Identification of statelessness

The obligation on states to identify stateless persons within their territory or jurisdiction is implicit in international human rights law. Where states are party to the 1954 Convention, this obligation is well established. But, even where states are not party to the Convention (or individuals are excluded from its protection), the identification of stateless persons may be necessary to protect their human rights. For example, in the context of removal and detention, being stateless is likely to present significant barriers to removal, which could render their detention arbitrary. So, without a procedure in place to identify and determine statelessness, authorities risk making unlawful decisions to detain.

While a handful of European countries do have statelessness determination procedures in place, none routinely consider statelessness as part of the decision-making process to remove or detain. Furthermore, very few countries make their statelessness determination procedures easily accessible to people being held in immigration detention. The identification and determination of statelessness is essential to preventing arbitrary immigration detention. To ensure that people have access to justice, and improve accountability and the quality of decision making, there should be investment in establishing and implementing robust procedures and training decision makers.

States should put in place statelessness determination procedures and ensure that:

  • Statelessness determination procedures are developed in line with established guidance including the UNHCR Handbook on Protection of Stateless Persons.
  • Anyone on the territory or subject to its jurisdiction has access to a statelessness determination procedure at any time, including those who are undocumented, without lawful residence, or in detention.
  • Decisions to detain or remove an individual consider statelessness: if someone claims to be stateless or is suspected of being stateless (or is unable to establish their nationality), they should be provided with information and legal aid, and referred to a Statelessness Determination Procedure that can formally recognise their status and grant them the appropriate protection.
  • People going through a statelessness determination procedure have a right of appeal and review, access to legal aid and advice, and information about their rights in a language they understand.