2022
Statelessness & Citizenship Review
4(1)
founded fear of persecution on any grounds listed in the Refugee Convention.104
The rationale behind the inclusion of the notion was to afford stateless persons a
country of reference from which to claim refugee status, and the utility of the
notion is plainly servile to the question of protection.
At this juncture, it is relevant to note the synergy and cross-fertilisation between
the notion of a country of former habitual residence within the separate refugee
and statelessness regimes. While the definition of statelessness under the 1954
Statelessness Convention is formulated in the negative, and the definition of a
refugee under the Refugee Convention formulated, conversely, in the positive, the
separate regimes are both guided by similar humanitarian and protection
rationales. The former aims to identify, prevent and reduce statelessness by
protecting stateless persons with a core set of rights, and the latter to recognise
refugees and afford them, too, a core set of rights. Notably, under the statelessness
regime, the country of former habitual residence is one of several criteria that can
be used to establish a relevant link with a country of reference for stateless
children. As noted by UNHCR, other criteria include birth on the territory, descent,
marriage and adoption.105 Under the refugee definition, the notion of a country or
former habitual residence alone serves as the country of reference for the
assessment of risk for the refugee claimant. When conceiving of the synergy
between the regimes, it is relevant to note that similar indicia that inform a relevant
connection to a state for the purposes of a statelessness assessment may be relevant
to identify the notion of a country of former habitual residence as it concerns
children, such as the shared parent–child aspect through descent and adoption.
Such indicia will be elaborated upon in the sections that follow.
In sum, what may be distilled from this Part is that the rationale behind
including the notion of a country of former habitual residence in the refugee
definition was to afford stateless persons a country of reference from which to
claim refugee status, and the utility of the notion is plainly servile to the question
of protection. It is not a stand-alone notion in the refugee definition, as it serves as
a medium through which core definitional components, such as the nature and risk
of being persecuted, fall to be assessed. Rather like a mirror, these integral
components reflect back the country of reference — here, the country of former
habitual residence. It follows that such definitional components inform the
baseline indicia for the notion of a country of former habitual residence, which,
historically, have been conceived from an adult-centric perspective. The next Part
carefully discerns definitional indicia that are integral to the notion and may
usefully inform a child-sensitive interpretation.
V
NO REQUIREMENT OF HAVING RESIDED IN THE TERRITORY IN ORDER TO
SATISFY REFUGEE CLAIM
The intensely fact-specific nature of the inquiry into a country of former habitual
residence has meant that state parties, on the whole, have adopted a relatively fluid
interpretation of the notion. This is notwithstanding, as indicated previously, a
core definitional ingredient shared in their jurisprudence — that an individual must
104 Kadoura v Minister of Citizenship and Immigration [2003] FC 1057 6–7 [14]; Koe (n 84)
358–61. See also Foster and Lambert (n 17) 119, who eschew any ‘excessive focus’ on
whether an individual is stateless, detracting from the core focus of whether such individual
has a well-founded fear of being persecuted.
105 UNHCR Handbook (n 12) 35 [92].
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