“Everyone has the right to a nationality”

Statelessness and the second revision of the Global Compact for Migration: What still needs to be addressed?

5 June 2018 | Tendayi Bloom

Happily, statelessness is explicitly addressed in detail in the current draft of the global compact for migration. Much in this document is positive and it provides an excellent basis on which to build.

Three dimensions to thinking about statelessness deserve particular focus here:

First, simply being stateless should not mean that someone - including someone who has never migrated - is subject to migration control measures.

Second, migration and migration policies must not make people stateless.

Third, stateless persons must have access to safe migration pathways.

In September 2016, UN Member States committed to develop two global compacts, one of which is a ‘global compact on safe, orderly and regular migration’, to be launched at the end of 2018. On 28th May, the second draft of the compact for migration was published.

An estimated 10 or 15 million people today aren’t considered citizens by any country. These people are ‘stateless’. Statelessness results from gender discrimination, ethnic discrimination including mass denationalisation and inherited statelessness. Sometimes statelessness arises because a person’s State no longer exists, has changed its borders, or because of discrepancies in nationality laws. And so on.

Crucially, it can also arise during migration.

Without any citizenship, a stateless person today can be unable to access many internal systems of States (including property-ownership, labour markets, civil registration, etc). They can also be unable to cross international borders regularly or safely and are often particularly vulnerable to detention, destitution and discrimination - and may be subject to migration control measures even if they have never migrated.

1. Who is a Migrant?

The current draft of the compact does not define who is a migrant. It’s generally agreed that a migrant is someone who has moved, usually across an international border, to settle.

Some people who have migrated have citizenship of the country where they live.

Some people who haven’t migrated don’t have citizenship of the country where they live.

As such, ‘nationals’ and ‘migrants’, the categories of people needing access to documents identified in the chapeau to Objective 4 doesn’t include everyone. It excludes those who lack citizenship but haven't moved - the stateless persons mentioned later in Objective 4.

The question of who is a migrant also has implications for who is subject to migration control measures.

For example, today stateless persons globally are at risk of immigration detention even if they have not migrated. Often lacking proof of legal identity and proof of their right to reside, and without any means to obtain such proof, this detention can be indefinite or repeated and has been described as arbitrary. Objective 13 could explicitly commit to ending the arbitrary detention of stateless persons under administrative immigration powers.

Efforts towards safe, regular and orderly migration need to consider the needs of those who are neither ‘nationals’ nor ‘migrants’. This includes ensuring that stateless persons, including those who have not moved, are not subject to migration control simply because they are stateless.

2. Migration Policies Must Not Make People Stateless

In Objective 4e, the draft compact identifies some measures to reduce statelessness. This includes ‘providing nationality to children born in another State’s territory, especially in situations where a child would otherwise be stateless’.

This is different from the approach taken in Article 1(1) of the 1961 Statelessness Convention - that States should grant nationality to otherwise stateless children born on their own territory, with Article 4 adding that States should also offer citizenship to children born elsewhere where this has not occurred.

Disagreement about which of these should take precedence has given rise to situations of statelessness (e.g. in this case).

In reality, both approaches are important to ensuring that everyone has access to an appropriate citizenship. But in situations where no other state can be identified, to avoid statelessness, the country where a child is born or found needs to provide them with citizenship.

3. Stateless Persons Need Safe Migration Routes

A stateless person might have no legal access to work, to own property, or to obtain an education where they live. If they also have no access to safe, regular and orderly routes to go anywhere else, then they are put in an impossible situation.

This makes it important to combine improvements in systems of citizen registration and harmonisation of travel documents (Objective 4b) with explicit recognition of the need for safe migration routes for those who currently have no access to citizenship and documentation - and for whom migration is urgent.

Stateless persons who lack any regular migration route and who suffer extreme discrimination where they live are at severe risk of trafficking. Stateless persons have no State upon which to call for consular assistance. As such, they can become particularly vulnerable during migration.

Objectives 5 and 7, then, could explicitly address the vulnerabilities experienced by stateless persons, including stateless persons in 'Countries in Crisis’. Objective 10 could recognise the extreme risk of trafficking faced by stateless persons and the need, therefore, for safe migration pathways.

Next Steps

The migration compact document is a work in progress. This week, representatives of UN Member States are meeting in New York to discuss this latest draft and there is still scope for revisions as they converge on a final version. States have committed to agree upon the final wording in July. The document will then be offered for adoption in December.

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