Nationality as an Element of the Refugee Definition and the Unsettled Issues of ‘Inchoate Nationality’ and ‘Effective Nationality’

by Hugo Storey

This is the first of a two-part article dealing with the issues of ‘inchoate nationality’ and ‘effective nationality’ in the context of determination of nationality as an element of the refugee definition.

Part I: ‘Inchoate Nationality’

Nationally as an element of the refugee definition

Although getting barely a mention in most refugee law textbooks[1], the first question that must be asked in deciding whether a person is a refugee (the first element of the refugee definition[2]) is “What is the ‘country of his nationality’?” It arises first because unless and until nationality has been determined (or found to be lacking) it is not possible to ascertain the country by reference to which the claim to protection falls to be assessed. All other elements of the definition have no traction unless and until this first question is resolved.

Whilst the relative lack of attention to nationality in refugee law textbooks could be said to reflect the fact that it is not a live issue in many asylum cases[3], problems regarding nationality or statelessness[4] have been an endemic feature of refugee flows since the creation of the modern state system[5]. There are also clearly acute problems currently arising concerning nationality. For example, an increasingly vexed problem for decision-makers dealing with the mass movement of people across the Mediterranean since 2015, many of whom are undocumented, is establishing whether they are Syrian.[6].

Among the factors causing difficulties for refugee decision-makers is the fact that nationality is not a physical or biological but a legal fact. Further, although it is typically proven adequately by production of a passport or identity document, such documents are only declaratory of an underlying legal fact. Leaving aside unusual cases where it is awarded as a privilege or favour, nationality exists only insofar as an applicant meets the conditions for it as laid down in the law of the state concerned. Another factor is that persons can hold more than one nationality and the second paragraph of Article 1A(2) makes clear that such persons will not qualify as a refugee unless able to show that they face a well-founded fear of being persecuted in each one of their countries of nationality[7].

It is important, before venturing further, to emphasise that what we are concerned with here under the relevant part of the refugee definition is ’nationality‘ as the legal tie between the individual and the State. We are not concerned with the same term ‘nationality’ which is identified earlier on in Article 1A(2) as  one of the five reasons for persecution, in which context the term has a much wider meaning[8].  It should also be noted that for the purposes of this article, ‘nationality’ is used interchangeably with ‘citizenship’.

Notwithstanding the relative neglect of nationality as an element of the refugee definition in the literature, there has been some progress towards arriving at a consensus on certain propositions regarding it. In broad terms, this consensus can be summarised as an acceptance that nationality determination is to be carried out by applying the rules of international law on the subject. These rules can be summarised as follows: that it is for each State to determine, through operation of its internal (national) law, who are its nationals[9]; that a State’s determination of nationality has effect at the international level so far as it accords with general principles of international law; that almost invariably States adopt nationality laws based on some combination of the principles of jus soli (nationality based upon place of birth), jus sanguinis (nationality based upon descent), and residency in determining who qualifies for nationality; that there are two main modes for acquisition of nationality, one by operation of law or acquisition ex lege, the other as a result of an overt act, usually application made in accordance with a State’s internal laws[10]. It is also widely accepted that persons whose possession of nationality depends on a grant being made to them as a matter of discretion, cannot be considered as having that State’s nationality[11].

Despite this progress, some areas of disagreement persist, in particular as regards two issues. Part I of this article locks onto one of them, that of ‘inchoate nationality’; Part 2, to appear later, will focus on ‘effective nationality’.

‘Inchoate nationality’

The issue in focus in Part I concerns whether it is necessary to understand the concept of nationality in Article 1A(2) of the Refugee Convention as being subdivided into two categories of nationality: actual (or ‘extant’) nationality and ‘inchoate nationality’.  Hathaway and Foster identify themselves as proponents of the notion of ‘inchoate nationality’, which they define as ‘automatic, non-discretionary access to citizenship’ and as citizenship [that] actually exists in embryonic form and needs simply to be ‘activated by means of a request that will clearly be acceded to’[12]. They seek to contrast both  actual or ‘extant nationality’ and ‘inchoate nationality’ with what Germov and Motta[13] call ‘prospective’ nationality, that is, nationality which according to the law of that country the applicant does not, at the time of determination of the refugee claim, possess ‘in fact’[14]. It is clear that for Hathaway and Foster ‘prospective nationality’s is a dangerously loose concept since it leads to a ‘slippery slope’ that for example ‘elides non-discretionary access with contingent access to nationality’[15].

In making use of the ‘inchoate nationality’ concept, Hathaway and Foster draw on the Canadian Federal Court case of Bouianova[16] which concerned a woman of Russian ethnicity who alleged a risk of ethnic persecution in Latvia. In the light of evidence produced showing that she could become a citizen of Russia simply by making a request and submitting her passport to be stamped, the Federal Court ‘sensibly elected to treat Russia as a country of nationality[17]’. Hathaway and Foster argue that use of the ‘inchoate nationality  concept helps overcome the problem that the literal language of the refugee definition, which defines the country of reference as the state of which the applicant ‘is’ a national, appears to be confined to the class of those who already possess that nationality. Taking account of the objects and purpose of the treaty, Hathaway and Foster argue that the use of ‘is’ in the refugee definition can be read to include those who have the nationality of a country available to them “for the asking and could be acquired by means of a non-discretionary formality” and can thus cover those with ‘inchoate nationality’ in this sense[18].

The notion of ‘inchoate nationality’ advocated by Hathaway and Foster finds limited support in national case law outside Canada[19] – although it may possibly coincide with what the UK Upper Tribunal has described as the category of persons who are ‘not of the nationality but [are] entitled to acquire it’[20].

A prefatory observation to make about Hathaway and Foster’s position is that it does not in any way represent endorsement for the view that nationality can include those who may be entitled to it – the discretionary category mentioned earlier. It is strictly confined to those who have mandatory entitlement to it.

Hathaway and Foster’s rejection of a ‘prospective nationality’ approach is well-founded. In particular such an approach affords too much scope for state manipulation designed to make it more difficult for applicants to meet the requirements of the refugee definition by requiring them to avail themselves of other countries to which they might be able to gain citizenship. They give the telling example of cases in which courts or tribunals had sought to rely on the view that Jews living in countries other than Israel can avail themselves of the latter’s Law of Return, only to recognise later that access to Israeli citizenship was far from assured given the existence of ministerial discretion to deny citizenship on grounds of public health or security[21].    However, whether their proposed extension, to apply an ‘inchoate nationality’ approach. is any better is another matter. What in particular needs to be shown is that it is a valid extension to an ‘actual nationality’ (or what they term an ‘extant nationality’[22]) approach.

A number of difficulties beset their ‘inchoate nationality’ approach. It is not a concept that is applied in other areas of international law[23]. It is contrary to the position taken by most leading textbooks[24] and also by UNHCR[25]. It is an approach that diverges from ordinary meaning: use of the present tense ‘is’ and ‘has’ ordinarily denotes something which a person has or holds now. Such an approach appears to collapse the issue of whether a person possesses nationality as a matter of law into the question of whether they could prove it by way of documentation.

A further difficulty is that its jurisprudential basis is problematic. For Hathaway and Foster, for example, it is important that it has been endorsed in leading cases and they place great reliance on the Canadian Federal Court case of Bouianova. The difficulty with reliance on this case is that its reasoning is equivocal. Mr Justice Rothstein states on the one hand that the applicant ‘could have a Russian citizenship by merely asking for recognition of a pre-existing status’; yet elsewhere states that ‘[i]n my view, the applicant, by simply making a request and submitting her passport to be stamped, becomes a citizen of Russia’ (emphasis added). If she was automatically entitled to Russian nationality by operation of law, then the correct answer as a matter of nationality law, would appear to be that she had an extant Russian nationality already (it was a ‘pre-existing status’); she did not need to ‘become’ Russian. She lacked State declaration of the fact but nationality is a legal fact that exists even if not declared[26]. Indeed, Hathaway and Foster’s approach appears to duplicate the same equivocal formulation as Bouianova. Hence they refer in a key passage to it as nationality (citizenship) which ‘actually exists in embryonic form’ needing simply to be ‘activated’[27] – here the wording suggests they mean to denote a pre-existing nationality or ex lege nationality. Yet elsewhere they make clear that they see this concept of ‘inchoate nationality’ as stretching the meaning of nationality within Article 1A(2) beyond what a person possesses, and extending to persons who only have ‘access’ to such nationality (albeit not open-endedly, only to those who have automatic, non-discretionary access[28]). Indeed it would seem that ultimately the reason why Hathaway and Foster opt for an ‘inchoate nationality’ approach is that they see it as a logical corollary of their separate (questionable) thesis that nationality must be ‘effective nationality’[29] (see Part 2 of this article, to be published later).

Yet a further difficulty is that they appear to portray the actual or ‘extant nationality’ approach as contrary to the objects and purposes of the Refugee Convention. They state that ‘a strict construction of the country of reference rule is difficult to reconcile to the Convention’s overarching objective of providing surrogate protection only to those who do not have a state of nationality able and willing to protect them’[30]. Yet this objective is surely equally served by adoption of an actual or ‘extant nationality’ approach. Taking the Bouianova case as an example, on both the actual nationality approach and their ‘inchoate nationality’ approach, she was sensibly to be treated as a national of Russia and unable therefore to seek to rely on a risk of ethnic persecution in Latvia where she had lived for some 14 years. Indeed, since for Hathaway and Foster ‘inchoate nationality’ is offered as a necessary extension of the basic actual nationality approach (functioning as a second valid category of nationality), it would be odd if the basic category were somehow seen as invalid because contrary to the Convention’s objects and purposes.

In any event Hathaway and Foster do not offer any example of a case where an actual nationality approach would be contrary to the Convention’s objects and purposes approach. It is worth trying nonetheless to test their theory by considering a hypothetical example concerned with possible applicant manipulation. i.e. cases whereby applicants may be able to manipulate their nationality to achieve refugee protection when they are not in need of such protection. The category of persons who lack documentation but who can demonstrate their entitlement to nationality by taking steps such as contacting their embassy etc. is potentially a very large one, but if proper treatment of them is to preserve the integrity of the surrogacy objective, then it must be shown to be able to avoid easy manipulation by some in this category[31].

Consider as an example of how manipulation can arise, the following scenario based on the Hathaway and Foster notion of ‘inchoate nationality’. An applicant claiming to be a national of unsafe country X arrives in a host state and claims asylum which he or she is highly likely to be granted so long as its determining authority does not consider he or she also has the nationality of safe country Y (and so is a dual national). Let us suppose that applying the ‘inchoate nationality approach’, the applicant does not have the nationality of safe country Y, but is clearly entitled to it on a non-discretionary basis. Unless the determining authority was to require him to take steps to obtain the nationality of country Y, the applicant would be able to simply sit on his hands and desist (or hold off) from applying for the nationality of country Y until his asylum application was determined in his favour.  If a basic objective of the Refugee Convention is to protect those who truly lack the protection of a State, then in this context an objects and purposes approach would appear to serve that objective. However, there would be no scope for manipulation in this scenario under an actual nationality approach either, as under it X would be considered to have the nationality of country Y by operation of law and so there would be no need to require him to try and obtain documentary proof of it.

It would seem in fact that the main difference between the ‘actual nationality’ and the ‘inchoate nationality’ approaches is not over fidelity to the objects and purposes of the Refugee Convention, but rather over the handling of the issue of how a person proves he has a particular nationality or lacks it. On the ‘actual nationality’ approach, such considerations are purely evidential. For the ‘inchoate nationality’ approach, they intersect with the issue of definition: unless a person takes steps to ‘activate’ their ‘inchoate nationality’ they cannot be said to have it as a matter of law.

Seen in this context, it is difficult to see that the latter approach holds any advantage. Consider the example of a person who is stateless and flees from country Y which is his country of former habitual residence. Let us assume country Y is safe. If he or she were simply a stateless person, he or she would not qualify under the refugee definition because they could not meet the other elements of the refugee definition relating to well-founded fear of being persecuted. However, let us suppose this person also fulfils the nationality conditions laid down in the national law of country Z. On the ordinary meaning or ‘actual nationality’ approach, the determining authority may well be able to determine that he is a national of country Z without any need for action on his part or theirs such as obtaining documentary proof over and above what the person has presented. On the ‘inchoate nationality’ approach, however, the determining authority would legally not be able to reach that conclusion without first requiring the applicant to take steps[32] to obtain the nationality of country Z from the authorities of country Z. It is not clear to me why the latter approach is better.

One possible reason why the ‘inchoate nationally’ approach might be thought a valid extension of the ‘actual nationality’ approach is that it identifies a relatively simple mechanism or route for resolving such issues, namely by direct renvoi to the internal law of the State by reference to  which a person is said to be a national or not a national. Given the basic principle that (subject to non-recognition for breach of generally recognised international law rules) nationality is essentially a matter for States, such a mechanism might be said to be the most transparent available.

Balanced against that, however, is that application of the international law rules on nationality should not ordinarily entail recognition tangles. Indeed in certain circumstances it would breach the host state duty of confidentiality to approach the authorities of the State of ‘inchoate’ nationality. Once it is accepted that there are categories of persons who possess nationality as a matter of law and that passports etc. are only (at best) declaratory of such nationality, then there is no need to resort to an ‘inchoate nationality’ approach to overcome what are essentially evidential issues. If for example a decision-maker is satisfied by looking at a country’s nationality laws and surrounding materials about its operation that an applicant  possesses nationality of country X, then (assuming identity is accepted) the fact he may not have a passport of birth certificate or ID card should not matter. Recognition of the existence of nationality by the State of nationality is not necessary.

That said, the ‘actual nationality’ approach is only likely to result in fair refugee determination if the state (or RSD body) sets proper parameters for cases in which it decides, before making a decision, to request an applicant to consider taking steps to provide better proof of their actual nationality (which may include requesting that they approach the embassy of a State they claim to be or not to be a national of). It may not be fair, for example, for a state to require an applicant to take steps that would cause undue delay. But if it is reasonable to expect an applicant to take such steps without this causing undue delay, then it is difficult to see how they differ in kind from other situations where a state informs an applicant that before making a decision it would like more evidence from him or her on such and such a matter. However, requests for applicants to take such steps are only justified in order to put the determining authority in a position to decide whether an applicant actually has a nationality or not. They are not in any way requests to take steps to acquire such a nationality.

It would seem that refugee law is some way off resolving the issue of ‘inchoate nationality’. Both the ‘actual nationality and ‘inchoate nationality’ approaches are certainly to be preferred to the ‘prospective nationality’ approach but in the opinion of this author the arguments in favour of a pure ‘actual nationality’ approach, to be applied without recourse to a highly problematic ‘inchoate nationality’ approach, are far stronger. In light of the analysis just given, the ‘inchoate nationality’ approach appears ripe for re-examination.

 

[1] A rare exception being J.C. Hathaway and M. Foster, The Law of Refugee Status (2nd edn, Cambridge University Press) (‘LRS2),pp.49.-75

*The views expressed herein are my own and do not necessarily reflect those of the UK Upper Tribunal or the International Association of Refugee Law Judges (IARLJ). I wish to thank Eric Fripp and Ryszard Piotrowicz for comments on an earlier draft.

[2] Article 1A(2) of the Refugee Convention (CSR51) defines a refugee as a person who, “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country […].”

[3] E Fripp,’Deprivation of Nationality, ‘The Country of His Nationality’ in Article 1A(2) of the Refugee Convention, and Non-Recognition in International Law’,(2016) 28  IJRL, 453-479 at 454.

[4] It is assumed in this article that the Article 1(1) definition of a stateless person set out in the Convention on Convention relating to the Status of Stateless Persons (CSSP54) is coextensive with ‘not having a nationality’ in CSR51).

[5] UN High Commissioner for Refugees (UNHCR), UNHCR and Issues Related to Nationality (by C Batchelor,), 1 October 1995, Refugee Survey Quarterly, Vol. 14, No. 3, pp. 91-112, available at: http://www.refworld.org/docid/3ae6b3234.html [accessed 1 January 2017]; M Seet, ‘The Origins of UNHCR’s Global Mandate on Statelessness’ (2016) 28 IJRL 7.

[6] See e.g. statement by German Interior Minister, Lorenz Caffier, Feb 4, 2016.

[7] ‘In the case of a person who has more than one nationality, the term “the country of his nationality” shall mean each of the countries of which he is a national, and a person shall not be deemed to be lacking the protection of the country of his nationality if, without any valid reason based on well-founded fear, he has not availed himself of the protection of one of the countries of which he is a national”.

[8] As noted by Zimmermann and Mahler, the notion of nationality as a reason for persecution is broader than that related to the definitional element of being outside one’s country of nationality which entails a legal bond between the applicant and his/her State, that of citizenship: A. Zimmermann and C. Mahler, ‘Article 1 A, para. 2 (Definition of the term ‘Refugee’/Définition du term ‘réfugié’)’, in A. Zimmermann (ed.), The 1951 Convention relating to the Status of Refugees and its 1967 Protocol: A Commentary (OUP, 2011) p. 389, para. 387.

[9] See Art. 1 of the Convention on Certain Questions Relating to the Conflict of Nationality Law, 179 LNTS 89, 13 April 1930 (entry into force: 1 July 1937); see also Permanent Court of International Justice, advisory opinion of 7 February 1923, Nationality Decrees in Tunis and Morocco, PCIJ Series B, No 4.

                   [10] Hailbronner K. (2006) ‘“Nationality in Public International Law and European Law”’, in Comparative analyses. Amsterdam, NL: Amsterdam University Press. Available at: http://ezproxy.lib.le.ac.uk/login?url=http://site.ebrary.com/lib/leicester/Doc?id=10182193.

[11] KK and ors (Nationality: North Korea) Korea CG [2011] UKUT 92(AC), para 83. See also Secretary of State for the Home Department v SP (North Korea) and Others [2012] EWCA Civ 114; GP and Others (South Korean citizenship) [2014] UKUT 00391(IAC).

[12] J.C. Hathaway and M. Foster, The Law of Refugee Status (2nd edn, Cambridge University Press), pp.58, 63.

[13]  R.Germov and F.Motta, Refugee Law for Australia (2003), at 47, cited by Hathaway and Foster, LRS2 p.58.

[14] Hathaway and Foster, op.cit., p. 58.UNHCR calls this ‘potential nationality’:  ‘UNHCR’s position on mixed Azeri-Armenian couples from Azerbaijan and the specific issue of their admission and asylum in Armenia’ (2003) 3 states that ‘[t]he text of article 1(a), thus clearly states that what matters for the purposes of the inclusion clause is the nationality/ies that the persons actually possess/es  not the nationality/ies that the person may eventually acquire’ (cited in A Woolman, North Korean Asylum Seekers and Dual Nationality, (2012) IJRL 24, p.796).

[15] Op.cit. p.59.

[16] Bouianova v Canada (Minister of Employment and Immigration), (1993) 67 FTR 74(Can. FCTT), Jun.11, 1993).

[17] Op.cit.59.

[18] Op.cit., p.63.

[19] E.Fripp, op.cit.pp.172-205.

[20] In KK and ors (Nationality: North Korea) Korea CG [2011] UKUT 92(AC), para 83. the Upper Tribunal held at para 82 that ‘If he is entitled to nationality, subject only to his making an application for it, he is also to be regarded as a national of the country concerned’. See also Secretary of State for the Home Department v SP (North Korea) and Others [2012] EWCA Civ 114; GP and Others (South Korean citizenship) [2014] UKUT 00391(IAC).

[21] Op.cit.p.59-60.

[22] Hathaway and Foster, op.cit., p.60.

[23] E Fripp, Nationality and Statelessness in the International Law of Refugee Status, Hart Publishing, 2016. p.177.

[24] See e.g. N Robinson, Convention relating to the Status of Refugees: its History, Contents and Interpretation: A Commentary (New York Institute of Jewish Affairs, 1953). 50; A Grahl-Madsen, The Status of Refugees in International Law, vol 1 Lyden, AW Sijthoff, 1966) vol. II((Leyden, AW Sitjhoff, 1972); 1979 UNHCR Handbook, para 70.

[25] 1979 Handbook, para 87.

[26] As was noted in Katkova v Canada (MCI) (1997) 130 FTR 192, cited in  E. Fripp, op.cit. at 173.

[27] Hathaway and Foster, op.cit.p.58.

[28] Hathaway and Foster, p.57-58,60

[29] Thus op.cit. at p.58 they write: ‘[t]aking account of the object and purpose of the treaty, it can reasonably be said that a country with which the applicant has a “genuine link” [citing Nottebohm] and that has made its citizenship available to an applicant is, in substance, a country of nationality for refugee law purposes’.

[30] E.g. op.cit., p. 58; see also p. 62.

[31] I deliberately avoid the language of abuse of rights because of general international law concerns regarding their effect on mutual performance of obligations.

[32] In light of their analysis of Bouianova it is clear that Hathaway and Foster envisage that the applicant takes steps of some sort, even if only to perform what may be a ‘mere formality’: on p. 59 they cite the applicant in this case being able to become a Russian citizen by simply making a request and submitting her passport to be stamped. On the same page they talk about the need for ‘activat[ion[’. On p.63 they describe ‘inchoate nationality’ as citizenship …’which can be acquired by means of a non-discretionary formality’.

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