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INTRODUCTIONIn its landmark 1949 report “A Study of Statelessness”, the United Nations (UN) described statelessness as an “anomaly”. At the same time, Hannah Arendt, a German Jew and a refugee from Nazi Germany, criticised “civilized countries” for treating the stateless as criminals, since they did not fit into the normal framework of “state-citizen” or “state-foreign citizen” affairs.1 De-spite the considerable progress of international law (including treaties for the “stateless” and the development of international human rights law), too little has since changed. Innumerable practical difficulties, vulnerabilities and insecurities continue to weigh down the stateless and destroy their lives.

The stateless have long been recognised as those who either have no nation-ality (de jure stateless)2 or whose nationality is not effective because they do not benefit from the protection of any state (de facto stateless).3 The lack of ties between nation and individual has evolved into a complex and multi-dimensional global problem. It has been compounded by geo-political shifts, conflicts, and the unparalleled increase in migration which has shaped the contemporary world. Even though most stateless persons live in the country in which they were born (or a successor state), they are more likely to travel through multiple countries – in search of personal and economic security – than ever before. States are tightening their borders, imposing stricter immi-gration regimes and increasingly resorting to the detention of irregular and unwanted migrants. Such changes were perhaps unanticipated by the state-less protection mechanism which was established over fifty years ago.4 Con-sequently, it is ill-equipped to effectively protect the stateless in the world today.

1 Arendt, Hannah, The Origins of Totalitarianism, Schocken Books, New York [2004], p. 363.

2 The 1954 Convention Relating to the Status of Stateless Persons defines a stateless person as one “who is not considered as a national by any state under the operation of its law”. Conven-tion Relating to the Status of Stateless Persons (adopted 28 September 1954, entered into force 6 June 1960) ECOSOC RES/526 A(XVII) (1954 Convention), Article 1(1).

3 The UNHCR has defined a de facto stateless person as one who is “unable to demonstrate that he/she is de jure stateless, yet he/she has no effective nationality and does not enjoy national protection”. See UN High Commissioner for Refugees, Nationality and Statelessness. A Handbook for Parliamentarians, 20 October 2005, p. 11.

4 There are two UN Conventions on statelessness: the 1954 Convention and the Convention on the Reduction of Statelessness (adopted on 30 August 1961, entered into force 13 December 1975) UNGA RES/896 (IX) (1961 Convention). Of the two, it is the 1954 Convention which provides a framework for the protection of stateless persons.

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When the Universal Declaration of Human Rights (UDHR) was adopted in 1948, a new world order was envisioned, in which the rights enumerated within the Declaration were seen as inherent in every person by virtue of their humanity. This marked the beginning of the international human rights regime, which obligates states to promote and protect the human rights of all persons, irrespective of where they are, and whether they have a nation-ality or not. The rights to equality and non-discrimination are amongst the foundational principles of human rights law. They obligate states to treat all persons equally.5 It is only in clearly defined exceptions that distinctions may be made between citizens and non-citizens, and only to the extent that the exceptions serve a legitimate objective and are proportionate to it.6

5 It must be noted that equal treatment does not necessarily mean identical treatment. See The Equal Rights Trust, Declaration of Principles on Equality, London 2008, p. 5.

6 UN Commission on Human Rights, Sub-Commission on the Promotion and Protection of Human Rights, The rights of non-citizens: final report of the Special Rapporteur, David Weiss-brodt, submitted in accordance with Sub-Commission decision 2000/103, Commission resolu-tion 2000/104 and Economic and Social Council decision 2000/283, 26 May 2003, E/CN.4/Sub.2/2003/23.

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Under the UDHR everyone has the right to a nationality.7 Nationality is a com-plex concept which has historical, social, cultural, legal and emotional con-notations. In a legal context, courts have defined nationality as “a legal bond having as its basis a social fact of attachment, a genuine connection of exist-ence, interest and sentiments, together with the existence of reciprocal rights and duties”;8 and also as “the political and legal bond that links a person to a given State and binds him to it with ties of loyalty and fidelity, entitling him to diplomatic protection from the State”.9 These two definitions emphasise the integral role played by an effective nationality in offering security, protection and grounding to a person’s life. Significantly, nationality entitles the citizen to the diplomatic protection of his/her state when in another country.

The United Nations High Commissioner for Refugees (UNHCR) estimated that in 2008 there were approximately 12 million stateless persons in the world.10 This is a cautious estimate based on a conservative and legalistic understanding of statelessness.

Although everyone has a right to a nationality, it takes more than the pos-session of a passport to fulfil this right. In order to be meaningful, it must be interpreted as the right to an “effective” nationality, which can be enjoyed by the individual both within their country of nationality and outside it. In this context, the following statement by the Inter-American Court of Human Rights is particularly significant:

States have the obligation not to adopt practices or laws concerning the granting of nationality, the application of which fosters an increase in the number of stateless persons. This condition arises from the lack of a nationality... owing to arbitrary deprivation or the granting of a nationality that, in actual fact, is not effective.11

7 Universal Declaration of Human Rights (adopted 10 December 1948) UNGA RES/217/A(III) (UDHR), Article 15.

8 See Nottebohm Case (Liechtenstein v Guatemala), Second Phase, International Court of Justice (ICJ), 6 April 1955.

9 Castillo Petruzzi et al. Case, Inter-American Court of Human Rights, 30 May 1999.

10 UN High Commissioner for Refugees, UN High Commissioner for Refugees, 2008 Global Trends: Refugees, Asylum-seekers, Re-turnees, Internally Displaced and Stateless Persons, 6 June 2009.

11 Case of the Yean and Bosico Children v the Dominican Republic, Inter-American Court of Human Rights, Case No. 12, 189 (8 September 2005), Para 142.

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We are now beginning to go beyond the formal definitions to understand statelessness in a new light: not only in terms of gaps in nationality law, but also through using a human rights perspective. Seen through this lens, the multiple vulnerabilities of the stateless become clearer: they belong nowhere and often face discrimination, suspicion, ill-treatment, harassment and rejec-tion whether in their countries of habitual residence, or in an immigration context. Statelessness is the most serious violation of the right to nationality. Furthermore, the stateless are extremely vulnerable to other human rights abuses as a direct consequence of their statelessness. Unnecessary, arbitrary, indefinite – and hence illegal – detention is one such consequence and a focus of this report.

Despite the complexity of the subject matter, its impact on individual rights and its widespread nature, statelessness has received relatively little atten-tion when compared with the vast discourse surrounding refugees and their rights. The global human rights movement has not prioritised the stateless, and so has failed an extremely vulnerable group in great need of interna-tional human rights protection.

There are many reasons for this gap in protection. As will be argued in chap-ter 1, the issue of statelessness is at the very core of the tension between the universality of human rights on the one hand, and state sovereignty on the other. Perhaps for this reason, there has often been little political will to ad-dress and reverse statelessness. “Concern for non-nationals is often not at the forefront of national politics or governance nor, for that matter, of national or local elections.”12 Despite reiterated calls on states to consider acceding to the statelessness conventions,13 few states support the modest UN statelessness treaty regime.

The vulnerability of the stateless is most evident in the context of detention, which is commonplace in many countries from all regions of the world. Such detention is often – and at best – unnecessary and unreasonable; at worst it is arbitrary and degrading. Detention practices may also be humiliating, are at times violent, and may psychologically scar the victims for life.

12 UN High Commissioner for Refugees, UN High Commissioner for Refugees, UNHCR’s Role in Supervising International Protection Standards in the Context of its Mandate - Keynote Address by Volker Türk, 20 May 2010, available at: http://www.unhcr.org/refworld/docid/4bfb8c962.html [accessed 25 May 2010].

13 The UNHCR has made many such calls. For example, see Para 4 of the United Nations The UNHCR has made many such calls. For example, see Para 4 of the United Nations General Assembly Resolution 61/137 on 25 January 2007.

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Documental evidence of nationality is an essential prerequisite to travel, and to acquire an immigration status which allows a person to work, study, and access housing, services and medical care. The lack of personal documents is a common problem for the stateless, which pushes some into the irregular and criminal margins of society, where they are compelled to operate in black economies and through fraud in order to survive. Such activities render them liable to arrest, to criminal detention and to conviction, as well as making them vulnerable to extortion at the hands of corrupt authorities, smugglers and exploitative employers. Consequently, in many contexts, stateless per-sons can be at disproportionate risk of being detained for such “criminal” activities as illegal arrival or entry and working without authorisation or documents. Stateless communities are also at times subject to discriminatory laws within their countries of habitual residence, which specifically target them, criminalising activities that are taken for granted by the overwhelming majority of world citizens (for example, obtaining approval of marriage by the authorities).14

More visible, however, is the unnecessary and sometimes indefinite deten-tion of stateless persons in immigration contexts. Increasingly restrictive im-migration policies, which subject irregular migrants to detention pending de-portation proceedings, fail to accommodate the stateless, who may not legally remain, but cannot be deported because they have no country of nationality to be deported to. The stateless thus find themselves in a state of limbo: de-tained while fruitless efforts to secure their removal to third states are made. The problem is compounded by the fact that despite international treaty pro-visions, few countries have statelessness determination procedures in place as part of their immigration policy. Stateless persons are consequently com-pelled to use asylum channels to make their claims to be allowed residence. Many fail as a result of being pushed into a procedure they do not fit within, are refused asylum, and are then subject to detention pending deportation. This can result in lengthy and indefinite detention.

Since September 2001, there has been a global increase in practices of se-curity detention.15 While much is now known about security detainees who

14 In Myanmar, according to a local order issued in 1994, stateless Rohingya must obtain In Myanmar, according to a local order issued in 1994, stateless Rohingya must obtain state permission before marrying. Failure to do so results in harassment and extortion and even prosecution with a maximum jail sentence of 10 years under Section 493 of the Penal Code of Myanmar. See Part 2 below for further information.

15 See UN General Assembly, See UN General Assembly, Protection of human rights and fundamental freedoms while countering terrorism: note by the Secretary-General, Report of the Special Rapporteur on the Pro-motion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, 15 August 2007, A/62/263.

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were held by the U.S. in Guantanamo Bay, many other countries including the UK, Kenya, Malaysia and Australia have also increased security deten-tion after 9/11. The immense barriers to closing down the Guantanamo Bay facility faced by the Obama administration are at least in part the result of statelessness, and the related difficulty of finding suitable, safe new homes for detainees who have been cleared for release. In some cases de jure state-less persons who have been cleared for release from Guantanamo Bay have remained in detention because they have no country to be removed to. In others, the stigma attached to having been a terror suspect, even when later cleared for release, has created a real risk of such persons suffering irrepa-rable harm (including torture) if returned to their own countries, and has consequently rendered persons de facto stateless.16 This is due to the bar on refoulement to their own countries when there is fear of irreparable harm, torture or persecution.

For these reasons, the detention of stateless persons has been chosen as the central subject of this report, which records and assesses the international and national protection available to stateless persons whose liberty has been unduly constrained. It addresses the issue of detention, both in an immigra-tion context and in the countries of habitual residence of the stateless, with an emphasis on immigration detention. The security detention and the crimi-nal detention of stateless persons are also discussed.

Viewing statelessness from a detention perspective makes it easier to identi-ty the protection gaps, and the conceptual shortcomings in how statelessness has been defined and approached. This report begins by addressing these gaps in protection. They include the fact that the treaty definition of state-lessness does not cover the de facto stateless; that international standards pertaining to the stateless obligate protection only of the de jure stateless; and the inconsistent application of international human rights norms and principles of equality and non-discrimination when dealing with the state-less.

The Experience of Statelessness

The Equal Rights Trust has documented a variety of ways in which people have experienced statelessness. The lack of identity cards and other personal

16 See Chapter 5 below and also see The Equal Rights Trust, See Chapter 5 below and also see The Equal Rights Trust, From Mariel Cubans to Guan-tanamo Detainees: Stateless Persons Detained under U.S. Authority, January 2010, available at: http://www.equalrightstrust.org/ertdocumentbank/Statelessness_in_USA_17_Jan.pdf.

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documents, and the experience of detention and deportation feature in the stories of Mr. X and Mr. Y, which many stateless persons around the world can relate to.

De Jure Statelessness: The Story of Mr. Y17

I was born in Jeddah, Saudi Arabia in 1971. I am from the Karney tribe. I do not know my exact date of birth. My mother was Yemeni and is from the Radazne tribe. My father is Saudi Arabian and he is from the Karney tribe. My parents did not marry, and so I did not inherit Saudi nationality from my father. Under Yemeni law, I could not obtain Yemeni nationality from my mother, because it does not pass through the female line. So I was stateless. My father left my mother and me when I was about one year old, so I do not know much about him. In 1975, my mother and I went to live with a man named Abdulla and his children. They were from the same tribe as my mother. Abdulla was a painter. When I was about 9 years old, my mother was arrested and we were deported back to Yemen. I don’t know why. When I was about 14 years old, she died.

I did not feel safe living in Yemen without any documents, and I could not get any because I was not a citizen of Yemen or of Saudi Arabia. So a few years ago, I went to Saudi Arabia, travelling on a false passport, where I worked as a calligrapher.

My arrest and deportation to SomaliaIn 2006, I was arrested for having a false ID, and sentenced to one and a half years in prison. I was held in prison for 9 months. They decided to deport me to Somalia. I do not know why, but I think it was because there was no Somali government, so I could just be taken there. I refused to get on the airplane several times when

17 ERT Interview with a stateless detainee (Mr Y), June 2009, Detention Centre, Greater ERT Interview with a stateless detainee (Mr Y), June 2009, Detention Centre, Greater Cairo, Egypt (ERT-SPD-EG-001). Throughout this report, ERT has withheld information about the identities of some of the interviewees to protect them from persecution or other harm. ERT keeps records of the true identities of all respondents and would consider disclosing them if the interests of justice so require.

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I was taken to the airport, and I would then be brought back to prison. I finally agreed to get on the airplane, and I was taken to Somalia.

I arrived during the war in Mogadishu. I tried to go and regis-ter with the ICRC [International Committee of the Red Cross] in Mogadishu, but I could not because the office was in the middle of the war zone. I stayed in Mogadishu for one day, and then went to Somaliland, where I lived for two years. The UNHCR supported me and I opened a calligraphy shop. But I wanted to leave Soma-liland, so I went through Ethiopia, to Addis Ababa, and then to al Hamra in [eastern] Sudan, where I was arrested. I spent two days in jail, and I bribed the guard to let me out. I then walked for about 20 days and was smuggled into Egypt.

My arrest in Egypt and my detentionWhen I got to Egypt, I was arrested, and taken before a military tribunal. I was sentenced to a 1000 Egyptian pounds [approxi-mately 180 U.S. dollars] fine and one year in prison. The sentence was dropped, but I was not released, and I am still in prison be-cause I am stateless and there is no country which will accept me, and to which Egypt can deport me.

De Facto Statelessness - The Story of Mr. X18

Mr X was born in Kuwait to Sudanese parents who were in the country as foreign workers. In 1992, following the Iraqi invasion of Kuwait, he and his mother relocated to Sudan. The following year, Mr. X moved to Syria to avoid military service in the Suda-nese army.

18 This case study is compiled from publicly available material, including: The Australian This case study is compiled from publicly available material, including: The Australian Commonwealth Ombudsman, Immigration Report 277/07 (2007); and Minister for Immigra-tion and Citizenship, Minister’s Tabling Statement, 13 February 2008.

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Mr X arrived in Australia by boat in October 2000 and was de-tained. His application for a Protection Visa was refused in June 2001; his request for release on compassionate grounds wasrefused in September 2002. He told the Department of Immigra-tion that he was a citizen of Sudan, but this could not be verified. Early in 2003, he unsuccessfully applied for visas to go to Syria, India, Sri Lanka and Hong Kong.

In December 2003, Mr. X was removed from Australia to Tan-zania under a five-guard escort, because although his Sudanese nationality had not been established, the Sudanese Consul in Dar es Salaam had indicated that he would be prepared to interview Mr. X in Tanzania, during a seven-day transit period, in order to establish his nationality. Relying upon advice from a contracted removal company that identification would be achievable in Tan-zania, the Department issued an Australian Certificate of Iden-tity for travel purposes, despite Migration Instructions which state: “Before making any arrangements for enforced departure, it is important to establish…whether the proposed receiving coun-try will accept the person.”19

Following his interview, the Sudanese authorities did not accept that Mr. X was a Sudanese citizen. He was then held for three days at the airport in Dar es Salaam, and for a further three days at a police station. He was then returned to Australia via Johannesburg, where he was also temporarily detained. Upon his return, thirteen days after his removal, Mr. X was detained at the Perth Immigration Detention Centre, and then transferred to the Baxter Immigration Detention Centre. During this period he was diagnosed with major depression, and was placed under suicide and self-harm observation. A psychological report noted “trauma-related symptoms” and that Mr. X “retained a sense of hopelessness throughout his time in detention”.

19 Australian Migration Series Instructions 376 – Implementation of Enforced Departures – Australian Migration Series Instructions 376 – Implementation of Enforced Departures – Planning – 4.3.1.

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In June 2005, Mr. X was released from immigration detention on a Removal Pending Bridging Visa, which enables the holder to live in the community, work and access social services until removal becomes feasible. The Department of Immigration has said that it will not seek to remove Mr. X again while his nation-ality remains unverified, and advises that “removal to Sudan is considered unlikely due to the political unrest in that country”. In 2007, the Australian Commonwealth Ombudsman recom-mended that Mr. X be granted a permanent visa on compassion-ate grounds.

These two testimonies illustrate the experiences of a de jure and a de facto stateless person. Together, they encapsulate the statelessness challenge. They demonstrate the great cost of failing to adequately cater to this particularly vulnerable group. Importantly, they also depict the similarities of the protec-tion needs of all stateless persons, and consequently the injustice of a protec-tion mechanism which applies to some but not to others with similar needs.

Methodology and Structure of ERT Research and This Report

This report is the result of a two year research and advocacy project of ERT which had the dual objectives of:

(i) Filling the gap in evidence and documentation regarding the reality of de-tention of stateless persons around the world; and

(ii) Developing legal arguments and formulating principles and guidelines which would provide better protection for stateless persons.

Literature Review and Call for Evidence - Initially, ERT carried out a review of available information, literature and analysis concerning statelessness in general and the detention of stateless persons in particular. This was com-plemented by a call for evidence which ERT sent to over 60 key organisations and individuals world-wide. As part of this process, the ERT team established dialogue with those working with stateless populations and others monitor-ing detention practices. Of particular significance was the assistance of the Statelessness Unit of the UNHCR, Geneva. The ERT team consulted with inter-

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national and, where relevant, national experts in the fields of human rights including equality and non-discrimination, refugee and immigration law and policy throughout the project. This resulted in the identification of a number of cases of stateless persons in detention. Organisations consulted include the International Refugee Rights Initiative (IRRI) in Kampala, the European Commission for Refugees and Exiles (ECRE) in Brussels, the Jesuit Refugee Service (JRS) in Bangkok, the Hungarian Helsinki Committee, the London Detainee Support Group, the European Roma Rights Centre (ERRC) in Bu-dapest, Refugees International in Washington, the Open Society Justice Ini-tiative (OSJI) in New York, Suaram in Malaysia and Amnesty International offices world-wide.

Working Papers - ERT then prepared two working papers on the detention of stateless persons. The Research Working Paper documented existing re-search and work on the issue of statelessness and stateless people in deten-tion or other forms of restriction. The Legal Working Paper explored and cri-tiqued the international legal framework pertaining to the rights of stateless persons in general and those in detention in particular.

In October 2008, drafts of the two working papers were circulated to a group of 21 human rights, equality and non-discrimination, immigration and ref-ugee experts, and an expert roundtable was convened.20 This consultation primarily focused on building effective legal arguments to improve the pro-tection available to stateless persons in detention. The working papers were published in January 2009.21

Field Research - ERT then identified countries for field research purposes, chosen to reflect the practical and thematic scope of the project. All countries researched have a significant problem pertaining to the detention of stateless persons. Collectively they represent different geographic regions, different legal systems, different detention regimes (immigration detention, criminal detention and security detention) and different approaches to statelessness.

20 See Annex A for the list of participants at the Experts’ Roundtable. See Annex A for the list of participants at the Experts’ Roundtable.

21 See The Equal Rights Trust, See The Equal Rights Trust, Research Working Paper: The Protection of Stateless Persons in Detention, January 2009, available at: http://www.equalrightstrust.org/ertdocumentbank/ERT%20Research%20Working%20Paper.pdf; and The Equal Rights Trust, Legal Working Paper: The Protection of Stateless Persons in Detention under International Law, January 2009, available at: http://www.equalrightstrust.org/ertdocumentbank/ERT%20Legal%20Work-ing%20Paper.pdf.

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Nine countries were identified for in-depth field research: Australia, Bangla-desh, Egypt, Kenya, Malaysia, Myanmar, Thailand, the UK and USA.

Researchers reviewed legislation, jurisprudence and policy in each country; visited detention centres and gathered testimony from present and former detainees; interviewed lawyers, experts, government authorities, activists and organisations working on behalf of detainees; and produced country reports and interview transcripts.22 In addition to this in-depth country re-search, the Spanish statelessness detention procedure, the Palestinian situa-tion, and statelessness in Latin America and Somalia were also studied. This report draws on all of these sources.

In the past few years, there has been a growing body of research and writing on statelessness.23 This report aims to contribute to this discourse by deep-ening the understanding of detention-related challenges pertaining to the stateless.

Structure of the Report - Part One of the report analyses the concept of state-lessness and the challenge that it poses to notions of international human rights and national sovereignty; and the boundaries of statelessness – what is meant by de facto and de jure statelessness, how useful the distinction be-tween the two is, and whether a more inclusive approach to defining state-lessness would result in better protection for all stateless persons.

22 Two of these country reports have been published separately by ERT. The Equal Rights Two of these country reports have been published separately by ERT. The Equal Rights Trust, Trapped in a Cycle of Flight: Stateless Rohingya in Malaysia, January 2010, available at: http://www.equalrightstrust.org/ertdocumentbank/ERTMalaysiaReportFinal.pdf; and The Equal Rights Trust, From Mariel Cubans to Guantanamo Detainees: Stateless Persons Detained under U.S. Authority, see above, note 16.

23 See for example, “classic” studies such as Goodwin-Gill, Guy, See for example, “classic” studies such as Goodwin-Gill, Guy, The Refugee in International Law, 3rd ed. OUP, 2007; and Weis, Paul, Nationality and Statelessness in International Law, 2nd ed. 1979; see also recent studies and publications: Weissbrodt, David, The Human Rights of Non-Citizens, OUP, 2008; Van Waas, Laura, Nationality Matters: Statelessness Under International Law, Antwerp: Intersentia, 2008; Refugees International, Nationality rights for all: a progress report and global survey on statelessness, Washington, 2009; Blitz, Brad and Lynch, Maureen, “State-lessness and the benefits of citizenship: a comparative study”, Forced Migration Review, Issue 32, Special Issue on Statelessness, 2009; Gyulai, Gabor, Forgotten Without Reason: Protection of non-refugee stateless persons in Central Europe, Hungarian Helsinki Committee, 2007; Batchelor, Carol, “Stateless Persons: Some Gaps in International Protection”, 1995, 7 International Journal of Refugee Law 232; UNHCR, Nationality and Statelessness: A Handbook for Parliamentarians, Geneva, 2005; Statelessness: an analytical framework for prevention, reduction and protection, Geneva, 2008; Open Society Justice Initiative, Human Rights and Legal Identity: Approaches to Combating Statelessness and Arbitrary Deprivation of Nationality, Thematic Conference Paper, 2006; and Manby, Bronwen, Struggles for Citizenship in Africa, Zed Books, 2009.

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Part Two then focuses on situations of detention of stateless persons. It be-gins by surveying internationally accepted standards and norms pertaining to the detention of stateless persons and then explores practices of detention in the contexts of immigration, national security and criminal law – drawing from the field research conducted by ERT in countries around the world.

Part Three identifies some of the positive developments and better practices adopted by the countries researched in dealing with the statelessness chal-lenge, and makes recommendations based on observed good practices and the research findings of ERT.