law and are able to apply for permanent residency and eventually for citizenship. The
Immigration and Refugee Board (IRB) has indicated that it tests for statelessness or the absence
of citizenship documents by examining the relevant laws and practices of the countries of
concern. When a person’s nationality cannot be clearly established, decision-makers consult
paragraph 89 of the UNHCR Guidelines on Procedures and Criteria for Determining Refugee
Status, which provides:18
“Where, therefore, an applicant alleges fear of persecution in relation to the country of
his nationality, it should be established that he does in fact possess the nationality of that
country. There may, however, be uncertainty as to whether a person has a nationality. He
may not know himself, or he may wrongly claim to have a particular nationality or to be
stateless. Where his nationality cannot be clearly established, his refugee status should
be determined in a similar manner to that of a stateless person, i.e. instead of the country
of his nationality, the country of his former habitual residence will have to be taken into
account.”
Canada’s Immigration and Refugee Protection Act (IRPA) defines a foreign national as “a
person who is not a Canadian citizen or a permanent resident, and includes a stateless person.”19
However, neither the IRPA, the Immigration and Refugee Protection Regulations (IRPR), nor
the Citizenship Act and its Regulations define the concept of statelessness.20 The inclusion of
stateless persons in the general category of ‘foreign national’ problematically categorises groups
of persons who do not have any nationality with those who have the nationality of a foreign
country.
Under Section 5(4) of the Citizenship Act, the Minister of Immigration, Refugees and Citizenship
(IRCC) has the discretion to grant citizenship to a person to alleviate cases of statelessness or
special and unusual hardship.21 In legislation adopted in June 2017, statelessness was specifically
added as a stand-alone ground that can be considered for a discretionary grant of citizenship.22 In
a recent decision23, the Court affirmed that applicants facing “special and unusual hardship” can
request an exemption from application and processing. This case is important as it will also pave
the way for stateless persons who make a humanitarian and compassionate application to request
this exemption.
Also in 2017, IRCC published a definition of statelessness and added to its guidelines on
humanitarian and compassionate (H&C) applications information for establishing proof of
statelessness, including what documentation and correspondence serves as evidence.24 IRCC
defines a stateless person as “a person who is not considered to be a national of any state under
18 Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol
relating to the Status of Refugees, UNHCR, 1992.
19 Section 2. Immigration and Refugee Protection Act, S.C. 2001, c. 27.
20 Erauw, G. Compatibility of the 1954 convention Relating to the status of stateless persons With Canada’s legal framework and
its International human rights obligations. (2015), 8.
21 Section 5(4). Citizenship Act, R.S.C., 1985, c. C-29.
22 Government of Canada. Bill C-6 Receives Royal Assent. (19 June 2017).
23 Tammie Lynn Mayes and Justice for Children and Youth v. The Minister of Citizenship and Immigration, Docket T-797-18.
For further information see:
http://www.nlstoronto.org/uploads/4/4/3/9/4439251/mayes_and_jfcy_re_minister_citizenship_order_re_fee_waiver_1.pdf
24 Government of Canada. Humanitarian and Compassionate Assessment: Statelessness. (11 July 2017).
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