On 6 April 2013, the UK Border Agency's statelessness determination procedure was incorporated into new immigration rules. Statelessness has been an issue on the international legal agenda since World War Two, after which the UN promulgated the 1954 Statelessness Convention. The UK ratified both this convention, as well as the 1961 Convention on the Reduction of Statelessness. Yet only recently has the UK put into place a procedure that allows the Border Agency to fulfil its obligations to these conventions.
The UK's delay in creating a working procedure for statelessness determination is understandable; the definition of statelessness itself, and therefore how it is determined in the UK, has been a contentious issue. At the heart of discussions on statelessness are the labels 'de jure' and 'de facto' stateless. In the 1954 convention's Article 1(1), the only legal definition of statelessness clarifies, '… the term "stateless person" means a person who is not considered as a national by any State under the operation of its law.' This defines a de jure stateless person. In the final act of the 1954 convention, we find reference to what is typically considered de facto statelessness:
'… [E]ach Contracting State, when it recognizes as valid the reasons for which a person has renounced the protection of the State of which he is a national, consider[s] sympathetically the possibility of according to that person the treatment which the Convention accords to stateless persons; and […] further that, in cases where the State in whose territory the person resides has decided to accord the treatment referred to above, other Contracting States also accord him the treatment provided for by the Convention.'
To this day there remain debates on what separates de facto and de jure statelessness, which have been covered in depth elsewhere. But in the end, UNHCR discards the term de facto stateless, because the convention is not legally binding for de facto statelessness. Indeed, very often de facto statelessness is simply a term denoting ineffective citizenship. However, this could put some vulnerable groups at risk if they do not explicitly qualify as de jure stateless. For example, de facto statelessness was frequently a label for those of undetermined nationality––including those denied proof of nationality by 'their own state.' These persons are sometimes labelled as 'legal ghosts,' 'denied birth registration,' and 'at risk of statelessness.' Where is the line drawn between statelessness and those who have a state but cannot prove their nationality? Theoretically, these are distinct concepts. In practice, however, it can be difficult to separate these categories.
It can be more helpful to see if such persons fit under the de jure stateless definition. Denial of proof of citizenship is increasingly recognised as evidence that the state does not consider a person to be a national. For this reason the Open Society Justice Initiative argues that most stateless populations fall under Article 1(1) (as interpreted in the Prato Conclusions). This is because 'Prima facie evidence of the state's view, such as discriminatory impediments to securing proof of citizenship, should give rise to a presumption that the state does not consider individuals affected by such measures to be nationals.' The state, they claim, refers to every level of the state competent to establish or confirm citizenship. Further, they argue that de jure statelessness arises through the '… prolonged non-cooperation by competent authorities with an individual's efforts to clarify his or her citizenship status.' In a world that increasingly depends on documentation, a state's denial of basic proof of nationality must be considered as one cause of statelessness. Because being 'at risk' of statelessness gives no indication as to when an individual crosses the line between 'at risk' and 'de jure' stateless, but denial of proof of citizenship is a clear point in time which can define exactly when a person can be recognized as stateless, and thus is entitled to protection in the UK.
This can have implications for immigration cases, particularly for one group of vulnerable persons – namely, certain children of Chinese parents. Consider a recent case in the Netherlands: a couple were born in China and considered to have Chinese nationality. Their two children, who were born in the Netherlands, were registered as 'unknown nationality.' The couple sought to register their children as stateless. Their case was rejected – it was considered possible that the children had Chinese nationality, and if they did not, it was for the clients to substantiate their claim. Indeed, China does have inclusive nationality laws, automatically extending nationality to a child with one or both parents from China. The Chinese government does deny children proof of nationality through the birth registration process, which gives children access to household registration (hukou). Thus these children would be at risk of statelessness if they remain in the Netherlands or if they return to China.
There are several common obstacles to birth registration for Chinese parents within China and abroad. One obstacle to birth registration is that parents have had children without government permission. They are subsequently charged a 'social compensation fee' for having children outside birthing regulations. Often, when a parent can't pay the fine, or when mothers refuse to be sterilized, their children will be denied the hukou. Even higher obstacles exist for children in non-state orphanages, and half-North Korean half-Chinese children (who should be Chinese under domestic legislation).
In fact, denial of birth registration is endemic in China. While lack of birth registration and denial of national identity documentation are not synonymous, there are ways of drawing a distinction to estimate how many children are affected. For example, around the time of the national census the government pushes for all children to have their births registered. Children who are not registered with the hukou at this time are unregistered due to obstacles to completion of birth registration. According to the Chinese government's own estimates, 13 million children were not registered with a hukou in the 2010 census, which they attributed to their own birthing policies.
Without this hukou registration, a child cannot gain access to a Resident Identity Card, a passport, or any formal recognition of their nationality. They are then unable to leave the country and legally travel as Chinese nationals. Moreover, when born outside China, they will not be recognised by the Chinese government for diplomatic assistance such as emergency travel documentation to enter China, as these services depend on the hukou. Exceptions might be made for young children to return to China with their parents, but this becomes increasingly unlikely as the children grow up. While the hukou is not reserved for Chinese nationals, when it concerns Chinese nationals, only this document can be used to obtain a Resident Identity Card, proof of the identity of citizens (Article 1, Law of the People's Republic of China on Resident Identity Cards). Denial of a Resident Identity Card is then a good way to determine the view of the Chinese state.
This is relevant to UK legal practitioners representing Chinese clients. Upon their return, parents who give birth abroad, unless their children have access to an alternative nationality, will be punished in the same way as those who give birth within China. No matter where the child is born, if the child is born outside China's birthing policies to Chinese parents, he or she is at risk of statelessness.
So in the case of the children born in the Netherlands there is a risk they will be denied birth registration, and thus proof of citizenship. In this case it appears the parents would not have been able to have their second child legally within China, and so would be required to pay a social compensation fee. If they return to China, the fee will be charged when they try to register the birth of their children. Denial of proof of citizenship (i.e., the hukou) could arise if the parents are unable to pay this fee. A second child born outside of birthing regulations might cost parents four to six years of their family's disposable income, although the price varies province-to-province. Some parents are unable to pay this fee, and their children are denied proof of nationality. One of the advantages of obtaining asylum in a host country is that the children may be able to access an alternative nationality.
As this case study illustrates, focusing on documentation denial is essential to understanding what statelessness really means in the 21st century. Through this lens, de jure statelessness is a label that can include groups of stateless persons beyond common examples such as the Rohingya community residing in Burma. In some cases, evidence of a state's actual determination of who is a national can outweigh evidence of who should be a national according to domestic legislation. This has implications for the statelessness determination process, and tends to be overlooked within the UK. Providing clear proof of something one does not have is problematic, but focusing on denial of proof of citizenship is one area that can be explored in cases where a person is potentially stateless.