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 Protocol 6 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 may depend on whether or not Country B is willing to cooperate in the process of identifying the individual’s nationality and/or permit his or her return. Thus, prolonged non-cooperation including where the country of nationality does not respond to the host country’s communications can also be considered as a refusal of protection in this context. 6 For 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.” 7 See note 6, above. 8 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.” 7