Monday, June 1, 2015

Immigration Article of the Day: Comparative Perspectives on Statelessness and Persecution by Maryellen Fullerton


Comparative Perspectives on Statelessness and Persecution by Maryellen Fullerton, Brooklyn Law School May 21, 2015 Kansas Law Review, Vol. 63, No. 101, 2015 Brooklyn Law School, Legal Studies Paper No. 414

Abstract: More than ten million individuals are stateless in the twenty-first century. They live on every continent, yet not one country views them as full members. Without citizenship, they lack a legal claim to protection from the nations where they reside. When abroad, they lack diplomatic protection. In a world of nation states, they fall between the cracks. Lack of state protection, the defining characteristic of statelessness, is also the hallmark of refugees. Although refugees frequently possess the formal indicia of citizenship, they are forced to flee states that cannot or will not protect them. Refugees are often de facto stateless, seeking protection from other states and the international community.

Statelessness and refugee law both overlap and diverge. Stateless individuals who fear persecution may qualify for refugee status. This article explores important intersections between statelessness and refugee law by asking when statelessness leads to a well-founded fear of persecution. It begins with a synopsis of the treaties concerning statelessness and refugee status to set forth the legal framework, and then sets the context by identifying major stateless populations and the principal mechanisms that result in statelessness. The article then turns to four recent judicial opinions in Canada, the United Kingdom, and the United States, each of which provides a different perspective on circumstances in which statelessness constitutes persecution. Choudry v. Canada concerns an individual who was born into statelessness, which was compounded by his lack of proof of identity. S.T. v. Secretary of State for the Home Department and Haile v. Holder arose from government wartime decrees stripping groups of people of their citizenship. Stserba v. Holder stemmed from the dissolution of states, gaps in the subsequent citizenship laws, and a naturalization process imposing a language requirement on long-time inhabitants.

All of the tribunals are sympathetic to the claimants’ contentions that their experiences of statelessness make them fear persecution. Yet, the courts are cautious, and the jurisprudence leaves many questions unanswered. There is a consensus that statelessness in itself does not constitute persecution, but that the withdrawal of citizenship from disfavored ethnic or religious minorities is presumptively persecutory. One court states that instances when the withdrawal of citizenship results in statelessness should be deemed persecution per se, obviating the applicant’s need to demonstrate that he or she suffered any serious harm in their daily life. This court does not distinguish between statelessness resulting from the gaps that may occur when states dissolve versus denationalization that may be decreed during civil war.

Whether the mechanism causing statelessness should matter in the context of assessing persecution is an unanswered question. So, too, is the significance of imposing naturalization obligations, including a language requirement, on lifelong residents. The circumstances in which states can legitimately refuse to renew the travel documents of longtime residents or refuse to allow them to return are further points of contention. As current upheavals in the Americas, Africa, Asia, and the Middle East have increased the numbers of stateless people in flight, there is an urgent need to develop a more comprehensive legal framework to ensure that international refugee law fully addresses the plight of stateless individuals who fear persecution.


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