZRSAA 289 (23 September 2005), the New Zealand RSAA observed that ‘overly rigid categorization of rights in terms of hierarchies are therefore to be avoided’: at [81].

(252) El Himri (n 231) 937.

(253) ibid, citing Baballah v Ashcroft, 367 F 3d 1067, 1075–76 (9th Cir, 2004).

(254) Ouda (n 174) 453–54.

(255) 1100132 [2011] RRTA 246 (29 March 2011) [62].

(256) ibid, [60].

(257) X v Canada (Immigration and Refugee Board), 2001 CanLII 26842 (CA IRB) 7. On the other hand, similar cases are found in Canada, where the Board does not accept that discrimination with regard to education, employment, or medical care, as a result of being stateless amounts to persecution, even if taken cumulatively. X (Re), 2014 CanLII 81883 (CA IRB) [37] (Bidoon born and living in Kuwait); X (Re), 2013 CanLII 99979 (CA IRB) [18]–[19] (stateless Palestinian in Lebanon; changes made to the employment legislation in August 2010 meant that they could make a living, at least in theory); Canada (Minister of Citizenship and Immigration) v Hamdan, 2006 FC 290 (6 March 2006) (Palestinian spouse of a Jordanian; foreigners, including the respondent, can obtain temporary residence permits, which give them the right to work in Jordan and travel; claims to the contrary are purely speculative: at [28], [41]); X (Re) 2000 (n 173).

(258) Stserba (n 112) 27.

(259) SZTEO v Minister for Immigration [2015] FCCA 2228 (21 August 2015) [8]; SZSVT (n 204) [12]. See also 1008868 [2011] RRTA 3 (3 January 2011) (stateless Palestinian in Lebanon who never lived in the Palestinian camps, who had access to the Lebanese education system and who was employed as a butcher).

(260) WZAPN (n 184) [96].

(261) WZAPK v Minister for Immigration [2013] FMCA 19 (22 January 2013) [23].

(262) Poorvadi v Minister for Immigration & Multicultural Affairs [2002] FCA 234 (13 March 2002) (stateless person with no right to live in Iran, her marriage to an Iranian was not officially recognized, her children were considered illegitimate; faced constant discrimination and harassment but the children were able to enrol at school; no persecution). See also NZ: Refugee Appeal No 73958 (n 236) (both the father and his brother were educated to tertiary education; the children were also able to obtain education; no persecution).

(263) SZPZI (n 4) [37]. See also 071454724 (n 204) (stateless Palestinian in Lebanon who worked illegally in his trade for a number of years).

(264) Protsenko v US Attorney General, 149 Fed Appx 947 (11th Cir, 2005) [12]–[13] (hereafter Protsenko). United Kingdom: S v Secretary of State for the Home Department [2001] UKIAT 00019 (‘human rights abuses committed by the police are limited in number and whilst the judicial system is still relatively weak, there is no evidence of significant corruption or bias’: at [15]; legislation exists to protect the human rights of ethnic minorities, including ethnic Russians); NA 2005 (n 238) [24] (ethnic Palestinians are not persecuted or treated in breach of Article 3 ECHR, although they may be discriminated against).

(265) Protsenko (n 264) [14].

(266) Conklin, Statelessness (n 216) 117. See also 118–21 for specific examples of the impact of statelessness on children.

(267) UNHCR, ‘I Am Here, I Belong’ (n 137) 1.

(268) ibid. See also Institute on Statelessness and Inclusion (‘ISI’), The World’s Stateless: Children (Wolf Legal Publishers 2017) (hereafter ISI, The World’s Stateless: Children).

(269) Jacqueline Bhabha, ‘The Importance of Nationality for Children’ in ISI, The World’s Stateless Children (Wolf Legal Publishers 2017) 112, 118.

(270) Laura van Waas and Amal de Chickera, ‘Chapter 7: Introduction’ in ISI, The World’s Stateless: Children (Wolf Legal Publishers 2017) 109.

(271) Jason Pobjoy, The Child in International Refugee Law (CUP 2017) 117. See also Hathaway and Foster, The Law of Refugee Status 2 (n 3); Foster, International Refugee Law and Socio-Economic Rights (n 235) 201–14. For a particularly compelling articulation of the correct approach in refugee law, see Canada (Minister of Citizenship and Immigration) v Patel [2009] 2 FCR 196.

(272) UNHCR, ‘Guidelines on International Protection: Child Asylum Claims under Articles 1(A)2 and 1(F) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees’ (22 December 2009) UN Doc HCR/GIP/09/08, para 18.

(273) ibid, para 35.

(274) ibid.

(275) 1617142 (n 62) [63].

(276) ibid, [66].

(277) ibid. The Tribunal found that the reason for the harm was membership ‘of two particular social groups, namely Lebanese children with a foreign father, and children born out of wedlock in Lebanon’: at [71].

(278) Refugee Appeal No 73952 [2005] NZRSAA 145 (26 May 2005) [63] (hereafter Refugee Appeal No 73952).

(279) ibid, [66].

(280) ibid, [67].

(281) ibid, [69].

(282) ibid, [70], citing Richard B Lillich, The Human Rights of Aliens in Contemporary International Law (Manchester University Press 1984) 47–48.

(283) Refugee Appeal No 73952 (n 278) [71].

(284) ibid, [72].

(285) KK (n 68) [104]. This reasoning was applied also in MM and FH (n 68) [143]–[144].

(286) KK (n 68) [103].

(287) ibid, [104].

(288) UN Committee on Economic, Social and Cultural Rights, ‘General Comment No 20: Non-Discrimination in Economic, Social and Cultural Rights (Art. 2, Para. 2, of the International Covenant on Economic, Social and Cultural Rights)’ (2 July 2009) UN Doc E/C.12/GC/20 , para 30 (emphasis added). The General Comment footnotes Article 2(3) ICESCR, noting that this is an exception.

(289) Vienna Convention on the Law of Treaties (adopted 22 May 1969, entered into force 27 January 1980) 1155 UNTS 331, art 32.

(290) See Ben Saul, David Kinley, and Jacqueline Mowbray, The International Covenant on Economic, Social and Cultural Rights: Commentary, Cases and Materials (OUP 2014) 215 (hereafter Saul, Kinley, and Mowbray, The International Covenant on Economic, Social and Cultural Rights).

(291) UN Commission on Human Rights, ‘Note Verbale Dated 5 December 1986 from the Permanent Mission of the Netherlands to the United Nations Office at Geneva Addressed to the Centre for Human Rights’ (8 January 1987) UN Doc E/CN.4/1987/17, para 43.

(293) The EU and its Member States use the term ‘subsidiary’, whereas in other parts of the world the term ‘complementary’ is preferred.

(294) EU: Qualification Directive 2011/95/EU 2011 (n 36) art 15. Australia: Migration Act 1958 (Cth), s 36. New Zealand: Immigration Act 2009, s 131. United States: two grounds (withholding of removal under the Immigration and Nationality Act 1965, and withholding of removal under the Convention Against Torture (adopted 10 December 1984, entered into force 26 June 1987) 1465 UNTS 85) (hereafter CAT). Canada: Immigration and Refugee Protection Act, SC 2001, c 27, s 97(1).

(295) Australia: 1311115 [2013] RRTA 822 (25 November 2013) [29], [68]. Note that no explanation was given as to why complementary protection provisions should not apply to a stateless person. However, in 1407022 (Refugee) [2015] AATA 3606 (6 November 2015) (hereafter 1407022), the Administrative Appeals Tribunal of Australia explained, ‘The Tribunal is not satisfied that the applicant is stateless, and therefore it is not satisfied there is a real risk of the applicant facing significant harm on this basis’: at [52] (emphasis added).

(296) Australia: SZSFK v Minister for Immigration [2013] FCCA 7 (16 May 2013) [90], [92], [97]. In the UK, a clear sequential approach is applied: the courts first consider applications on the basis of refugee protection, and if this fails, they move on to consider the application against human rights law, see e.g., KA v Secretary of State for the Home Department [2008] UKAIT 00042.

(297) Commission de Recours des Réfugiés (CRR)—which was the former CNDA, decision no°567575, 30 August 2006. In other cases, statelessness status was granted instead: Conseil d’État [French Administrative Court] (‘CE’), decision no°216121, 29 December 2000.

(298) Canada: Abeleira v Canada (Citizenship and Immigration), 2015 FC 1340.

(299) NM (n 47) [100], [116]; HE (n 221); SA (n 192); NA 2008 (n 192).

(300) 1407022 (n 295) [52]–[55].

(301) MA (Palestinian Territories) (n 154) [52]; Secretary of State for the Home Department v AS [2002] UKIAT 05943 [4]. Note that British courts and tribunals follow the lead of the European Court of Human Rights (‘ECtHR’) on the interpretation of inhuman or degrading treatment in art 3 ECHR; this interpretation has considerably evolved in recent years and now applies to asylum seekers (as vulnerable people wholly dependent on state support) and children (as extremely vulnerable people) in situations of extreme poverty, serious deprivation, or want incompatible with human dignity, see MSS v Belgium (2011) 53 EHRR 2; Tarakhel v Switzerland (2015) 60 EHRR 28.

(302) Optional Protocol to the International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171, art 1; CAT (n 294) art 22(1); Convention for the Protection of Human Rights and Fundamental Freedoms (adopted 4 November 1950, entered into force 3 September 1953) 213 UNTS 221, art 34(1) (hereafter ECHR). UN Human Rights Committee, ‘Communication No 35/1978: Aumeeruddy-Cziffra v Mauritius’ (9 April 1981) UN Doc CCPR/C/OP/1 at 67, para 9.2; UN Committee Against Torture, ‘Communication No 96/1997: AD v Netherlands’ (12 November 1999) UN Doc CAT/C/23/D/96/1997, paras 6.2, 7.3; Vijayanathan v France (1993) 15 EHRR 62, applied in BA (n 16) [48]. See also Adrienne Anderson, Michelle Foster, Hélène Lambert, and Jane McAdam, ‘Imminence in Refugee and Human Rights Law: A Misplaced Notion for International Protection (2019) 68 International and Comparative Law Quarterly 111.

(303) YL (n 151) [64].

(304) See Chapter 4, Part 1.2 ‘Inability to return as exclusion from refugee status?’.

(305) Note that the ECHR has been interpreted as guaranteeing protection against refoulement but not necessarily a status akin to that under the Qualification Directive 2011/95/EU (n 36).

(306) Although art 17 of the EU Qualification Directive 2011/95/EU (n 36) provides for exclusion clauses similar to those in the Refugee Convention (art 1F) for persons seeking subsidiary protection (e.g. on grounds similar to ECHR grounds)—thereby contradicting the very nature of art 3 ECHR.

(307) ECtHR: Auad v Bulgaria, Application No 46390/10 (11 January 2012) [100]–[101]. The Court concluded that in view of ‘the lack of a legal framework providing adequate safeguards … there are substantial grounds for believing that the applicant risks a violation of his rights under Article 3’: at [107].

(308) Verfassungsgerichtshof [Austrian Constitutional Court], decision no°U2131/2012, 6 March 2014.

(309) CCE, X v l’Etat belge, arrêt n°157845, 8 December 2015; CCE, X v l’Etat belge, arrêt n°155732, 29 October 2015; CCE, X v l’Etat belge, arrêt n°142096, 27 March 2015; CCE, X v l’Etat belge, arrêt n°134185, 28 November 2014.

(310) SZSVT (n 204) [24].

(311) MZZQN v Minister for Immigration [2014] FCCA 2886 (10 December 2014) (no fear of arbitrary deprivation of life); 1303526 (n 220) (no real risk of the death penalty); 1218580 [2013] RRTA 279 (2 April 2013) (verbal abuse or a restriction on his access to Sunni mosques did not amount to cruel or inhuman treatment or punishment, or to degrading treatment or punishment).

(312) SZSVT (n 204) [82] (emphasis added).

(313) Case concerning the Barcelona Traction, Light and Power Company, Limited (Belgium v Spain) (Second Phase) [1970] ICJ Rep 3, 32 [33]–[34].

(314) Canada: X (Re), 2015 CarswellNat 4673; X (Re), 2013 CanLII 100828 (CA IRB)—appellant not personally targeted.

(315) France: CE, decision no°363181, 5 November 2014; United Kingdom: HS (n 154) [219], referring to NA v United Kingdom (2009) 48 EHRR 15.

(316) Aburuwaida (n 208); Maksimova (n 102).

(317) Almuhtaseb v Gonzales, 453 F 3d 743, 749 (6th Cir, 2006) [22]; Agha v Holder, 743 F 3d 609 (8th Cir, 2014) [19]; El Assadi (n 236) 487.

(318) As discussed in Chapter 3, the ECtHR has so far preferred to assess such acts under art 8 ECHR (private and family life): See Chapter 3, Part 2.3.1.2 ‘Arbitrary deprivation of nationality’.

(319) See Chapter 3, Part 2.3.1.2 ‘Arbitrary deprivation of nationality’.

(320) For instance, in AK (n 153) ‘[i]t was submitted that the denial of re-entry to the Occupied Territories by reason of the appellant’s Palestinian identity was capable of constituting degrading treatment contrary to Article 3’. However, Mr Williams (acting on behalf of the Appellant) accepted that ‘the point would stand or fall with that under the Refugee Convention’ and that it was not argued before the UK Tribunal, hence the Court did not pursue the point: at [49].