REFUGEES FROM GENERATION TO GENERATION UNHCR, APRIL 2023 3. Findings of the research Gaps in national laws creating risks of statelessness The first question to answer in determining whether a person is a refugee or not is what nationality the person holds – it is the person’s nationality (or statelessness) in the place of former habitual residence that establishes the reference country on the basis of which the claim to protection can be assessed. The claim to asylum then rests on a determination that the person cannot currently avail him or herself of the protection of the country of origin (whether the country of nationality or country of habitual residence, if the person is stateless), or of the protection of a another country.40 Questions of refugee nationality can be complex, especially if the refugee is also stateless, or may have a potential claim to more than one nationality but has never been formally recognised by any of the relevant national authorities.41 Nonetheless, a refugee is generally presumed to retain the nationality of origin even though temporarily unable to benefit from the protection of that state. In principle, refugee protection in another state should be temporary, and resolved with the cessation of refugee status: for example, when the former refugee has voluntarily re-availed him or herself of the protection of the country of origin; when the circumstances causing the original flight have ceased and the refugee can therefore no longer continue to refuse to avail of the protection of the country of nationality; or when the refugee has acquired the nationality, and enjoys the protection, of the state of asylum or another state.42 In the case of very long-term refugees, the situation may become blurred by the passage of time and their effective – if not legal – integration into the country of asylum, especially if they hold no official identity documentation issued by the country of origin (or indeed may have been stateless before they fled that country). Other methods of proof of connection to a country of origin would have to be relied upon for nationality to be recognised in case return to that country is possible and desired. It is even more challenging to establish the nationality of their children born in the country of asylum, whose claim to the nationality of the state(s) of origin of the parents may depend on the completion of procedures that are not accessible, or documentary evidence of that nationality is not available. The grant of refugee status to the children of refugees provides those children with the same protection given their parents; but their nationality may be unclear. For these children of refugees, minimum rights to acquire nationality based on birth in the country of asylum will be necessary to protect against statelessness. An assessment of the risks of statelessness for the children of long-term refugees born in the country of asylum thus requires legal analysis of (a) the rules applying to transmission of nationality to children born outside the country of nationality of the parents; (b) the rules for recognition of civil status events, including those occurring outside the country of nationality of the parents; and (c) the rules for acquisition of nationality of the country of birth. But in each case, the substantive provisions of the law are meaningless if not accessible in practice. The key issues in preventing statelessness among refugees and their descendants therefore include the consideration of statelessness as part of the refugee registration and status determination procedures; 40 Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on In ternational Protection Under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, UNHCR, April 2019, HCR/1P/4/ENG/REV. 4, Part I, Chapter II, B(4), available at: https://www.refworld.org/docid/5cb474b27.html; 41 Hugo Storey, “Nationality as an Element of the Refugee Definition and the Unsettled Issues of ‘Inchoate Nationality’ and ‘Effective Nationality’”, RefLaw.org, Parts I and II, 11 June 2017 & 2 June 2019 https://reflaw.org/nationality-as-an-element-of-the-refugee-definition-and-the-unsettled-issues-of-inchoatenationality-and-effective-nationality/; https://reflaw.org/nationality-as-an-element-of-the-refugee-definition-andthe-unsettled-issues-of-inchoate-nationality-and-effective-nationality-2/. 42 See Article 1(C)(3) and Article 1(C)(5) of the 1951 Convention relating to the Status of Refugees. See Annex 2 for the terminology used, as well as the UNHCR Master Glossary of Terms available at: https://www.unhcr.org/glossary/. 12