Breaking the Presumption
to meet those requirements, 54 launch nationality campaigns and advocate for such
restoration. 55
Additionally, in contexts where in situ stateless persons are entitled to the right
of nationality under national laws, applicants could be forced to apply for
naturalisation or residency through special procedures — including through SDP
— and can expect to receive ‘at the very least, permanent residence with facilitated
access to nationality’. 56 This forced naturalisation may make them a second-class
citizen. This is a double victimisation: the applicant’s right to nationality is not
recognised despite being entitled to it, and they could also be considered ��foreign’
or ‘stateless’ in their own country. 57
Where the applicant has the right to nationality but has no option other than to
apply to an SDP as a foreigner in order to access naturalisation, the Inter-American
Commission of Human Rights suggests that states ‘refrain from impeding access
to procedures for determining statelessness status by persons forced to resort to
them’. 58 UNHCR seems to have accepted this solution from a practical and
humanitarian perspective and as a last resort: ‘practical and humanitarian
considerations point towards local solutions through naturalisation’. 59
SDP procedures must be applicable in principle to ex situ stateless populations
and, once they are recognised as stateless, the law should facilitate their access to
documentation and naturalisation. 60 In addition, SDPs could be an option for
applicants who are in situ stateless but not subject to discrimination. For example,
first generation children born in a state that does not recognise jus soli or does not
provide a safeguard against statelessness.
54
55
Statelessness Determination Procedures, Identifying and Protecting Stateless Persons
(Report, UNHCR 2014) 4: ‘[I]t is generally not appropriate to delay solutions for stateless
people in these situations by having them apply for recognition as stateless persons through a
determination procedure’.
Guidelines on Statelessness No 2: Procedures for Determining Whether an Individual is a
Stateless Person, UN Doc HCR/GS/12/02 (5 April 2012) [6]–[7] (‘Guidelines No 2’), cited
by Statelessness Determination (n 37) 5 n 8:
Depending on the circumstances of the populations under consideration, States might be advised
to undertake targeted nationality campaigns or nationality verification efforts rather than
statelessness determination procedures.
Guidelines No 3 (n 39) [46] n 40; Good Practice Paper 2020 (n 3) 3:
Where States have created stateless populations in their territory, they may well be unwilling to
introduce statelessness determination procedures or grant stateless persons the status
recommended. In such cases UNHCR’s efforts to secure solutions for the population in question
may go beyond advocacy to technical advice and operational support for initiatives aimed at
recognizing the link between such individuals and the State through the grant of nationality.
56
57
Guidelines No 3 (n 39) [46]; Procedures for Determination of Refugees and Statelessness (n
8) 127 [348].
General Comment 27 (n 41) 20:
The scope of ‘his own country’ is broader than the concept ‘country of his nationality’. It is not
limited to nationality in a formal sense, that is, nationality acquired at birth or by conferral; it
embraces, at the very least, an individual who, because of his or her special ties to or claims in
relation to a given country, cannot be considered to be a mere alien.
58
59
60
Procedures for Determination of Refugees and Statelessness (n 8) 127 [350].
Guidelines No 3 (n 39) (12).
Understanding Statelessness Contexts in Europe (n 38); Procedures for Determination of
Refugees and Statelessness (n 8) 156.
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