A TELEOLOGICAL AND CHILD-SENSITIVE
INTERPRETATION OF A COUNTRY OF FORMER
HABITUAL RESIDENCE FOR STATELESS
CHILDREN BORN OUTSIDE THEIR PARENTS’ COUNTRY
OF NATIONALITY OR FORMER HABITUAL RESIDENCE
SHARELLE ANNE AITCHISON
The notion of a country of former habitual residence — as the functional equivalent of a country
of nationality for stateless individuals and the reference point for the ‘being persecuted’ inquiry in
art 1A(2) of the Convention relating to the Status of Refugees — is an ill fit for stateless children
born outside the country of nationality or former habitual residence of their parent(s). On a plain,
ordinary reading of the definition, stateless children born in the country of refuge have neither a
nationality nor a former habitual residence and fall outside the ambit of the refugee definition. In
a similar fashion, stateless children born prior to arrival in the country of refuge (but not in the
country of nationality or designated country of former habitual residence of their parent(s)) are
unable to establish the country of reference element, as read with all other indicia of refugeehood.
In the context of concurrent family claims, this predicament exposes an obvious inequity of access
to refugee status and a consequent risk of refoulement to serious harm, as such children may face
return to the country of nationality or former habitual residence of their parent(s). While the
dominant tide of jurisprudence supports a literal interpretation of the notion, Professors Michelle
Foster and Hélène Lambert have identified a purposive pathway, better aligned with the
humanitarian scope of the refugee definition. For applicants who are stateless children born
outside of the country of nationality or former habitual residence of their parent(s), this
interpretation allows for the determination of country of reference in combination with forwardlooking considerations on their returnability and risk of persecution upon return. This article
endorses such an interpretation and comprehensively charts a child-sensitive approach to
applying the criteria for refugee status (historically formulated from an adult-oriented
perspective), by exploring what child-specific interests might better inform the notion in the context
of the individualised refugee assessment of concurrent family claims.
TABLE OF CONTENTS
I
II
Introduction ............................................................................................................... 8
Historical Overview of a ‘Country of Former Habitual Residence’: The Invisibility
of Children in the Drafting of the Refugee Definition ............................................ 12
III State Practice ........................................................................................................... 17
IV The Relevance of a Designated Country of Reference to the Inquiry ..................... 20
V No Requirement of Having Resided in the Territory in Order to Satisfy Refugee
Claim........................................................................................................................ 24
VI A Child-Sensitive Lens............................................................................................ 25
A Child-Specific Ties to a Territory and Habituality...................................... 26
B Shared Parent–Child Aspect as Conduit for Transference of Characteristics27
C Hypothesised Presence of the Family in the Country of Reference............ 30
VII A Child-Sensitive Approach to Defining a Country of Former Habitual Residence . 31
VIII Conclusion ............................................................................................................... 31
The author is a member of the Immigration and Protection Tribunal in New Zealand and holds
an LLB (University of Auckland) and an LLM (University of Notre Dame). This article was
inspired by attendance at a Peter McMullin Centre for Statelessness workshop in February 2020.