Statelessness vs. Protecting Asylum-Seekers and Refugees

The United Nations Refugee Agency (UNHCR) estimates that globally the number of stateless people is over ten million, of which an approximate one third are children. This means that in terms of law, such people are non-existent. 


The international legal definition of a stateless person is,

“a person who is not considered as a national by any State under the operation of its law”.


The implications of legal non-existence are profoundly harsh when seen vis-à-vis legal existence of individuals endowed with an undeniable spectrum of rights. Lives of people who do not have a nationality of any country are devoid of the rights granted through a legal system. Consequently, contrary to country nationals, stateless persons cannot go to schools and follow a career as no school would accept them. Statelessness deems ‘its people’ unfit to get medical treatment even if their needs so require. As a matter of fact, playing, working, travelling and merely living come at a cost. Statelessness designates a grinding difficulty of loving and getting married.


Lacunae in nationality laws have been declared by the UNHCR to be one of the major causes of statelessness. As domestic laws are apt in establishing the circumstances under which nationality is acquired and those under which the same may be withdrawn, of crucial importance to the notion of statelessness, is the correct drafting and application of nationality laws, as it is by legislation on the domestic plane that exclusion of certain persons occurs, which consequently renders one legally non-existent.


Roughly, around 27 States in the world disallow the transfer of nationality from women to children, hence, where fathers are either not known, missing or deceased, statelessness comes into play. Therefore, in countries where nationality is acquired by virtue of descent from a national and offspring stem from unknown parentage, they are legally non-existent and do not have any rights. A number of countries do not permit the acquisition of nationality solely on the basis of the birth factor and do not accept the transfer of nationality through family relations. On account of this, many children born in the aforesaid countries are deemed stateless.


Some people are born stateless, whereas others become stateless. In fact, a chief cause of statelessness is the dissolution of former states, which in Europe has affected approximately 600,000 people. 


In a number of countries, the act of living outside the home-country for a long period of time generates the loss of nationality. In furtherance to the issue of loss of nationality, through amendments to a State’s laws, citizens can be inequitably stripped of their nationality on the basis of unfounded criteria, whereby in certain countries, citizenship is even limited a propos race and ethnicity.


Arguably, the law can be said to be perfect, wherein ‘ignoratia legis neminem excusat’ and ‘nulla poena sine lege’. Perfection refers to the fact that owing to its momentous application in time, the law cannot be defied. Nevertheless, laws are made and enforced by men, be them Legislators, or single Legislators, Judges or the Executive and factually certain laws are discriminatory. 


The law is in place in order to shape society and to serve as a mediator to the relations between the people it safeguards. The problem is that stateless persons are completely not safeguarded. Conversely, the lives of people, who are not nationals by any State, are not considered to be valid within society, to the extent that no legal rights are afforded to them, let alone the granting of asylum.


A stateless person is confined to an invisible cage from which the said person can only be freed by acquiring citizenship and this way enjoys all the rights other citizens have. Statelessness is the result of war, discrimination or the dissolution of a state, yet in certain cases, statelessness is passed on from parents to children.


Statelessness deprives persons from fully participating in the seven fundamental goods upon which John Finnis founded his natural law theory. The essential values to humankind are limited and conditional when it comes to stateless persons in that these persons cannot pursue their lives in a manner they see fit due to being considered legally non-existent. The basic common goods are self-evident and despite of the fact that the cage in which a stateless person dwells is invisible, the hindrance in participating in the life, not only of the community, but also of one’s own, is self-evident just the same. 


Practical reasonableness, being one of the basic goods, requires the ability of each member of a society to make decisions for one’s own good, however, due to the issue of statelessness, certain acts cannot be performed by the entire community and as a result common good is not achieved in the best way. The power vests in authority personas in creating an effective coordinating mechanism within society, meanwhile allowing the people the ability to pursue chosen objectives in their own lives.


Malta is not a signatory to the United Nations (UN) Statelessness Convention, however, it is a signatory to the 1951 Convention on the Status of Refugees and its 1967 Protocol since 1971. 


An asylum-seeker is a person who is awaiting the request for protection to be processed. The UNHCR estimates that each year, one million people seek asylum. Being an asylum-seeker, the person would have already sought protection as a refugee, yet one’s claim in favour of obtaining the status of a refugee would not have been assessed. In Malta, the authority responsible for registering asylum applications is the Refugee Commissioner (RefCom). The RefCom is also the authority responsible for taking decisions at first instance on asylum applications


In line with the Malta Refugees Act, the Office of the Refugee Commission in Malta may recommend two types of protection; the Refugee Status in accordance with the 1951 Refugee Convention or Subsidiary Protection by virtue of the EU Qualification Directive.


National asylum systems are crucial to the determination of persons who qualify for international protection. The UNHCR maintains the belief that every person has the right to seek asylum from persecution and the agency strives to protect asylum seekers and refugees seeking to obtain a refugee status.


The 1951 Refugee Convention defines a refugee as "a person who, owing to a 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; or who, not having a nationality and being outside the country of his former habitual residence, as a result of such events is unable or, owing to such fear, is unwilling to return to it."


Upon filing an application, an asylum-seeker acquires a number of rights, namely the right to remain in Malta during the examination of the case. The applicant has a right to information with regards to the procedure of asylum, which right encompasses the right to seek legal assistance and the right of receiving services of an interpreter. The asylum-seeker has a right to liaise with UNCHR and a right to have confidentiality safeguarded. On the other hand, asylum-seekers also have numerous obligations to fulfil; they must seek cooperation with the authorities with a scope of establishing their identity in the context of the asylum procedure for which they have filed the application and they must adhere to the laws Malta.


The most significant aspect of sanctuary for refugees and asylum-seekers is safety from being ordered to return to the country from which they fled. In other words, such people need protection against poverty, war, persecution and on-going conflicts. Through the granting of protection, their human rights are respected for a long term in a country which offers stability, good order and respect towards basic human rights. In relation to the asylum procedure, the notions of efficiency and fairness are of imperative importance. 


Not only are refugees defined under international law, but they are also protected by the UNHCR, which has been assisting its people for over 50 years. Notwithstanding the projects and camps built for refugees and asylum-seekers by the said Agency, it is the mechanism in the countries where asylum-seekers seek protection that must be changed. National laws need to be more favourable to asylum-seekers or refugees, as the case may be, owing to the oppressive situation from which they have fled. Such laws need to constitute an overlap of human rights law and must include a comprehensive and practical reasoned understanding of the reality faced by refugees and asylum-seekers. No one should be made to undergo inhumane psychological treatment as is the fear of having one’s application for asylum refused. Despair, indecision and fear have led countless asylum-seekers and refugees to terminate their own lives and culpability for these killings rests with politicians.


Nicolette Schembri

LexMalta Legal Practitioner