Without Protection: Refugees and Statelessness - A Commentary and Challenge

The stateless have by and large been ignored in the field of international human rights, and their existence and needs have rarely been addressed within the refugee law sphere. The 1951 Refugee Convention, the bulwark of international refugee law, acknowledges the stateless and expressly extends it protections to them. Despite this acknowledgement of the vulnerability of stateless populations and their potential need for protection, little of the growing body of refugee law jurisprudence has addressed issues involving statelessness. The post-World War II diplomatic community that drafted the conventions concerning refugees and stateless individuals assumed that the existence of stateless people was a temporary phenomenon. History proved the predictions wrong. Rather than disappearing, the phenomenon of statelessness has grown: UNHCR estimates there are 12 million stateless people in the world today.In 2010 and 2011 tribunals in the United States, the United Kingdom, and Canada issued opinions that begin to explore statelessness as a form of persecution protected by the 1951 Refugee Convention. Two courts in the United States, one in the United Kingdom, and one in Canada examined instances in which asylum seekers had been deprived of their citizenship by the States in which they had been born and resided. All the tribunals concluded that statelessness alone does not qualify individuals for refugee status, and the UK and Canadian courts emphasized that the refusal to allow a stateless person to return to his or her country of habitual residence does not, on its own, constitute persecution. Nonetheless, two of the courts stated that denationalization on ethnic grounds that results in statelessness is persecution per se, and another tribunal acknowledged that a State’s denial of the right to return to a lifelong resident would very likely constitute persecution if done in an arbitrary manner. These opinions raise more questions than they answer. For example, in the context of independence from a colonial power, is it unlawful for citizenship laws to disfavor the colonizers and their descendants? In response to government policies that have intentionally aimed to change the ethnic composition of a restive area (consider Tibet under Chinese rule), would it constitute persecution if new citizenship laws disfavored those groups that arrived as part of the former government’s pacification plan? Do language tests, generally viewed as a legitimate requirement for naturalization, become unlawful when applied to lifelong residents? What about stateless individuals who have been longtime lawful residents based on their employment? If national law authorizes noncitizens to reside so long as they have authorization to work, what happens when they lose their jobs and, as a consequence, their residence permits? Noncitizens generally must leave or face expulsion, but are there some circumstances when expulsion of those who are stateless will constitute persecution? Does it matter if the noncitizens were born and lived their whole lives there? If they have done nothing to trigger the job loss? If no other State will grant them lawful admission?The answers to these questions are not simple or obvious. Thus far the jurisprudence is sparse concerning the legal obligations that Nation States owe to those who lack membership in any State. The crossroads of statelessness and international refugee law is uncharted territory, and the need for exploring it is urgent.