The UNHCR Guidelines on Statelessness No.5: Loss and Deprivation of Nationality

Bronwen Manby (London School of Economics). The author wishes to thank Rainer Bauböck (GLOBALCIT), Alison Harvey (No.5 Barristers’ Chambers, London), Christophe Paulussen (Asser Institute), and Laura van Waas (Institute on Statelessness and Inclusion) for their comments on drafts of this text.

In May 2020, UNHCR released its long-awaited Guidelines on Statelessness No.5: Loss and Deprivation of Nationality under Articles 5-9 of the 1961 Convention on the Reduction of Statelessness.  The new Guidelines represent the official UNHCR position on the obligations of states to avoid statelessness as they deprive a person of nationality (by executive act) or provide for its loss (automatic, if certain conditions are fulfilled). 

If the new Guidelines had been adopted a decade or so earlier, they would have appeared to be of largely academic interest, since deprivation of nationality had been little used for several decades (though already creeping up the international agenda). In the contemporary context, however, where deprivation of nationality has increasingly been deployed by states as a tool against those accused of terrorism, they are of immediate practical importance. It is important, therefore, that the Guidelines highlight the constraints on states, including the following key interpretations of state obligations:

  • The prohibition of arbitrary deprivation of nationality (first set out in the Universal Declaration of Human Rights, UDHR) covers not only formal invocation of deprivation powers established by law, but also situations of discriminatory refusal to recognise an individual or group as a national or nationals (paragraph 9).
  • Procedures that place the burden of proof solely on the individual to prove that statelessness would follow deprivation are not consistent with the obligation to determine whether statelessness would result from a state’s decision. This assessment should not be made on the basis of one state’s interpretation of another state’s nationality law but rather should be informed by consultations with and written confirmation from the other state (paragraphs 45 and 81). That is, statelessness is (as the first set of Guidelines noted) a “mixed question of fact and law”, and thus it is the relevant state’s own interpretation of its law that is important, even if that interpretation appears on the face of it to diverge from the literal meaning of the relevant provisions.
  • Deprivation of nationality on grounds of misrepresentation or fraud is not permissible if the nationality would have been acquired even if the misrepresentation had not occurred. Fraud or misrepresentation in the acquisition of nationality should also be distinguished from fraudulent acquisition of documents, as persons may in certain situations be forced to obtain documents by irregular means even if they have a legal entitlement to them (paragraph 51).
  • Deprivation on the grounds of conduct that is inconsistent with a person’s duty of loyalty and is “seriously prejudicial to the vital interests of the state”, is permitted under the Convention in very limited circumstances even if the person becomes stateless, but only if already provided in law and a declaration is lodged at the time a state ratifies the Convention. The Guidelines emphasise that the conduct covered by this exception must “threaten the foundations and organization of the State whose nationality is at issue”, and that the person must already have committed the relevant acts – that is, deprivation cannot be used preventatively (paragraph 61).
  • In making decisions to deprive a person of nationality, States must consider not only their own national security, but also their obligations to cooperate in the investigation and punishment of terrorist acts and in the maintenance of international peace and security. Deprivation of a person’s nationality while he or she is outside of the country may increase security risks in another state, in contravention of these principles (paragraph 67).
  • The right to a fair hearing is unqualified and applies to any decision to deprive a person of nationality. Where alleged criminal conduct is the basis for the deprivation of nationality, there should first be a finding of guilt by a criminal court, followed by a hearing on deprivation (paragraph 73). The minimum content of the prohibition of arbitrary deprivation of nationality is that the provisions on deprivation are established by law, deprivation is proportionate to a legitimate purpose, and the procedure follows a due process (paragraphs 92-108).
  • A decision to deprive a person of nationality while outside the country is unlikely to respect the right to a fair hearing. The Guidelines go on to state that, “If a State nevertheless seeks to deprive a person’s nationality in absentia, it should seek a court’s endorsement that deprivation of nationality in absentia is strictly necessary to avoid risks to national security posed specifically by the presence of the person concerned within the State, and that such risks cannot be mitigated through alternate means” (paragraph 104).
  • The 1961 Convention “must be read and interpreted in light of additional obligations that Contracting States have under other treaties to which they are party, as well as those they have as a matter of customary international law” (paragraph 7). Thus, states must adhere to their obligations under customary international law and in relevant treaty provisions, in particular in relation to non-discrimination, non-refoulement, the prohibition of torture, the right to leave one’s own country, the right to enter one’s own country, and the right to private and family life (paragraphs 109-123).

The 5th set of Guidelines completes a series of which the first four were published in 2012: on the definition of stateless person, on statelessness determination procedures, on the status of stateless persons at the national level (together compiled into the Handbook on Protection of Stateless Persons, published in 2014 ), and on ensuring every child’s right to acquire a nationality.  The latest Guidelines update and expand the report of an expert meeting held in Tunis in 2013, resulting in the Tunis Conclusions on loss and deprivation, published in 2014. The delay has been caused partly by personnel changes within UNHCR’s statelessness section, and, no doubt, by the increasing sensitivity of the subject among the states that provide UNHCR’s funding. The delay has also made the adoption of a robust position more challenging; statements that might have been uncontroversial at the turn of the century are now more likely to be viewed as directed at the behaviours of particular states.

One challenge faced in drafting these Guidelines is that (like the others) they are an interpretation of a treaty – the 1961 Convention – that was adopted before the current framework of international human rights treaties had been put in place. The only existing global human rights document was the Universal Declaration of Human Rights, a non-binding statement of principles (although the European Convention for the Protection of Human Rights and Fundamental Freedoms had been adopted in 1950; while the American Declaration of the Rights and Duties of Man also dated from 1948, six months earlier than the UDHR). While the 1961 Convention places minimum constraints on state discretion that were not included within the 1930 Convention on Certain Questions relating to the Conflict of Nationality Laws, statelessness was still analysed in a context that emphasised the “sovereignty and internal jurisdiction dimensions to nationality” rather than the rights of the individual. The provisions of the 1961 Convention are in some respects not in compliance with subsequent human rights treaties and their interpretation, as well as customary international law. For example, the Convention envisages the automatic loss of nationality by a spouse or child if the other spouse or parent is deprived, or on adoption of a child by a foreign parent, as well as discrimination based on birth in or out of wedlock (Articles 5 and 6), provisions in violation of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the Convention on the Rights of the Child (CRC).

The Guidelines address this problem directly, stating that the Convention must be “read and interpreted in light of additional obligations that Contracting States have under other treaties to which they are party, as well as those they have as a matter of customary international law” (paragraph 7). At relevant moments in their discussion of the specific provisions of the Convention they draw states’ attention to their obligations under CEDAW (paragraphs 17 & 29) and the CRC (paragraphs 18, 20 & 29); while the final part of the Guidelines is devoted to the right to nationality and the prohibition of arbitrary deprivation of nationality in international law generally (paragraphs 84 – 123).

Nonetheless, there are places where the Guidelines state that it is merely “good practice” rather than an obligation, for states to take steps to avoid the creation of statelessness (in situations where the 1961 Convention has exceptions to the general rule).

For example, Article 7 of the 1961 Convention provides that a naturalised citizen may lose nationality if he or she has resided abroad for a period of seven years, even if statelessness results. The Guidelines state that it is “a matter of good practice” that the individual concerned should at least have permanent residence in the other country, with the right to seek naturalisation there (paragraph 35). The Guidelines go on to emphasise the importance of the principle of proportionality in considering loss in these circumstances (paragraph 37-38).  I would argue that the result of applying the principle of proportionality in this case is that good practice must always be followed.  In another example, the Guidelines state that “As a matter of good practice, domestic legislation on withdrawal of nationality should, at a minimum, have safeguards equivalent to those found in the 1961 Convention” (paragraph 92); whereas international human rights law should rather establish the minimum level of protection.  There are other examples. UNHCR no doubt felt constrained by state expectations in finalising the Guidelines, but in some cases it could have taken a more robust line. This language of “good practice” is not found in the preceding Guidelines Nos.1 – 4.

The Principles on Deprivation of Nationality as a National Security Measure published earlier this year provide a more robust analytical framework.  They represent a civil society initiative responding to the increased use of deprivation for national security reasons, and were developed through an extensive research and expert consultation process led by the Institute on Statelessness and Inclusion and Open Society Justice Initiative, with support from the Asser Institute and Ashurst LLP. In relation to “legitimate purpose”, for example, they specifically exclude deprivation of nationality for the purposes of punishment, facilitating expulsion or preventing entry, or exporting the function and responsibility of administering justice to another state. They comment that “Regardless of the stated purpose, any punitive impact incurred by deprivation of nationality is likely to render this measure incompatible with international law”.

Nonetheless, it is important that the UNHCR Guidelines No.5 are finally published, and can be invoked in national court proceedings, providing litigants and judges with a resource to rely on in interpretation of the obligations established by the 1961 Convention in relation to loss and deprivation. The emphasis on procedural due process, including in the determination of statelessness, is particularly welcome.