Legal briefing: Statelessness and the right to respect for private and family life October 2024 laws, but rather be informed by consultations with and written confirmation from the State in question of the nationality status of the person concerned.7 A State’s response to an enquiry is also not the end of that enquiry as statelessness requires an analysis of how the competent authorities apply the law in practice in a specific case (including any arbitrary discriminatory practices of the competent authority).8 UNHCR’s guidance provides that “where the competent authorities treat an individual as a non-national even though he or she would appear to meet the criteria for automatic acquisition of nationality under the operation of a country’s laws, it is their position rather than the letter of the law that is determinative in concluding that a State does not consider such an individual as a national”.9 A distinction between de jure and de facto statelessness is not made in this briefing, as it is not relevant for the purposes of determining whether a person is stateless under the 1954 Convention.10 The term ‘de facto stateless’ is not defined in international law and it is recommended to avoid it. Some States have used broader interpretations of the term to unduly exclude from protection persons who are stateless under Article 1(1) of the 1954 Convention. The use of terms such as ‘de facto stateless’, including to describe a person who should be considered as a national in accordance with a State’s law but is not in practice recognised as a national under the operation of that law, is based on a misinterpretation of the definition of statelessness and creates a risk that States will avoid their obligations under the 1954 and 1961 Conventions. The relevant factor is whether the State recognises in practice the individual as its national, regardless of whether the authorities properly applied national legislation and complied with the rule of law. The aim and purpose of the statelessness conventions is the protection of stateless persons and prevention of statelessness, even when statelessness results from another State’s violation of national or international law. 1.2. The rights of stateless persons in international law Most European States have international obligations to protect stateless persons under core conventions they are a party to. Under the 1954 Convention, States that are Party to the Convention must ensure that stateless persons are granted access to several rights, depending on their degree of attachment to the State. This ensures that stateless persons, particularly those in migration, are granted protection by their host country. Some rights are applicable to any individual who satisfies the definition of stateless person and is either subject to the jurisdiction of a State party or present in its territory 7 UNHCR, Guidelines on Statelessness No. 5 (no 11), paragraph 81. Previously, the ECtHR has placed reliance on UNHCR guidelines, as seen in ECtHR, M.S.S. v. Belgium and Greece, (application no. 30696/09), 21 January 2011, paragraph 295. 8 UNHCR, Handbook on Protection of Stateless Persons, 30 June 2014, paragraph 23. 9 UNHCR, Handbook on Protection of Stateless Persons, 30 June 2014, paragraph 37. 10 UNHCR, Handbook on Protection of Stateless Persons, 30 June 2014, paragraphs 7 and 23. See also e.g. de Chickera, A. and van Waas, L., ‘Unpacking statelessness’ in Bloom, T., Tonkiss, K. and Cole, P. (eds.) Understanding Statelessness, London: Routledge (2017), pp. 53-69; World Bank Group, Bronwen Manby, Identification in the Context of Forced Displacement, Identification for Development (ID4D) (June 2016), p. 28; Manby B., ‘Schrödinger’s Citizenship, Framing Perspectives for the Resolution of Statelessness’, The Statelessness & Citizenship Review, 6(1), 5-37 (2024). 4