Hispaniola: A Current Stateless Issue and a Looming Refugee Crisis

IMG_0035Julie Kornfeld

Third Year Law Student in the Program on Refugee and Asylum Law at University of Michigan Law School

On Hispaniola, the island divided between the Dominican Republic and Haiti, the early stages of a potential major refugee crisis are underway. The Dominican government announced that on June 15, 2015 it would begin deporting any “foreigners” who had failed to register under the National Plan for the Regularization of Foreigners law.[1] The National Plan for the Regularization of Foreigners was adopted as a solution to a problem created by a 2013 Dominican Constitutional Court decision. The decision essentially stripped the nationality a broad group of people born in the Dominican Republic between 1929 and 2010 by only recognizing individuals born in the country to Dominican nationals or legal residents as having Dominican nationality. This primarily excluded individuals born to the country’s large Haitian migrant population. Since these individuals are no longer considered nationals under the operation of either Dominican or Haitian law, the UNHCR has classified this population as stateless per Article 1(1) of the 1954 Convention relating to the Status of Stateless Persons (Stateless Convention).

As a result of the Dominican Government’s threat to deport unregistered foreigners, [2] those deported and those who have fled the country out of fear of deportation, may not only be stateless, but also refugees under the 1951 Convention relating to the Status of Refugees (Refugee Convention). While most refugees today are not stateless, and most stateless persons are not refugees, these stateless people fleeing the Dominican Republic should be recognized as refugees under international law.

The question of whether or not a stateless person is a refugee under article 1(A)2 of the Refugee Convention, turns on whether the deprivation of nationality rises to the level of persecution. Even though there is no universally accepted definition of persecution in international refugee law, the European Union and the UNHCR, and countries like the United Kingdom and New Zealand, use international human rights law as a benchmark. If the deprivation of nationality is arbitrary, like if it is determined based on race, color, sex, descent, national or ethnic origin etc., then it is in breach of the principle of non-discrimination in the enjoyment of the right to nationality under Article 15 of the Universal Declaration of Human Rights. But the denial of this fundamental right may not be independently sufficient. For instance, the UK Immigration Appeal Tribunal will only recognize denial of nationality as amounting to persecution if the practical consequences of the denial are sufficiently severe since the Tribunal found that the right to nationality has not been plainly recognized in international law.

Domestic courts’ interpretations of the consequences which are sufficiently severe to rise to the level of persecution in the context of the deprivation of nationality are varied.[3] The UK Tribunal has emphasized that widespread and systematic discrimination that results in violations of civil, political, economic, social, and cultural rights amounts to persecution. The United State Sixth Circuit requires more than a denial of work; instead, economic deprivation needs to be of sufficient severity. The Federal Administrative Court of Germany has recognized that persecution depends on the intensity of the interference and the resulting exclusion of the person from the material rights of citizenship. And, the New Zealand Refugee Status Appeals Authority has held that restrictions on social and economic rights, including denial of free education, health care or basic documents making someone vulnerable to arrest and deportation, as well as, the imposition of barriers to employment, constitute persecution.

In the Dominican Republic, the deprivation of nationality is arbitrary and discriminatory, as it disproportionately affects people of Haitian descent. The Human Rights Watch found that “Dominicans of Haitian descent are still unable to access basic civic functions such as registering children at birth, enrolling in school and college, participating in the formal economy, or travelling around the country without risk of expulsion.” They can’t hold jobs, vote, attend high school, apply for college, open a bank account or legally drive. The Government has been accused of “repeatedly profiling” people of Haitian descent, and of trying to detain and forcibly deport them even if they have valid documents. This situation that many Dominican born persons of Haitian descent are fleeing likely meets the threshold of persecution as defined by the domestic courts referenced above.

If the international community does find that this stateless population meets the refugee criteria, the refugees would be entitled to a more comprehensive set of rights under the Refugee Convention than the stateless population would otherwise be entitled to under the Stateless Convention. This recognition, however, may misplace the burden of the crisis. The prevention and reduction of statelessness is primarily the responsibility of States through adoption and implementation of nationality legislation that avoids the creation of statelessness, as well as other measures that ensure all children are registered immediately after birth. As such, refugee recognition may reduce the pressure on the Dominican Government to amend its policy towards Dominican born persons of Haitian descent by placing the onus on the international community to respond to a refugee crisis.

[1] This law, enacted in May 2014, divides persons into two groups: Group A and Group B. Group A includes persons born in the Dominican Republic to undocumented foreign parents and whose birth were art some points registered. Group B includes people born in the Dominican Republic to undocumented foreign parents and whose births had never been registered. For more on the law, read here.

[2] There have been low registration rates under the law, likely due to difficulties in fulfilling administrative requirements, a lack of the Government capacity to process applications, and a general reluctance of the people to register as a foreigner since they were born in the Dominican.

[3] See Hélène Lambert, Refugee Status, Arbitrary Deprivation of Nationality, and Statelessness within the Context of Article 1A(2) of the 1951 Convention and its 1967 Protocol relating to the Status of Refugees, United Nations High Commissioner for Refugees: Legal and Protection Policy research Series (October 2014), available at http://www.unhcr.org/5433f0f09.html.

 

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