2022 Statelessness & Citizenship Review 4(1) founded fear of persecution on any grounds listed in the Refugee Convention.104 The rationale behind the inclusion of the notion was to afford stateless persons a country of reference from which to claim refugee status, and the utility of the notion is plainly servile to the question of protection. At this juncture, it is relevant to note the synergy and cross-fertilisation between the notion of a country of former habitual residence within the separate refugee and statelessness regimes. While the definition of statelessness under the 1954 Statelessness Convention is formulated in the negative, and the definition of a refugee under the Refugee Convention formulated, conversely, in the positive, the separate regimes are both guided by similar humanitarian and protection rationales. The former aims to identify, prevent and reduce statelessness by protecting stateless persons with a core set of rights, and the latter to recognise refugees and afford them, too, a core set of rights. Notably, under the statelessness regime, the country of former habitual residence is one of several criteria that can be used to establish a relevant link with a country of reference for stateless children. As noted by UNHCR, other criteria include birth on the territory, descent, marriage and adoption.105 Under the refugee definition, the notion of a country or former habitual residence alone serves as the country of reference for the assessment of risk for the refugee claimant. When conceiving of the synergy between the regimes, it is relevant to note that similar indicia that inform a relevant connection to a state for the purposes of a statelessness assessment may be relevant to identify the notion of a country of former habitual residence as it concerns children, such as the shared parent–child aspect through descent and adoption. Such indicia will be elaborated upon in the sections that follow. In sum, what may be distilled from this Part is that the rationale behind including the notion of a country of former habitual residence in the refugee definition was to afford stateless persons a country of reference from which to claim refugee status, and the utility of the notion is plainly servile to the question of protection. It is not a stand-alone notion in the refugee definition, as it serves as a medium through which core definitional components, such as the nature and risk of being persecuted, fall to be assessed. Rather like a mirror, these integral components reflect back the country of reference — here, the country of former habitual residence. It follows that such definitional components inform the baseline indicia for the notion of a country of former habitual residence, which, historically, have been conceived from an adult-centric perspective. The next Part carefully discerns definitional indicia that are integral to the notion and may usefully inform a child-sensitive interpretation. V NO REQUIREMENT OF HAVING RESIDED IN THE TERRITORY IN ORDER TO SATISFY REFUGEE CLAIM The intensely fact-specific nature of the inquiry into a country of former habitual residence has meant that state parties, on the whole, have adopted a relatively fluid interpretation of the notion. This is notwithstanding, as indicated previously, a core definitional ingredient shared in their jurisprudence — that an individual must 104 Kadoura v Minister of Citizenship and Immigration [2003] FC 1057 6–7 [14]; Koe (n 84) 358–61. See also Foster and Lambert (n 17) 119, who eschew any ‘excessive focus’ on whether an individual is stateless, detracting from the core focus of whether such individual has a well-founded fear of being persecuted. 105 UNHCR Handbook (n 12) 35 [92]. 24

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