tag:theconversation.com,2011:/us/topics/statelessness-44203/articlesstatelessness – The Conversation2023-12-06T11:20:55Ztag:theconversation.com,2011:article/2192262023-12-06T11:20:55Z2023-12-06T11:20:55ZWhat is the government’s preventative detention bill? Here’s how the laws will work and what they mean for Australia’s detention system<p>After a week of non-stop headlines, the government’s preventative detention legislation <a href="https://www.abc.net.au/news/2023-12-06/preventative-detention-legislation-has-passed/103197024">passed</a> the lower house, just in time for the end of the sitting year.</p>
<p>The new laws will allow former immigration detainees to be re-detained if they are judged to pose a high risk of committing serious violent or sexual crime.</p>
<p>The legislation comes after a 20-year legal precedent was overturned in November, when the <a href="https://theconversation.com/high-court-reasons-on-immigration-ruling-pave-way-for-further-legislation-218699">High Court found</a> the government could not detain people indefinitely – regardless of whether they had a criminal history. </p>
<p>The High Court’s decision was celebrated by <a href="https://humanrights.gov.au/about/news/media-releases/commission-commends-high-court-ruling-indefinite-immigration-detention">human rights organisations</a> and some <a href="https://www.theguardian.com/commentisfree/2023/nov/09/australia-mandatory-indefinite-immigration-detention-regime-high-court-decision">legal scholars</a>. It was seen as a rare opportunity to reshape Australia’s immigration detention policies in line with international law, the constitutional separation of powers, and principles of procedural justice and proportionality. </p>
<p>Yet the opportunity for much-needed reform has been frustrated by political point-scoring. The opposition and tabloid media have stirred up moral panic about the release of “<a href="https://www.smh.com.au/politics/federal/dutton-demands-apology-for-o-neil-s-claims-he-voted-to-protect-paedophiles-20231130-p5eo3l.html">hardened criminals</a>”. Anxious to avoid accusations of being “soft”, the government has adopted the same discourse. </p>
<p>Both the government and opposition agree it is necessary to put “dangerous” people back behind bars to protect the community. In a clear break from parliamentary process, the vote on the legislation was scheduled for a <a href="https://www.theage.com.au/politics/federal/teal-mps-slam-perversion-of-democracy-on-immigration-laws-20231206-p5epeg.html">non-sitting day</a>, giving parliamentarians little opportunity to scrutinise or debate the legislation. </p>
<p>So what do these laws actually do, what do they mean for those most affected by them, and what is being lost in the current debate?</p>
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Read more:
<a href="https://theconversation.com/view-from-the-hill-governments-announcement-tsunami-overshadowed-by-crisis-over-ex-detainees-219215">View from The Hill: government's announcement tsunami overshadowed by crisis over ex-detainees</a>
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<h2>What are preventative detention laws?</h2>
<p>The new laws will allow the immigration minister (currently Andrew Giles) to apply to a court to re-detain people who have been released from immigration detention. </p>
<p>For an application to be successful, <a href="https://theconversation.com/view-from-the-hill-governments-announcement-tsunami-overshadowed-by-crisis-over-ex-detainees-219215">two conditions must be met</a>. </p>
<p>First, the person must have been convicted of a crime (either in Australia or overseas) that carries a sentence of at least seven years’ imprisonment. </p>
<p>Second, the court must agree the individual poses “an unacceptable risk of committing a serious violent or sexual offence”, and that there is “no less restrictive measure available” to keep the community safe. </p>
<p>The involvement of the courts in making these decisions is a welcome safeguard in the context of a detention system in which people are routinely incarcerated for years or even decades without court oversight. The minister’s previous “<a href="https://www.nswccl.org.au/time_to_review_immigration_minister_god_like_powers">god-like powers</a>” in this area have been widely criticised. </p>
<p>Yet the human rights implications of detaining people who have already served their time are <a href="https://www.smh.com.au/politics/federal/former-security-watchdog-labels-preventative-detention-laws-a-disgrace-20231201-p5eof6.html">significant</a>. Re-detention is likely to be experienced as a secondary punishment, which is contrary to principles of proportionality and procedural fairness. </p>
<p>It is also notable that these laws only apply to people who are not Australian citizens. </p>
<p>Australians with the same criminal histories and risk profiles will not be subject to preventative detention under this legislation. This raises concerns about the laws’ validity, with some suggesting the targeted nature of the legislation may leave it vulnerable to a <a href="https://theconversation.com/view-from-the-hill-governments-announcement-tsunami-overshadowed-by-crisis-over-ex-detainees-219215">High Court challenge</a>. </p>
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Read more:
<a href="https://theconversation.com/high-court-reasons-on-immigration-ruling-pave-way-for-further-legislation-218699">High Court reasons on immigration ruling pave way for further legislation</a>
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<h2>Why were these laws brought in?</h2>
<p>On November 8, the High Court of Australia <a href="https://eresources.hcourt.gov.au/showCase/2023/HCA/37">ruled unanimously</a> that if there is no real prospect of a person being deported in the forseeable future, it is unlawful for the government to detain them indefinitely.</p>
<p>The case was brought by a Rohingya man, known as NZYQ, who was no longer eligible for an Australian visa after being convicted of a sexual crime. As he’s a member of a <a href="https://www.hrw.org/tag/rohingya">persecuted minority</a>, he could not be deported back to Myanmar.</p>
<p>With no visa and <a href="https://www.theguardian.com/australia-news/2023/nov/07/nzyq-immigrant-australia-resettle-attempt-high-court">no country</a> willing to accept him, he had been moved into indefinite immigration detention after completing his prison sentence in 2018.</p>
<p>The court’s decision triggered the release of more than <a href="https://www.afr.com/policy/economy/number-of-freed-detainees-reaches-141-20231126-p5emtv">140 people</a>, <a href="https://www.abc.net.au/news/2023-12-06/fourth-person-arrested-after-detainee-released/103197184?utm_source=abc_news_app&utm_medium=content_shared&utm_campaign=abc_news_app&utm_content=other">four of whom</a> have since been arrested for various alleged crimes. </p>
<p>People with no criminal history – including a man who had spent <a href="https://www.hrlc.org.au/news/2023/11/30/ned-kelly-emeralds-free#:%7E:text=Ned%20Kelly%20Emeralds%2C%20an%20Iranian,that%20indefinite%20detention%20was%20unlawful">more than a decade</a> in detention after coming to Australia in search of asylum – were also among those released. </p>
<p>The government has already imposed <a href="https://www.theguardian.com/australia-news/2023/nov/18/draconian-conditions-come-into-effect-for-93-foreigners-released-after-being-illegally-detained-by-australia">strict conditions</a> on the freed individuals, including ankle bracelets and curfews.</p>
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Read more:
<a href="https://theconversation.com/the-high-court-has-decided-indefinite-detention-is-unlawful-what-happens-now-217438">The High Court has decided indefinite detention is unlawful. What happens now?</a>
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<h2>What is being missed in the current debate?</h2>
<p>Prior to the High Court’s decision, refugees, people seeking asylum, stateless people and other non-citizens without a valid visa were regularly subject to indefinite mandatory detention. <a href="https://www.homeaffairs.gov.au/research-and-stats/files/immigration-detention-statistics-31-august-2023.pdf">As of August 2023</a>, Australia held 1,056 people in immigration detention; the average duration of detention was 708 days. </p>
<p>Unlike prisons, immigration detention centres are officially administrative and not for punishment. That is, people are not held in these facilities as part of a criminal sentence, but to facilitate health, security and identity checks, and to enable visa processing or removal from the country.</p>
<p>In the almost 30 years since Australia introduced indefinite mandatory detention, tens of thousands of people have been subject to this policy. Among those detained have been <a href="https://humanrights.gov.au/our-work/asylum-seekers-and-refugees/national-inquiry-children-immigration-detention-2014">thousands of children</a>, whose detention continues to be permitted under Australian law. </p>
<p><a href="https://bristoluniversitypress.co.uk/visiting-immigration-detention">Conditions in detention</a> are often punitive, and have been subject to regular <a href="https://www.smh.com.au/national/limitless-detention-of-refugees-is-inhumane-and-must-end-says-un-torture-watchdog-20230414-p5d0et.html">international criticism</a>. </p>
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Read more:
<a href="https://theconversation.com/futile-and-cruel-plan-to-charge-fees-for-immigration-detention-has-no-redeeming-features-183035">'Futile and cruel': plan to charge fees for immigration detention has no redeeming features</a>
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<p>The current debate about immigration detention glosses over these realities. It obscures the profound humanitarian implications of the High Court’s ruling. </p>
<p>It also ignores the urgent need for further reform to ensure innocent people (including children) are not unduly punished. And it rationalises ongoing incarceration - beyond the terms of a criminal sentence - as a valid response to non-citizens who have already served their time. </p>
<p><em>Update</em>: <em>The legislation passed the House of Representatives late on Wednesday night.</em></p><img src="https://counter.theconversation.com/content/219226/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michelle Peterie receives funding from the Australian Research Council. She also undertakes research in partnership with the Australian Human Rights Commission. </span></em></p><p class="fine-print"><em><span>Amy Nethery does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The release of more than 140 ex-detainees from immigration detention has prompted a panicked government response. So, what does the legislation say, and what happens now?Michelle Peterie, Research Fellow, University of SydneyAmy Nethery, Senior Lecturer in Politics and Policy Studies, Deakin UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2173632023-11-10T00:18:22Z2023-11-10T00:18:22Z‘I have no rights’: what happens to stateless people in Australia after the High Court’s ruling?<figure><img src="https://images.theconversation.com/files/558737/original/file-20231109-17-q814h2.jpg?ixlib=rb-1.1.0&rect=21%2C50%2C4803%2C3168&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/stateless-word-dictionary-concept-1155404044">Shutterstock</a></span></figcaption></figure><p>The decision by the High Court of Australia this week <a href="https://www.abc.net.au/news/2023-11-08/indefinite-immigration-detention-ruled-unlawful-by-high-court/101569082">overturning the legality</a> of indefinite immigration detention marks a watershed moment in Australian legal history. </p>
<p>For almost two decades, stateless people have faced the prospect of spending their lives behind bars. </p>
<p>Now, a stateless <a href="https://www.abc.net.au/news/2023-11-10/asylum-seekers-indefinite-detention-to-be-released/103088762">Rohingya refugee</a> has been released from detention.</p>
<p>With no “stateless” visa category or pathway to permanency, stateless people will continue to face a life of uncertainty in the Australia community, begging the question; what next?</p>
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Read more:
<a href="https://theconversation.com/government-must-use-trauma-informed-approach-to-end-uncertainty-on-refugee-visa-applications-203758">Government must use trauma-informed approach to end uncertainty on refugee visa applications</a>
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<h2>Overturning decades of precedent</h2>
<p>This week the Australian High Court <a href="https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCATrans/2023/154.html">ordered</a> the immediate release of the stateless refugee, known as “NZYQ”, from immigration detention.</p>
<p>He’d been held there for more than five years. </p>
<p>The Court found that because there was no real prospect of his removal from Australia “becoming practicable in the reasonably foreseeable future”, his detention was unlawful.</p>
<p>This decision is highly significant, overturning almost twenty years of legal precedent established in <a href="https://eresources.hcourt.gov.au/showCase/2004/HCA/37">2004.</a> </p>
<p>In that case, the High Court upheld the ability of the Australian government to detain people for an unlimited period. </p>
<p>That looked to be the fate of the man at the centre of this week’s case.</p>
<p>Having had his visa cancelled due to a <a href="https://www.theguardian.com/australia-news/2023/nov/09/high-court-indefinite-immigration-detention-coalition-safety">criminal conviction</a> and unable to be returned to Myanmar as a stateless refugee, he faced potentially being detained for the rest of his life.</p>
<p>Australia’s system of mandatory indefinite detention, a bipartisan policy introduced in 1992, is unique, even when compared with countries with similar legal traditions, such as the UK. </p>
<p>Available <a href="https://www.homeaffairs.gov.au/research-and-stats/files/immigration-detention-statistics-31-august-2023.pdf">government statistics</a> indicate there are currently over 1,000 people in immigration detention, 31 of whom are stateless.</p>
<p>The average length somebody is detained in Australia is a staggering <a href="https://www.homeaffairs.gov.au/research-and-stats/files/immigration-detention-statistics-31-august-2023.pdf">708 days</a>.</p>
<p>More than 100 people have been held for more than five years. </p>
<h2>What does is mean to be stateless?</h2>
<p>There is little understanding of statelessness in Australia, despite the fact it affects millions of people globally. </p>
<p>A stateless person is someone with no nationality. Legally speaking, they are recognised as “belonging” to no country in the world. </p>
<p>While the <a href="https://law.unimelb.edu.au/__data/assets/pdf_file/0009/4460454/Statelessness_overview_factsheet_Feb_2023.pdf">causes of statelessness</a> vary, the dominant root cause is usually discrimination of one kind or another, including on the grounds of gender, race or religion.</p>
<p>The legal definition of statelessness does not do justice to the lived reality. </p>
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Read more:
<a href="https://theconversation.com/a-migration-review-could-close-some-disability-discrimination-loopholes-but-not-for-people-already-waiting-or-refused-visas-215894">A migration review could close some disability discrimination loopholes – but not for people already waiting or refused visas</a>
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<p>Statelessness has the potential to impact almost every aspect of a person’s day-to-day life.</p>
<p>It can inhibit freedom of movement, access to education, housing, employment and medical care. </p>
<p>In Australia, these challenges are compounded by an often overwhelming sense of uncertainty about the future and the ever-present threat of detention.</p>
<p>The lived reality of statelessness is perhaps better understood in the <a href="https://law.unimelb.edu.au/__data/assets/pdf_file/0007/3645547/StatelessChildrenReport.pdf">words of Amir</a>, a stateless father living in Australia:</p>
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<p>Being stateless has been a huge source of sadness for me in my life. At times it has made me question my very existence and made me wonder why my parents chose to bring me into this world. I’ve never felt like I have a future. Wherever I’ve gone, I have no rights.</p>
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<p>We must never forget that behind legal judgements are the lives of real people. Many stateless families we work with in the <a href="https://law.unimelb.edu.au/centres/statelessness/engage/stateless-children-legal-clinic">Stateless Legal Clinic</a> have spent years in immigration detention, including Australian-born children who marked their <a href="https://firstdogonthemoon.com.au/cartoons/2014/11/12/baby-ferouzs-first-birthday/">first birthdays</a> behind the wire. </p>
<p>The ongoing health impacts of detention, especially on children, have been <a href="https://humanrights.gov.au/our-work/2-findings-and-recommendations#:%7E:text=The%20Commission%20makes%20the%20general,prolonged%20detention%20on%20the%20mental">well documented</a>.</p>
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<h2>A lack of legal protections means an uncertain future</h2>
<p>Along with the harmful effects of detention is the gap in legal protections stateless people experience in the Australian community. </p>
<p>Australia doesn’t have a distinct visa category for stateless people or pathway to permanent residency. </p>
<p>Many live with crippling prohibitions on their ability to build a secure life for themselves and their children. Access to some of the basic rights many of us take for granted – such as education - can be challenging. In the <a href="https://law.unimelb.edu.au/__data/assets/pdf_file/0007/3645547/StatelessChildrenReport.pdf">words of stateless mother Nur:</a></p>
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<p>Being stateless makes things challenging for us here. My children feel Australian – yet we are often reminded they are not […] our eldest child, Iman started kindergarten this year. It was so difficult trying to enrol him – they asked about his passport, his visa, his status. I felt embarrassed having to explain he has no passport – no identity. No certainty of his future.</p>
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<p>Australian law does not adequately protect the rights of stateless people in this country. </p>
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Read more:
<a href="https://theconversation.com/why-the-governments-plan-to-overhaul-the-asylum-system-is-a-smart-use-of-resources-and-might-just-work-215061">Why the government's plan to overhaul the asylum system is a smart use of resources – and might just work</a>
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<p>This week’s High Court decision is a critical first step in protecting stateless people from being indefinitely deprived of their liberty. What happens next is just as important. </p>
<p>In the absence of being recognised as citizens of any country in the world, Australia can – and must – do more to offer stateless children and adults a life of certainty in this country.</p><img src="https://counter.theconversation.com/content/217363/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michelle Foster receives funding from the Australian Research Council. </span></em></p><p class="fine-print"><em><span>Katie Robertson does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The overturning of almost 20 years of legal precedent allowing indefinite detention is a watershed moment. But stateless people in Australia have few rights and little say over their futures.Katie Robertson, Director - Stateless Legal Clinic, The University of MelbourneMichelle Foster, Professor, Melbourne Law School, The University of MelbourneLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1648792021-08-03T15:46:21Z2021-08-03T15:46:21ZHow some countries are using digital ID to exclude vulnerable people around the world<figure><img src="https://images.theconversation.com/files/414056/original/file-20210802-32831-1onlpl2.jpg?ixlib=rb-1.1.0&rect=28%2C19%2C6361%2C3966&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-vector/smart-id-card-form-lines-triangles-1277449342">Illus Man/Shutterstock</a></span></figcaption></figure><p>The world has become interconnected at a level we never before imagined possible. States, banking, communications, transport, tech and international development organisations have all embraced digital identification. The current conversation hinges on the need to speed up registrations to ensure that every person on this planet has their own digital ID.</p>
<p>We have not stumbled into this new age of digital data management unwittingly. International organisations such as the World Bank and the UN have <a href="https://unstats.un.org/legal-identity-agenda/">actively encouraged</a> states to provide citizens with proof of their legal existence in an effort to combat structural poverty, <a href="https://www.bbc.co.uk/news/blogs-magazine-monitor-30079580">statelessness</a> and social exclusion.</p>
<p>To achieve this, social policy has deliberately targeted poor and vulnerable populations – including indigenous and Afro-descended people and women – to ensure they get an ID card to receive welfare payments. By aiming to include marginalised populations, they are targeting groups that historically have faced systematic exclusion and have been barred from formal recognition as citizens. </p>
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<img alt="Sampul buku berjudul Legal Identity, race and belonging in the Dominican Republic: From Citizen to Foreigner (Identitas Hukum, Ras, dan Milik di Republik Dominika: Dari Warga Negara ke Orang Asing)" src="https://images.theconversation.com/files/412906/original/file-20210723-21-1so4qlw.png?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/412906/original/file-20210723-21-1so4qlw.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=842&fit=crop&dpr=1 600w, https://images.theconversation.com/files/412906/original/file-20210723-21-1so4qlw.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=842&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/412906/original/file-20210723-21-1so4qlw.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=842&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/412906/original/file-20210723-21-1so4qlw.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1059&fit=crop&dpr=1 754w, https://images.theconversation.com/files/412906/original/file-20210723-21-1so4qlw.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1059&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/412906/original/file-20210723-21-1so4qlw.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1059&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="attribution"><span class="source">Lorena Espinoza Peña</span>, <span class="license">Author provided</span></span>
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<p><a href="https://www.youtube.com/watch?v=sejxDeI9zYw">My research</a> has revealed how states can weaponise internationally sponsored ID systems. <a href="https://anthempress.com/legal-identity-race-and-belonging-in-the-dominican-republic-hb">The book</a> that has come out of this work – Legal Identity, Race and Belonging in the Dominican Republic: From Citizen to Foreigner – highlights how, in parallel with <a href="https://id4d.worldbank.org/">World Bank programmes</a> providing citizens with proof of their legal existence, the government introduced exclusionary mechanisms that <a href="https://theconversation.com/dominican-republic-has-taken-citizenship-from-up-to-200-000-and-is-getting-away-with-it-43161">systematically blocked</a> black Haitian-descended populations from accessing and renewing their Dominican ID.</p>
<p>For years, people of Haitian ancestry born in the Dominican Republic have found themselves in a fierce battle to (re)obtain their ID. Officials claimed that for over 80 years they had erroneously provided people born to Haitian migrants with Dominican paperwork and now needed to rectify this mistake. These people say they are Dominican. They even have the paperwork to prove it. But the state doesn’t agree.</p>
<p>These practices culminated in a <a href="https://theconversation.com/how-a-group-of-dominicans-were-stripped-of-their-nationality-and-now-face-expulsion-to-haiti-39658">landmark ruling</a> in 2013 that stripped Haitian-descended people born in the country of their Dominican nationality, rendering them stateless. In response, a <a href="https://www.reconoci.do/">fight-back campaign</a> called for the civil registry to provide all people of Haitian descent with their state-issued ID documents as Dominicans.</p>
<p>In a damning critique of global identification practices, my research has revealed how international organisations at the time “looked the other way” as the state began weeding out and then deliberately blocking Haitian-descended people from accessing their documentation.</p>
<p>Who was deemed eligible for inclusion in the civil registry (meaning Dominican citizens) and who was excluded as foreigners (the Haitian-descended) was considered a sovereign issue for the state to address. As a result, tens of thousands of people found themselves without documentation and subsequently excluded from essential healthcare services, welfare and education.</p>
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<h2>Closing the global identity gap</h2>
<p>We are seeing similar cases of this kind of exclusion erupting around world. In June 2021, I organised <a href="https://www.sas.ac.uk/videos-and-podcasts/culture-language-and-literature/reimagining-conference-day-one">a conference</a> at the University of London called (Re)Imagining Belonging in Latin America and Beyond: Access to Citizenship, Digital Identity and Rights. In collaboration with the Netherlands-based <a href="https://www.institutesi.org/about-us">Institute on Statelessness and Inclusion</a>, the event explored the connections between identity and belonging, digital ID and citizenship rights.</p>
<p>It included a paper on the French citzens caught up in <a href="https://theconversation.com/a-french-windrush-when-french-caribbeans-were-treated-as-second-class-citizens-97144">BUMIDOM</a> – known as France’s <a href="https://theconversation.com/windrush-generation-the-history-of-unbelonging-95021">Windrush</a>. We also heard about legal challenges brought by non-binary people in Peru, the experiences of non-domiciled Cubans rendered stateless, and the “<a href="https://www.theguardian.com/us-news/2020/mar/16/anchor-babies-the-ludicrous-immigration-myth-that-treats-people-as-pawns">anchor babies</a>” debate over whether children born to undocumented migrants should be granted automatic access to US citizenship.</p>
<p>The event ended with an <a href="https://www.sas.ac.uk/videos-and-podcasts/culture-language-and-literature/reimagining-belonging-latin-america-and-beyond">international roundtable</a> that examined the use of digital ID registrations for discriminatory purposes in other parts of the world. This included discussions about vulnerable populations such as the people of <a href="https://www.theguardian.com/global-development/2019/aug/30/nightmarish-mess-millions-assam-brace-for-loss-of-citizenship-india">Assam in India</a>, the <a href="https://www.fmreview.org/preventing/brinham">Rohingya in Myanmar</a> and <a href="https://www.washingtonpost.com/news/monkey-cage/wp/2018/08/03/heres-what-it-means-to-be-somali-in-kenya/">Somalis in Kenya</a>.</p>
<p>Debates like these are only going to <a href="https://privacyinternational.org/news-analysis/3395/uns-legal-identity-task-force-opportunities-and-risks">become more prevalent</a> over the next 10 years: a homeless man who can no longer travel on public transport because the bus company only takes card, not cash payments; an elderly African American woman blocked from voting because she cannot provide a federal-issued ID; or a woman told she has to stop working because the system has flagged her up as an “illegal” immigrant. </p>
<p>For people who find themselves excluded from this new digital age, daily life isn’t just difficult, it is almost impossible.</p>
<p>And while the need to speed up digital ID registrations is pressing, in this post-pandemic world we need to take a step back and reflect. Calls for <a href="https://www.theweek.co.uk/news/uk-news/953548/vaccine-passports-to-lockdowns-boris-johnsons-five-biggest-u-turns-on-covid">digital COVID passports</a>, biometric ID cards and data-sharing track-and-trace systems are facilitating the policing not only of people crossing borders but also, increasingly, of the populations living within them.</p>
<p>It is high time we had a serious discussion about the potential pitfalls of digital ID systems and their far-reaching, life-altering impact.</p><img src="https://counter.theconversation.com/content/164879/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Eve Hayes de Kalaf is an Executive Committee Member of the Haiti Support Group, a UK-based advocacy group.</span></em></p>When it comes to civil registrations, some states are using exclusionary mechanisms to block anyone it considers undesirable, as happened to Dominicans of Haitian descent.Eve Hayes de Kalaf, Research Fellow, Institute of Commonwealth Studies, University of London, School of Advanced Study, University of LondonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1419872020-08-13T01:27:33Z2020-08-13T01:27:33Z‘We are taboo everywhere’: how LGBTIQ+ people, and their children, become stateless<figure><img src="https://images.theconversation.com/files/351522/original/file-20200806-22-yyhj4d.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Bruno Domingos/Reuters</span></span></figcaption></figure><blockquote>
<p>No child should be denied her rights because her parents are LGBTIQ+, and no family should have to endure the indignity we did. </p>
</blockquote>
<p>These are the <a href="https://www.lambdalegal.org/blog/20200617_victory-fed-court-orders-state-recognize-citizenship">words</a> of Roee and Adiel Kiviti, a same-sex married couple who recently won a legal challenge against the US Department of State for refusing to consider their daughter an American citizen. </p>
<p>Both men are US citizens, but their daughter was born in Canada through surrogacy. The State Department <a href="https://abovethelaw.com/2020/06/us-government-goes-all-in-to-deny-citizenship-to-children-born-of-lgbtq-couples/">considers</a> such children of same-sex couples to be “born out of wedlock”, irrespective of the marital status of the parents. For the Kivitis, this meant their daughter was denied the automatic citizenship normally granted to the children of US citizens.</p>
<p>This isn’t just a singular case. For many children born to same-sex couples through international surrogacy, there is a risk they could become stateless — unable to gain citizenship in the country where they were born, or their parents’ home countries.</p>
<p>Immigration Equality, an LGBTIQ+ immigrant rights organisation in the US, <a href="https://www.thedailybeast.com/state-department-continues-fight-to-strip-gay-couples-two-year-old-son-of-birthright-citizenship">says</a> there is a </p>
<blockquote>
<p>new double standard for citizenship: one for the children of gay couples and one for the children of straight couples.</p>
</blockquote>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1172162843887714304"}"></div></p>
<h2>What does statelessness mean?</h2>
<p>Statelessness is defined under <a href="https://www.unhcr.org/uk/un-conventions-on-statelessness.html">international law</a> as not being recognised as a citizen by any of the world’s 195 recognised states. According to the UN’s <a href="https://news.un.org/en/story/2018/11/1025561#:%7E:text=The%20very%20nature%20of%20statelessness,could%20be%20three%20times%20higher.">conservative estimate</a>, there are some 12 million stateless people globally. </p>
<p>In practical terms, stateless people face many challenges due to their lack of citizenship. While these differ significantly from one context to the next, common experiences include the inability to access vital services (such as education and health care), move freely, own property and simply prove one’s identity.</p>
<p>Cases like the Kivitis’ daughter have brought high-profile attention to the risk of statelessness associated with LGBTIQ+ parenting situations. </p>
<p>Similar <a href="http://nelfa.org/inprogress/wp-content/uploads/2020/01/NELFA-AllOut-presentationSHOURTCUT.pdf">cases</a> have been compiled by campaigners in Europe, where litigation is also underway. </p>
<p>An Irish-Polish lesbian couple, for instance, gave birth to a daughter through IVF in Spain in 2018. The girl, Sofia, is currently <a href="https://babysofia.info">stateless</a> because neither woman’s country will recognise her right to citizenship. Her Spanish citizenship is still pending. </p>
<p>And before international commercial surrogacy arrangements were banned in India and Thailand, the children of <a href="https://www.abc.net.au/news/2013-03-05/surrogacy-laws-could-%20leave-australian-babies-stateless/4552460">many</a> <a href="https://www.haaretz.com/.premium-thai-israeli-surrogacy-deal-emerging-1.5314378">same-sex couples</a> born in these countries were at risk of statelessness. </p>
<p>However, statelessness is also a problem that LGBTIQ+ people themselves may face. My <a href="https://statelessnessandcitizenshipreview.com/index.php/journal/article/view/133/63">recently published research</a> has identified scores of stateless LGBTIQ+ people around the world. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/a-year-since-the-marriage-equality-vote-much-has-been-gained-and-there-is-still-much-to-be-done-106326">A year since the marriage equality vote, much has been gained – and there is still much to be done</a>
</strong>
</em>
</p>
<hr>
<h2>Stateless LGBTIQ+ people face double marginalisation</h2>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/351913/original/file-20200810-14-1lhzke4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/351913/original/file-20200810-14-1lhzke4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=1339&fit=crop&dpr=1 600w, https://images.theconversation.com/files/351913/original/file-20200810-14-1lhzke4.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=1339&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/351913/original/file-20200810-14-1lhzke4.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=1339&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/351913/original/file-20200810-14-1lhzke4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1683&fit=crop&dpr=1 754w, https://images.theconversation.com/files/351913/original/file-20200810-14-1lhzke4.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1683&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/351913/original/file-20200810-14-1lhzke4.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1683&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Eliana Rubashkyn.</span>
<span class="attribution"><span class="source">Wikimedia Commons</span></span>
</figcaption>
</figure>
<p>Why do we hear so little about their experiences? Indeed, this was the question that motivated me to <a href="https://ilga.org/downloads/SOGIESC_at_UPR_report.pdf">study the links</a> between statelessness and sexual orientation, gender identity and expression, and sex characteristics (relating to a person’s physical sexual anatomy). </p>
<p>Having worked on statelessness for the last decade, I have attended many conferences with little consideration given to LGBTIQ+ people. In contrast, <a href="http://www.sogica.org/en/">much research</a> has been conducted on the experiences of LGBTIQ+ refugees and asylum seekers. </p>
<p>As Eliana Rubashkyn, an intersex person from Colombia who experienced years of statelessness before receiving asylum and citizenship in New Zealand, explained to me: </p>
<blockquote>
<p>Nobody talks about our case because we are taboo everywhere. Yet it is a chronic violation of human rights.</p>
</blockquote>
<p>My research highlights that stateless LGBTIQ+ people often face a significant double marginalisation. They are discriminated because of their sexuality or gender expression, as well as their lack of documentation. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/what-does-an-asylum-seeker-have-to-do-to-prove-their-sexuality-38407">What does an asylum seeker have to do to prove their sexuality?</a>
</strong>
</em>
</p>
<hr>
<p>For example, one stateless queer man in Lebanon described fears of being arrested on grounds of public immorality (a common charge against the LGBTIQ+ community) and lacking the necessary paperwork to establish his identity. While he is not the only stateless person in his family (due to gender discrimination in Lebanese citizenship law), the risks are compounded in his case.</p>
<blockquote>
<p>It goes without saying that being stateless can also make any problem I encounter due to my sexual orientation and gender identity much worse. And vice versa.</p>
</blockquote>
<p>While no statistics are available, for some LGBTIQ+ people, discrimination is what caused them to become stateless in the first place. </p>
<p>They can lose their citizenship due to complex laws that do not recognise LGBTIQ+ marriages and relationships across countries. There is also a patchwork of different laws recognising sex and gender transitions, which can be especially problematic for trans and intersex individuals.</p>
<p>This was the case for Rubashkyn, who no longer resembled her passport photo following hormone treatment and became <a href="https://edition.cnn.com/2014/09/05/world/transgender-asylum-hong-kong/">stranded</a> in Hong Kong’s airport six years ago. </p>
<p>Desperate to prevent officials from deporting her back to Colombia, where she had suffered persecution, she ultimately renounced her Colombian citizenship, making herself stateless. She was <a href="https://www.newshub.co.nz/home/shows/2018/04/raped-and-beaten-for-her-gender-identity-refugee-s-story-of-survival.html">later resettled</a> in New Zealand and gained citizenship in 2018. </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1233258778264391680"}"></div></p>
<h2>Asylum requests are often denied</h2>
<p>Within asylum contexts, research shows both <a href="https://statelessjourneys.org/wp-content/uploads/StatelessJourneys-Addressing_statelessness_in_Europ_refugee_response-FINAL.pdf">statelessness</a> and <a href="https://uklgig.org.uk/wp-content/uploads/2014/02/Missing-the-Mark.pdf">LGBTIQ+</a> situations are often missed or misunderstood during the process of assessing claims for protection. </p>
<p>For instance, one transsexual interviewee from my research explained </p>
<blockquote>
<p>the various intersecting elements of my narrative seemed to confuse the asylum officials who wanted to understand my experience through a singular lens. I tried to explain but they did not appear convinced. </p>
</blockquote>
<p>The lack of attention paid to “rainbow statelessness” in the media and policy debates may further lead governments to question the credibility of statements made by stateless LGBTIQ+ asylum seekers. </p>
<p>This is why it’s critical to bring more attention to the links between statelessness and sexual orientation or gender identity. </p>
<p>Better understanding this intersection is necessary to improve laws and policies that discriminate against LGBTIQ+ people, and sometimes render them, or their children, stateless. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/so-much-for-dutch-tolerance-life-as-an-lgbt-asylum-seeker-in-the-netherlands-80332">So much for Dutch tolerance: life as an LGBT asylum seeker in the Netherlands</a>
</strong>
</em>
</p>
<hr>
<img src="https://counter.theconversation.com/content/141987/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Thomas McGee does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>New research explores the little-understood problem facing many LGBTIQ+ people — the loss of citizenship due to discriminatory laws and difficulties claiming asylum.Thomas McGee, PhD researcher, Peter McMullin Centre on Statelessness, The University of MelbourneLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1074392018-11-23T19:20:35Z2018-11-23T19:20:35ZThe latest citizenship-stripping plan risks statelessness, indefinite detention and constitutional challenge<figure><img src="https://images.theconversation.com/files/246979/original/file-20181123-149703-siy087.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Home Affairs Minister Peter Dutton and Prime Minister Scott Morrison unveiling tough new proposals to strip extremists of their Australian citizenship. </span> <span class="attribution"><span class="source">Joel Carrett/AAP</span></span></figcaption></figure><p>This week, Prime Minister Scott Morrison and Home Affairs Minister Peter Dutton announced the federal government’s intention to introduce <a href="https://www.theguardian.com/australia-news/2018/nov/22/morrison-government-to-make-it-easier-to-strip-citizenship-from-people-convicted-of-terrorism">changes to Australia’s citizenship-stripping laws</a>. The proposed changes would likely make Australia’s regime for citizenship-stripping the most expansive in the world. I’ll outline how the proposal would change the current law, and analyse its key elements.</p>
<h2>What are Australia’s current citizenship-stripping laws?</h2>
<p>In 2015, Australia <a href="https://www.legislation.gov.au/Details/C2015A00166">introduced</a> one of the most expansive regimes anywhere for citizenship deprivation on national security grounds. Under the current law, people can lose Australian citizenship against their will in two key ways:</p>
<ul>
<li><p><strong>Conduct-based citizenship deprivation:</strong> In certain circumstances, a citizen <em>outside</em> Australia can lose citizenship where the person has engaged in activities defined by reference to national security offences. A person does <em>not</em> need to be convicted of an offence to lose citizenship in this manner.</p></li>
<li><p><strong>Conviction-based citizenship deprivation:</strong> The Minister for Home Affairs also has the power to revoke a person’s Australian citizenship where the person has been convicted of <a href="http://www5.austlii.edu.au/au/legis/cth/consol_act/aca2007254/s35a.html">particular national security offences</a>, and sentenced to at least six years’
imprisonment. This is generally the only way in which people <em>within</em> Australia can be stripped of Australian citizenship against their will.</p></li>
</ul>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/proposals-to-strip-citizenship-take-australia-a-step-further-than-most-42398">Proposals to strip citizenship take Australia a step further than most</a>
</strong>
</em>
</p>
<hr>
<p>Currently, it is possible for the government to strip a person of Australian citizenship only if the person is a dual citizen. This means that, at present, Australian law does not allow a person to be deprived of Australian citizenship if this would render them stateless. </p>
<p>Dutton has said that the existing citizenship-stripping laws have been used to deprive <a href="https://minister.homeaffairs.gov.au/peterdutton/Pages/Combatting-Australian-terrorists.aspx">nine people of their Australian citizenship</a>. Very little information on the circumstances of these deprivations is available. However, it is clear that at least <a href="https://www.abc.net.au/news/2018-08-09/islamic-state-terrorists-lose-australian-citizenship/10092678">six of these instances</a> involved citizens outside Australia who lost their citizenship on the basis of conduct committed overseas. There has been no reported instance of a person within Australia being deprived of Australian citizenship, or of the conviction-based ground for citizenship deprivation having been used.</p>
<h2>What changes would the proposed laws introduce?</h2>
<p>The government’s new proposal would make it easier for people to be stripped of their Australian citizenship in two ways.</p>
<p><em><strong>Changes to the dual citizenship requirement</strong></em></p>
<p>If the proposed changes become law, it will no longer be necessary for a person to definitively hold dual citizenship before losing Australian citizenship. A joint <a href="https://minister.homeaffairs.gov.au/peterdutton/Pages/Combatting-Australian-terrorists.aspx">media release</a> from the offices of Morrison and Dutton states:</p>
<blockquote>
<p>The Government will…change the threshold for determining dual citizenship. This change aims to improve the minister’s scope to determine a person’s foreign citizenship status.</p>
</blockquote>
<p>A bill has yet to go before parliament, and it is not clear from this statement exactly what the government envisages. One possibility is the legislation will give the minister the power to decide whether or not a person is a foreign citizen. This is likely to raise constitutional difficulties. As the High Court has made clear on many occasions, whether a person is a foreign citizen is a question determined by the <a href="http://eresources.hcourt.gov.au/downloadPdf/2017/HCA/45">law of the foreign country concerned</a>. </p>
<p>Another possibility is that the legislation will allow a person to be stripped of Australian citizenship where the minister thinks it is reasonably likely, but not certain, the person has dual citizenship. As the <a href="https://en.wikipedia.org/wiki/2017%E2%80%9318_Australian_parliamentary_eligibility_crisis">recent referrals of multiple federal parliamentarians</a> to the High Court over potential foreign citizenship illustrate, it can often be difficult to conclusively determine when a person has foreign citizenship. However, many people – including those born in Australia to Australian parents – hold dual citizenship as a result of a familial connection to a foreign country.</p>
<p>A change of this nature could also raise constitutional problems. The High Court has not yet determined the extent of the Commonwealth’s power to deprive a person of Australian citizenship. There is a <a href="https://auspublaw.org/2015/07/the-allegiance-to-australia-bill-and-the-constitution/">plausible argument</a> that certain citizens, especially those who hold only Australian citizenship or who have no substantive connection to a foreign country, are part of the Australian constitutional community, and are protected against citizenship deprivation. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/governments-own-freedom-commissioner-tim-wilson-questions-citizenship-plan-43008">Government's own 'freedom commissioner' Tim Wilson questions citizenship plan</a>
</strong>
</em>
</p>
<hr>
<p>On a practical level, enabling the minister to revoke a person’s Australian citizenship without it being clear the person has citizenship in a foreign country creates a very real risk of rendering the person stateless. This would place Australia in violation of its obligations under Article 8 of the <a href="https://www.ohchr.org/Documents/ProfessionalInterest/statelessness.pdf">1961 Convention on the Reduction of Statelessness</a>, which prevents signatory countries from depriving people of their nationality if it would render them stateless.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/246980/original/file-20181123-149721-3anpli.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/246980/original/file-20181123-149721-3anpli.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/246980/original/file-20181123-149721-3anpli.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/246980/original/file-20181123-149721-3anpli.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/246980/original/file-20181123-149721-3anpli.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/246980/original/file-20181123-149721-3anpli.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/246980/original/file-20181123-149721-3anpli.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Australia has signed up to an international agreement not to render people stateless.</span>
<span class="attribution"><span class="source">Shutterstock</span></span>
</figcaption>
</figure>
<p>Where a person inside Australia is deprived of Australian citizenship they become vulnerable to <a href="http://www7.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/ma1958118/s198.html">removal from Australia</a>, and immigration detention until removal is possible. Where it is not clear that the person has citizenship in a foreign country, there is a likelihood of such detention being lengthy, or even <a href="https://www.sbs.com.au/news/government-defends-proposed-terror-laws-says-indefinite-detention-an-option">indefinite</a>. </p>
<p><em><strong>Changes to the minimum sentence for conviction-based deprivation</strong></em></p>
<p>The government’s media release also says:</p>
<blockquote>
<p>The proposed changes would enable the minister to cease the citizenship of anyone who is convicted of a terrorism offence in Australia, irrespective of the sentence they receive. This removes the current requirement that a terrorist offender must be sentenced to at least six years’ imprisonment.</p>
</blockquote>
<p>Currently, the minister has power to revoke a person’s citizenship only on conviction-based grounds where a person is convicted of a select list of national security offences. It is not clear whether the government intends to retain or expand this select list of offences.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/246981/original/file-20181123-149706-1vwmv24.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/246981/original/file-20181123-149706-1vwmv24.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/246981/original/file-20181123-149706-1vwmv24.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/246981/original/file-20181123-149706-1vwmv24.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/246981/original/file-20181123-149706-1vwmv24.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/246981/original/file-20181123-149706-1vwmv24.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/246981/original/file-20181123-149706-1vwmv24.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">An anti-terrorism exercise at Cologne Bonn airport in Germany on November 20.</span>
<span class="attribution"><span class="source">Marius Becker/dpa</span></span>
</figcaption>
</figure>
<p>Either way, the proposal is concerning. In 2015, before the current citizenship revocation laws were introduced, the Abbott government attempted to attach citizenship revocation to a much wider range of national security offences, with no requirement for a minimum sentence. A number of experts advised that this ran a <a href="https://www.smh.com.au/national/citizenship-bill-likely-to-be-struck-down-in-high-court-says-legal-expert-20150804-girihv.html">risk of falling foul of the Constitution</a>.</p>
<p>The more limited current legislation was ultimately arrived at following an <a href="https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Intelligence_and_Security/Citizenship_Bill/Report">inquiry by the Parliamentary Joint Committee on Intelligence and Security</a>. It found that restricting the list of offences and requiring a minimum six year sentence was necessary to “appropriately target the most serious conduct that is closely linked to a terrorist threat”. Since 2015, the national threat level has not changed.</p>
<p>In this context, the government should clearly explain why removing the six year sentence threshold for conviction-based citizenship deprivation is necessary and proportionate. Given that the conviction-based citizenship-deprivation powers have not been used since their introduction, the need for a clear justification is particularly strong. The government’s media release states:</p>
<blockquote>
<p>We now need to focus attention on strengthening the citizenship loss provisions which commenced in 2015 as they relate to terrorists within Australia, in order to protect our community.</p>
</blockquote>
<p>As the <a href="https://www.theguardian.com/australia-news/2018/nov/23/proposed-terrorism-laws-risk-making-australians-stateless-law-council-warns">Law Council has stated</a>, this justification is not nearly strong enough.</p><img src="https://counter.theconversation.com/content/107439/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Sangeetha Pillai does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Australia is proposing some of the toughest citizenship stripping laws in the world as it steps up efforts to curb extremist attacks - but the proposed law could run into significant legal hurdlesSangeetha Pillai, Senior Research Associate, Andrew & Renata Kaldor Centre for International Refugee Law, UNSW Law School, UNSW SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1005192018-08-02T23:48:29Z2018-08-02T23:48:29ZBlood, soil and paper: Thailand’s mission to reduce statelessness<figure><img src="https://images.theconversation.com/files/230343/original/file-20180802-136646-nk7v26.jpg?ixlib=rb-1.1.0&rect=368%2C772%2C5622%2C3197&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Statelessness in Thailand is a complex issue: the stateless population includes members of northern hill tribes, children of migrants who were born in Thailand and refugees for bordering countries.</span> <span class="attribution"><span class="source">from www.shutterstock.com</span>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span></figcaption></figure><p>Last month’s <a href="https://www.bbc.com/news/world-asia-44876108">epic rescue of the Wild Boars soccer team</a> from a cave in northern Thailand gripped the world. </p>
<p>When it emerged that <a href="https://www.nytimes.com/2018/07/10/world/asia/thailand-cave-soccer-stateless.html">some of the boys are stateless</a>, the news headlines changed in subtle ways from “Thai boys in the cave” to “boys in Thai cave”. Amid the widespread joy over the successful operation, the rescue has drawn attention to the broader issue of statelessness in Thailand. </p>
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Read more:
<a href="https://theconversation.com/adul-sam-on-the-stateless-boy-who-survived-the-thai-cave-and-helped-with-the-rescue-99883">Adul Sam-on: the stateless boy who survived the Thai cave – and helped with the rescue</a>
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<p>My <a href="https://www.victoria.ac.nz/sacs/about/staff/janepicha-cheva-isarakul">research</a> into the lives of stateless youth in Northern Thailand, like those trapped in the cave, shows that classic theories of state succession and state dissolution do not explain <a href="http://apmigration.ilo.org/news/thailand-opens-citizenship-path-for-80-000-stateless-people">the phenomenal number of stateless persons</a> in Thailand. </p>
<p>Instead, uneven economic growth, erratic labour migration policies, bureaucratic failure, legal loopholes and endemic discrimination against non-Thais, especially highlanders (also known as “hill tribes”), are the most frequent causes of statelessness. </p>
<h2>Stateless diversity</h2>
<p>The exact <a href="http://www.nationalityforall.org/thailand">number of stateless people</a> in Thailand is unknown but it is likely more than two million. Stateless people cannot vote, buy land, seek legal employment or travel freely. </p>
<p>The umbrella term “stateless” might suggest a homogeneous population completely unrecognised by the state, but my ethnographic research reveals a complex and heterogeneous reality. The stateless population ranges from highlanders to children of migrants, who were born in Thailand and do not have ties to their parents’ country of origin. </p>
<p>The <a href="http://www.polsci.chula.ac.th/jakkrit/anthro/Individual_Study_files/Contested%20Citizenship.pdf">various types of non-Thai ID cards</a> issued by the Thai state reflect this diversity. The ID card limits their physical mobility to the province under which they are registered and dictates respective possibilities of Thai citizenship. Until very recently, stateless persons were legally confined to 27 low-skilled occupations. However, this legal amendment only applies to stateless highlanders, and not stateless children of migrants. </p>
<p>Since 2005, all stateless persons have been able to access basic education and health care. In a school uniform, stateless children can appear and feel undifferentiated to other Thai citizen students: they all sing the national anthem, say prayers and play with friends. My research shows that it is only around the teenage years that they become more aware of the limitations of their status and start learning about possible legal pathways to becoming Thai citizens.</p>
<h2>Citizenship: right vs deservedness</h2>
<p>Following the cave rescue, the boys have since been inundated with offers of help, including full scholarships for university study up to doctorate degrees. The public raised the question whether the boys’ courage and will to survive should <a href="https://www.theguardian.com/news/2018/jul/12/thai-cave-rescue-coach-and-stateless-boys-may-be-made-citizens">“earn” them legal citizenship</a>. </p>
<p>Such citizenship debate is usually framed under the question of “deservedness” rather than a right. Often, this follows media stories about exceptional migrants that counter the <a href="https://www.vox.com/policy-and-politics/2018/3/1/17054546/immigration-crime-dreamers-daca-gangs">negative stereotypes</a> of the non-citizen “other” painted by right-wing politicians. </p>
<p>A case in point is that of <a href="https://www.theguardian.com/world/2018/may/28/spider-man-of-paris-to-get-french-citizenship-after-rescuing-child">Mamadou Gassama</a>, a Malian migrant in Paris, whose bravery and extraordinary climbing skills saved a French child and earned him the title of “spiderman of Paris” as well as French citizenship. In the wake of exceptional events like these, political will often follows the media spotlight on the heroes. </p>
<h2>Blood, soil and paper</h2>
<p>For now, Thai authorities insist that there will be no preferential treatment for the boys or their coach and that <a href="https://www.straitstimes.com/asia/se-asia/no-fast-tracking-of-citizenship-for-four-rescued-boys-from-thai-cave">protocols must be followed</a> in order to grant them citizenship. </p>
<p>They must provide proof that they were born in Thailand. This seemingly straightforward and objective process masks the state’s own <a href="https://www.jurist.org/commentary/2009/01/thailand-indigenous-population-faces/">erratic registration</a> practice of the non-citizen “other”. A birth certificate is now commonly issued to non-Thais, but this wasn’t always the case. However, <a href="https://plan-international.org/thailand/birth-registration">failure to register</a> a birth is often attributed to the “lack of knowledge” of these non-citizens.</p>
<p>A birth certificate alone does not guarantee citizenship. In principle, <a href="http://thailaws.com/law/t_laws/tlaw0474.pdf">Thai citizenship laws</a> recognise both jus sanguinis (right of blood) and jus soli (right of soil citizenship by birth). In practice, claiming citizenship by birth requires a child to present not only his/her documents but also those of his/her parents. The result is a <a href="http://www.thailawforum.com/articles/Burmese-Migrants-in-Thailand-7.html">complex system</a> of unevenly applied regulations that distribute citizenship via combinations of blood, soil and paper. </p>
<h2>A long road to citizenship</h2>
<p><a href="http://apmigration.ilo.org/news/thailand-opens-citizenship-path-for-80-000-stateless-people">Changes in citizenship laws</a> in late 2016 are said to open a path toward citizenship for 80,000 stateless persons. The UN High Commission for Refugees’ <a href="http://www.unhcr.org/ibelong-campaign-to-end-statelessness.html">global campaign on ending statelessness</a> by 2024 and the late King Bhumibol’s platinum jubilee have been cited by politicians and rights activists I met as the main motivators for the unprecedented urgency to solve this issue, especially regarding children. </p>
<p>However, these changes still reflect criteria based on “deservedness” rather than a more fundamental right to have rights, highlighting the complexities of contemporary migration. Among the requirements are loyalty to the monarch, good conduct and evidence of educational achievement (completion of a Bachelor’s degree). </p>
<p>Read in this light, the complex situation facing the stateless members of the Wild Boars begins to clarify. While their path to citizenship is likely to benefit from media spotlight, it might still entail a bureaucratic ordeal as endured by the thousands of other stateless individuals living in Thailand. For some of the Wild Boars boys, that scholarship offer may come in handy after all, and so too will their perseverance in the face of great difficulty, once again.</p><img src="https://counter.theconversation.com/content/100519/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Janepicha Cheva-Isarakul received funding from Victoria University of Wellington's Faculty Research Grant and Empowering Network for International Thai Studies (ENITS)</span></em></p>Last month’s epic cave rescue has drawn attention to the issue of statelessness in Thailand - a crisis the country is trying to resolve urgently, especially for stateless children.Janepicha Cheva-Isarakul, Teaching Fellow, Te Herenga Waka — Victoria University of WellingtonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/998832018-07-13T12:27:55Z2018-07-13T12:27:55ZAdul Sam-on: the stateless boy who survived the Thai cave – and helped with the rescue<figure><img src="https://images.theconversation.com/files/227590/original/file-20180713-27018-8slgpc.png?ixlib=rb-1.1.0&rect=7%2C11%2C777%2C476&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Adul Sam-on (right) during the rescue operation. </span> <span class="attribution"><span class="source">Handout: Thai Navy Seals.</span></span></figcaption></figure><p>The dramatic rescue of the 12 boys trapped in Tham Luang cave in northern Thailand captured the world’s attention. But one young person <a href="https://www.straitstimes.com/asia/se-asia/thai-cave-rescue-stateless-teen-adul-sam-on-the-only-english-speaker-among-those">in particular</a> stood out: 14-year-old Adul Sam-on, who, as the only English speaker in the group (he also speaks Chinese, Burmese and Thai), <a href="https://www.irishtimes.com/news/world/asia-pacific/coach-and-12-missing-boys-found-alive-in-flooded-cave-in-thailand-1.3551241">greeted the British divers</a> who found them, and acted as interpreter throughout the rescue.</p>
<p>Adul is stateless. <a href="https://www.nytimes.com/2018/07/10/world/asia/thailand-cave-soccer-stateless.html?nytmobile=0&nl=top-stories&nlid=23970262ries&ref=headline">According to reports</a>, he was born in Wa state, an unrecognised state within Myanmar which is unable to issue legal identity documentation. At age six, Adul’s parents “slipped” him into Thailand to protect him from conflict, and offer him education and opportunities which he couldn’t get in his home state. </p>
<p>Being stateless, Adul faces an <a href="http://www.fmreview.org/sites/fmr/files/FMRdownloads/en/statelessness/lynch-teff.pdf">uncertain future</a>. Some might consider him a refugee, others might opt for the term “illegal migrant”. Throughout Thailand, and the world, there are <a href="http://www.unhcr.org/en-ie/statelessness-around-the-world.html">millions of stateless young people</a> like Adul. And yet aside from extraordinary events like this, these young people, their challenges and capabilities, often go overlooked – invisible behind their legal status. </p>
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<h2>A state of frustration</h2>
<p>My PhD research at Trinity College Dublin explored the experiences of young people who, like Adul, are growing up with precarious legal status along the Thailand-Myanmar border. While official figures put the <a href="http://www.unhcr.org/en-ie/news/latest/2016/11/5836af624/overcoming-statelessness-thailand-case-time.html">number of stateless</a> people in Thailand at 400,000, the reality is <a href="https://www.aljazeera.com/news/2018/01/thailands-stateless-generations-citizenship-180105111217646.html">estimated</a> to be more than three million. Statelessness occurs when an individual is either denied citizenship or unable to access citizenship they have a right to. </p>
<p>Either way, statelessness results in a life of uncertainty: </p>
<blockquote>
<p>It’s like living in the prison sometimes… I can’t go anywhere… I can’t work… It’s like living in a box. I am ignored by people around me… I want to go around freely. I want to go like other people go.</p>
</blockquote>
<p>These are the words of 18-year-old Thin. Born in Thailand, she is stateless. She works as a kindergarten teacher in a “migrant learning centre” (MLC), so-called due to their unofficial status in Thailand. In cooperation with local police, she was issued with a migrant teacher card. This unofficial identity card protects her within school grounds. Once outside, she is vulnerable to arrest.</p>
<p>She feels like a criminal in her home country. But as she points out: “Even though the police arrest, people have to go [on]”. Everyday life – going to the market, attending the health clinic or church, visiting family or friends – must continue. I spoke to young people who had been arrested and deported as young as 14, paying up to 2,000THB (€50) for their release – a huge amount for families earning 150THB (€3.80) per day. </p>
<p>Thin’s frustrations were echoed by others: the lack of accreditation for education in the MLCs, the inability to access decent work or get married legally, the abuse and exploitation by employers, police and others, the lack of recourse to justice and the lack of affordable health care. Fear and restriction shape these young lives. </p>
<h2>Living invisibly</h2>
<p>Like Adul, the young people I spoke to are far from passive victims of circumstances, despite the precarious nature of their lives. “Getting depressed wastes time”, according to Aung, aged 20. Aung told me that his struggles – such as herding cattle as a six-year-old after his parents brought him to Thailand – have informed his perspective on life, and help to sustain him. Suffering is expected:</p>
<blockquote>
<p>Everyone has to struggle … If people hold on to their struggles like I have, it can be strength and motivation.</p>
</blockquote>
<p>In the face of sadness, fear and uncertainty, many of these young people choose optimism. Positivity can be a means of self-preservation. They choose to “just stay happy”. Thin takes comfort in the knowledge that her situation is not unique: “other people can live, I can live”.</p>
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<p>Their lives have made them unique. Saw, 20, refers to himself as one of the “border boys”. According to Saw, “you need to be mixed in order to survive” in his world. Saw does not consider himself one of those “real” Thai or Burmese, but a mix of nationalities and ethnicities. Like Adul, he speaks several languages.</p>
<p>These extraordinary young people strive for an ordinary life. Kwi, 20, has vivid memories of fleeing violence in his home Karen State as a small child. He reads the news about the crisis in the Mediterranean. He says he understands people’s fear of refugees and migrants, but he just wants a chance:</p>
<blockquote>
<p>I am not a troublemaker… Some people are proud of the country they are from… I don’t even want to belong to any country, I just need opportunity to study and to work and to make my life.</p>
</blockquote>
<p>People around the world have been inspired by Adul Sam-on, his teammates and their coach, Ake. Now is the time to recognise those stateless young people who – under normal circumstances – remain invisible. There <a href="https://www.theguardian.com/news/2018/jul/12/thai-cave-rescue-coach-and-stateless-boys-may-be-made-citizens">are rumours</a> that the three stateless teammates and their coach may be given citizenship. This would transform their lives, and Thailand would be lucky to benefit from their potential.</p>
<p><em>Names have been changed to protect the anonymity of the participants.</em></p><img src="https://counter.theconversation.com/content/99883/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Derina Johnson received partial funding from Trinity College Dublin's School of Social Work and Social Policy, and Trinity Trust for her PhD studies. </span></em></p>There are at least 400,000 stateless people living in Thailand – many of them young, like Adul. Here’s what their lives are like.Derina Johnson, Postdoctoral Researcher, Trinity College Dublin, Trinity College DublinLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/843492017-10-17T14:50:47Z2017-10-17T14:50:47ZStatelessness affects millions in Africa. Madagascar is tackling the problem<figure><img src="https://images.theconversation.com/files/188520/original/file-20171003-12146-1w57tu4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Madagascar is taking steps towards addressing statelessness with a new nationality law.</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>Three years ago the United Nations took steps to try and address the issue of statelessness by putting in place <a href="http://www.unhcr.org/protection/statelessness/54621bf49/global-action-plan-end-statelessness-2014-2024.html">a 10-point plan</a> that aims to reduce the number of people who are not recognised as a national by any state. </p>
<p>The exact number of stateless people isn’t known. The UNHCR <a href="http://www.unhcr.org/statelessness-around-the-world.html">estimates</a> that there are at least 10 million in the world – of which approximately one third are children. Though numbers have been decreasing (the number of stateless people <a href="http://www.unhcr.org/news/latest/2007/5/464dca3c4/qa-worlds-15-million-stateless-people-need-help.html">in 2007</a> was 15 million) more needs to be done.</p>
<p>Apart from a sense of identity, belonging to a state is crucial to a person’s <a href="https://www.unhcr.it/wp-content/uploads/2016/01/preventing_and_reducing_statelessness.pdf">ability to</a> access education, healthcare and fully participate in political processes. Without a nationality, individuals don’t have the right to vote or the unrestricted right to enter and live in a country under international law. Stateless people therefore end up without any residence status or, worse, in prolonged detention. </p>
<p>Statelessness happens for a number of reasons. It can be the result of policies that aim to exclude people deemed to be outsiders (as a result of ethnicity or religion), in spite of their ties to a particular country. This has happened <a href="http://www.ohchr.org/Documents/Issues/Women/WRGS/RelatedMatters/OtherEntities/OSJIChildrenNationalityFactsheet.pdf">in Eritrea and Ethiopia</a>. It also occurs when there is large scale displacement – the <a href="http://www.refworld.org/docid/58594d114.html">estimated</a> stateless population in Côte d’Ivoire, for example, is 700,000, many of whom were migrants of Burkinabé descent and not eligible for Ivorian nationality after the country’s independence from France in 1960.</p>
<p>But one of the <a href="http://www.refworld.org/pdfid/50c1f9562.pdf">most common causes</a> of statelessness is gender discrimination. In Africa this comes in various forms, for example when women can’t pass on their nationality to their spouse. This is the case in some 25 countries <a href="http://www.refworld.org/pdfid/54cb3c8f4.pdf">on the continent</a>. Or <a href="http://www.ohchr.org/Documents/Issues/Women/WRGS/RelatedMatters/OtherEntities/OSJIChildrenNationalityFactsheet.pdf">when children</a> are denied their mother’s (and father’s) nationality. This often happens when a child is born out of wedlock. </p>
<p>The Maputo protocol, a specific protocol to the African Charter on Human and People’s Rights to address the rights of women, itself doesn’t seem to challenge these issues. In article (h) <a href="http://www.achpr.org/files/instruments/women-protocol/achpr_instr_proto_women_eng.pdf">it states</a> that:</p>
<blockquote>
<p>a woman and a man shall have equal rights, with respect to the nationality of their children except where this is contrary to a provision in national legislation… </p>
</blockquote>
<p>Madagascar is one of <a href="http://www.ohchr.org/Documents/Issues/Women/WRGS/RelatedMatters/OtherEntities/OSJIChildrenNationalityFactsheet.pdf">only a few</a> countries in Africa to have taken concrete steps to address this problem. Earlier this year it passed a <a href="http://citizenshiprightsafrica.org/wp-content/uploads/2017/02/Madagascar-Loi-n2016-038.pdf">new nationality law</a> that guarantees the equal right of citizens, regardless of their gender, to confer their nationality on their children. In doing so, it <a href="http://www.unhcr.org/news/briefing/2017/2/589453e67/madagascar-unhcr-welcomes-new-law-giving-men-women-equal-rights-transfer.html">became the first</a> country in Africa, since the UNHCR action plan’s conception, to give women the same right as men to pass on their nationality to their children.</p>
<h2>Madagascar’s case</h2>
<p>The exact number of stateless people in Madagascar is unknown, although the UNHCR <a href="https://www.opendemocracy.net/openglobalrights/dimitrina-petrova/in-madagascar-reforming-nationality-law-advances-social-and-econo">puts the</a> figure at up to 100,000 in a country with 24 million inhabitants. By comparison, the number of stateless people in Kenya, with a population of about 47 million people, is <a href="http://www.unhcr.org/ke/stateless-persons">estimated</a> to be 18,500. </p>
<p>Madagascar’s original nationality laws were a product of its colonial history. Colonised by the French <a href="http://www.historyworld.net/wrldhis/PlainTextHistories.asp?historyid=ad26">from</a> 1896 to 1960, laws were put in place that were discriminatory along both gender and ethnic lines. Not only <a href="http://www.institutesi.org/worldsstateless17.pdf">did they</a> deny Malagasy women the right to confer nationality on their children and spouses, but individuals were <a href="http://www.institutesi.org/worldsstateless17.pdf">often denied</a> citizenship documents by authorities who claimed that their names didn’t “sound” Malagasy. This was <a href="https://joshuaproject.net/people_groups/11982/MA">particularly</a> the case for the Karana (a minority of Indo-Pakistani origin who have lived in Madagascar since before independence in 1960) or those with Comorian origins.</p>
<p>The <a href="http://citizenshiprightsafrica.org/wp-content/uploads/2017/02/Madagascar-Loi-n2016-038.pdf">new nationality law</a> does not permit Malagasy
women to confer their nationality to their non-national spouses (as Malagasy men can), however allows both spouses and children to retain their nationality if a partner or a parent loses theirs. Due to the recent passing of this law, its impact on statelessness is not yet evident. </p>
<h2>More to be done</h2>
<p>But there are still improvements to be made. </p>
<p>Madagascar hasn’t signed up to key legal pillars for the abolition of statelessness – these are the 1990 <a href="http://www.achpr.org/instruments/child/">African Charter on the Right of the Child</a>, which states that “every child has the right to acquire a nationality” and the <a href="http://www.unhcr.org/ibelong/wp-content/uploads/1954-Convention-relating-to-the-Status-of-Stateless-Persons_ENG.pdf">1954 Convention</a> on the Status of Stateless Persons as well as the <a href="http://www.unhcr.org/ibelong/wp-content/uploads/1961-Convention-on-the-reduction-of-Statelessness_ENG.pdf">1961 Convention</a> on Reduction on Statelessness. The ratification of these two legal instruments would tie Madagascar to internationally recognised standards of protection. The conventions <a href="https://www.opensocietyfoundations.org/voices/why-convention-statelessness-matters">also provide</a> guidelines for states, with respect to policies that ought to be adopted to minimise statelessness. </p>
<p>The nationality law also hasn’t taken steps to remove discrimination against women. Malagasy women <a href="http://equalnationalityrights.org/news/78-madagascar-reforms-its-nationality-law-guaranteeing-mothers-independent-right-to-confer-nationality-on-children">are denied</a> the right to confer nationality on spouses, a right which is reserved for Malagasy men. This <a href="http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CCPR%2fC%2fMDG%2fCO%2f4&Lang=en">creates</a> statelessness as women can’t give their nationality to a foreign or stateless husband and to any adopted children.</p>
<p>Madgascar’s new reforms nonetheless serve as an example for other African countries that are experiencing the same kind of discrimination. West Africa, for instance, recently adopted a regional action plan to help the approximately 1 million people without a nationality. It includes <a href="http://www.institutesi.org/stateless_bulletin_2017-05.pdf">encouraging</a> the adoption of new laws, the issuing of identity papers and better data to manage situations which could result in statelessness.</p>
<p>It’s still early days for the plan and only time will tell how well it does. But the issue of gender discrimination will be key.</p><img src="https://counter.theconversation.com/content/84349/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Cristiano d'Orsi does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>For many years, statelessness in Madagascar was spurred by racial and gender discrimination.Cristiano d'Orsi, Research Fellow and Lecturer at the South African Research Chair in International Law (SARCIL), University of JohannesburgLicensed as Creative Commons – attribution, no derivatives.