The double plight of stateless migrants

This article was first published here 

Although the greatest numbers of stateless persons are not necessarily within the migrant population, particularly in Europe, with 244 million people migrating today – and that number even expected to increase in the future - it is certainly worth exploring further the nexus between migration and statelessness.

The nexus between statelessness and migration and IOM’s role

The link between the two phenomena becomes evident if we think that in the migration context there are always two (or sometimes more) States that may be involved in processes relating to nationality (access to nationality, nationality determination, access to documents, etc.). Therefore, it is critical that the presence of migrants in a given country is factored into policies regulating the access to nationality. This includes the adoption of measures to prevent conflict of laws that risks creating statelessness, and to ensure that individuals have access to documents to prove where they come from.

Unfortunately, States concerned with migration movements rarely take this into account, and inter-State coordination in this area is often not sufficiently developed.

IOM is not specifically mandated to work with stateless persons. However, because of its specific expertise, the Organization deals with statelessness that arises in the context of migration.

IOM concerns itself with two groups of persons in this respect:

-        migrants who are stateless because it is proven that no State considers them as its national under the operation of its law (Article 1.1. 1954 Convention relating to the status of stateless persons), and

-        migrants who are at risk of statelessness because they lack documents to prove their nationality.

The plight of stateless migrants

Statelessness can be a cause of migration. Stateless persons are often marginalized and discriminated against when they try to access the most basic services, (i.e. health care, education, employment, etc.). Many stateless persons are treated as irregular “aliens” in the country where they were born. They are also often the target of xenophobic attitudes, particularly if they belong to a vulnerable minority group.

In this context, statelessness can represent a push-factor for migration. The person leaves to seek out better living conditions and inclusion in another country. In extreme cases, entire groups of persons, belonging to a minority, are expelled. One example is the case of 70,000 black Mauritanians who were expelled from the country in 1989/1990 and who mainly sought refuge in Senegal and Mali. This group is now being allowed to return but the returnees are facing troubles in recovering their nationality (Nationality, Statelessness and Migration in West Africa, p. 60).  

Statelessness can also be a consequence of migration. Primarily because of conflict of laws between States of origin and of destination. For example, a child born in a country applying the rule of jus sanguinis, from migrant parents with the nationality of a country granting the nationality jus soli, may be stateless, unless the State of birth has the necessary safeguards in place to prevent it. 

Discrimination in the application of the law to a migrant or a particular group of migrants can also create statelessness. A case that recently received a lot of attention in the news is the one of Dominicans of Haitian descent who were threatened with expulsion after their nationality was retroactively stripped from those who were born in 1929 and onwards. In other cases, administrative dysfunctions are to blame. Especially in cases of automatic acquisition of nationality, when the authorities called upon to determine whether the person is a national of the country may be those officials in charge of issuing passports or other identity documents, and who do not necessarily have a technical knowledge of the sometimes complex rules on access to nationality.

Lack of identity documents and risk of statelessness

Migration can also produce uncertain cases in which it is difficult to determine whether a person is stateless or only has difficulties in proving his or her nationality. There are a number of situations in which it may be challenging for migrants to prove that they have the nationality of a certain country:

a)      When they flee a conflict or a natural disaster, they may not have the time to take their documents with them or, in the most extreme cases, civil registries may be destroyed.

b)      Victims of trafficking are particularly vulnerable to statelessness due to the fact that they often have their documents seized by the traffickers to ensure that they cannot escape their control and they end up being unable to prove their nationality.

c)      The number of children traveling without their families, because they are sent to work abroad, they are trafficked, or they have lost their parents, is significant, including in Europe

Unaccompanied migrant children face huge difficulties in proving their nationality. Family tracing can help in locating their parents, establishing where they come from and recovering their identity documents. But when the family cannot be found, for instance in the case of abandoned children or children who were separated from their family at a young age, the challenge is even greater. Late registration, which is provided for in the law of many countries, may not be accessible from another country and, in any case, it is often cumbersome, both financially and for the number of documents that are required as evidence. In some cases, children born abroad from a single mother are prevented from receiving her nationality.

d)      Proving where they are from is a challenge for all irregular migrants who may not have any identity documents because they never possessed any, because the documents got lost during the journey, or were seized by corrupted police or by border officials. Birth registration in a foreign country can also be a challenge because of lack of the necessary documents or because of the fear of irregular migrants to approach the authorities and be reported to the police for their irregular status. Some States refuse to register the birth of children of migrants who are in an irregular situation, leaving them at risk of statelessness. The contact with the consular authorities to resolve the situation is not always easy for practical reasons (long travels needed to reach the authorities, excessive fees to obtain the necessary documents and sometimes even collateral fees added by corrupted officials, intermediaries, etc.).

In these types of situations, the principle guiding the action of those providing assistance to people at risk of statelessness should be that the possession of nationality should be preferred to a declaration of statelessness, which may have a long-lasting impact on the person’s life. However, where persons cannot acquire, re-acquire or demonstrate entitlement to a nationality then they must be protected as stateless persons, and usually subsequently be allowed to naturalize as citizens of the host state.

How can human rights help?

The Statelessness Conventions are the two first instruments one has in mind when thinking of the legal solutions provided by international law for the situation of stateless persons. However, the human rights (HRs) framework also has a number of effective tools that should be further explored and applied, including in order to prevent migrants becoming stateless.  

One of the most effective ways to decrease statelessness in the migration context is to favour the jus soli principle. There is a general preference for the principle of jus soli in HRs instruments. This trend is embraced fully at the regional level (African Charter on the Rights and Welfare of the Child, Art. 6.4; American Convention on Human Rights, Art. 20.2). It is also indirectly acknowledged by universal HRs bodies (CCPR, General Comment No. 17: § 8), or explicitly stated in less authoritative documents (CRC, Report of the 2012 Day of General Discussion: § 77).

Human rights conventions recognize the existence of a child’s right to birth registration and to a nationality, irrespective of the parents’ immigration status (CRC, General comment No. 6: § 12;  ICRMW, art. 29).

Furthermore, the right to identity documents is also the corollary of a number of other rights: the right to identity (Art. 24.3 ICCPR); the right to leave any country (Art. 12.2. ICCPR; ECtHR, Battista v. Italy, 2.12.2014); the right to consular protection and assistance (Art. 23 and 65.2 ICRMW, Art. 5(d) Vienna Convention on consular relations). The Migrants Workers Convention even stipulates a right to retain one’s identity documents (Art. 21 ICRMW). A right to identity documents is also set forth in a number of instruments dealing with specific categories of migrants (Palermo Protocol against Trafficking in Persons, Art. 8.4; Palermo Protocol against Smuggling of Migrants Art. 18.4: Refugee Convention, Arts. 27 & 28, and the Domestic Workers Convention, Art. 9 ).

Additionally, based on Art. 9.2 CEDAW, States Parties to the Convention are obliged to ensure that migrant women can pass their nationality to their children born abroad.

This short recount of the human rights framework relevant to address statelessness arising in the context of migration reveals that the tools are available. It is now important that these tools are further disseminated and used by human rights activists in order to make sure that individuals are effectively protected from the double plight that may arise from being a stateless migrant.

Alice Sironi is Migration Law Specialist with the International Organization for Migration (IOM)