because, for example, it is in a state of war and/or does not have diplomatic or consular relations with the country of refuge.197 Some persons who are unable to avail themselves of the protection of the country of their nationality may qualify for protection under the 1951 Convention/1967 Protocol or under one of the three regional refugee protection instruments. For example, as stated in UNHCR’s Handbook on Procedures and Criteria for Determining Refugee Status, lack of protection may sometimes itself contribute to fear of persecution: “denial of protection [by the country of nationality] may confirm or strengthen the applicant’s fear of persecution, and may indeed be an element of persecution.”198 However, there may also be situations where denial of protection does not constitute persecution. For example, as the Handbook on Procedures and Criteria for Determining Refugee Status states regarding applicants for refugee status who have dual nationality: “There will be cases where the applicant has the nationality of a country in regard to which he alleges no fear, but such nationality may be deemed to be ineffective as it does not entail the protection normally granted to nationals … As a rule, there should have been a request for, and a refusal of, protection before it can be established that a given nationality is ineffective. If there is no explicit refusal of protection, absence of reply within reasonable time may be considered a refusal.”199 Whether a person unable to avail himself or herself of protection is a refugee or not, such a person is always de facto stateless if he or she is outside the country of his or her nationality. Inability to avail oneself of protection may be total or partial. Total inability to avail oneself of protection will always result in de facto statelessness. Persons who are unable to return to the country of their nationality will also always be de facto stateless even if otherwise able in part or in full to avail themselves of protection in their host country. On the other hand, persons who are able to return to the country of their nationality are not de facto stateless, even if otherwise unable to avail themselves of any form of protection in the host country.200 11.5 Undocumented migrants Irregular migrants who are undocumented may, or may not, be unable or unwilling to avail themselves of the protection of the country of their nationality. As noted in section 11.4 above, as a rule there should have been a request for, and a refusal of, protection before it can be established that a given nationality is ineffective. For example, Country A may make a finding that a particular individual is a national of Country B, and may seek to return that individual to Country B. Whether or not the individual is de facto stateless may depend on whether or not Country B is willing to cooperate in the process of identifying the individual’s nationality and/or to permit his or her return. 12. UNHCR’S MANDATE FOR DE FACTO STATELESSNESS UNHCR’s competence to provide international protection to refugees covers not only those persons meeting the eligibility criteria for refugee status set out in the 1951 Convention/1967 197 198 199 200 See footnote 34 above. See footnote 35 above. “Handbook on Procedures and Criteria for Determining Refugee Status”, op. cit., para. 107. Quaeritur: Would this last point also apply to nationals of “failed States”? 65