2022 Statelessness & Citizenship Review 4(1) Hathaway and Foster, mindful that a state’s ultimate duty is to assess whether a person is a refugee, recommend a flexible approach to identifying the ‘threshold’ question of a country of reference. In this vein, academics, refugee status determination bodies and courts have repeatedly emphasised that in instances where a state is unable to identify a country of nationality, they should proceed ‘to assess whether or not the individual is a refugee’, noting that ‘status may not lawfully be denied simply because the applicant’s country of nationality was not properly identified by her’.97 As emphasised by Foster and Lambert, there is a fundamental point of principle in which: states parties have a legal duty to implement the Refugee Convention in good faith, which means facilitating the identification of those entitled to protection, not introducing procedural barriers that in practice represent substantial obstacles to delivering protection obligations.98 The analogy of the country of reference as a gateway, through which the internal and external aspects of the protection question are resolved, is evocative. However, there is a real risk with ‘gateway’ and ‘threshold’ terminology that stateless children born outside the country of nationality or former habitual residence of their parent(s) may be left ‘at the gate’ or ‘on the doorstep’ by overzealous guards.99 A more fitting analogy might be to regard the country of reference simply as a medium or conduit, through which the definitional charge of the protection assessment courses through. As a conduit, the country of former habitual residence has receptors to which other core components of the definition, such as persecution and well-foundedness, may adhere. With respect to persecution, a critical territorial link may be identified in the case of a stateless child born outside the country of nationality or former habitual residence of their parent(s), who presents with the predicament of a discriminatory denial of nationality. The insidious nature of discrimination readily identifies the state actor as a key figure in its exercise of discretion in the administration of its nationality laws. It would be intuitively wrong to ignore this connection where there has been a denial of fundamental human rights, including the aptly coined ‘gateway’ right to a nationality (as the precursor to other rights) and a continued withholding of that nationality with ensuing effects. Irrespective of such a discriminatory denial, there remains a latent seed — a genuine link to the country that has denied a child a nationality. As such, the persecution feared, along with the Refugee Convention nexus of discrimination, both inform and reflect the country of reference for the purpose of the interpretive exercise. Recall BV (Malaysia), where one limb of the finding that the stateless child shared his parents’ country of nationality or former habitual residence in Malaysia was the determination that the country had deprived him of a nationality through discriminatory means. There is also a necessary point of connection between the country of reference and the well-foundedness aspect of the refugee definition. This element is forward-looking in nature, anchored in the notion of alienage, and posits the question of risk to the person in the future. The prospective assessment then assumes a physical presence in the country of nationality for the purposes of 97 98 99 Hathaway and Foster (n 23) 54. Foster and Lambert (n 17) 116. BV (Malaysia) (n 19) 44–45 [196]–[200]. 22