Tuesday, 26 February 2013

Statelessness Programme 2012 international internship winner: "looking ahead to 6 months in Bangkok"

The Statelessness Programme's first ever International Statelessness Internship Award recipient is the very bright, motivated and sociable Sangita Jaghai. After nearly a year of interning with the Statelessness Programme in Tilburg, she is now about to embark on her international  internship - sponsored by the Statelessness Programme - in Bangkok. In this first blog post, she looks ahead to what she is expecting of the experience over the coming 6 months...
How the location and organization was selected
6 months ago,  Laura van Waas (manager & founder of the Statelessness Programme) made enquiries with Mark Manly, the Head of the Statelessness Unit at the UNHCR headquarters in Geneva about the possibility of hosting an intern at a UNHCR office for 6 months. UNHCR recommended an internship at the regional hub in Bangkok because the magnitude of the issue within the region and a great team working on statelessness at the Regional Coordinator’s Office would offer a good learning environment for an intern.
Laura consulted me about this option, she was very positive about an internship at the regional office in Bangkok but mentioned that it was also possible to look into other placements if I wanted to. I preferred to fulfill my internship in Thailand and UNHCR gave its approval for an internship period  as of 4 March until 16 August 2013.

What I expect to be doing during the internship
Under supervision of the Regional Protection Officer (Statelessness) I, firstly, expect to focus on developing a methodology which 1) compares citizenship laws of ASEAN member states against international standards related to the prevention and reduction of statelessness and 2) can identify conflicts or gaps in citizenship law that will arise in the context of migration between ASEAN member states, as well as through marriage between citizens of different member states. Secondly, I expect also to concentrate on good practices that exist in the region as regards reforming nationality law, regulations or implementation to reduce and prevent statelessness. Findings of this research have to be written down in a report.

If sufficient time remains, materials for future internal and external UNHCR training on the prevention and reduction of statelessness through nationality law reform and implementation will be produced or reviewed.  My duties and responsibilities are very well explained in the TORs.
What I hope to offer the host organization and learn from the experience
I am hoping to put into practice knowledge that I have gained during my internship at the Statelessness Programme.  My internship project  in Tilburg mainly focused on statelessness in the Dutch legal context and plenty of opportunities were given to learn more on statelessness in the international legal context as well. For instance, I took the course on nationality, statelessness and human rights. The legal analysis classes that were given back then will now be of good help during my internship.

Besides that, I participated in a summer course on statelessness held at Tilburg University. It was very informative because researchers, experts, and people working in the fields from all over the world gathered for one week and shared their experiences working on statelessness.
To conclude, what I would like to learn from the experience here in Bangkok is to better understand the legal context of statelessness  in South East Asia and the challenges that are being  faced within region. Seeing how UNHCR performs its mandate to prevent and reduce statelessness in practice  is a learning experience on itself already. Looking at my internship project, I hope to learn how to develop a decent methodology to assess nationality laws of the ASEAN member states and analyze nationality laws efficiently. I also wish to be guided  throughout the process of writing a clear and comprehensive  analysis report based on the findings. It would also be amazing to learn more on how teaching material is being developed for training sessions on statelessness.
Sangita Jaghai, International Statelessness Internship Award recipient 2012

Friday, 22 February 2013

Reflections on Thailand (1): A protracted and neglected situation of statelessness

This is the first in a short series of blog posts dedicated to the situation of statelessness among Thailand’s ethnic minority people (the ‘hill tribes’). They are inspired by our current research into the impact of statelessness on women in Thailand, which aims specifically to map the link with human trafficking – a project funded by the US Department of State’s Bureau for Population, Refugees and Migration.

A large stateless population
For some time, Thailand topped the global statelessness charts: with a whopping estimate of 3.5 million stateless people, Thailand was believed to be home to the largest stateless community of any country in the world. More recently, this number has been revised down, based on a better understanding of the definition of a stateless person (following guidance on this question issued by UNHCR) and a more detailed study of the relevant populations in Thailand. As it turned out, and due in part to confusion surrounding the use of terminology in the Thai context, the high figure had been inflated by the inclusion of a large number of statusless people who are currently present on Thai soil without the requisite documents or permission under the country’s immigration law, but do largely hold a (foreign) nationality.

Today, Thailand reports a stateless population of just over half a million. In the global leagues, the country is therefore still very much a heavy hitter. Only Myanmar and Nepal have a higher figure in UNHCR’s statistical tables (at year-end 2010). Moreover, the number of stateless people in Thailand is five times the combined number of asylum seekers and refugees residing in the country.

An indigenous, ethnic minority, stateless community
Most of Thailand’s stateless people are members of the community known collectively as the ‘hill tribes’ (or sometimes ‘highlanders’), because they traditionally reside in the mountainous western and northern areas of the country, in particular along the borders with Myanmar and Lao PDR. They are an indigenous community within these regions, with ancestral ties to the territory. They are also an ethnic minority community – distinct from the Thai majority population – and comprise a multitude of different tribes, each with its own linguistic and cultural traits.

As mentioned, many hill tribe people and their ancestors have inhabited Thailand for hundreds of years. Others arrived in the country during various waves of migration in the 18th, 19th and early 20th centuries – in particular during periods of upheaval in their countries of origin (which include China, Lao PDR, Myanmar, Nepal and Vietnam). Collectively, these groups make up the contemporary ethnic minority, hill tribe community in Thailand. Their total number in Thailand is not known, but some estimates put it in the region of 2 million people. Many hold Thai nationality, but some half a million are stateless.

It is of interest to note that a smaller indigenous population which is also grappling with statelessness can be found further south in Thailand, along the Andaman coast. Known as the Moken, Chao Lay or simply ‘Sea Gypsies’, they are a relatively small group (a few thousand people) who have lived semi-nomadic lives in this part of the country for hundreds, if not thousands, of years. Following the devastating 2004 tsunami, several projects were launched in the area to support the re-documentation of people and the re-building of livelihoods. It was then that this population’s lack of citizenship came to light and there has been some work since to try to resolve their statelessness. Our own research into the impact of statelessness on women in Thailand does not include the Moken – it is limited to the experiences of Thailand’s stateless hill tribe people.  

Protracted and neglected
Statelessness has been a phenomenon among Thailand’s hill tribe population ever since the country first began to really document its nationals, in the 1950s. For many, exclusion was a result of the poor enumeration of people or villages – some simply lived in such remote areas that they did not come into (regular) contact with the state authorities and were overlooked when civil registration and nationality documentation systems were implemented. Others may have had the opportunity to register as citizens, but did not see the importance of doing so, since the whole concept of nationality was alien to their lives. During various later attempts to fill in the gaps in census and civil registration records, the Thai authorities did not necessarily recognise those encountered – who were not previously registered – as Thai nationals. Instead, a system of different coloured cards was implemented to grant some form of temporary status to the ethnic minority groups, pending a more durable solution. For many, the difficulty in accessing Thai nationality was then compounded by a revision of the nationality policy to exclude from the country’s jus soli rules anyone whose parents were deemed to be illegally residing in Thailand. In other words, children born on Thai soil to illegally present parents – including many of the groups who held the aforementioned temporary statuses, which were not considered lawful residence – was excluded from nationality and would also be stateless. As such, statelessness became a protracted and hereditary phenomenon within these communities and there are many families which have been stateless for generations.

Despite the protracted nature of statelessness in Thailand and the sheer scale of the problem, the country’s stateless have drawn relatively little attention beyond its borders. Competing for the already marginal interest that different international actors have demonstrated in relation to statelessness to date, they have clearly lost out against other communities. Within the region, they are overshadowed by the larger stateless Rohingya Muslim population of Northern Rakhine state in neighbouring Myanmar, grabbing international headlines – both historically and again recently – thanks to the sheer level of destitution, marginalisation and persecution suffered, plus the challenges faced in relation to the international forced displacement of the group. Elsewhere, stateless communities in other parts of the world have also mobilised more interest or support, including the stateless Kurds in Syria, the Bidoon in the Arab Gulf, the Nubians in Kenya and the persons of Haitian descent in the Caribbean. In relative terms, at least where the interest of the international media and the involvement of international civil society and governmental actors is concerned, Thailand’s hill tribes appear today to be are among the most neglected of the world’s stateless people. As will be discussed in one of the later blogs in this series, this is especially unfortunate given the opportunities that the current legislative framework present in Thailand for the large-scale reduction of statelessness among the hill tribes and to which far more attention and resources should be directed to finally effect real change.
Laura van Waas, Senior Researcher and Manager, Statelessness Programme

Tuesday, 19 February 2013

The Humanitarian Side of Statelessness - Statelessness within the Framework of the Millennium Development Goals

The issue of statelessness has begun to receive attention from a legal perspective. While this work should be commended and continue this article argues that we should also remember that at its core statelessness is a human issue that deeply affects the lives of those who suffer from it. It causes and perpetuates, amongst other things, extreme poverty and human insecurity. Statelessness is still greatly under-examined and under-appreciated as a potentially significant barrier to progress in the humanitarian and development fields.
A working paper on this issue, now available for download on SSRN, aims to begin to situate statelessness as an important issue within these fields. This is done by taking the framework of the Millennium Development Goals (MDGs) and looking at how statelessness affects the realization of each and every goal. This approach shows that by overlooking statelessness development actors and agencies could be failing to meet the needs of the world’s poorest. While far from being a comprehensive analysis of all available literature on statelessness and its relationship to each goal, this article is as an exploratory piece with the aim of encouraging development actors and agencies to recognise the importance of statelessness in their current and future projects and work to gain a greater understanding of the relationship between statelessness, poverty and human insecurity.
Please CLICK HERE to view the paper that outlines these issues. Looking forward to a greater discussion of this side of statelessness in the months to come.
Jason Tucker, Visiting Scholar at the Statelessness Programme

Sunday, 17 February 2013

GUEST POST: Naturalization of stateless persons: The standards of facilitated access to citizenship

One of the measures, proposed as a durable solution of statelessness, is facilitated access to citizenship for stateless persons. Nevertheless, the issue of facilitated naturalization of this particular group,1 stays still grossly overlooked. There exists some international instruments,2 explicitly recommending that states should facilitate the acquisition of their nationality for the stateless, however, there are still no clear and comprehensive guidelines explaining, what the states should do to comply with this recommendation.
 I  addressed this problem within my master thesis called Facilitated naturalization of stateless persons: Solution of statelessness? where I  set out to identify international obligations of states relating to attribution of nationality via naturalization and to derive international and European standards for facilitated access to citizenship for stateless persons. In addition, based on my comparative study of three states – Estonia, Hungary, Slovakia - with very different approach to statelessness, I  formulated reccomendations which could help to eliminate “unreasonable impediments3 to naturalization for this category of applicants. Within my research I focused in particular on the assessment of material requirements (residence, language and other integration requirements, good character, economic resources requirements, loyalty to the state and security) and procedural aspects of naturalization (application, proceedings), as well as other areas of concern arising when it comes to facilitated access to citizenship.
In light of the foregoing, the states should, at the occasion of the next review of their nationality law, consider the following key measures, which would help to ensure that stateless people have access to a durable solution:4
–to adopt provisions providing for a stateless status determination procedure; this procedure can efficiently identify stateless persons in need. Moreover, a separate procedure regulating the legal status of stateless persons may substantially contribute to the acceleration of the subsequent naturalization procedure.
–to reduce the prescribed period of residence such that this does not exceed five years. If a statelessness determination procedure is in place, the period of residence should start to count since the submission of the application concerned, provided that the stateless status is granted. If no stateless protection status is in place and stateless person have to establish their lawful residence first, states are encouraged to give stateless persons access to a residence permit on preferential grounds.
–to waive language requirements or require only basic knowledge of the language (A1 standard). If language tests are required, the states should provide assistance to individuals to help them to learn the language and to familiarize themselves with the content of the tests.
–to waive integration requirements or introduce them on a voluntary basis. If integration tests are applied, the state should again provide assistance to individuals to help them to prepare for the tests and to familiarize themselves with their content.
– regarding the good character requirement, to take into account only crimes with sentences of imprisonment for more than 5 years and use qualifying periods instead of an absolute refusal to grant citizenship. Examination of criminal records from other states should be done critically and there should be a possibility to grant an exception with regard to the special circumstances of the case.
–to waive economic resources requirements or/and to consider applications by stateless persons in need with sympathy.
–to reconsider the requirement of loyalty, especially if formulated in a way to deny the access to citizenship to a group of people sharing a certain characteristic without the consideration of all circumstances of the case; and to exempt certain categories of applicants from the oath of allegiance if necessary (e.g. minors, incapable persons etc).
–to adopt provisions allowing for alternative forms of evidence if some documents, generally required for naturalization, cannot be submitted or/and to shift the burden of proof to the state where necessary.
–to reduce or waive costs of naturalization (including application fees, translation fees, administrative fees for issuance of required documents etc.).
–to accelerate the procedure and to implement legal guarantees for administrative proceedings, in accordance wth the rule of law and international standards of due process (e.g. reasoned decision, right to appeal, representation before an independent administrative authority and/or a court).
– if the procedure is discretionary, to consider all circumstances of the case and an impact of refusal of the application on an individual.

In conclusion, I have to emphasize that I realize that the call for facilitated naturalization, even though set out in different international documents, is rather soft, and it neither requires the states to grant their citizenship, nor stateless persons to accept any such offer. The duty of facilitated naturalization therefore has to be understood as an effort to encourage states “to dispense with as many formalities in their naturalization process as possible so that [stateless persons] are positioned to acquire citizenship with the absolute minimum of difficulty.5 In my view, this is exactly the reason why states should be informed about possible difficulties which stateless persons may face applying for citizenship. I hope I managed to outline at least some of them.

Eva Mrekajov√°, Human Rights LLM Programme graduate of Tilburg Law School, reflecting on the lessons learned from the research for her Masters Dissertation

1 Please note, that I further focus only on facilitated naturalization of stateless persons in its strict sense of grant of nationality upon application later in life.
2 See. e.g. Article 32 1954 Convention Relating to the Status of Stateless Persons; Article 6 (4) (g) Council of Europe: 1997 European Convention on Nationality; Recommendation 564(1969) of the Consultative Assembly of the Council of Europe, para 1(b); Explanatory report to 1997 European Convention on Nationality. para 52; Recommendation R (1999) 18 of the Committee of Ministers to Member States on the Avoidance and Reduction of Statelessness, section IIB and per analogiam Article 34 of the 1951 Convention relating to the Status of Refugees and Recommendation 564(1969) of the Consultative Assembly of the Council of Europe, para 1(b)
3 Human Rights Committee: Individual complaint of Capena v. Canada. para. 11.3.
4 See also MIPEX 2010 Indicators (http://www.mipex.eu/methodology); For the purposes of my study I adjusted the indicators related to access to citizenship for the context of naturalization of stateless persons to benchmark the laws and policies of the chosen states. For more information see my thesis via http://www.mipex.eu/naturalisation-stateless-persons-solution-statelessness
5per analogiam Hathaway, J.C. The rights of refugees under International law. p. 985-986

Thursday, 7 February 2013

Punished for not having a Jordanian father

I have been working on the issue of statelessness for several years now.  During this time, I have focused mainly on legal research and awareness raising work, and I have been continually fascinated by the legal intricacy statelessness unfolds.  Despite this interest, and despite having done previous field research on the issue, I do not think I truly comprehended the extent of the problem of statelessness until now.  Through my involvement in a project co-ordinated by the Women’s Refugee Commission, conducting advocacy-oriented research in four countries that maintain or have recently removed gender discrimination from their laws, I have had the opportunity to spend time with affected families.

I am now coming to the end of my stay in the first country of research: Jordan.  Here, women are not entitled to transmit their nationality to their children so, in a variety of circumstances, children of Jordanian mothers end up stateless. My time here has emphasised how, as well as being a legal, political and theoretical conundrum, statelessness really is a major humanitarian problem.  Having compiled nearly 50 testimonials and facilitated several focus group discussions, I have discovered something unique in each story and the problems it highlighted.  Women’s inability to confer nationality has affected each family differently, but it has also affected each family severely.  

I have sat in houses listening to women explaining how their children have, over the years, become increasingly ill as access to free healthcare was barred due to their lack of nationality.   Added to this, as they are not Jordanian citizens, these children rarely have access to assistance provided by charities.  I have been amongst young disillusioned men who are repeatedly arrested and temporarily detained as they carry no ID documents –being children of female Jordanian nationals gives them no right to identity papers.   I have been in houses where the men sit all day at home, with no hope of finding legal employment, and seen foreign husbands who have to choose between remaining unemployed or working and risking deportation because they can’t afford expensive work permits.

Many of the families I met lived in very poor areas.  Statelessness in these areas has one thing in common - it protracts, prolongs, and exacerbates this poverty.  However it was not a problem exclusive to the poor.  There was also the college student I met who was not able to travel because of her situation, and whose mother worried as she could never inherit from her family, since registering anything under her name is impossible.

Whilst in Jordan I also heard of a high-profile case of a Jordanian women who was attempting to commit suicide by jumping off a bridge.  Her husband and children are trying to cross the border from Syria to Jordan to escape the violence.  They, however, were refused entry.  Putting aside regional politics, the fact that the man was married to a Jordanian, or that the children had a Jordanian mother, meant nothing.   Not only can the children not obtain Jordanian nationality, they do not have the right to even enter their mother’s country under extreme humanitarian circumstances.  

Not having the right to confer nationality to your children is often framed as a women’s rights issue. In the Levant region there has been much positive action and a variety of initiatives have sprung up to try and repeal this gender discrimination. And yes, it is clearly a gender issue, but this should not overshadow the fact that it is also so much more.  It becomes a child’s rights issue when you ask a nine year old boy what he wants to be when he is older, and he replies that he can’t continue school for long, so nothing.  Or when a two month old newborn is ill and coughing in the cold but has no access to free healthcare anywhere, as she is not a citizen of anywhere.  Furthermore, it is often the men that suffer the most from this discrimination in the region.  In addition to not being able to work and provide for their families, most families said they would only allow their daughters to marry citizens, so that they would be able to become Jordanian and the next generation’s access to nationality is also assured. For the stateless sons, the future is bleak – men have no hope of acquiring nationality through marriage and their children are doomed to inherit their condition.

Sitting in these houses and being amongst these families, gaining a very brief glimpse of the day to day, year to year, generation to generation struggles they experience highlighted how this really is a serious problem everywhere, with still so much more to be done.  One sentiment however that I heard from the majority of these families was their continued optimism that there can, must and will be a reform of the nationality law.  A sentiment that I have taken away too.

Zahra Albarazi, MENA nationality and statelessness expert, Statelessness Programme

This is the first phase of the project The Statelessness Programme is conducting as commissioned by the Women’s Refugees Commission. The next stage of the study will be conducted in Morocco.  Discrimination in the nationality law was removed there in 2007 and the research hopes to discover how this amendment is being implemented and how it has impacted on the lives of the families who had been affected by this discrimination. The full findings of this project, alongside the video component will be available later in 2013.

Photo taken during a focus group discussion - most of the meetings were in people's homes, but this group met in relatively posh surroundings