“Everyone has the right to a nationality”

A question of ‘if’ and ‘when’ is someone stateless

22 May 2014 | Amal de Chickera

Farid is in UK immigration detention pending deportation. He has an Iranian passport that has expired. One month into his detention, he attempts to contact his country’s consular authorities to facilitate his removal, they do not respond. Two months in, he tries again. They fail to respond again. Meanwhile, the UK Home Office has also been trying to get Iran to accept Farid, but to no avail. Three months into his detention, they continue to ignore his efforts.

Is Farid stateless?

This pattern of approach, indifference and rejection continues for four, five, six, seven, eight, nine, ten, eleven, twelve, thirteen, fourteen, fifteen, sixteen, seventeen months. For seventeen months Farid languishes in immigration detention because his country will not have him back, will not even respond to his many pleas; but also because the country he now lives in, thinks it ok to deprive him of his liberty for no good reason other than its inability to deport him.

Is Farid stateless?

Ultimately, Farid is released on bail. But he is not allowed to work, he is destined to a life of destitution, forced into criminality, rearrested, subjected to removal proceedings again.

He feels betrayed, let down and humiliated by the only two countries he knows. They both have denied him. They both don’t want anything to do with him. His expired Iranian passport and UK residence permit are not worth the paper they were printed on.

Is Farid stateless?

Farid is a figment of my imagination but he is also all too real; his story is shared by far too many people whose lives have wasted away amidst the physical imprisonment of detention cells and the mental imprisonment of helplessness, frustration, desperation, and that ever nagging question; “what if?” What if my country accepted me? What if this country respected my rights? What if I never overstayed? What if it all didn’t end up this way?

Immigration detention – such a cruel and inhumane practice – offers unique insight into the human impact of statelessness. Nothing better highlights the farcical but tragic failure of any system, than people being forcibly deprived of their liberty for indefinite time periods while futile efforts are made to remove them to countries that will not have them. The immense cost borne by the individual as life, freedom, ambition, relationships, belonging, love, dignity and sanity are eroded for no good reason, is the ultimate cost of statelessness. It is the cost of the failure of states to protect the stateless.

But to go back to the question, is Farid stateless?

Any serious attempt to answer this question takes us onto uncertain territory. That grey area where the line between statelessness and non-statelessness is not straight and sharp; but a blur, a sequence of dots that don’t follow each other, a smudge on a damp paper.

UNHCR’s guidelines on the definition of statelessness establish that the question of whether a person is stateless is one of both fact and law:

“Where the competent authorities treat an individual as a non-national even though he or she would appear to meet the criteria for automatic acquisition of nationality under the operation of a country’s laws, it is their position rather than the letter of the law that is determinative in concluding that a State does not consider such an individual as a national.”

In Farid’s case therefore, the question is both whether according to the law of Iran, he should be considered to be a national and whether according to the implementation this law, he actually is considered to be a national. Let us assume that being a (now expired) passport holder and having exercised his right to Iranian nationality in the past, the letter of the law deems him to be a national and was accordingly applied in the past. If so, the next question to be asked is, could the Iranian authorities arbitrarily cease to treat him as a national – not through a dramatic proclamation but through subtle indifference - and if so, does that make stateless?

The evidence available to assess if he has a nationality or not is his expired documentation and the failed attempts to communicate with and seek consular assistance from the Iranian authorities. With regard to the latter, the UNHCR guidelines state that:

“In some cases an individual or a State may seek clarification of that individual’s nationality status with competent authorities… Such enquiries may be met either with silence or a refusal to respond from the competent authority. Conclusions regarding a lack of response should only be drawn after a reasonable period of time. If a competent authority has a general policy of never replying to such requests, no inference can be drawn from this failure to respond based on the non-response alone. Conversely, when a State routinely responds to such queries, a lack of response will generally provide strong confirmation that the individual is not a national.” (Emphasis mine.)

What is meant by a “reasonable period of time” is not further elaborated on. However, there is a clue in UNHCR’s second set of guidelines on identifying stateless persons, according to which:

“In general, it is undesirable for a first instance decision to be issued more than six months from the submission of an application as this prolongs the period spent by an applicant in an insecure position. However, in exceptional circumstances it may be appropriate to allow the proceedings to last up to 12 months to provide time for enquiries regarding the individual’s nationality status to be pursued with another State, where it is likely that a substantive response will be forthcoming in that period.”

The implication is that six months is a reasonable period of time within which to decide if a person is stateless or not, and that this can be extended to a maximum of one year, if it is likely to result in a substantive response.

However, closer study of these two quotes from UNHCR guidelines reveals that they are not necessarily in sync. The first says that if a state as a matter of practice never responds to such queries, the failure to respond should not be construed as evidence of statelessness; whereas the second says that the process of identification of statelessness should happen within a six month period, extendable to one year only if this is likely to result in a substantive response from the state being asked. The contradiction here is that the first set of guidelines caution against jumping to any hasty conclusions based on the habitual non-responsiveness of states, whereas the second only allow for the recommended six month timeframe to be extended if the state being asked is likely to be responsive (i.e. is not a habitually non-responsive state).

If the first set of guidelines only were to be applied to Farid, the result would be that Iran’s failing would not in itself be seen as evidence of his statelessness as it is common practice for Iran to not cooperate with such requests. If the second set of guidelines were applied, the result would be that a decision on Farid’s status would have to be taken within six months, as any extension is unlikely to increase the likelihood of cooperation and result in a substantive response. And when both sets of guidelines are applied, the decision would be taken in six months, and it would be that there isn’t sufficient evidence to establish whether he is stateless or not – i.e. it would be a non-decision. This places Farid right back in a situation of limbo, the “insecure position” cautioned against in the second set of guidelines. It increases his vulnerability and erodes his human rights protection. It is a grey area that is academically challenging, but humanly devastating.

It must be acknowledged that Farid’s case is set in the context of removal – Iran was not asked if he was considered to be a national or not. Rather, based on the UK’s assumption that he was an Iranian national, Iran was asked to facilitate his removal to Iran. But as he is my creation, let’s reinvent him as someone applying for recognition as a stateless person under the now one year old UK statelessness determination procedure. If under this process, Iran refused to answer questions about Farid’s nationality for 17 months, should he be considered stateless after 6 months, 12 months or never? And if he is considered stateless after 6 or 12 months, is the point of recognition, the point at which he becomes stateless, or is it the point at which his pre-existing state of statelessness was finally accepted? This question is an important one, because in a situation like Farid’s the very act of questioning whether he has a nationality or not, may be the trigger for a country to arbitrarily deny him of his nationality. By being asked if Farid is considered to be an Iranian citizen, the opportunity is provided for the country to say he is not or to refuse to cooperate until it is only rational to conclude that he is not. In such a situation, the more time a country is given to continue denying, perhaps in the hope that it would accept responsibility for its own, the longer the period of insecurity and limbo for the individual concerned.

This is perhaps an impossible problem to get around. A Dworkinian hard case. However, it emphasises the need to always protect – regardless of status – be it as a person with nationality, a stateless person, a soon to be stateless person or someone whose status is yet to be determined. This is why I initially set Farid in the detention context – a setting that is prone to so much abuse; a setting in which it is so crucial to identify the stateless and those in a statelessness like situation; and a setting in which the non-cooperation of states is a challenge that must be addressed in a way that does not penalise the individual.

I would like to thank Laura van Waas for commenting on a draft of this article.

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