2022 Statelessness & Citizenship Review I 4(1) INTRODUCTION On a strict, literal interpretation of the refugee definition, the vulnerability of a child born outside the country of nationality or former habitual residence of their parent(s) (denied the nationality of their parents at birth or where statelessness is transferred intergenerationally) is readily apparent. On the one hand, they may face obstacles to accessing a nationality and, on another, to accessing protection under the Convention relating to the Status of Refugees (‘Refugee Convention’).1 This is because a child without a nationality, who has never before resided in a designated country of reference, cannot satisfy the plain, ordinary meaning of ‘a country of former habitual residence’ within the meaning of the refugee definition in art 1A(2) of the Refugee Convention (hereafter the ‘refugee definition’). In the case of stateless persons, a country of former habitual residence serves as the reference or conduit through which the assessment of ‘being persecuted’ occurs. 2 To recall, art 1A(2) provides that a ‘refugee’ is a person who: owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it … Having acknowledged the dual obstacles to accessing a nationality and protection, it is necessary to emphasise that it is the second obstacle and protection gap under the Refugee Convention that this article addresses. Furthermore, because the category of stateless children is potentially amorphous (as there are varying degrees of statelessness),3 it is necessary to emphasise that this article responds solely to the predicament of stateless children born outside the country of nationality or designated country of former habitual residence of their parent(s)4 in the context of the refugee status inquiry where such children have lodged claims contemporaneously with their parent(s). It is helpful to distinguish the refugee definition from that of a stateless person per se, and to appreciate the overlap in condition and statuses. According to the de jure approach to questions of nationality and statelessness, a stateless person is someone who is not considered a national by operation of law, or for whom it would be a mere formality to acquire such nationality.5 While a person may be 1 2 3 4 5 Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954) art 1 (‘Refugee Convention’). ibid. Pertinently, the definition of ‘refugee’ identifies a substitute reference state (as the functional equivalent to having a nationality) for stateless individuals, being their ‘country of former habitual residence’. See Susan Kneebone, Brandais York and Sayomi Ariyawansa, ‘Degrees of Statelessness: Children of Returned Marriage Migrants in Can Tho, Vietnam’ (2019) 1(1) Statelessness & Citizenship Review 69. While stateless parent(s) may have more than one former habitual residence, this article is concerned with their designated country or countries of former habitual residence under consideration by refugee status determination bodies, in the context of which the risk of refoulement for the stateless child may emanate. Whilst acknowledging that there is some divergence in state practice, a starting point for this article is that, where there are real obstacles to children acquiring a nationality (such as through obtaining birth registration or accessing necessary documentation to apply for birth registration or citizenship), such cases would not be characterised as inchoate nationality and would fall within the realm of statelessness. See AC (Venezuela) [2019] NZIPT 801438–439 18–21 [84]–[93]. 8