Statelessness and the Right to Nationality: Developing a Determination Procedure in Nigeria

Solomon Oseghale Momoh (Utrecht University). This blog introduces some of the main ideas in his PhD thesis, recently defended at Utrecht University, The Netherlands. The opinions expressed in his dissertation and in this blog do not purport to reflect the opinions or views of the UN.

The problem

In my dissertation, I first discuss the risk and issues around statelessness and the establishment of legal identity in Nigeria. Those most at risk are children born to foreign parents within the territory of Nigeria who would otherwise be stateless, foundlings and children adopted in Nigeria whose nationality is unknown or unclear, foreign men married to Nigerian women, persons in the territory of Nigeria who hold no nationality or citizenship of another country, border populations including the people of Bakassi affected by the 2002 ICJ judgement ceding Bakassi to Cameroon, Almajiris, nomads and displaced populations with no form of identity document. Some of the challenges associated with statelessness relate to denial of access to education, medical services, banking, the right to vote, travel documents, and birth certificates.

I then identify gaps in law and policy – in particular, the right to nationality under the Nigerian Constitution (see Chapter III on citizenship) and other relevant Nigerian legal and policy instruments relevant for the identification and prevention/reduction of statelessness, such as the Child Rights Act, Nigeria Immigration Act, and the National Action Plan to End Statelessness in Nigeria – which, together with the absence of a statelessness determination procedure (SDP), expose many in Nigeria to the risk of statelessness. These gaps include the lack of nationality protection safeguards in Chapter III of the Constitution and the 2003 Child Rights Act for foundlings and children adopted in Nigeria, especially those whose nationality is unknown. Other issues relate to gender discrimination in the Constitution, especially with regard to the inability of women to transmit nationality on an equal footing to men (specifically to foreign husband), ethnic discrimination, and the use of ambiguous terminology in chapter III of the Constitution. Another gap is the absence of standalone citizenship legislation to give clarity to the procedure for acquiring Nigerian citizenship and, as a consequence, the absolute power given to the Minister of Interior under the 2015 Immigration Act to determine the nationality of any person in Nigeria, including declaring a person a ‘prohibited immigrant’ for deportation without recourse to the courts. Since the repeal of the 1960 and 1961 Nigerian Citizenship Acts through the Constitution (Amendment) Decree of 1974, Nigeria has not had a citizenship implementing legislation, meaning that access to Nigerian citizenship is regulated solely under Chapter III of the Constitution.

In practice, statelessness cases in Nigeria are handled within the existing asylum system, which is tailored only for asylum claims. The absence of an SDP or nationality verification mechanism in Nigeria makes it difficult for stateless persons to present a claim before the authorities to be recognised as stateless. For a stateless person with an asylum claim in Nigeria, the National Commission for Refugees, Migrants, and Internally Displaced Persons (NCFRMI) will assess their application under its Refugee Status Determination (RSD) procedures and grant them refugee status. The grounds for these asylum claims are set out in the 1951 Refugee Convention (i.e. a well-founded fear on ground of race, religion, nationality, membership of a particular social group, and political opinion) and the OAU Refugee Convention (i.e. external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of their country of origin or nationality). While for asylum claimants these grounds may provide a certain degree of protection, persons at risk of statelessness who do not have an (effective) asylum claim cannot avail themselves of protection against statelessness under domestic law in Nigeria.

Setting standards

To evaluate the existence of effective statelessness determination procedures in Nigeria, I formulate assessment criteria based on international standards and an assessment of best practices identified in other jurisdictions in Africa, Europe, and the Americas, especially states with effective Statelessness Determination Procedures (SDPs). These standards pertain to identification and prevention/reduction norms. The specific criteria formulated include: (a) legality and binding nature of SDP, (b) structure and location of SDP, (c) access to procedure (d) procedural guarantees, (e) assessments of facts, (f) management of combined refugee and stateliness claims, (g) prospect for naturalisation, and (h) review and appeal of decision.

Using the theory of legal transplant, I identify how legal, administrative, and institutional norms for protection, prevention and identification of statelessness can be transplanted or adapted by existing institutions in the country, bearing mind difference in legal cultures and factors that could facilitate or obstruct the transplant of SDP norms.

The selected reference states include Brazil, France, Ivory Coast, Moldova, Paraguay, and the United Kingdom, all known to have a statelessness determination procedure, as well as the Netherlands, known for its alternative procedure. While the Dutch alternative measure does not translate into protection of statelessness persons in the Netherlands, I referenced the Netherlands to determine the extent to which an alternative method of identifying stateless persons and keeping record of persons who are stateless may provide a useful reference point for Nigeria, given the absence of a formal SDP.

Assessing practice

The practices in these states with formal SDPs, or in the case of the Netherlands an alternative procedure, were assessed against the standards and criteria mentioned above. When doing so, I identified several gaps in existing statelessness determination procedures in these States. Beyond idiosyncratic challenges in specific national context, I highlight here the three most problematic issues.

First, most countries require foreigners, including stateless persons, to legally enter and reside in their territory before they can have access to naturalisation. For example, the UK Home Office’s Nationality: Good Character Requirement prevents the naturalisation of persons, including stateless persons, who irregularly enter the UK within the 10 years preceding an application for citizenship. I argue that the exceptions given to refugees in this context should also be applied to stateless persons.

Second, most states do not allow expedited naturalisation for stateless persons. Apart from Brazil’s Decreto nº 9.199, de 20 de novembro de 2017, whose Article 99 allows stateless persons to access naturalisation within 30 days of recognition of their statelessness, other states do not grant immediate access to naturalisation. In line with Article 32 of the 1954 Convention Relating to the Status of Stateless Persons, I argue that stateless persons should have expedited naturalization proceedings and that states should ‘reduce as far as possible the charges and costs of such proceedings’ as a more durable solution for their situation.

Third, unlike in asylum procedures, most States do not provide as many protective safeguards to statelessness status applicants whose application is still pending with the authorities, especially protection against deportation. This means that, in some situations, applicants for statelessness status could be deported from these states even when their application is still pending. One example is France, where although an applicant whose stateless application is rejected has a right of appeal to the Administrative Court, such appeal cannot suspend the deportation order. I therefore argue that pending decision of an appeal challenging the decision rejecting an application, an applicant should be allowed to remain in the territory of the host State and enjoy some protection.

A proposal

Drawing on the analysis of existing challenges across a variety of national contexts, I finally develop recommendations on how states like Nigeria can improve their approach to statelessness. I suggest that the government should incorporate the 1954 Convention Relating to the Status of Stateless Persons and 1961 Convention on the Reduction of Statelessness into domestic law and, more importantly, make legislative provision for an SDP to avoid the challenges associated with statelessness. The proposed SDP should include a procedure for nationality verification for the many in situ populations at risk of statelessness.

The dissertation also recommends the amendment of the Constitution and/or adoption of citizenship legislation to clarify the ambiguous terminology used in the citizenship chapter of the Constitution and the modalities to acquire Nigeria citizenship. Moreover, it recommends the designation of a government body to be charged with responsibility for protection, identification, and prevention of statelessness, including dissemination of data on statelessness.

I end my dissertation by proposing a bespoke SDP for Nigeria, using international law standards and the evaluation of existing state practice. While insights from the study of legal transplant warn us not to underestimate the difficulties associated with importing legal norms from one context into another, I identify some concrete good practice examples and explain how these can realistically be implemented and adapted by existing institutional and administrative structures in Nigeria. For instance, I discussed how Nigeria can leverage on existing national identity framework, without replicating such institution, including existing institution responsible for determining Nigerian citizenship and access to naturalisation amongst other. In doing so, I hope my study contributes to ensuring that a greater number of people will be able to enjoy the rights to which they are entitled until they acquire a nationality.

Featured image: David Rotimi