B) Valid reasons for being unwilling to avail oneself of protection 5. The existing universal and regional refugee protection instruments reflect the current consensus of States on what constitute “valid reasons” for refusing the protection of one’s country of nationality.5 Persons who refuse the protection of the country of their nationality when it is available and who do not fall under one or more of the aforementioned instruments are not de facto stateless. 6. Persons who do fall within the scope of the aforementioned instruments should be granted the protection foreseen by those instruments, rather than any lesser form of protection that a particular State may decide to accord to de facto stateless persons generally. C) Inability to avail oneself of protection 7. Being unable to avail oneself of protection implies circumstances that are beyond the will/control of the person concerned. Such inability may be caused either by the country of nationality refusing its protection, or by the country of nationality being unable to provide its protection because, for example, it is in a state of war and/or does not have diplomatic or consular relations with the host country. 8. Some persons who are unable to avail themselves of the protection of the country of their nationality may qualify for protection under the 1951 Refugee Convention/1967 Protocol6 or one of the three regional refugee or subsidiary protection instruments.7 However, there may also be situations where denial of protection does not constitute persecution.8 9. 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 they are otherwise able in part or in full to avail themselves of protection of their country of nationality while in the host country (i.e. diplomatic protection and assistance). On the other hand, persons who are able to return to their country of nationality are not de facto stateless, even if otherwise unable to avail themselves of any form of protection by their country of nationality in the host country. D) Undocumented migrants 10. Irregular migrants who are without identity documentation may or may not be unable or unwilling to avail themselves of the protection of the country of their nationality. As a rule there should have been a request for, and a refusal of, protection before it can be established that a person is de facto stateless. 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 5 6 7 8 See, in particular, the 1951 Convention/1967 Protocol relating to the Status of Refugees, the 1969 Convention Governing the Specific Aspects of Refugee Problems in Africa, the 1984 Cartagena Declaration on Refugees, and Council Directive 2004/83/EC of the European Union on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted. example, as stated in paragraph 98 of 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.” See note 6, above. As stated in paragraph 107 of UNHCR’s Handbook on Procedures and Criteria for Determining Refugee Status 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.” 86 Small Changes ‫ ـ‬Big Gains: An Action Plan to Prevent and Reduce Statelessness in the Kyrgyz Republic