When a state or an authority such as the United Nations High Commissioner for Refugees (“UNHCR”) recognises an individual as a refugee, this represents a recognition by a particular entity that a particular individual is a refugee, that is, someone who meets the requirements for qualification as a refugee referred to above. But it does not “create” the individual’s entitlement under the 1951 Convention, but rather recognises it. There is a broad consensus that an individual becomes a refugee, even if not at that point recognised as such, as soon as he or she satisfies the qualifying requirements. In a Note on Determination of Refugee Status under International Instruments, of 24th August 1977, the UNHCR indicated at [5] that “From an analysis of the international legal instruments relating to refugees, it is obvious that determination of refugee status can only be of a declaratory nature”. To take only one authoritative view, representative of a substantial consensus, the author notes the view of Atle Grahl-Madsen, a leading early commentator on the Convention, in this regard, at The Status of Refugees in International Law, 2 vols 1966 and 1972, A.W. Sijthoff, Leyden, vol 1 p. 340:

The question has sometimes arisen, whether the recognition of a person as a Convention ‘refugee’ is a constitutive or merely a declaratory act.

In our opinion there cannot be much doubt as to what is the correct answer to this question. The absence of rules of procedure, as well as the wording of Article 1 of the Convention, suggests that the entitlement to the benefits of the Convention is not dependent on any particular act of recognition. As soon as a person satisfied the definition set forth in Article 1 he is ipso facto entitled to the benefits in question. This means that a formal act of recognition has only declaratory, not constitutive, effect…

Courts in the United Kingdom have adopted a similar position: vid. R (Hoxha) v SSHD [2002] EWCA Civ 1403; [2003] Imm AR 211 at [26].

Prior to the 1951 Convention, there has frequently been no distinction drawn between stateless persons and refugees, two classes of persons who were defined by the shared characteristic of being unable or unwilling to rely on the protection of the State from which they originated. For instance, the League of Nations Arrangement of 12 May 1926 relating to the issue of identity certificates to Russian and Armenian Refugees defined “refugees” belonging to the respective groups as “Russian: Any person of Russian origin who does not enjoy or who no longer enjoys the protection of the Government of the Union of Soviet Socialist Republics and who has not acquired another nationality” and “Armenian: Any person of Armenian origin formerly a subject of the Ottoman Empire who does not enjoy or who no longer enjoys the protection of the Government of the Turkish Republic and who has not acquired another nationality” (League of Nations Treaty Series Vol LXXXIX, No 2004). The League of Nations Convention of 28 October 1933 relating to the International Status of Refugees at article 1 adopted the definition of Russian, Armenian, and other refugees as defined in previous Arrangements (League of Nations Treaty Series Vol CLIX, No 3663).

The practice of making little, if any, the distinction between stateless persons and refugees continued into and through the Second World War. The 1951 Convention represented a decisive break with this, its protection is restricted to a subclass of those without the protection of a State, the subclass consisting in those who were outside their country of nationality or former habitual residence and who possessed a WFFPCR. In practice, those persons who, whether or not they are stateless, are refugees within the scope of the 1951 Convention, in most cases have superior protections to any which are given to stateless people under the separate treaty regime relating to statelessness: the 1954 Convention relating to the Status of Stateless People and 1961 Convention on the Reduction of Statelessness. For these reasons, and notwithstanding efforts by some states, by non-governmental organisations, and by UNHCR, which has a special mandate relating to statelessness granted by the UN General Assembly, statelessness is an enduring phenomenon, affecting at least 11 million people worldwide today, and it is frequently important to be able to ascertain whether a stateless person qualifies as a refugee under the 1951 Convention.

The 1954 Convention relating to the Status of Stateless People defines the term “stateless person” as meaning “a person who is not considered as a national by any State under the operation of its law”. This obviously covers a very broad range of circumstances, including for example (i) the absence of a legal entitlement to the nationality of any State, and (ii) the refusal of a State to acknowledge an individual’s legal entitlement to nationality, whether for reasons such as the absence of evidence or as a consequence of official or semi-official policy or practice of the authorities of a State.

In 1949, prior to the 1951 Convention and the break from the treatment of refugees and stateless persons as interchangeable, or virtually so, a report was prepared for the UN Economic and Social Council by a body of experts acting for the UN Secretary-General. Section III noted that:

There are two categories of stateless persons: de jure and de facto.

1. Stateless persons de jure are persons who are not nationals of any State, either because at birth or subsequently they were not given any nationality, or because during their lifetime they lost their own nationality and did not acquire a new one.

2. Stateless persons de facto are persons who, having left the country of which they were nationals, no longer enjoy the protection and assistance of their national authorities, either because these authorities refuse to grant them assistance and protection, or because they themselves renounce the assistance and protection of the countries of which they are nationals. The Constitution of the [International Refugee Organisation, precursor of UNHCR] in its Annex I (First part-Section A.2) uses this formula: “a person …who …is unable or unwilling to avail himself of the protection of the Government of his country of nationality or former nationality.”

Although in law the status of stateless persons de facto differs appreciably from that of stateless persons de jure, in practice it is similar.

The Study then considered whether “refugees” also fell within the assigned terms of reference:

In order to determine his terms of reference, the Secretary-General must refer to the Council resolution which invests him with this mandate.

This resolution mentions the protection of “stateless persons” but it does not refer at all to “refugees”.

Clearly, the fact that refugees are not mentioned does not mean that they must be excluded from the scope of the present study. In fact, a considerable majority of stateless persons are at present refugees. These refugees are de jure stateless persons if they have been deprived of their nationality by their country of origin. They are de facto stateless persons if without having been deprived of their nationality they no longer enjoy the protection and assistance of their national authorities, as it has been said under No. III above.

…

However, in view of the fact that the Council resolution deals only with statelessness, refugees will be included only in so far as they are stateless persons. Therefore, refugees who are not stateless persons will not be considered…

It is evident, however, that if the study on the position of stateless persons must include refugees who are de jure or de facto stateless persons, it must also consider those stateless persons who are not refugees, even though this group is much less numerous than that of refugees who are stateless and even though its position is in certain respects more favourable than that of stateless refugees. For example, the stateless person who is not a refugee can obtain documents establishing his civil status from the authorities of the countries where these documents were originally issued, because these authorities have no reason to refuse them to him.

Under the heading “Difficulties for Stateless Persons”, the Study set out the following:

Normally every individual belongs to a national community and feels himself a part of it. He enjoys the protection and assistance of the national authorities. When he is abroad, his own national authorities look after him and provide him with certain advantages. The organization of the entire legal and economic life of the individual residing in a foreign country depends upon his possession of a nationality.

The fact that the stateless person has no nationality places him in an abnormal and inferior position which reduces his social value and destroys his own self-confidence.

During the long period of peace and social stability at the end of the nineteenth and the beginning of the twentieth centuries, stateless persons were few and their situation was tolerable. Life was not as highly organized as it is today and foreigners, whatever their status, enjoyed considerable freedom. The stateless person succeeded in making a place for himself in a country and finding a milieu to his liking. He was free to find employment as a wage-earner, to practice a craft or engage in trade. If his conduct was unobjectionable he was not troubled by the police, which exercised no special supervision over foreigners, and he could lead a more or less normal existence, without his legal disability causing him any serious difficulties.

Since the First World War, in Europe at any rate, the situation has completely changed. The re-establishment of the passport and visa system, the increased control over foreigners, the regulations governing all aspects of social life (work, exercise of professions, food, housing, movement within the country, and so on) bring the stateless person in constant contact with the authorities and make him conscious of his disadvantaged status.

The effect of statelessness can best be approached through a short account of the effects of nationality for someone who is not stateless. These in most cases are not accessible to stateless people, indeed the absence of these is almost definitive of statelessness itself.

Possession of the citizenship or nationality of a State is generally accepted in public international law as having important effects for an individual, including most relevantly for present purpose the following:

(i) a general entitlement to return to and reside in that State. This is widely recognised from the earliest period in the development of international law and latterly expressed inter alia by article 13(2) Universal Declaration of Human Rights 1948 (“Everyone has the right to leave any country, including his own, and to return to his [her] country”) and Article 12(4) International Covenant on Civil and Political Rights 1966 (“ICCPR”) which provides that “No one shall be arbitrarily deprived of the right to enter his [her] own country”. Plender (R. Plender, International Migration Law, rev 2nd edn 1988, p. 133) concluded in the light of strong evidence provided by international practice, treaty provision, and academic opinion that “The principle that every State must admit its own nationals to its territory is accepted so widely that its existence as a rule of law is virtually beyond dispute”. In its General Comment 27 of 1999 the UN Human Rights Committee (the body responsible for supervising the application of the ICCPR) concluded:

19. The right of a person to enter his or her own country recognizes the special relationship of a person to that country. The right has various facets. It implies the right to remain in one’s own country. It includes not only the right to return after having left one’s own country; it may also entitle a person to come to the country for the first time if he or she was born outside the country (for example, if that country is the person’s State of nationality). The right to return is of the utmost importance for refugees seeking voluntary repatriation. It also implies the prohibition of enforced population transfers or mass expulsions to other countries…

21. In no case may a person be arbitrarily deprived of the right to enter his or her own country. The reference to the concept of arbitrariness in this context is intended to emphasize that it applies to all State action, legislative, administrative and judicial; it guarantees that even interference provided for by law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the particular circumstances. The Committee considers that there are few, if any, circumstances in which deprivation of the right to enter one’s own country could be reasonable. A State party must not, by stripping a person of nationality or by expelling an individual to a third country, arbitrarily prevent this person from returning to his or her own country.

The International Convention on the Elimination of All Forms of Racial Discrimination 1966 (“CERD”) by article 5(d)(i)-(ii) requires States Parties to prohibit and eliminate discrimination as to race, colour, or national or ethnic origin in the enjoyment of the rights to freedom of movement and residence, and “the right to leave any country, including one’s own, and to return to one’s country”. The Court of Justice of the European Communities, in case 41/74 Van Duyn v Home Office [1974] ECR 1337 at 1351, held it to be “a principle of international law… that a State is precluded from refusing its own nationals the right of entry or residence”. The right is referred to below simply as the right of return;

(ii) access to international protection from a State of nationality, it is, in the words of Weis (P. Weis, Nationality and Statelessness in International Law, 1956, p. 35) “the right of the State whose national a person is to grant him [her] protection in relation to other States… As stated by Commissioner Nielsen in the United States-Mexico Special Claims Commission in the case of Naomi Russell [at Opinions of Commissioners (Sp.Cl.C) (1931), p. 44, at p. 51]: “nationality is the justification in international law for the intervention of one government to protect persons and property in another country.” This protection, which has been termed diplomatic protection, is different from the internal, legal, protection which every nation may claim from his State of nationality under its municipal law, i.e. the right of the individual to receive protection of his [her] person, rights, and interests from the State. International diplomatic protection is the right of the State, accorded to it by customary international law, to intervene on behalf of its own nationals, if their rights are violated by another State, in order to obtain redress.”;

(iii) As already observed by Weis in the passage quoted above, internal protection within a state may rest on entitlement to nationality (or citizenship). As is well known, an alien possesses no general right even to remain in or to enter or reside in a State.

As already set out, the 1951 Convention refugee definition requires not only an absence of national protection, of the type which identifies a stateless person, but also a WFFPCR. In England and Wales the Court of Appeal, Civil Division, has held decisively that statelessness in itself is not sufficient to produce entitlement under the 1951 Convention: Revenko v Secretary of State for the Home Department [2000] EWCA Civ 500; [2001] QB 601 (31 July 2000).

In what circumstances, therefore, might an entitlement to refugee status under the 1951 Convention arise? In the view of the author it is possible to venture the following:

i. Firstly, just as a person who is not stateless may demonstrate a WFFPCR in his or her country of nationality (or each such country if entitled to the nationality of more than one country) a stateless person may demonstrate a WFFPCR in his or her country of former habitual residence for reasons which do not themselves depend upon the fact of the claimant’s statelessness: for example, where a stateless person habitually resident in country A possesses a WFFPCR from the authorities of that country because of his or her political or religious beliefs or for another relevant reason;

In other circumstances, entitlement to refugee status may have a greater nexus with the statelessness of the claimant. Examples may include:

ii. Effective deprivation of nationality by the State: whilst not every deprivation of nationality will give rise to a WFFPCR, the cases seem to reflect an acceptance that a deprivation of nationality which is of continuing effect, which is arbitrary or otherwise unlawful, which renders the affected individual stateless, and which occurs because of a Convention reason, is likely to give rise to a valid claim to refugee status: EB (Ethiopia) v Secretary of State for the Home Department [2007] EWCA Civ 809; [2009] QB 1 (31 July 2007), with MA (Ethiopia) v Secretary of State for the Home Department [2009] EWCA Civ 289; [2010] INLR 1 (02 April 2009) and ST (Ethnic Eritrean – nationality – return) Ethiopia CG [2011] UKUT 252 (IAC) (01 July 2011). In some such cases, the result would be an effective exile, due to the refusal to permit an affected individual to return to his or her home country. In others, it might be the reduction of an individual to non-citizen status, even if that individual might still be admitted to the home country as a so-called alien or stateless resident. This was contemplated as a possibility by the Upper Tribunal in the ST (Ethnic Eritrean – nationality – return) decision above, at para 126, and can be seen recently applied in the New Zealand Refugee Status Appeals Authority, in Refugee Appeal No 76506 [2010] NZRSAA 90 (29 July 2010), to a case concerning a Kuwaiti Bidoon. In still others it might be the discriminatory refusal to provide access to documents needed to prove nationality, so preventing a successful application- a good example of this is provided outside the refuge context by an important decision of the Inter-American Court of Human Rights in Dilcia Yean and Violeta Bosico v Dominican Republic [2005] Inter-Am Ct. H.R., (series C) No 130 (8th September 2005) considering the situation in the Dominican Republic where children of Haitian parents born in the Dominican Republic were prevented from acquiring citizenship in that country of their birth;

iii. Refusal by the authorities in the home territory of a claimant to permit return by a stateless person, where this is arbitrary or otherwise unlawful and has a sufficiently serious continuing effect upon the claimant, and which occurs because of a Convention reason, may give rise to a valid claim to refugee status. There is an obvious analogy, though not an exact one, to nationality deprivation cases. In the Canadian case of Altawil v Canada (Minister of Employment and Immigration), (1996) F.C.J. No. 986, Justice Sandra Simpson concluded that a denial of a right of return does not amount to persecution if done pursuant to a law of general application, and that (at para 11) “While it is clear that a denial of a right of return may, in itself, constitute an act of persecution by a state, it seems to me that there must be something in the real circumstances which suggests persecutorial intent or conduct”. In a later Canadian case, Thabet v Canada (Minister of Citizenship and Immigration) 1998 CanLII 9063 (F.C.A.); (1998) 160 D.L.R. (4th) 666 (11th May 1998), the Federal Court of Appeal of Canada concluded that a body considering whether a claimant qualifies for refugee status is compelled to ask itself why the applicant is being denied entry to a country of former habitual residence because the reason for the denial may amount to persecution. The New Zealand Refugee Status Appeals Authority, in Refugee Appeals Nos 73861 and 73862 (30 June 2005) has acknowledged that such cases are encompassed by the 1951 Convention, the Authority differing from earlier New Zealand authority that refugee status did not require determination where the return was not factually possible. In England and Wales, the authorities have on their face been less encouraging. In AK v Secretary of State for the Home Department [2006] EWCA Civ 1117; [2007] INLR 195 (31 July 2006), a decision of the Court of Appeal, Civil Division, Richards LJ observed, on an obiter basis, that:

47. …That line of argument is beset with difficulties. I am far from satisfied that there is a true analogy between a state’s denial of entry to one of its own citizens and denial of entry to a stateless person (who, unlike a citizen, has no right of entry into the country), or that denial of entry to a stateless person can be said to constitute a denial of his third category rights of sufficient severity to amount to persecution (especially given the possibility of his exercising those rights elsewhere).

In MA (Palestinian Territories) v Secretary of State for the Home Department [2008] EWCA Civ 304 (09 April 2008) Lord Justice Maurice Kay, with whom Lawrence Collins LJ and Sir William Aldous agreed, noted (at para 23) that the Canadian and New Zealand decisions referred to in submissions “at their highest go no further than acceptance that, in some circumstances, to deny a stateless person re-entry may amount to persecution”, concluding that:

26. It is now necessary to confront the question of whether, in principle, it is persecutory without more, to deny a stateless person re-entry to “the country of his former habitual residence”. In my judgment, it is not. The denial does not interfere with a stateless person’s rights in the way that it does with the rights of a national. There is a fundamental distinction between nationals and stateless persons in that respect. It is one thing to protect a stateless person from persecutory return to the country of his former habitual residence (as the Refugee Convention does), but it would be quite another thing to characterise a denial of re-entry as persecutory. The lot of a stateless person is an unhappy one, but to deny him a right that he has never enjoyed is not, in itself, persecution. Stateless persons are themselves the subject of an international treaty, namely the Convention relating to the Status of Stateless Persons (1954). The United Kingdom is a party to that Convention but it has not been incorporated into domestic law and Miss Collier does not suggest that it protects the appellant in this case.

This has been followed by further decisions of the same Court in MT (Palestinian Territories) v Secretary of State for the Home Department [2008] EWCA Civ 1149 (22 October 2008) and SH (Palestinian Territories) v Secretary of State for the Home Department [2008] EWCA Civ 1150 (22 October 2008). Insofar as the Court has consistently held that refusal to permit return does not per se constitute persecution, this must be correct- see MA (Ethiopia) v Secretary of State for the Home Department [2009] EWCA Civ 289; [2010] INLR 1 (02 April 2009) to compare the position in deprivation cases- but the author would respectfully suggest that the MA (Palestinian Territories) case, and those which have followed it, should not be taken as authority that refusal to permit return will never constitute persecution. The Canadian position and that in England and Wales are potentially reconcilable on that basis, as is the developing authority and guidance concerning article 12 of the 1966 International Covenant on Civil and Political Rights, which provides that “No one shall be arbitrarily deprived of the right to enter his own country.”, that is, a right to re-enter which is not limited to nationals.