In praise of the 1961 Statelessness Convention

Alison Harvey, No5 Chambers London; @aliromah
/ 4 mins read

It is a lot better to have a stateless person’s travel document than to be undocumented. A lot better to have leave as a stateless person than none.  But a stateless person with a travel document and leave is still stateless.  The 1954 Convention on the Status of Stateless Persons is familiar because of its close resemblance to the 1951 Refugee Convention and, perhaps because of this, it is easy for it to dominate discussions.  But the big prizes are to be had in implementing the 1961 Convention on the Reduction of Statelessness, in prevention and reduction of statelessness. 

“Windrush”: An immigration status is a poor substitute for a nationality

The “Windrush” cases in the UK remind us that an immigration status, whether as a stateless person or otherwise, is a poor substitute for a nationality.  They remind us that a focus on nationality law, and the nationality law legacy of colonialism, is essential to any deep understanding of immigration. And indeed asylum, as any reader of Bronwen Manby’s Struggles for Citizenship in Africa will testify.

A ‘right of abode’ or a constituent element of a nationality?

Windrush cases are born out of UK legislation that ripped the “right of abode”, the right to enter, remain in, leave, and return to, one’s country, out of many forms of British nationality in the two Commonwealth Immigrants Acts of the 1960s.  The first, in 1962, was introduced by a Conservative government.  The second, in 1968, was introduced as emergency legislation by a Labour government, and passed in four days passed in four days. Its purpose was to slam the door before East African Asians holding British passports and fleeing persecution in Kenya and Uganda could make it to the UK. 

It was later challenged in the European Court of Human Rights, not on the basis of Article 3(2) of Protocol 4 to the Convention, which the UK has signed but not ratified, but on the basis of Article 3 of the  Convention, the prohibition on torture, inhuman and degrading treatment.  We think of the East African Asians case as a case on discrimination but it was, at its heart, a case on deprivation of an effective nationality.  It is time to go back to that case, we have not plumbed the richness of its potential yet. 

As to Protocol 4, under the Vienna Convention on the Law of Treaties, a State is not supposed to legislate contrary the objects and purposes of a Convention once it has signed it, whether or not it has ratified it. The 1962 Act was passed before the UK signed the protocol, but the 1968 Act was signed afterwards.  As was the 1988 legislation that lies at the heart of many of the problems for the Windrush generation because it allowed them to be made subject to immigration control.

Can you have a nationality and be stateless at the same time?

Yes, when your nationality is not recognised. Those of the “Windrush generation” have faced an impossible task in evidencing the nationality or immigration status that they do have.  Their plight is that of people trying to get a State to recognise them as its nationals where the letter of the law is clear but the operation of law demands ever more proof or snarls them in ever more lengthy procedures.  These are cases where a person’s stateless status often needs to be asserted more forcefully.  Perhaps one day they will satisfy a State that they are its nationals.  But in the meantime, are they not stateless?

But what of a nationality that gives you no right to enter, remain in, leave, and return to, any country? In the recent case of Teh v Secretary of State for the Home Department [2018] EWHC 1586 (Admin), the High Court of England and Wales has held that those who hold such a form of British nationality, one with no “right of abode” are stateless for the purposes of the UK’s stateless determination procedure.  This sits (very) awkwardly with the UK’s British Nationality Act 1981 which, at Schedule 2, purports to lift people out of statelessness and fulfil the UK’s obligations under the 1961 Convention by giving them one of such forms of British nationality.  It raises the question of “what is a nationality”? 

There are parallels with Palestinians.  They too have, at the moment, no State to enter, to remain in, to leave and return to. They are paradigm stateless persons.  But would they, or British Overseas Citizens, say that they have no nationality?  The notion that nationality and statelessness are mutually exclusive is more problematic than at first it appears and therein may lie a key to working to prevent and eradicate, and to understanding, statelessness without recourse to ever more entrenched distinctions between citizens and non-citizens. 

This blog is loosely based on my part of a keynote speech at the conference on the theory and practice of statelessness, organised by the University of Liverpool and the Migrants Resource Centre’s Asylum Aid in July 2018.  My speech came at the end of the first day, giving me a chance to reflect on the rich contributions of the scholars and practitioners I had heard.  My thanks to them.  The views in the blog are my own.

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