4.
RISKS AND CHALLENGES IN IMPLEMENTING SDPs
4.1.
Determining statelessness and refugee status
Statelessness can be both a cause and a consequence of forced migration.81 Many
refugees come from countries where discrimination in nationality laws, state
succession, or deprivation of nationality practices, can mean they or their children
are stateless or at risk of statelessness.82 Statelessness can be critical at different
stages of the asylum process, affecting the assessment of a claim for international
protection as well as access to family reunification, resettlement, and inclusion
measures (as well as the possibility of return), because stateless people are unlikely
to have documentary proof of their identity and family links.83 It also affects the
nationality rights of children born to refugees. Stateless people are at risk of
discrimination and rights violations if their statelessness is not identified and acted
upon within international protection procedures.
If a stateless person applies for asylum, it is important to determine both their
claim for international protection and their claim of statelessness. Each application
should be assessed and both types of status should be explicitly recognised so that
even if international protection ceases, the person remains entitled to protection
as a stateless person.84 This also helps to prevent arbitrary or unlawful detention,
which can occur if a stateless person, who has no country to which they can return,
is refused international protection (or their protection status ceases), and their
statelessness has not been identified and determined.85 It also enables States to
comply with their international obligations to prevent and reduce statelessness,
including to ensure all children born on the territory who would otherwise be
stateless acquire a nationality,86 and to facilitate the naturalisation of stateless people
on their territory.87
Statelessness determination should be conducted either in parallel with or following
the refugee status determination, with due regard to the primacy of the asylum
claim and the principle of confidentiality for refugees in statelessness determination
procedures.88 In practice, this means that all SDP applicants should be informed of
the importance of raising potential refugee-related concerns, and States must not
disclose the identity of a refugee or asylum-seeker to the authorities of countries
with which they have a link. If enquiries with authorities that could compromise
confidentiality are required to determine an applicant’s statelessness, the
statelessness claim should be suspended until the refugee status determination is
concluded.89
4.2.
Improving awareness and identification of statelessness
To improve the identification of statelessness and referral to SDPs to enable States
to comply with their international obligations, frontline officials must be trained
to identify and record statelessness and make appropriate referrals to relevant
procedures.90 Asylum, immigration, civil registry, and other public officials often
lack the awareness, information, and capacity needed to identify statelessness and
take appropriate action. If statelessness is missed or nationality is mis-recorded, it
can present obstacles and barriers that later lead to human rights violations. States
are therefore recommended to cooperate with UNHCR,91 civil society, and stateless
activists and community representatives to provide adequate training and resources