DARLING ProtectionStatelessPersons

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doi:10.1093/ijrl/eep024, Advance Access Published on October 27, 2009
Protection of Stateless Persons in

International Asylum and Refugee Law
KATE DARLING*
Abstract
International refugee law is a mechanism whereby States deal with persons seeking asylum
within their borders. While this area of law has its roots in international human rights con-
cepts, it has been influenced by less noble forces over the years. This article looks at how
interactions between international human rights law, international relations and domestic
decision making have impacted the ability of international refugee law to protect one of the
most powerless groups, namely, stateless people.
By exploring the analytical approaches applied by the Courts in the United Kingdom,
the United States, Canada, Australia and New Zealand, this article attempts to demon-
strate the ways in which stateless persons have been excluded from effective international
human rights protection. Specifically, the article argues that states have not considered their
own human rights obligations when making individual refugee status decisions. Further, it
observes that, in some cases, decision makers have tended to refer to international compen-
dia on international refugee law and international human rights law rather than to reflect
directly on the law itself. This in turn has encouraged an increasingly restrictive approach
to refugee determination.
In its conclusion, this article offers suggestions for reintegrating the foundations of inter-
national human rights law into claim determinations for stateless persons. It suggests that a
return to first principles and foundational concepts will realign the implementation of in-
ternational refugee law with its intended purpose: the protection of the world’s most vul-
nerable people.
1. Introduction
In 2005, 19,735 individuals lodged applications for asylum in Canada. In
the same year, 30,460 people applied in the United Kingdom and 34,462
made claims in the United States. New Zealand saw 348 applications
come in, while Australia received 3,203.1 Each of these 88,208 applica-
tions included a lifetime of personal details and relationships; a compli-
cated patina of cultural, political and historical realities; and, not least
troubling, an actual person – full of uncertainties, frustrations, fears and
* Kate Darling is a lawyer with the Legal and Constitutional Law Division of the Government of
Nunavut in Canada
1 ‘Asylum Levels and Trends in Industrialized Countries, Second Quarter 2006: Overview of Asy-
lum Applications Lodged in 31 European and 5 Non-European Countries’, online, UNHCR
Homepage: <http://www.unhcr.org/cgi-bin/texis/vtx/statistics/opendoc.pdf ?tbl=STATISTICS&
id=450fa85d2>, page 8 (last accessed 25 Mar. 2007). For the purposes of this article, the numbers are
significant only to give a sense of the number of applications dealt with annually.
Protection of Stateless Persons in International Asylum and Refugee Law 743
hopes. The decisions that these countries have made with respect to these
88,208 applicants form the basis for the analysis below.
The process by which an applicant gains status as a refugee, pursuant to
the 1951 Refugee Convention and the 1954 Statelessness Convention,2
and, therefore, protection in the country of asylum, is intentionally indi-
vidualistic.3 As a result, decision makers must necessarily engage in a factu-
ally dense inquiry with respect to each applicant. This individualized
analysis of each case does two things. First, it places heavy demands on
decision makers, making short-hand, cut and paste analysis a tempting
alternative.4 Second, it often prohibits the decision maker from assessing
their decisions in the context of the international human rights objectives
of the 1951 Refugee Convention.5
All of this fosters a sort of feedback loop, which makes it easier for states
to take a more restrictive approach to refugee determination without being
exposed as toeing the lower limits of their international obligations. In
defining ‘persecution’, for the purposes of refugee determination, for
example, states have routinely required that applicants demonstrate threat
to life or freedom on account of one of the Convention grounds. This is
the case despite the fact that cumulative violations of human rights could
also constitute persecution under the 1951 Refugee Convention.
States are the intended mechanism through which individuals access
the rights conferred by international human rights law. Having no state
obliged to ensure those rights, stateless persons can easily be excluded
from the purview of that body of law. In some cases, stateless persons
must rely entirely on the international refugee law regime for the protec-
tion of the rights to which they are entitled. In such cases, these individu-
als stand fully exposed to any reduction in the protections that this regime
offers. Even at its most generous, the international refugee protection
regime requires more of stateless persons than it does of nationals who
seek refugee status.
2 Convention Relating to the Status of Refugees, 28 July 1951, 189 UNTS 150 (entered into force
22 Apr. 1954); Convention Relating to the Status of Stateless Persons (entered into 26 Apr. 1954).
3 Sarah Davies, ‘“Truly” International Refugee Law? Or Yet Another East/West Divide?’ (2002) 21
Social Alternatives 37. Davies explains that the goal of the High Commissioner for Refugees under the
League of Nations in 1920 was to facilitate state recognition and protection for refugee groups seeking
asylum. The United Nations General Assembly, however, agreed on a definition of refugee based on
the persecuted individual. The author notes that this was the subject of intense debate.
4 It is not the intention of this article to criticize the investment of time and resources in the refugee
determination process. The author simply recognizes the reality that some decision makers are assigned
more files than perhaps they can approach in a fulsome way.
5 The 1951 Refugee Convention states at Para. 1 of the Preamble: ‘Considering that the Charter of
the United Nations and the Universal Declaration of Human Rights approved on 10 December 1948
by the General Assembly have affirmed the principle that human beings shall enjoy fundamental rights
and freedoms without discrimination’. Fundamental rights and freedoms form the basis of this agree-
ment and so must inform the decisions made pursuant to it. Although each decision maker may not be
obliged to carry out this assessment with respect to each candidate, in general, states have an obligation
that their refugee determination systems correspond with this underlying value.
744 Kate Darling
This article attempts to demonstrate the difficult relationship between
statelessness and the elements of the definition of refugee under the
Refugee Convention. Part 2 outlines the parameters of the analysis. Part 3
locates, in several international instruments, the human rights protections
to which stateless persons are entitled. Part 4 evaluates the circumstances
that led to the omission of stateless persons from effective international
refugee protection. Part 5 looks at how selected states have interpreted
their protection obligations towards stateless persons under international
refugee law. Part 6 suggests some of the effects of certain methods of anal-
ysis of the situations stateless persons face. Part 7 recommends a return to
basic principles as a more effective approach to the unique situation of
stateless refugee claimants.
2. Parameters
This article offers a viewpoint on the low priority that the international
community gives stateless persons. It also provides examples of the legal
analysis industrialized states6 have used with respect to this group, which
has in turn reinforced and legitimized that low priority. Specifically, the
article focuses on the initial refugee determination process7 for individual
stateless applicants8 at the inland offices in the prospective countries of
asylum. The examples provided do not constitute an exhaustive list. The
discussion begins with the location of statelessness, and its converse of
nationality, in the international human rights framework.
3. Nationality as a fundamental human right

It is axiomatic that nationality forms the basis of the legal and moral
obligations between the individual and the state. As the US-Mexico Gen-
eral Claims Commission defines this relationship in Re Lynch, the indi-
vidual owes allegiance to the state and in return may avail him or herself
of the state’s protections.9 Tsao explains that this relationship underpins a
6 Case law from Australia, Canada, New Zealand, the United Kingdom and the United States
forms the basis of this article. I have also taken advantage of academic appraisals of this case law.
7 Other processes such as pre-removal risk assessments and judicial and discretionary decisions
based on factors other than convention grounds may be equally prone to failing stateless applicants.
These have evolved in a slightly different historical and political context, however, and as such are bet-
ter left to a separate critique.
8 Events giving rise to statelessness en masse, such as occupation, foreign domination and decoloni-
zation, introduce some unique questions that require further study. It should be noted that over one
third of all UNHCR persons of concern reside in the regions of Africa and Latin America. In these
regions a significant number of states have adopted, at least notionally, the 1969 OAU Convention
Governing the Specific Aspects of Refugee Problems in Africa or the 1984 OAS Cartagena Declara-
tion on Refugees. As these instruments have more inclusive refugee definitions, it might be predicted
that relatively more stateless persons are afforded status by virtue of being stateless.
9 Re Lynch (1929-30), 5 Ann. Dig. 221 (US – Mexico General Claims Commission), 222.
fundamental philosophical concern in a system of nation states: ‘The
rights conferred with membership in a formally organized political commu-
nity are themselves indispensable for living a fully human existence, so much
so that to lack them is to be deprived of the very basis of human dignity . . .
A person denied a recognized place in a community . . . exists at the indul-
gence of the state and because of this their fate is out of their hands’.10
Specific to the refugee context, the 1951 Refugee Convention, the 1967
Protocol11 and the 1954 Statelessness Convention12 provide machinery
through which states can provide for this basis of human dignity and
through which states can give effect to their international human rights
obligations. Both Conventions list the criteria that Contracting States use
to determine which applicants need the protections that, as a state, the
Contracting State can provide. The 1954 Statelessness Convention recog-
nizes that stateless persons, whether or not they qualify as refugees, require
services, protection, and so forth, from the Contracting State.
These Conventions do not create the fundamental right to nationality,
nor can they limit its existence. Similarly, states’ interpretations of their
obligations thereunder – and their consequential approach to refugee
determination – do not limit their actual obligations with respect to funda-
mental rights under the International Covenant on Civil and Political
Rights (1976) (ICCPR), the International Covenant on Economic Social
and Cultural Rights (1976) (ICESCR) and the International Convention
on the Elimination of All Forms of Racial Discrimination (1965) (ICERD).
However, the process by which states refer to other states’ decisions and to
documents embodying state practice as interpretive of their international
human rights obligations denies the legal regime the necessary reflection
on the basic underlying principles. This article holds that decision makers
must return to these principles in their analysis in order to resist the erosion
of international human rights law standards.
The Universal Declaration of Human Rights (1948) (UDHR) recog-
nizes the fundamental bargain between a state and its constituents. It pro-
vides in Article 15: 1) Everyone has the right to a nationality; and, 2) No
one shall be arbitrarily deprived of his nationality nor denied the right to
change his nationality.13 Despite its declaratory status and the oft argued
10 Roy T. Tsao, ‘Arendt and the Modern State: Variations On Hegel in the Origins of Totalitarianism’
(2004) 66 The Review of Politics 105-36 at 125 and 126.
11 Australia, Canada, New Zealand and the United Kingdom have ratified the 1951 Refugee Con-
vention. The United States has not. The 1961 Convention on the Reduction of Statelessness, which
Australia, Canada, New Zealand and the United Kingdom have signed, stands as another expression
of the obligation states have with respect to the protection of stateless persons. However, it applies only
to those stateless persons born within a state’s borders. As such, consideration of this lies beyond the
narrow scope of this article.
12 Only Australia and the United Kingdom have ratified this convention.
13 Universal Declaration of Human Rights (10 Dec. 1948), online: UN Homepage <http://www.
un.org/Overview/rights.html> (UDHR).
746 Kate Darling
point that this instrument does not create a specific obligation towards
stateless persons,14 this statement of international priorities and values
does form the basis of succeeding international human rights agreements,
including the 1951 Refugee Convention itself.15 International law obliges
states to interpret these latter treaties ‘in light of their object and purpose’.16
So, the 1951 Refugee Convention must be interpreted in light of the prin-
cipal objective in its preamble, namely the protection of the fundamental
rights that the UDHR embodies.
Similarly, the ICCPR provides in Article 24(3) that every child shall have
the right to acquire a nationality.17 Further, Article 25, in brief, states that
every citizen shall have the right and the opportunity to take part in demo-
cratic institutions and to avail themselves of the services offered by the
state.18 While ‘citizen’ as it is written here appears to be exclusive to those
who come under a state’s jurisdiction, one must read it in conjunction with
the opening paragraph of the preamble, which provides that every human
is entitled to the rights provided for in the ICCPR. If the rights under Arti-
cle 25 are only available to citizens of a state, then every human must be
entitled to a nationality from some state in order for the right to retain its
substantial and logical foundation.19
The sister instrument of the ICCPR, the ICESCR, directs in Article 4
that a state can only limit the rights that it provides in a way consistent with
the objects of those rights in a democratic society and with international
law.20 Articles 6, 7 and 8 provide for fair working conditions within the
state. Article 9 ensures the right to access the state social security program.
Article 12 provides for a certain standard of health and Article 13 for an
education. All these rights constitute the vestiges of nationality. While that
right does not exist in a provision of its own, the ICESCR regards all its
essential elements as fundamentally protected.21
14 See, Rachel Settlage, ‘No Place to Call Home: Stateless Vietnamese Asylum Seekers in Hong
Kong’ (1997) 12 Georgetown Immigration Law Journal 194.
15 Above n. 2.
16 Vienna Convention on the Law of Treaties, 1155 UNTS 331, Art. 31(1). Art. 2 requires states to
look to the preamble of the treaty in order to inform their approach to the rest of the provisions of the
instrument.
17 Note that the International Convention on the Rights of the Child (ICRC) ensures a similar
protection against statelessness in Art. 7 of that convention. Cite: (20 Nov. 1989), online: UNHCR
<http://www.unhchr.ch/html/menu3/b/k2crc.htm.
18 International Covenant on Civil and Political Rights (16 Dec. 1966), online: UNHCR Homepage
<http://www.unhchr.ch/html/menu3/b/a_ccpr.htm> (ICCPR), Arts. 24, 25 and para. 1 of the
Preamble.
19 Australia, Canada, New Zealand, the United Kingdom and the United States, the states
discussed herein, have ratified the ICCPR.
20 International Covenant on Economic, Social and Cultural Rights (16 Dec. 1966), online: <http://
www.unhchr.ch/html/menu3/b/a_cescr.htm> (ICESCR), Art. 4.
21 Australia, Canada, New Zealand and the United Kingdom have ratified the ICESCR and the
United States has signed the instrument. These states are noted for the purpose of providing back-
ground for the case law analysis below.
Finally, Article 5 of the ICERD22 requires contracting states to guaran-
tee several rights without distinction as to, among other personal aspects,
nationality. Contracting states agree that Canadians and Australians, just
like Stateless Palestinians and Stateless Bidun, are entitled to, inter alia, ‘the
right to security of person and protection by the State against violence or
other bodily harm whether inflicted by government officials or by any indi-
vidual, group or institution’.23
So entrenched is this guarantee that in refugee determination systems
around the world, applicants must overcome the presumption that their
state will not or cannot protect them. That stateless applicants do not need
to overcome this presumption in Canada, for example, stands as recogni-
tion that this guarantee has not often been extended to this group.24 How-
ever, decision makers have not gone beyond this to really investigate what
this lack of state protection means both for the stateless applicant and for
the destination country vis à vis its international human rights obligations.
As will be seen in Part 5, the approach that states have taken to the analysis
of claims made by stateless persons has resulted in the insulation of the
refugee law regime from the impact of existing international human rights
obligations.
The ICERD further provides that all human beings are entitled to a
series of civil rights, including the right to nationality;25 the right to leave
any country, including one’s own; and the right to return to that country.26
Finally, contracting parties under the ICERD agree that everyone has
inherent to them economic, social and cultural rights, such as the rights to
work, to free choice of employment, and to just and favourable conditions
of work.27 However, stateless persons frequently encounter limitations to
these civil and economic rights due to requirements for work and residency
permits, exposing such individuals to costly employment-sponsor arrange-
ments, as well as from work quotas restricting the types of employment
they can undertake.28 Contracting States have obliged themselves to elim-
inate the situation where nationality (or the lack thereof) forms a basis for
the denial of the above rights. Yet, when the opportunity is presented,
these states reach for proof that they are not so legally bound.
22 International Convention on the Elimination of All Forms of Racial Discrimination (21 Dec.
1965), online: UNHCR <http://www.unhchr.ch/html/menu3/b/a_cescr.htm> (ICERD).
23 Ibid., Art. 2(b).
24 Thabet v. Canada (MCI), A-20-96, May 11, 1998 (FCA), online: <http://reports.fja.gc.ca/en/index.
html> (Thabet).
25 ICERD, Art. 5(d)(iii)
26 Ibid., Art. 5(d)(ii)
27 Ibid., Art. 5(e)(i)
28 See, Karma Nabulsi, ‘Politics of Identity – III: Being Palestinian’ (2003) 38 Government and
Opposition 479.
748 Kate Darling
The following section sets out some of the context that has fostered the
development of the feedback loop. Attention to context is valuable here for
disentangling the foundational principles of the international refugee
regime from the forces that have been at work on them for the last half-
century – in other words, the law from the international relations. Looking
at the development of the feedback loop also helps illuminate the fact that
the loop ultimately serves states’ interests rather than the interests of state-
less persons.
4. The omission of stateless persons from protection

4.1 The current view
In February 2007, the Committee on the Elimination of Racism (CERD)
released its 17th Canada Report. Paragraph 18 of that report indicates
Canada’s current position with respect to stateless asylum seekers:
The 1954 Convention relating to the Status of Stateless Persons to a large extent
duplicated the 1951 Convention relating to the Status of Refugees; in the
Canadian context, therefore, there was no need for both. Furthermore, Canada
believed that it had the necessary safeguards in both its citizenship and immigra-
tion legislation to adequately cover the situation of stateless persons. Stateless
persons were eligible to make refugee protection claims with respect to their
country or countries of former habitual residence. Individuals whose claims for
refugee protection had been rejected could apply for ‘pre-removal risk assess-
ment’, or apply to remain in Canada for humanitarian and compassionate rea-
sons. Successful refugee claimants, as well as those whose applications were
accepted on humanitarian grounds, could apply for permanent residence within
Canada with the prospect of becoming permanent citizens once they fulfilled
the requirements applicable to all permanent residents of Canada. Stateless
persons were also eligible to apply in other categories, including skilled immi-
grants or family reunification.29
In a matter of fact way, Canadian officials explained to the Committee
that their refugee regime responds fairly and effectively to the unique
situation of stateless persons. The rationale seems to be that because
stateless persons are allowed to apply for refugee protection,30 to argue
29 Committee on the Elimination of Racial Discrimination, Summary Record of the 1790th Meet-
ing, 17th Report of Canada, 20 Feb. 2007, para. 18. CERD/C/SR.1790, online: <http://daccessdds.
un.org/doc/UNDOC/GEN/G07/405/76/PDF/G0740576.pdf ? OpenElement>.
30 Immigration and Refugee Protection Act, RSC 2001, c. 27 (IRPA). In Canada, applicants can
obtain Convention Refugee status under s. 96 or protected person status under s. 97 of the Act. Unique
to Canada in reference to the other state cited in this article is the fact that the 1951 Refugee Conven-
tion has been interpreted and inserted into the Act. Other states have decided to incorporate by refer-
ence the Convention.
for stays of removal31 and to request Ministerial discretion,32 Canada’s
international human rights obligations towards persons deprived of na-
tionality is satisfied. In other words, because the procedures are equally
available to stateless persons, this group is in fact being adequately protect-
ed.33 Notably, this reasoning contrasts the adverse impact approach to
substantive rights that is entrenched in Canadian human rights jurispru-
dence. As suggested above, however, neither the 1951 Refugee Conven-
tion nor the 1954 Statelessness Convention create or limit the
fundamental human right to a nationality. The Canadian position hints
at the way in which the development of refugee law has been insulated
from the impact of international human rights obligations and how
this in turn has lead to a legitimization of the treatment of stateless
persons.
This tactic of evading substantive human rights obligations by hiding
behind boilerplate refugee determination formulae seems to meet with
approval from other industrialized states. Two principle compendia illumi-
nate this situation. The United Nations High Commissioner for Refugees
Handbook on Procedures and Criteria for Determining Refugee Status
under the 1951 Convention and 1967 Protocol relating to the Status of
Refugees (the ‘Handbook’) constitutes the first of these.34 The Handbook
suggests answers to international refugee law questions on the basis of
knowledge accumulated by the High Commissioner’s office since the entry
into force of the 1951 Refugee Convention in 1954 and on the basis of
state practice.35 Paragraph 102 of the Handbook states: ‘not all stateless
persons are refugees. They must be outside the country of their former
habitual residence for the reasons indicated in the definition. Where these
reasons do not exist, the stateless person is not a refugee’.36 So elegantly
equitable in its application, this statement masks the inequity of its effect.
The second compendium is the series of statements, or ‘Conclusions on
International Protection’, that the UNHCR Executive Committee (the
‘ExCom’) publishes after consensus is reached on an issue raised at its
31 IRPA, s. 112. To give a sense of what the Pre-Removal Risk Assessment process means in
terms of additional protection for stateless persons under a removal order, in Canada success rate
stands at 5% annually. See, Pia Zambelli, ‘Is Canada a Safe Country for Refugees?’, online: ILW
<http://www.ilw.com/articles/2005,0204-zambelli.shtm#bio>.
32 IRPA, s. 25(1). Applications on Humanitarian and Compassionate grounds have a success rate of
5% and a fee of $550. See, Citizenship and Immigration Canada, ‘Humanitarian and Compassionate
Grounds Applications’, online: CIC Homepage <http://www.cic.gc.ca/english/applications/guides/
5291E5.html>.
33 This reasoning contrasts with that which has developed in Canada with respect to substantive
rights.
34 United Nations High Commissioner for Refugees Handbook on Procedures and Criteria for
Determining Refugee Status Under the 1951 Convention and 1967 Protocol Relating to the Status of
Refugees (Jan. 1992), HCR/IP/4/ENG/Rev. 1. Reedited, Geneva.
35 Ibid., Foreword, para. VI.
36 Ibid., para. 102.
750 Kate Darling
annual meeting.37Conclusion 78 issued in 1995 stressed ‘that the preven-
tion and reduction of statelessness and the protection of stateless persons
are important in the prevention of potential refugee situations’.38 Eight
years later, the Executive Committee issued Conclusion 96 and urged
States to take steps to avoid cases of statelessness as well as to adopt meas-
ures leading to the grant of a legal status to stateless persons.39 Inconspicu-
ous in their absence at first glance, the Conclusions fail to reference the
obligations already in existence for States Parties to international human
rights conventions. What is more, the statements amplify an ambivalence
towards these obligations that do not exist in the treaties themselves. While
these Conclusions are not intended to have a binding effect, the ExCom
explains that they are relevant to the interpretation of the international
protection regime and constitute expressions of opinion, which are broadly
representative of the views of the international community.40 What they
do not necessarily reflect, are the existing international human rights obli-
gations of Contracting States.
Importantly, the current attitude towards stateless persons did not always
reign. Neither did a single law or convention expressly and comprehensively
castigate stateless persons as ‘bogus’ asylum seekers41 who could not satisfy
the Convention Refugee definition. A particular historical-political context,
reinforced by legal arguments and their cannibalized manifestations in differ-
ent legal systems, has generated the view that while it would be nice to give
nationhood to the stateless, no state is obliged to do so and there exists no legal
mechanism through which to accomplish it. To deconstruct a legal regime,
one must understand how it was built.42 The remainder of this section
37 The UNGA established the Executive Committee by Resolution 1166 (XII): ‘The General Assem-
bly requests the Economic and Social Council to establish an Executive Committee of the High Com-
missioner’s Programme to consist of representatives of from twenty to twenty–five States Members of the
United Nations or members of any of the specialized agencies, to be elected by the Council on the widest
possible geographical basis from those States with a demonstrated interest in, and devotion to, the solu-
tion of the refugee problem’. These members, now 40, meet once a year in early Oct.
38 Office of the United Nations High Commissioner for Refugees, Department of International
Protection, A Thematic Compilation of Executive Committee Conclusions (2d edn., June 2002), online:
<http://www.unhcr.org/cgi-bin/texis/vtx/publ/opendoc.pdf ?tbl=PUBL&id=3d4ab3ff2> (last
accessed 28 Feb. 2007).
39 Ibid.
40 Executive Committee Conclusions on International Protection, online: UNHCR Homepage
<http://www.unhcr.org/excom/3bb1cb676.html> (last accessed 25 Mar. 2007).
41 See, Nevzat Soguk, States and Strangers: Refugees and Displacements of Statecraft (Minneapolis, Minne-
sota: University of Minnesota Press, 1999) 31. Soguk references a statement made by Michael Howard,
British Interior Minister, 1995: ‘We have a real problem in this country. We are seen as a very attractive
destination because of the ease with which people can gain access to jobs and benefits. We must take
firm action against bogus asylum seekers’. This notion that those who do not fit the definition of refugee
are not deserving of protection is one of the fallacies that seems to have taken hold regarding stateless
persons. Because it is tendered as a fact, it has become fact in the experience of both stateless persons
and the people that make decisions about them.
42 There is an inherent conundrum involved in building with the intent to deconstruct. However,
there is a valuable perspective to be gained here, even if only for the purposes of this argument.
attempts to explain how it is possible for Canada’s comments in the CERD
Report, the ExCom Conclusions and the Handbook clarifications respecting
stateless persons to have been deemed acceptable.
4.2 Formation of the current view

The current refugee law regime, with the 1951 Refugee Convention as
its flagship, took its official shape in the post Second World War period.43
The Convention dealt two serious, but non-fatal, blows to the prospect
of protecting stateless persons under the international refugee regime.
First, the drafters of the Convention decided on the following refugee
definition:
The term refugee shall apply to any persons who . . . as a result of events occurring
before 1 January 1951 and owing to well-founded fear of being persecuted for
reasons of race, religion, nationality, membership of a particular social group or
political opinion, is outside the country of his nationality and is unable, or owing
to such fear, is unwilling to avail himself of the protection of that country; or who,
not having a nationality and being outside the country of his former habitual resi-
dence as a result of such events, is unable or, owing to such fear, is unwilling to
return to it.44
While the semicolon’s exact meaning has attracted a commendable
amount of debate,45 what is important to note here is the parallel treat-
ment accorded to applicants with a nationality and to applicants without
a nationality. Over time, a judicial treatment of this definition has en-
trenched the notion that the situation of stateless persons can be analyzed
in the same way as persons possessing a nationality by inserting ‘former
habitual residence’ for ‘country of nationality’.46 Since stateless persons
are specifically referred to, courts would reason, the condition of state-
lessness does not prima facie lend itself to persecution, as being a woman
does in some countries, and belonging to a particular social group does
in others.47
43 Davies, above n. 3, accounts for refugee law as it existed under the League of Nations. While the
focus of this article does not permit a thorough historical review, what is relevant from Davies’ research
is that stateless persons were considered as a group to be entitled to international protection. The refu-
gee definition was reformulated on the basis of persecution of the individual.
44 Above n. 2.
45 Savvin v. Minister of Immigration and Multicultural Affairs [1999] 166 ALR 348, para. 51, online:
Federal Court Reports <http://reports.fja.gc.ca/en/index.html> (Savvin 1999).
46 Amer Mohamed El-Ali and Secretary of State for the Home Department [2002] UKIAT 00159 (El-Ali). This
case discusses the parallel treatment of persons with a nationality and persons without.
47 Fathi-Rad v. Canada (Secretary of State) (1994), 77 FTR 41 (FCTD), online: Federal Court Reports
<http://reports.fja.gc.ca/en/index.html> (Fathi Rad). The Canadian Federal Court presents the
dichotomy between the stateless and individuals possessing a nationality.
752 Kate Darling
The second blow came in an appendix to the Final Act of the Confer-
ence of Plenipotentiaries, in which the Convention draftspersons stated
simply, but devastatingly:
The Conference,
Having Considered the draft Protocol relating to the Status of Stateless Persons,
Considering that the subject still requires more detailed study,
Decides not to take a decision on the subject at the present Conference and refers
the draft Protocol back to the appropriate organs of the United Nations for fur-
ther study.48
The matter of how to address stateless persons was therefore deferred.

Although legally this appendix bears no more weight on the interpreta-
tion of the Convention than any other piece of extrinsic evidence,49 the
appendix has, ironically, become a foundation for the exclusion of state-
less persons from the realm of international protection.
In Revenko v. Secretary of State for the Home Department,50 the British Court of
Appeal considered the question of whether or not, ‘having referred the
draft Protocol relating to the Status of Stateless Persons back for further
study’ stateless persons as a group are included for specific protection.51
Professor Goodwin-Gill prepared a report on the issue of stateless persons
for the Applicant, which was cited in the decision and subsequently dis-
missed. At paragraph 51 of that report, Professor Goodwin-Gill stated:
In short, the drafters of the 1951 Convention intended to protect stateless refugees
who were outside their country of former habitual residence ‘as a result of events’
occurring before January 1951. Such events included political, social and related
displacements, as well as the wholesale ‘writing off ’ of stateless individuals and
populations, for example, by bureaucratic methods (failure to renew travel docu-
ments, to reply to correspondence, etc.). It was not necessary that the individual be
outside that country because of a well-founded fear. The reason for treating the
stateless refugee differently is found in the stateless person’s a priori unprotected
status, which was considered to justify, in this one regard, a different treatment.52
48 Final Act of the United Nations Conference of Plenipotentiaries on the Status of Refugees and
Stateless Persons, July 1951, online: <http://www.unhcr.org/cgi-bin/texis/vtx/protect/opendoc.
pdf ?tbl=PROTECTION&id=3b66c2aa10> (last accessed 1 Mar. 2007).
49 Arts. 31 and 32, Vienna Convention on the Law of Treaties United Nations, Treaty Series, vol.
1155, 331.
50 Revenko v. Secretary of State for the Home Department [2000] 3 WLR 1519; [2001] QB 601 (CA), online:
Federal Court Reports <http://reports.fja.gc.ca/en/index.html (Revenko).
51 Ibid., 7.
52 Ibid., 8. Pill LJ sets out portions of Professor Goodwin-Gill’s report prepared for the Applicant
for the purposes of his appeal.
The British Court of Appeal’s response was interesting in two ways. First, the
Court discounted the explanation as being merely one ‘reason’ why state-
less persons should be protected, in other words, they considered it to be a
contextual analysis of the drafting of the Convention rather than a textual
analysis of the Convention.53 Even if this is the case, when much of the in-
terpretation of rights and obligations under international refugee law revolves
around drafters’ intent, it would seem that the attitude towards the stateless-
ness issue at the time ought to be given credence. So, then, what is the fear
with respect to treating stateless persons differently on the mere basis of their
unprotected status? Is it that this might entail a broad purposive interpretation
of the 1951 Refugee Convention beyond what the drafters intended? Or is it
that there is an inherent discomfort within the judiciary of exposing the state
to the fabled mass of claims, in particular where that state has established
international human rights obligations towards such claimants?
Regardless of the answer, the Court went on to adopt Hathaway’s position,
which had been used by the respondent in evidence: ‘It was the intention of
the drafters, however, that all other refugees should have to demonstrate “a
present fear of persecution” in the sense that they “are or may in the future
be deprived of the protection of their country of origin”’.54 While this
appears to be a mere clash of expert opinions, provided for the purposes of
the hearing, the Court’s later summation revealed that perhaps the Court was
not consistent in its search for a strict textual analysis, as suggested with respect
to Goodwin-Gill’s argument. The Court stated: ‘I also give weight to Profes-
sor Hathaway’s statement, consistent as it is with the contents of the UNHCR
Handbook . . . That opinion is not, in my view, discredited by Professor
Hathaway’s more controversial views upon the relevance of the absence of
a country of residence’.55 Here, the Court relied heavily on the UNHCR
Handbook,56 citing an expert academic’s position where it supported the
UNHCR Handbook, while dismissing the arguments that conflicted with it.
This decision missed a key point, namely, that even accepting Hathaway’s
position, there was room in the early decades for statelessness to be adequately
addressed under the international refugee regime. As persecution is not
defined in the Convention,57 the law could have developed a presumption
53 Ibid.
54 Ibid., 7. The Court refers to the book by Professor James Hathaway, The Law of Refugee Status
(Cambridge, UK: Cambridge University Press, 1991) at 68-9. This was advanced as evidence in the
arguments of the Secretary of State. It should be noted that this is an early text by this author and does
not necessarily represent his definitive view on this subject. What is important to draw is that where the
jurisprudence could have sought to develop a more inclusive interpretation of the words remaining in
the 1951 refugee definition, courts have instead consistently looked for more restrictive interpretations
of the definition and the underlying intent of the drafters.
55 Ibid., 13.
56 Earlier in the judgment, the Court frequently cited the UNHCR Handbook. See, ibid., 9.
57 Altawil v. Canada (M.E.I.) (1996) FCJ No. 986, online: Federal Court Reports <http://reports.fja.
gc.ca/en/index.html> (Altawil). The Court in this case discusses the threshold level that discrimination
must meet to constitute persecution. The Court refers to dictionary definitions for insight.
754 Kate Darling
in favour of these applicants with respect to this part of the definition. How-
ever, various forces, reflected in the High Commissioner’s experiences, as
detailed in both the UNHCR Handbook and the ExCom decisions, were at
work. A brief discussion of these forces provides the necessary context for
these two documents.
The Statute of the United Nations High Commissioner for Refugees
predicted cooperation between the UNHCR and States Parties to the Ref-
ugee Convention in the voluntary repatriation and resettlement of refu-
gees.58 According to the Statute, stateless persons were included in the list
of intended beneficiaries.59 This coverage is unsurprising if you consider
the context. United Nations documents show that at around this time the
distinction between stateless persons and refugees was not entrenched in
any way. The sense among some was that if a person was stateless for
political reasons, in other words, not as a matter of convenience, they
should be treated as refugees.60 In fact, in the pre-Refugee Convention era
under the League of Nations, the emphasis was on a collective response to
protect groups that required protection, including stateless persons.61 The
focus on individual applicants, with its attendant characteristic of state
discretion, was a later development.
Goodwin-Gill’s gloss on the departure from this view, with respect to the
position of stateless persons in international asylum law, highlights the
unofficial development of the exclusive policy: ‘Historically, refugees and
stateless persons walked hand in hand, and after the First World War, their
numbers and condition were coterminous . . . [Later] their paths diverged,
with refugees being identified by reference to the reasons of flight, and
their statelessness, if it existed was seen as incidental to the primary
cause’.62
The UNHCR Statute mandates that the ‘work of the High Commis-
sioner shall be of an entirely nonpolitical character; it shall be humanitar-
ian and social and shall relate, as a rule, to groups and categories of
refugees’.63 However, as the literature emphasizes, decisions by states with
58 Statute of the Office of the United Nations High Commissioner for Refugees (14 Dec. 1950),
online: UNHCR Homepage <http://www.unhchr.ch/html/menu3/b/o_unhcr.htm>, Art. 1.
59 Note that the definition of those covered by the UNHCR Statute is expressly more inclusive than
that found in the 1951 Refugee convention: ‘Any person who, as a result of events occurring before 1
January 1951 and owing to well-founded fear of being persecuted for reasons of race, religion, nation-
ality or political opinion, is outside the country of his nationality and is unable or, owing to such fear or for
reasons other than personal convenience, is unwilling to avail himself of the protection of that country; or
who, not having a nationality and being outside the country of his former habitual residence, is unable
or, owing to such fear or for reasons other than personal convenience, is unwilling to return to it’ (emphasis
added).
60 UN doc. E/CONF.17/SR. 10, 11.
61 Davies, above n. 3, 37.
62 Cited in Sumit Sen, ‘Stateless Refugees and the Right to Return: The Bihari Refugees of South
Asia – Part 1’ (1999) 11 IJRL 625 at 644.
63 Above n. 58 Art. 2.
respect to refugees have always been made in the realm of politics with
social and humanitarian ethics important, yet secondary, considerations.64
It was in this politically charged post-war environment that the UNHCR
had to figure out how to advance refugee interests while maintaining good
relations with states and securing its own existence so that it could continue
to advance the interests of the beneficiaries of its mandate.
The question that needs to be asked here is whether the UNHCR turned
away from a protracted battle on behalf of stateless persons in favour of
emergency refugee situations, which brought more attention and funding.
As Gil Loescher suggests in his thorough work on the history of the organ-
ization, ‘in order to have any impact in the world political arena, the High
Commissioners have had to use the power of their expertise, ideas, strate-
gies and legitimacy to alter the information and value contexts in which
states make policy’.65
In the early Cold War environment, the UNHCR was valuable to western
countries, principally the United States, as it was in a prime position to
facilitate flows of refugees out of the Eastern Bloc.66 However, the focus of
states changed and organizations such as the International Committee of
European Migration (ICEM)67 and the United States Escapee Programme
(USEP),68 as well as the United Nations efforts in the Korean Peninsula
and the Middle East,69 created an increasingly competitive environment
for the UNHCR. In order to preserve its relevance in the international
sphere, the agency began to adopt a rapid, on-site, emergency response
role.70 As well as providing tents and blankets, containment and repatriation71
64 Seyed Mohammad Ghari Seyed Fatemi, ‘Who is a Refugee? Comparison of a Misconstrued
Concept in International Human Rights, Shi’I Fiqh and the Iranian Legal System’ (2005) 9 International
Journal of Human Rights 183 at 185.
65 Gil Loescher, The UNHCR and World Politics (Oxford, England: Oxford University Press, 2001) at 4.
66 Ibid., 7.
67 Intergovernmental Committee for European Migration (19 Oct. 1953) online: <http://138.25.
65.50/au/other/dfat/treaties/1954/22.html> (last accessed 3 Mar. 2007).
68 The United States Program for Assisting Escapees and Refugees was launched in 1952. President
Eisenhower proclaimed the following goal for the US and the world to be achieved through the pro-
gram: ‘I Believe that the task of caring for the escapees should have the highest emphasis in the minds
of all the free world, and I am happy that the United States has already done so much of this work. It
is the unswerving aim of the United States that the burden of arms, the fear of oppression, and the
need of flight shall, some day, be lifted from mankind in order that there may no longer be refugees or
escapees, and that all may live in peace and freedom’. While mankind was the focus of the speech,
people fleeing Communist China and Eastern Europe were the focus of the program. See, ‘The Amer-
ican Presidency Project’, online: <http://www.presidency.ucsb.edu/ws/index.php?pid=9775>.
69 Above n. 65, 7.
70 The Hungarian Refugee Crisis of 1956 was the first example of this kind of emergency response.
This example has been followed and surpassed through the UNHCR’s assistance to various displace-
ments caused by a host of crises, such as, in recent times, the Gulf War, the Balkan War, the Rwandan
Genocide, and the war in Afghanistan.
71 For the last two decades, the UNHCR has developed its policy of voluntary repatriation, placing
much greater emphasis on ensuring ‘safe returns’ of persons of concern. Simultaneously, the UNHCR
has become increasingly involved in working with stateless persons. They currently constitute 7.6% of
the UNHCR’s mandate.
756 Kate Darling
were part of UNHCR’s activities.72 Whereas Article 1 of the UNHCR
Statute calls specifically for cooperation between the agency and states in
order to facilitate the assimilation of the persons under its mandate into
new national communities, alongside voluntary repatriations, the displaced
and the stateless have increasingly been ‘encouraged’ to return.
Although the UNHCR undoubtedly plays a necessary role in these
emergency operations, this central focus on crises obstructs the agency
from addressing the structural and long-term problems experienced by
people coming within its mandate. Settlage elucidates this phenomenon.
After the fall of Saigon in 1975, a small group of ethnic Chinese migrants
were driven from Vietnam. Currently residing in Hong Kong, neither the
Chinese nor the Vietnamese government will recognize them as nation-
als.73 Like the majority of stateless populations, their prospects for work,
education, healthcare and mobility are severely limited. Pertinent here is
the fact that, while Settlage finds that these individuals come under the
terms of the 1951 Refugee Convention74 (an interpretation issue that will
be addressed in the following sections), she also notes the following option:
were the UNHCR to confer on them mandate refugee status under their
statute, these stateless ethnic Chinese could be resettled in an appropriate
country.75 Instead, however, the UNHCR has shown reluctance to ‘assume
this decisive role’ and has emphasized repatriation to a country unwilling
to grant them status.
All of this helped to create the context in which Canada could confi-
dently report to the Committee on the Elimination of Racial Discrimina-
tion that stateless persons received adequate protection under its asylum
procedures. The human rights violations that have received the attention
of the UNHCR have been those that are catastrophic and immediate –
violations that can be mitigated through the delivery of life’s necessities.
However, the stateless person’s condition of rightlessness,76 a condition
that makes all other fundamental human rights effectively precarious,
remains persistent and protracted. By focusing all efforts on emergency
response, the latter condition has evolved into a so-called ‘bogus’77 use of
the regime’s resources. As such, the neglect of stateless persons has become
legitimate and not in conflict with states’ international human rights
responsibilities.
72 Jacob Stevens, ‘Prisons of the Stateless: Derelictions of the UNHCR’ (2006) 42 New Left Review 54.
73 Settlage, above n. 14, 190.
74 Ibid., 199.
75 Ibid., 200.
76 Tsao, above n. 10. In the interest of transparency, Arendt’s philosophy on citizenship as providing
the right to rights gives the undercurrent to this article, that stateless persons must be entitled to state
protection, its substance.
77 Above n. 41.
Having explained the above context, it is unnecessary and unhelpful to
assign fault. More important is how the international refugee law regime
that the High Commissioner has come to represent, through its fight for
survival and influence, has seeped into developing domestic asylum
regimes. What is also important, is a recognition of two ensuing conse-
quences: first, international refugee law succumbs to the lowest common
denominator through a process of adopting other countries’ judgments;
and, secondly, through continued use and misuse of interpretations of
international refugee law, ideas become entrenched as law.
5. Deciding claims of stateless applicants

This section describes how courts and tribunals in Australia, Canada,
New Zealand, the United Kingdom and the United States have ap-
proached refugee claims in cases of stateless applicants. It is organized on
the basis of selected factors, which are often encountered in the refugee
determination process: (a) Refugee Definition, (b) Country of Reference,
(c) Discrimination Amounting to Persecution, (d) Denial of Re-entry, and
(e) Deportation. These particular issues have become something of a bat-
tleground for those trying to press the refugee protection regime to rec-
ognize the uniquely precarious situation experienced by stateless persons.
The aim of this section is both to demonstrate that the refugee law re-
gime insulates decision makers from reflecting on their state’s interna-
tional human rights obligations and to show that this legitimizes the
persistent vulnerability of stateless persons.
5.1 Definition
Article 1A(2) of the Refugee Convention sets out the thrust of the refugee
definition, as quoted in Part 4.2 above.
While definitions are generally useful for organizing the allocation of
rights, it must be recognized that the negative space thus created by the
strict adherence to a definition can essentially make some people refugees
and unmake others.78 The peculiar, insulated way in which the interpreta-
tion of the Convention has developed has entrenched a dividing line
between those entitled and those not entitled to protection.
Verstad asserts: ‘While there have been developments in the refugee
definition at the level of the UNHCR through its expanded mandate79 and
at the level of some regional instruments, the 1951 Refugee Convention
78 Sarah Kiyambi, ‘National Identity and Refugee Law’ in Peter Fitzpatrick and Patricia Tuitt (eds.),
Critical Beings: Law Nation and the Global Subject (Hants, England: Ashgate Publishing Ltd., 2004) 19, at 26.
79 The UNHCR’s expanded mandate includes both the persons of concern under its originating
statute and the expansions made to reflect the OAU 1969 and the OAS 1984 Cartagena Declaration
refugee definitions.
758 Kate Darling
definition remains the legal base for refugee determination in Europe’.80
This is true for the states canvassed here as well, therefore, the following
analysis centers on the approaches taken to that definition.
5.2 Country of reference

The basic principle of refugee law is to grant such status only to those
requiring surrogate protection and not to those who have access to pro-
tection elsewhere.81 The first step in determining whether the applicant
passes this particular hurdle requires courts to refer to countries that have
a prior obligation to provide protection to the applicant. For applicants
who possess a nationality, the country of reference is the country of that
person’s nationality. This makes sense, since in law the states have an
obligation to protect the human rights of their own citizens.82
With respect to stateless persons, the surrogacy inquiry proceeds on the
basis of the last former habitual residence of that individual. Immediately
apparent here is the fact that this former habitual residence does not owe
any duty to protect the rights of the stateless applicant. Stateless persons do
not have to show that they are unwilling to avail themselves of state protec-
tion.83 However, the way that the country of reference analysis has been
approached by states, and embodied in the UNHCR Handbook, has
excluded the possibility of a presumption that because the applicant does
not have a country of nationality, he or she is more predisposed to being
persecuted.
In support of the proposed argument, after reviewing paragraph 104 of
the Handbook,84 the Canadian Federal Court of Appeal in Marwan Youssef
Thabet v. Canada (Minister of Citizenship and Immigration) [1998] outlined its
test for determining former habitual residence at paragraphs 55–6:
Stateless people should be treated as analogously as possible with those who have
more than one nationality. There is a need to maintain symmetry between these
groups, where possible. It is not enough to show persecution in any of the countries
of habitual residence – one must also show that he or she is unable or unwilling to
return to any of these countries. While the obligation to receive refugees and offer
safe haven is proudly and happily accepted by Canada, there is no obligation to a
80 Vigdis Vevstad, Refugee Protection: A European Challenge (Oslo, Norway: Tano Auschehoug, 1998) 95.
81 Grygorian v. Canada (MCI)(1995), 33 Imm. LR (2d) 52 (FCTD), online Federal Court Reports
<http://reports.fja.gc.ca/en/index.html>; (Grygorian). The Court engages with the basis of the rationale.
82 Notable is the fact that in some instances where a state fails to fulfill this responsibility, under the
‘Responsibility to Protect’ doctrine that state loses its inherent right to territorial sovereignty. See,
Ramesh Thakur, Responsibility to Protect: Report of the International Commission on Intervention and State Sover-
eignty (Ottawa, ON: International Development Research Centre, 2001).
83 Above n. 2. Art. 1A(2) states: ‘[an individual] not having a nationality and being outside the
country of his former habitual residence as a result of such events, is unable or, owing to such fear, is
unwilling to return to it’.
84 Above n. 34, 104.
person if alternate and viable haven is available elsewhere. This is in harmony with
the language in the definition. . .85
The test itself is straightforward. The claimant must establish that there
is persecution in one former habitual residence and that he or she cannot
return to any former habitual residence. However, in adopting the short-
hand approach presented in the UNHCR Handbook, which emphasizes
the value of symmetry between two differently situated groups, the court
avoids a discussion of what a ‘viable haven’ actually is in the facts of this
case.
The following demonstrates the cross-pollination of this shorthand
approach between determination systems. In 2002, the New Zealand Ref-
ugee Status Appeals Authority86 claimed to adopt the approach advanced
in Thabet. At paragraph 121, the decision maker states:
Our conclusion (paraphrasing Article 1A(2)) is that where a stateless person has
habitually resided in more than one country, in order to be found a Convention
Refugee, such person must show that he or she has a well-founded fear of being
persecuted for a Convention reason in at least one country of former habitual resi-
dence, and that he or she is unable or, owing to such fear, is unwilling to return to
each of his or her other countries of former habitual residence. In short, the well-
founded fear of being persecuted for a Convention reason must be established in
relation to each and every country of former habitual residence. . .87
Clearly, while symmetry is claimed by the latter decision maker too, there
is a disconnect between what the two courts understand to be required
of the applicant. The latter decision imposes a far heavier onus on the
applicant than does the former. This demonstrates why using the UNHCR
Handbook (by the Court in Thabet) and using decisions from other juris-
dictions as interpretive tools should be approached with caution. Had
either court engaged in a fact-based analysis of what a country of refer-
ence actually represents in the respective cases, namely the state that has
the presumed prior obligation towards the applicant, the two decisions
may have been more analytically consistent. Further, and more impor-
tantly, these courts may have developed an approach that is more realis-
tic vis à vis the needs of stateless persons and the states’ international
human rights obligations.
Germov nails down the analytical conundrum that has led to inconsist-
ency in this part of the refugee determination process. Decision makers
have to decide whether stateless persons face persecution and are therefore
entitled to protection under the Convention. Based on the approach to this
issue as espoused by Hathaway, an applicant must establish that they are
85 Thabet, above n. 23, 56.

86 New Zealand Refugee Status Appeals Authority, Refugee Appeal No. 72635/01, 6 Sept. 2002.
87 Ibid., 121 (emphasis added).
760 Kate Darling
outside a country of former habitual residence owing to a well-founded
fear of persecution, which is a prospective analysis that is heavily influ-
enced by evidence of past persecution. The common thread for stateless
persons, however, is that there is often no possibility for return and, there-
fore, no future threat emanating from that country and, consequently, no
way to determine that the person meets the refugee definition.88
While this approach seems analytically correct, in the present refugee
determination regimes it ties the hands of the decision makers and may
place stateless persons at an even greater disadvantage. Leaving the resolu-
tion of this for another day, the problem that Germov and Hathaway
present points to two defects that have developed in the international refu-
gee regime. First, the stark differences between stateless persons and those
in possession of nationalities gets passed-over in favour of symmetry,
neglecting the real circumstances of stateless persons. Second, since dis-
cussions of state obligations under the ICCPR, the ICESCR, the ICERD
and the CRC have been excluded from refugee analysis at the state level,
as well as in the UNHCR Handbook and the ExCom conclusions,89 this
has resulted in states having people in their territories with respect to whom
they have no applicable legal machinery.
5.3 Discrimination amounting to persecution

Whereas the country of reference analysis above seeks to determine
whether the applicant should have sought protection from a state having
prior obligations to the claimant, the persecution analysis seeks to deter-
mine whether the applicant is really in need of protection at all. In order
to prove that he or she needs protection, the refugee regimes canvassed
here oblige the applicant to prove a well-founded fear of persecution.90
The issues addressed at this stage of the analysis are: what type, what
level, what duration, or what combination of these three qualifiers of
human rights abuses amounts to persecution?
The vast majority of stateless people experience a series of low-level dis-
criminatory rules, laws and customs that make existence difficult.91 Con-
sider the following scenario: ‘Palestinians who leave Egypt can ensure their
return in one of two ways. They must either return every six months or
provide papers proving they are working or documents stating educational
enrolment abroad . . .. Any delay in return beyond this date, however, results
88 Roz Germov and Francesco Motta, Refugee Law in Australia (South Melbourne, Australia: Oxford
University Press, 2003) at 153-4.
89 Above n. 38. Note that Conclusions 78 in 1995, 96 in 2003, and 101 in 2004 each ‘urge states’ to
‘work towards’ ‘taking measures leading to’ the grant of legal status. None of these mentions other
international human rights obligations that bear on the issue.
90 Above n. 2, Art. 1A(2).
91 David Palmer, ‘Between a Rock and a Hard Place: the Case of Papuan Asylum-Seekers’ (2006)
52 Australian Journal of Politics and History 576.
in denial of entry’.92 Because of poor employment prospects, many stateless
persons are forced abroad. And because they can be denied the right of
return if they do not comply with these so-called laws of general application,93
stateless persons must constantly uproot. Appended to this condition of lim-
ited mobility rights and restricted work prospects is differential treatment
with respect to healthcare and education for everyone in the applicant’s fam-
ily. Looming over all of this is the reality that this has been the situation for
generations and promises, without intervention, to be the prospect for gen-
erations to come. Does this amount to persecution? Do Contracting States
have a responsibility to limit this situation when presented with an opportu-
nity to do so; or, does it lie beyond their obligations?
Persecution finds no definition in the Convention itself. Paragraph 53 of
the Handbook states: ‘In such situations, the various elements involved may,
if taken together, produce an effect on the mind of the applicant that can
reasonably justify a claim to well-founded fear of persecution on “cumula-
tive grounds”. Needless to say, it is not possible to lay down a general rule as
to what cumulative reasons can give rise to a valid claim to refugee status.
This will necessarily depend on all the circumstances . . .’.94
The absence of a bright line amount or degree of discrimination consti-
tuting persecution has inspired quite a bit of literature and quite a bit more
case law.95 The basic concept is that incidents negatively affecting rela-
tively minor derogable96 rights may amount to persecution when they are
assessed together and may support a finding of harm on the person’s eve-
ryday life. One author notes, however, ‘it is often difficult to determine
when harassment becomes persecution, and is therefore one area where
states tend to set too high a threshold on the interpretation of what consti-
tutes persecution’.97
For example, in Sahar Ouda v. Immigration and Naturalization Service [2003],
the Court had to determine whether a stateless Palestinian woman claim-
ing refugee status on the basis of mistreatment by the Kuwaiti Govern-
ment could establish persecution. The Court decided that persecution can
include not only threats to life, but also economic restrictions so severe that
92 Oroub El-Abed, ‘Palestinian Refugees of Egypt: What Exit Options Are Left for Them?’ (2004)
22 Refuge 21.
93 I have argued in Federal Court that although the requirement for residency permits might be a
law of general application, it is certainly not a law of general effect. These negatively impact stateless
persons in a way not experienced by persons with a nationality.
94 Above n. 34. Para. 53 of the Handbook states: ‘In such situations, the various elements involved
may, if taken together, produce an effect on the mind of the applicant that can reasonably justify a
claim to well-founded fear of persecution on “cumulative grounds”. Needless to say, it is not possible
to lay down a general rule as to what cumulative reasons can give rise to a valid claim to refugee status.
This will necessarily depend on all the circumstances . . .’
95 Of the 53 Canadian cases surveyed for the purposes of this article, e.g., 42 of them involved
discrimination amounting to persecution analysis.
96 Professor Hathaway’s hierarchy of rights is often referenced in deciding the threshold.
97 Above n. 88.
762 Kate Darling
they constitute a real threat to life or freedom. Further, confiscation of
property has been cited as one type of action that can cross the line from
harassment to persecution.98
Compare this with the decision in Kuwait (CG) v. The Secretary of State for the
Home Department [2006] where the UK Asylum and Immigration Tribunal
heard the application of an undocumented Bidoon. The AIT outlined the
test that it applied: ‘For discrimination to amount to persecution, measures
must involve persistent and serious ill-treatment without just cause and must
be of a substantially prejudicial nature and must affect a significant aspect of
the individual’s or the group’s existence to the extent that it would make their
life intolerable if they were to return’.99 Finally, compare the above two
approaches with the decision in Sagharichi v. Canada (1993),100 where the
Canadian Federal Court of Appeal described the threshold thus:
The dividing line between persecution and discrimination or harassment is diffi-
cult to establish, the more so since, in refugee law, it has been found that discrimi-
nation may very well be seen as amounting to persecution. It is true also that the
identification of persecution behind incidents of discrimination or harassment is
not purely a question of fact, but is a mixed question of law and fact, legal con-
cepts being involved. It remains, however, that, in all cases, it is for the Board to
draw the conclusion in a particular factual context by proceeding in a careful
analysis of the evidence adduced and a proper balancing of the various elements
contained therein.101
The Federal Court of Appeal has determined that discrimination amount-
ing to persecution in Canada requires a factually dense analysis. This is
significant in the administrative law context as it accords a greater amount
of deference to the Immigration and Refugee Board. This administrative
body may not be properly equipped to interpret Canada’s international
human rights obligations in light of certain discriminatory treatment ex-
perienced by stateless persons.
Likely owing to the lack of specific guidance in the Refugee Convention,
there is some disparity between the thresholds emerging from these three
states. That coming out of the UK case law seems to stand the highest, the
one described in the Canadian case somewhere in the middle and the thresh-
old in the US jurisprudence at the lower end. All three approaches require
the applicant to mount a relatively extensive and therefore burdensome evi-
dentiary record. If states allowed a presumption that statelessness implied
certain violations of human rights, the applicant would not be forced into
the difficult task of establishing that they have met the threshold.
98 Sahar Ouda v. Immigration and Naturalization Service [2003] 324 F.3d 445 (Sahar).
99 Kuwait CG and The Secretary of State for the Home Department [2006] UKAIT 00051 (Kuwait CG).
100 Sagarichi v. Canada (Minister of Citizenship and Immigration) [1993] 182 NR 398 FCA, online: Federal
Court Reports <http://reports.fja.gc.ca/en/index.html> (Sagarichi).
As a note, no matter what part of refugee determination is involved, legal
analysis that reaches for political statements as interpretive of the law should
be approached with caution. In Australia, the literature concedes, where
ambiguity or confusion has confounded Australian decision makers, they
have referred to the UNHCR Handbook for guidance in interpretation of
their international obligations.102 In the trial level decision in Savvin v. MIEA
[1999] FCA,103 Dowsett J reasoned that the Handbook ought to be used
only as a general guide. However, in coming to a conclusion on what con-
stitutes persecution, Dowsett J cited the Supreme Court of Canada case,
Canada (Attorney General) v. Ward.104 The Canadian Supreme Court in turn
endorsed the use of the Handbook and referenced it in coming to its con-
clusion on the interpretation of persecution in the Convention.105
5.4 Denial of re-entry and deportation of stateless persons

Whereas travel from and return to one’s country of nationality consti-
tutes a fundamental human right under international human rights law,
a stateless person can be strictly limited with respect to his or her right
to move across borders. Just as these restrictive laws are significant in the
persecution analysis, they also have an illuminating effect on how refugee
determination has become insulated from the international human rights
regime.
For example, laws requiring stateless persons to have work permits in
order to remain in the country are benignly identified in the international
refugee regime as ‘laws of general application’ (LOGA). Under refugee
law, when a rule is characterized as a LOGA, the consequences and penal-
ties arising from contravention of it do not generally attract the scrutiny of
the of the decision maker (to the disadvantage of the applicant). While the
purpose of the LOGA might be well within the sovereign purview of regu-
lating the flow of workers and other migrants, their effect on stateless per-
sons is unique. If a Jordanian citizen working in the UAE fails to renew his
contract with his employment sponsor, that Jordanian citizen returns home
to Jordan. A stateless person does not benefit from that same security of
being able to return ‘home’ because they cannot be guaranteed that any
state will allow them entry onto their soil. Wherever they are, stateless per-
sons are there at the indulgence of the state.
Paragraph 59 of the UNHCR Handbook reflects an understanding
derived from state practice that a law may be persecutory if it violates inter-
national human rights standards. In other words, within the refugee regime,
102 Above n. 101.

103 Above n. 45, para. 35.
105 Canada (Attorney General) v. Ward, [1993] 2 SCR 689 (Ward cited to SCR).
764 Kate Darling
violation of human rights is legitimate in some circumstances and there-
fore does not engage obligations on the part of the asylum state. For exam-
ple, the court in Mahmoud Kadoura v. Canada (Minister of Citizenship and
Immigration),106 decided that the non-issuance of a residency permit and
subsequent expulsion from the country did not constitute a basis for refugee
protection in Canada.107 The Court found that the state did not specifi-
cally target the applicant in its decision not to issue a residency permit and
it reasoned that it was within the purview of a state to control population
flows in this way. However, Kadoura in this case did not have a country of
nationality or habitual residence to which to return once expelled. The Court did not
deal with the claimant’s particular situation of statelessness or the effects of
such a law of general application on him.
KF Iran [2005] offers an example of how removal decisions under the
Refugee Convention impact stateless persons differently than other appli-
cants. In this case, a Kurd who was born in Iran in 1972 was removed to
Iraq in 1976 by invading Iraqi forces. The claimant was not a citizen of
either Iran or Iraq. In its decision to remove the claimant to Iran, the then
IAT reasoned that the country specified in the removal notice is not mate-
rial for the determination of whether or not the claimant is a refugee. The
question of whether someone is or is not a refugee depends on whether he
is outside his country of former habitual residence and not upon the coun-
try to which he might be returned. The country proposed for removal is
only relevant with respect to whether Articles 32 and 33 of the Refugee
Convention would be breached should that person be removed there.108
These Articles, of course, relate to the prohibition against the refoulement of
refugees and are not engaged unless a claimant has been granted refugee
status.
The IAT did not consider the impact of removal to a country where the
claimant does not have citizenship and where mobility rights, access to
healthcare, primary education, and the right to gainful employment may
be severely constrained. Without a presumption that statelessness implies
discrimination amounting to persecution, making a case for this at the
removal stage is very unlikely. Notably, for a claimant that was forcibly
removed from Iran at the age of four, such an evidentiary record would be
difficult to produce. The discussion about what removal means for stateless
persons simply does not take place and existing international human rights
obligations are not reflected upon.
Underlying all removal discussions in cases of statelessness is the sticky
question: what do we do with people who are not refugees, yet, who have
106 Mahmoud Kadoura v. Canada (Minister of Citizenship and Immigration), 2003 FC 1057, online: Federal
Court Reports <http://reports.fja.gc.ca/en/index.html> (Kadoura).
108 KF Iran [2005] UKIAT 00109 at 63.
no state willing to accept them on their territory either as temporary resi-
dents or as citizens? In some cases, failed stateless claimants just wait in the
destination country, under the constant threat of being deported one day,
uncertain of their present or future status. Perhaps under the current sys-
tem, this is the only answer.
An interesting comparison is apparent when considering the parallels
between the analysis for Internal Flight Alternatives109 and the discrimina-
tion amounting to persecution analysis for stateless persons. The reason
that these are assessed is that refugee law is meant to be a surrogate for
protection and not merely a means to bypass immigration controls. Hatha-
way and Foster discuss the fourth and controversial aspect of the IFA anal-
ysis, namely, the requirement that the state provide for basic human rights
in the proposed relocation area. The authors note: ‘“Protection” is not
simply the absence of risk of being persecuted. That is, a person may not
be at risk of persecution, yet simultaneously not be protected. The notion
of protection clearly implies the existence of some affirmative defence or
safeguard . . . At the very least, this includes the legal rights stipulated in
the Convention’.110 For stateless persons, there is often no place in their
country of former habitual residence where such basic human rights are
actively safeguarded.
6. The risks of this approach

6.1 Risks for the applicant
As Fatemi explains, someone does not become a refugee merely by virtue
of being granted that status in a country, rather, it occurs as soon as he or
she fulfils the criteria.111 Where the interpretation of the criteria has been
such that the boundary between those included within and those excluded
from the realm of protection has been erroneously placed, a person may be
a refugee even following a negative determination. There is a valuation and
corresponding devaluation that accompanies a decision to exclude. It seems
that stateless persons who cannot overcome presumptions against them in
order to convince their tribunals that what they have experienced does in
fact amount to persecution, face being labeled as illegitimate claimants.
Given that these individuals often cannot return to their former habitual
residence, these failed claimants are forced to exist as second class citizens
109 In the industrialized states noted here, in order for a court to determine that an applicant quali-
fies for surrogate protection, that applicant must prove that there is nowhere else in their country of
nationality or former habitual residence where they can go.
110 James C. Hathaway and Michelle Foster, ‘Internal Protection/Relocation/Flight Alternative as
an Aspect of Refugee Status Determination’ in Erika Feller, Volker Türk and Frances Nicholson (eds.),
Refugee Protection in International Law (New York, NY: Cambridge University Press, 2003) 405.
111 Above n. 65.
766 Kate Darling
accused of having tried to take advantage of surrogate protection so gen-
erously offered by the state. Indeed, as one author argues, ‘the destination
country has no obligation to a person not found in the humanitarian group.
No rights arise on the part of the rejected claimant where authorities
decide [they cannot] deport that claimant’.112 Dr Ezat Mossallanejad,
Policy Analyst with the Canadian Centre for Victims of Torture, describes
the state of limbo as one of torture – a state in which you forget your own
identity, having spent so long without status.113
This juxtaposition between policy and experience provides a sort of
microcosmic Canadian example of what occurs on the international stage.
Two paradigms exist in parallel: one where a community of nation-states
engage in dialogue to solve problems between themselves as the only actors,
the other where there is only a series of cross-cutting boundaries, none of
which include the individual.
6.2 Risks for the international community

Goldston suggests that governments often manipulate citizenship access
and mistreat non-citizens without incurring political costs from other
states or their own citizens.114 Though indirect, there may be security
risks associated with a more exclusive reading of a state’s obligations to-
wards refugee claimants.115
For example, the 1969 Organization of African Unity Convention Gov-
erning the Specific Aspects of Refugee Problems in Africa contains a more
inclusive definition of refugee. It includes within the definition of ‘refugee’
those that have left a country for reasons of serious disturbances of public
order. This recognition has helped to mitigate the harm to individuals (by
providing safe havens) and to limit the size of the region affected by such
disturbances (by limiting the distance refugees must travel before finding a
secure location). It has also helped to defuse a crisis before it reaches cata-
strophic proportions. However, as Crisp suggested in a presentation to the
International Security Forum, signatories to the 1969 OAU Convention
have begun to mirror the more restrictive approach being taken by indus-
trialized states. In some cases, refugee determinations are being made on a
more narrow basis, therefore excluding more people from asylum.116
These failed claimants must either move into more distant regions, thereby
112 Peter van Krieken, ‘Return and Responsibility’ (2000) 38 International Migration 23 at 29.
113 Dr Ezat Mossallanejad delivered a talk at the Mar. 2007 Spinlaw Conference in Toronto.
114 James A. Goldston, ‘Holes in the Rights Framework: Racial Discrimination, Citizenship and the
Rights of Noncitizens’ (2006) 20 Ethics and International Affairs 321 at 342.
115 This possible ramification extends beyond the discussion of decision making with respect to the
claims of stateless persons. However, the approaches to stateless claims provide an example of how
narrowly the refugee definition has been construed.
116 Jeff Crisp, ‘Refugees and International Security: An Introduction to Some Key Issues and Policy
Challenges’, Prepared for the 4th International Security Forum (Nov. 2000), online: <http://www.isn.
ethz.ch/4isf/4/Papers/ISF_WS_II-4_Crisp.pdf> (last accessed Mar. 30, 2007).
destabilizing a greater area, or move back to the crisis, thereby increasing
friction and risk within that state.
From the perspective of industrialized states these effects may indeed be
indirect. On the other hand, a less absorbent neighbouring state may result
in increased claims in states overseas. Further, states involved in peacekeep-
ing missions to affected regions have an interest in crises, having a way to
cool the conflict.
7. Return to basic principles

Over time, by treating stateless applicants on the same footing as other
applicants, states have avoided the sometimes difficult discussion of their
specific plight. This omission has been subtle and powerful. There are
ways, though, to reintroduce this important discussion to the order paper.
One of them, as mentioned at the beginning of this article, is the report
of the Committee on the Elimination of Racial Discrimination Report
of Canada. While these communications do not attract a huge reader-
ship, they do draw attention to Canada’s Human Rights obligations,
which should inform its interpretation of its commitments to refugees
under the 1951 Convention.
Goldston recommends that statelessness must increasingly be seen not
as an arcane legal matter, but as a human tragedy, political problem and
security threat. He suggested that all relevant provisions regarding state-
lessness should be gathered into one document, as their dispersion in dif-
ferent materials has contributed to their relative anonymity and lack of
effective force.117
8. Conclusion
By ratifying the 1951 Refugee Convention, State Parties undertook a sig-
nificant commitment. These states promised that refugees, including
stateless refugees, in their jurisdiction would be afforded the opportunity
to enjoy the fundamental rights and freedoms to which they are entitled
under international law.
Today, stateless persons do not see this promised access to their funda-
mental rights and freedoms coming true. Due to a system where exces-
sively narrow interpretations of ‘refugee’ are legitimized internationally,
the chronic human rights violations that stateless persons experience
remain ignored. There is no legal basis for maintaining an approach to
decision making that avoids thorough consideration of a state’s interna-
tional human rights obligations. It is time to incorporate these obligations
into the analysis.
117 Above n. 114.

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Protection of Stateless Persons in

3. Nationality as a fundamental human right

4. The omission of stateless persons from protection

4.2 Formation of the current view

Considering that the subject still requires more detailed study,

The matter of how to address stateless persons was therefore deferred.

5. Deciding claims of stateless applicants

5.2 Country of reference

85 Thabet, above n. 23, 56.

5.3 Discrimination amounting to persecution

5.4 Denial of re-entry and deportation of stateless persons

102 Above n. 101.

6. The risks of this approach

6.2 Risks for the international community

7. Return to basic principles

117 Above n. 114.

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