Day 2 of the Conference Brings Major Results

Guterres to countries: "Nice work, y'all!"

Its still too soon to judge, but it would appear that the UNHCR conference in Geneva this week was a huge success in garnering increased protection of stateless persons and refugees. Its pretty shocking, actually, how many states were willing to pledge to change their citizenship laws, accede to the Statelessness or Refugee Conventions, or to make asylum procedures or court proceedings more fair. I'm guessing UNHCR staff are asking themselves right now, "Why didn't we do this years ago?"

Let's take a look at some of the big announcements coming out yesterday:

•  The following nations will accede to BOTH statelessness conventions (1954 and 1961) : the Gambia, Haiti, Moldova, Sierra Leone, South Africa, South Sudan, Tanzania, Ukraine, and Yemen. Remember, 1961 confers citizenship on children born stateless in the signatory nation, so this is truly very significant.
•  Serbia joined the 1961 Convention (HUGE) as did Zimbabwe, Columbia, Paraguay, Mozambique, Burundi, Guinea, and Belgium.
• Liberia and Senegal both pledged to amend their laws to allow citizenship to pass through the mother, as well as the father. (A huge strike against statelessness and legal invisibility in those nations.)
• The US made a whole range of pledges, totaling 28, including providing refugee minors with cultural education, working to eliminate the 1-year filing deadline on asylum applications, promote pro-bono legal assistance for undocumented migrant youth, and provide additional services to LBQT asylum seekers and survivors of gender-based violence.
• Australia, Brazil, and 6 other countries pledged to improve methods of identifying stateless population. (Wow, way to go all out there, Australia. Would have liked to see some pledges on the asylum-seeker debacle, but maybe next time)

All in all, over 60 countries made pledges, and as High Commish Guterres noted, the conference marked a "quantum leap" on the issue of statelessness. Despite the very hard work being done on the issue all over the world by smaller agencies and non-profits, today's results are of the sort that can only be accomplished with massive coordination and international pressure. A conference like this shows us that its not time to give up on international cooperation just yet.

Congratulations, UNHCR! The future is looking a lot brighter for stateless persons and refugees.

Landmark Stateless Conference in Geneva this Week

As mentioned a few weeks ago, the UNHCR is holding its major conference on forced displacement and statelessness this week in Geneva. Today is the second day of the conference, and of course we are all eagerly waiting to hear what is in store (and especially whether any states will be making announcements pertaining to Treaty signatures). However, a lot has already happened, so here is a quick recap for those of us not lucky enough to be in Geneva.

•  High Commish Antonio Guterres opened the event with a speech emphasizing re-commitment, especially in the face of increased fear and intolerance. "Populist politicians and irresponsible elements of the media exploit feelings of fear and insecurity to scapegoat foreigners, to try to force the adoption of restrictive policies, and to actively spread racist and xenophobic sentiments," he said, in a comment that was a little more political than one is used to hearing from UNHCR. He emphasized the principles of collective security and non-refoulement that underlie the refugee regime, and announced a new effort by the organization to concentrate more heavily on gender and sex-based violence.
• A theme of the conference was "pledges for refugees:" States were encouraged to make commitments to strengthen existing laws or create new ones designed to identity and protect stateless persons and refugees. Most of the attendees apparently pledged to help in one way or another. (See some on twitter, #pledges4refugees")
• Sarnata Reynolds was live-tweeting the events yesterday and her tweets are definitely worth a perusal. Among the revelations: Georgia is about to pass the 1951 Statelessness Convention (YES!), Korea will adopt legislation promoting rights of asylum-seekers, Papa New Guinea will lift reservations on conventions (among other things), and Krygistan will promote child registration to reduce statelessness. If even some of the pledges are kept, the conference will have been a huge success!
• Serbia mysteriously alluded to new changes to the citizenship laws that would "enable all persons in Serbia’s territory to acquire citizenship". I'm working on this issue right now, so I am very curious to what they are referring... Remarks available here.
• U.S. Secretary of State Hillary Clinton gave a speech focusing on gender and statelessness, highlighting the link between discriminatory citizenship laws and children born stateless. "Because of these discriminatory laws, women often can’t register their marriages, the births of their children, or deaths in their families. So these laws perpetuate generations of stateless people, who are often unable to work legally or travel freely..."  She then went on to pledge the US's support in encouraging universal birth registration. Oh man, if loving Hillary Clinton is wrong, I don't want to be right. (Full text of speech available here.)

The conference continues today! You can follow it live via satelite here at the UNHCR's livestream.

South Africa: Legal Changes Hurt Asylum Seekers

It's another case of a huge backlog of asylum seekers persuading the government to make decisions that are not well thought out.

South Africa has a huge number of asylum seekers- UNHCR estimates just under 230,000- most of whom originate from Zimbabwe, supplemented by others from the Great Lakes region and the Horm of Africa. Starting in 2009, (perhaps overwhelmed by the numbers) the South African government took a generous policy towards Zimbabweans fleeing Mugabe's regime. Under a "special dispensation," refugees were entitled to remain in S.A. for 6 months, seek employment, and take advantage of educational and healthcare opportunities while their asylum applications were being processed, all without any form of documentation. (Although the dispensation was designed to assist Zimbabweans, as you might be able to guess, the "no documents" feature enabled a range of different nationalities to take advantage of the law.)

Now the government is back-tracking, concerned that economic migrants are abusing a system designed to protect "real" refugees. The department of Home Affairs has resumed deportations, and in the following weeks they will launch an inquiry to the minimum rights asylum-seekers are entitled to, and likely lift the dispensation for Zimbabweans as well as block rights to education and employment. The result could be thousands of asylum seekers in legal limbo, awaiting the outcome of their asylum application while unable to work or study. These developments, in conjunction with harsh announcements from the government and the closing of two refugee facilities, seems to signal a shift towards a harsher asylum regime in South Africa. As one government spokesman stated:

"South Africans must feel safe. If we're not able to control our illegal immigration, people won't feel safe."

It is understandable that providing education and/or employment for thousands of refugees is a costly measure. But the opposite can be ultimately be more expensive: thousands of individuals awaiting the outcome of their claim, turning to begging, crime, or black market employment to make ends meet. Which option do you think is safer for the people of South Africa? And in the event that the move forces massive returns to Zimbabwe as some fear it might, there is the question of whether S.A. is meeting its treaty obligations, particularly as pertains to non-refoulement.

In the end, the real question for South Africa is: is there a middle ground between all or nothing for Zimbabwe's asylum seekers?

Non-Citizen News Roundup

Photo via AP

Israel: On Sunday, hundreds of immigrants and allies protested at the Israeli Immigrant Absorption Ministry after a recent government recommendation to reduce the number of Ethiopian Jews accepted monthly as part of aliyah. The idea comes at a time when the government claims it is having trouble keeping up with the pace of immigration and assimilation needs. Opponents of the plan claim that there are already close to 4,000 recognized Ethiopian Jews waiting to immigrate and that the Government is looking for excuses to avoid its obligations. (There's probably a little truth to both positions.)
Ethiopians Protest Govt's Proposal to Reduce Aliyah (via Jerusalem Post)

UK: The United Kingdom is getting some increased (and probably unwanted) attention in the wake of a new report by UNHCR describing the legal limbo that stateless persons there live in. Many have been denied asylum or any right to remain, but are also un-deportable because no country will accept them. Therefore, they live on the street or hang out in detention centers- not a good situation.
Mapping Statelessness in the UK (via UNHCR)
What its like to be Stateless in Britain- Nischal's Story (via Alertnet)

Australia: Shockingly, Australia has more asylum trouble this week, as 3 Kurdish aslyum-seekers have sewn their lips together in the wake of having their asylum applications denied. Due to the fact that the young men are stateless, they cannot be repatriated anywhere and instead have remained in detention for between 18 and 22 months each. Much like the UK problems described above- it sounds like governments are going to need to reevaluate how they handle non-deportable stateless persons- endless detention and legal limbo are not the answer!
3 Kurdish Men Sew lips together in Protest (via Courier Mail)
Asylum Seekers sew lips together in Australia Protest (via AsiaOne)

Is it a good thing? Sweeping changes to US ICE

The NY Times is reporting  that they have obtained a document describing the new immigration priorities policy that Homeland Security will kick off this week- and it is a big deal, effecting some 300,000 cases. Let's break it down.

The policy will be aimed at instructing all actors in the deportation process- from immigration agents, to judges, to prosecutors- to streamline their cases to fit the following priorities: close out cases of non-dangerous undocumented immigrants, and speed up deportations of criminals. According to the Times, the policy is intended to:

scale back deportations of illegal immigrants who were young students, military service members, elderly people or close family of American citizens, among others.

For immigration agents, this means releasing (or perhaps not catching in the first place) people that are not dangerous criminals, repeat offenders, or national security risks. For prosecutors, this means exercising discretion in which cases to bring before the judges. And for judges, this means a more lenient approach to immigration law violators. Sounds like a good deal, right? Particularly in comparison to the heavy-handed approach the Obama administration has taken in ordering over 400,000 deportations (the most of any President in recent memory) in each of the first three years of his presidency. Perhaps that was an effort to clear out the courts to make way for this more liberal policy?

However, there is still much to be concerned about. I visited an immigration detention facility not  long ago, where most individuals held were repeat offenders or criminals. However, the most frequent crime was "loitering," that is, dwelling outside of a hardware store or similar, waiting for work. Will the new policy consider people like this to be deportable?

In addition, while Homeland Security pushes a discretionary, flexible approach, the states are in some cases pushing the opposite message. Alabama, Georgia, Arizona and other states have laws on the books making police officers responsible to some degree for enforcing immigration laws- will they also get the memo that passing non-violent undocumented youth into federal hands is likely to lead to an eventual release? And which level- state or federal- is more likely to have the more immediate impact on immigrant's lives?

At the end of the day, the mish-mash of approaches taken by the US government in the last few decades leads to fear and confusion among immigrants primarily, but also to ample confusion among the law enforcement professionals meant to interpret these laws and policies on every level. It is encouraging to see the Obama administration taking the heat off non-criminal and youth immigration law violators, but until we see Comprehensive Immigration Reform it seems hard to believe that everyone that needs to know will get the message.

US to Review Cases Seeking Deportation (via NY Times)

UNHCR to host major summit on statelessness

UNHCR announced yesterday that they would hold a major summit in Geneva on December 7th and 8th on the topic of statelessness and forced displacement, calling it "the diplomatic centerpiece" of the year.

Adrian Edwards, UNHCR spokesperson, announced that major government representatives from many countries would attend, as well as at least one head of state (probably not Berlusconi, sadly) and that there would be a "treaty signing event". Given that the major treaty focus of the year is the 1961 Convention on the Reduction of Statelessness, it seems we can hope for some additional accessions. Of course, there are still plenty of countries that have not signed the Refugee Convention (coughASIAcough) so that could be another focus.

So, in one month are we going to see some major advances on statelessness and displacement? Let's hope so! Wish I could snag an invite....

UNHCR to host international meeting on world's stateless, forcibly displaced

Greece: The pressure is on to fix a failing aslyum system

Asylum seekers wait in Greece, photo by Moises Saman

 In addition to the problems Greece's government seems to be having of late with corruption, there are several factors compounding their migration woes. On the one hand, the border between Greece and Turkey is the main entrance point for people fleeing to Europe, making Greece a reluctant EU gatekeeper (alongside a disincentivized Turkey.) On the other hand, you have Dublin II which makes it EU policy to send asylum seekers back to their first entry point in the Union to be processed. In other words, even if plenty of people make it out of the country, Greece can't realistically escape from being a major asylum-seeker center.

The government currently has a giant backlog of asylum applications, a small percentage of which have a chance of being reviewed any time soon if past numbers are anything to go by. As of January 2011 , UNHCR set the number of asylum seekers at over 55,000, and rumor has it that a many people have been waiting more than 10 years to be reviewed. In January the government promised to streamline procedures and set deadlines for decisions, but its not clear that much progress has been made. The events of the last few weeks suggest that the problem is actually getting worse.

On October 26, UNHCR called for a monetary intervention on the border in language that pretty clearly accused the government of wrongdoing (and possibly torture?)

The humanitarian situation on the Greek side of the border is critical, with large numbers of persons detained in extremely difficult conditions, as recently highlighted by the UN's Special Rapporteur on Torture Mr. Manfred Nowak after a visit to the area. Shelter, medical care and psycho-social support are all needed in this situation.

In addition, the press release implied that the current asylum in procedure in Greece is unavailable to most asylum seekers and unable to identify individuals at risk of refoulement.

Quickly coming to the rescue, Norway announced on November 3rd that they would inject 160 million kroner (c.a $28 mil) into Greece's asylum system, to be funneled through the UN. The Memorandum of Understanding, which also involved IOM and other NGOs in Greece, apparently targets the funds for reception centers, in particular for health care for arrivals.

But in the meantime, those asylum-seekers who have been residing in Greece for the last decade face legal limbo, discrimination, and arbitrary procedures. According to a press release this week from the Greek Council for Refugees, there have been recent mass arrests in Athens, leading to abbreviated asylum procedures that violate Greece's own procedural safeguards. It seems that these actions were an attempt to speed up procedures after recieving so much negative attention for their backlog. However, I think the Greek Council for Refugees puts it best:

The attempt of the Ministry of Citizen’s Protection to complete the asylum procedures of as many asylum seekers as possible in the briefest possible time period is obvious. But these actions must not only be aimed at finalizing the procedure but they should be in accordance with the law and protect these people and their rights.

Non-Citizen News Roundup

Dia de los Muertos in Mexico City

Mexico: Maybe its not strictly relevant, but it is timely: Brujas and Brujos in Mexico find themselves in high demand for problems related to drug cartels. Some witches charge for protection from extortion, or use their senses to find a missing kidnapped relative. And its not just victims turning to the craft: some of the wizards and witches report visits by cartel members and police officers as well.
Mexicans turn to witchcraft to ward off drug cartels (via NY Times)

Australia: Sad news this morning as a capsized  boat carrying asylum seekers left at least 8 dead and 10 still missing,. The boat carried some 70 Iranian, Afghan, and Pakistani asylum seekers determined to make the passage from Indonesia to reach Australia's shores. The incident is causing a big rehashing of the Malaysian swap deal. As Immigration Minister Chris Bowen stated, "it is a fact that when you have more boats coming to Australia you will see more deaths." (So it's either flout the 1951 Convention OR death at sea? Is there possibly a third option?)
10 asylum seekers still missing off Java  (via Sydney Morning Herald)
Australia shock at asylum boat tragedy off Indonesia (via BBC)

Croatia: At a meeting in Zagreb on birth and civil registration, the UNHCR urged Southeastern European countries to accede to the 1961 Convention on the Reduction of Statelessness. Currently, both Croatia and Bosnia and Herzogovina have acceded, but many other nations in the region have not. Among other protection, the 1961 convention provides that a child born in the country who would otherwise be stateless receives the nationality of the birth country. The UNCHR argued this would help the plight of the region's Roma, who currently represent a majority of the stateless and legally invisible. I couldn't agree more.
UNCHR drives effort to reduce statelessness in Southeast Europe (via Alert Net)

Two New Lawsuits Shed Light on Immigrant Injustice in the States

On the same day last week two major non-profit organizations filed suit in the US over fairly shocking circumstances relating to immigrants and refugees. If they win, we could see some excellent new case law on immigrant rights. Here's a quick run-down.

Florida Tuition Inequality
In Ruiz v. Robinson (complaint) the Southern Poverty Law Center is suing the Florida Board of Education for a policy that, according to the suit, "treat[s] United States citizen students who reside in Florida as “non-residents” solely because their parents are undocumented immigrants." The effect of this policy is to hike tuition prices up to out-of-state rates (i.e., triple the cost for residents), and moreover, to discourage children of undocumented immigrants from attending college. Here's an example of the effect of the policy, as seen through plaintiff Caroline Roa:

...After Caroline was accepted to Miami Dade College, school officials informed her that she did not qualify for in-state tuition, even though she had resided in Miami-Dade County since birth. School officials explained to Caroline that her residency for tuition purposes was based on her father’s legal residence. Because Caroline could not show proof of her father’s legal immigration presence in the United States, she could not qualify for in-state tuition rates. Unable to afford non-resident tuition rates, Caroline has not enrolled in college. Instead, she works two jobs in the hope of one day being able to afford college.

Interestingly, the class action suit takes a dual legal track- SPLC challenges the policy under the 14th amendment's equal protection clause, but they also bring a federal preemption claim under the Supremacy Clause. In other words, they argue Florida's attempts to deny residency to the children of undocumented immigrants represents an impermissible attempt to regulate immigration- a field squarely within the exclusive domain of the federal government.

In my opinion, the equal protection argument is a slam dunk- these children are clearly being treated differently then other similarly situated children on the basis of their parent's immigration status... its going to be difficult for Florida to come up with a compelling justification for that which makes logical sense. The federal preemption argument, on the other hand, is a touchy subject. It has been a bumpy road for cases using this claim before, and now more than ever, with so many pending challenges to state statutes regulating immigration in some way, it will be interesting to see how the argument fares. One could suspect this case makes the point clearly, that when states try to regulate immigration they end up doing things that hurt citizens as well as non-citizens.

Sex Abuse in Immigration Detention
The second case is being brought by the ACLU against a Texas corrections facility, workers there, and the ICE for allegations of sexual assault against immigrants detained there. (Oy.) Essentially, the ACLU found hundreds of such allegations after filing a Freedom of Information Act request with ICE and Homeland Security. Although such allegations were found in every state, Texas had by far the most, and is thus the focus of the suit. An example of one of the stories can be found here. (Warning: graphic.)

Even more tragically, the plaintiffs named in the suit were asylum seekers escaping sexual violence in their home countries. It is ridiculous that people have to face this additional hardship in detention centers and it is obviously a violation of their human rights and basic tort law. I think this case will have no problem succeeding, but it remains to be seen how to protect the thousands of immigrants in custody all over the US from such horror. One way may be a legislative angle- extending the Prison Rape Elimination Act to immigrant detainees. The Act, passed by President Bush in 2003, establishes a national commission to prevent prison rape, assists with data sharing, and makes prevention a major priority for each prison system-- except for in immigration detention.

Here is a petition from the ACLU to President Obama asking them, as a first step, to extend the Prison Rape Elimination Act to all prisoners in the US: "President Obama: Protect Women Held in US Custody from Rampant Sexual Abuse"

****
What these two cases have in common is that they focus on rather non-contentious ways of preventing discrimination against immigrants. After all, the first case actually focuses on US citizens (though it arguably helps their undocumented parents), and the second reiterates a minimum standard for detention that should not even really be at issue, bodily integrity. There are much deeper problems facing the  American immigration system at the moment, but these two cases will hopefully be big wins that pave the way for more aggressive strategies in the fight to protect undocumented immigrants.

Retroactive Denationalization of Haitians in Dominican Republic

Haitian men sell hats in a Dominican Market -Photo by Dominic Arizona Bonucceli

Between dictators, natural disasters and crushing poverty, life in Haiti has been incredibly rough for years. (Maybe even the last 400 years or so, but you can ask France about that.)  So its no surprise that the country sees a number of migrants leave its borders seeking a better life. Perhaps no country is more aware of this than neighboring Dominican Republic, home to a large Haitian migrant community as well as to a significant population of people of Haitian descent. Now, in an effort to cut down on illegal immigration, the Dominican Republic has taken drastic measures that have rendered many from this population effectively stateless.

The border between the two countries is very porous, and for decades there has been significant labor migration from Haiti to Dominican Republic (often legally and by invitation). There was seasonal migration between to the two countries, particularly for seasonal sugar-cane workers, but many other families in the last century have settled permanently in the DR. These families benefitted from a generous nationality acquisition policy: descendents were entitled to citizenship based on jus soli, i.e., being born on the territory made them Dominican citizens. However, in January 2010 there was a change to the Dominican constitution that effectively put a grandfather clause on citizenship.

Article 18: Nationality. They are citizens:
...(3) Persons born on natural territory, with the exception of sons and daughters of foreign members of diplomatic or consular services, foreigners that are in transit or reside illegally in Dominican territory. They are considered in transit all foreigners as defined in the laws of the Republic. (Translation mine.)

Now, in order to take advantage of D.R.'s jus soli territorial citizenship, one must not only be born in the country, but also born to legally residing Dominican parents. The effect was to instantly render up to 1 million people stateless, including many whom are 3rd and 4th generation Dominican residents.

Understandably given the magnitude of the population, this policy has been difficult to implement in practice. After all, many of Haitian descent already have identity documents, were registered at birth, and until this time considered themselves Dominican citizens. The government now seems to be using piecemeal tactics to denationalize- denial of document renewal, refusal to issue copies of birth certificates, erasure from civil registries, and other insidious means to take rights away from people of Haitian descent. 

But although the tactics are sporadic, Haitian-Dominicans are feeling the effects. Without access to documents they have limited freedom of movement, can't attend to college, drive, or marry. In short, they are deprived of the right to a legal personality.

There has been a recent upswing in attention to this issue. In fact, today there is a brief hearing on the subject at the Inter-American Commission on Human Rights with appearances by the government and representatives of NGO's. In a few days there will be a conference at Georgetown University on the same subject. Also there will apparently  be a conference at the end of the year in concert with UNHCR aimed at reducing statelessness. However, where I'm standing, this case is very similar to Kuric (the civil registry erasure case) and is ripe for litigation under any number of international legal documents which the Dominican Republic is clearly and wantonly violating.

Here is the 2010 Constitution of the Dominican Republic (in spanish): Consitution de la Republica Dominicana

Here's a very enlightening PBS video on the subject: In Dominican Republic, Haitians Grapple with Stateless Limbo
***Update: Here is the press release from the State Dept. after the event at Georgetown University: Statelessness and the Dominican Republic

UNHCR Report: Trends for the first half of 2011

Serbian asylum seekers, via Serbian Herald

Today UNHCR released a report detailing asylum trends in 44 countries for the first half of 2011. It by no means offers a complete picture, given that it basically covers the Council of Europe plus a handful of other industrialized countries, but it is still packed with interesting findings. Among them:

• Asylum applications are up overall by 17%, with the large majority (73%) being filed in Europe, but the USA accounting for the one single country receiving the most applications.

• Asylum trends are not consistent over Europe, with applications down by 27% in the Nordic region (Danish immigration crackdown, anyone?) and asylum claims jumping by 57% in Southern Europe, especially in Turkey, Malta and Italy.

• Afghanistan leads asylum seeker sending states, followed by China, Serbia (incl. Kosovo), Iraq and Iran.

• The next 5 biggest sending states are Russia, Pakistan, Somalia, Eritrea and Nigeria

• The top 5 receiving countries; USA, France, Germany, Sweden and the UK, received 53% of all the applications.

There are plenty of interesting findings within the report, but to me there are two big take-aways. First, "Arab Spring" didn't have the tremendous overall impact that one would expect- none of those countries involved made it into the top 10 asylum-seeker sending states, at least not for industrialized countries. On the other hand, Southern Europe's big jump in applications are partially attributable to Tunisia and Libya, which adds verification to the region's reputation as Europe's gatekeeper, and perhaps explains the upswing in anti-migrant violence we saw in Italy earlier this year.

The second interesting fact is Serbia's continued presence in the top 5 asylum-sending countries. Keeping in mind that Serbia has just been given the go-ahead for EU Applicant status, possibly to be agreed upon as soon as December, one can only hope that this will increase scrutiny of Serbia's human rights situation. Especially when it comes to the Roma, whom for my money probably make up the majority of asylum seekers.

You can read the whole report here:  Asylum Levels and Trends in Industrialized Countries

Non-Citizen News Roundup

Map showing border enclaves, via The Economist

 India/ Bangladesh: People living on the border region's "enclaves" have been stateless and living in destitute poverty for nearly 60 years, but have seen their living conditions deteriorate even further as river waters rise and engulf their villages. Now, villagers from both sides are protesting to ask the government to implement a border enclaves exchange that will swap territories and make it possible for people to gain citizenship and access to basic public services.
People Stateless at India-Bangladesh border (with video) (via IBN)
Border Agreements- The End of the Enclaves  (via The Economist)

 Australia: Everyone is still miffed about the abandoned Malaysian Refugee Swap solution. The public is angry about the alleged $4.6 million in preaparatory costs for the plan. Tbe Prime Minister isn't thrilled about leaks about the plan from the cabinet making its way to the media. And would-be refugees are probably pissed that the shelving of the deal also means an additional 1000 yearly spots for refugees in Australia are off the table. In sum, what a disaster.
 Government defends cost of Malaysia Solution (via ABC Sydney)
 PM Guillard warns against cabinet leaks (via Sydney Morning Herald)

California: Governor Jerry Brown signs in a new package of laws aimed at helping undocumented migrants. Most importantly, he signed a state-version of the DREAM Act that makes it possible for undocumented students to apply for student aid. As the NY Times puts it,  "With these new laws, California is telling immigrants not to stay hidden but to get educated and keep working hard." What a contrast to the message being sent in Alabama.
Brown Signs California Dream Act (via LA Times)
A Sensible Path in California (via NY Times)

Nubians in Kenya- New Case on Birth Registration

Nubian family, ca. 1940, via Nubians in Kenya

There has recently been a very interesting case to come out of Africa that deals with the persistent refusal of the Kenyan government to recognize the nationality of a minority group that has been present in the country for almost a century. The case, Nubian Minors v. Kenya, was brought to the African Committee of Experts on the Rights and Welfare of the Child (ACERWC) by the Institute for  Human Rights and Development in Africa along with the Open Society Justice Initiative. The ACERWC is an institution that deals with interpreting and deciding on issues related the OAU's African Charter on the Rights and Welfare of the Child, Africa's answer to the Convention on the Rights of the Child.

Like the CRC, the African Charter provides explicit nationality and legal personality rights for children. Article 6 requires that every child is entitled to a name, a nationality, and birth registration. Further, children who would otherwise be stateless are entitled to the nationality of the country in which they are born. The Nubian Minors case was brought under these provisions, along with the non-discrimination clause and several other collateral clauses.

Nubians from KAR

The Facts

The story of the Nubians of Kenya is old and interesting. Apparently, this group came from the Nuba mountains in present-day Sudan, and were forcibly conscripted by the British in the 19th century into the King's African Rifles. After service, they requested to be sent back to Sudan, but were instead allocated land in Kenya, namely, Kibera, right outside of present-day Nairobi. Next best thing, right? Wrong.

Now here is the tricky part: having been moved to Kenya, most of these people held no Kenyan citizenship. The British also refused to grant citizenship. At the time of Kenyan independence, in 1963, nothing about the Nubians was settled- they were still considered aliens by the government, who also refused to recognize Nubian title to the Kibera settlement. To make matters worse, these status problems were passed by the Nubian Kenyans down to their children. It is allegedly difficult in Kenya to register children in the absence of the parent's identity documents (which as we know, many people of Nubian descent do not possess.) And other human rights organizations have noted discriminatory practices in birth registration, such as refusing to issue a birth certificate. Further, children in Kenya do not receive proof of citizenship until the age of 18, at which point many children of Nubian descent find the fairly straight-forward procedure to verfiy their nationality complicated by discriminatory procedural barriers and delays. The result? Generations of legally invisible and de facto stateless people.

The Case

After considerable efforts to obtain remedies at the state level (see section 15-22 of the Decision) the applicants were able to have the case heard on the merits. The first issue the Court considered is whether the ACRWC grants citizenship from birth. While the reading of art. 6(1) doesn't provide a right from birth, taking into consideration the best interests of the child principle, this is a logical reading. Further, statelessness is particularly devastating for children.

Whatever the root cause(s), the African Committee cannot overemphasise the overall negative impact of statelessness on children. While it is always no fault of their own, stateless children often inherits an uncertain future. For instance, they might fail to benefit from protections and constitutional rights granted by the State. These include difficulty to travel freely, difficulty in accessing justice procedures when necessary, as well as the challenge of finding oneself in a legal limbo vulnerable to expulsion from their home country. Statelessness is particularly devastating to children in the realisation of their socio-economic rights such as access to health care, and access to education. In sum, being stateless as a child is generally antithesis to the best interests of children. (at 46)

 Having said that, the Committee considered several possible arguments by Kenya. First, the fact that some Kenyans of Nubian descent had acquired citizenship through the normal legal procedure. The Committee considered that this did not destroy the central argument, that a significant portion had not, which would be enough to violate their obligation. Second, Kenya could have argued that the Nubian children may be entitled to Sudanese citizenship. In this case, the Committee responded, the government could have tried to cooperate with Sudan to facilitate such granting of nationality, but there was no evidence that they had done so (at 51). In sum, they had violated their obligation to provide children with nationality, birth registration, and to help them avoid statelessness, all in violation of the key provisions of Article 6.

As to the discrimination claim under ACRWC art. 3, the Court found prima facie discrimination. The government's absence made it impossible for them to meet the burden of proof with evidence that the discrimination served a legitimate end, however the Court looked for explanations, and in the end relied on findings by the Kenyan National Commission on Human Rights, that  

“the process of vetting… Nubians… is discriminatory and violates the principle of equal treatment. Such a practice has no place in a democratic and pluralistic society” (at 56)

 In the subsequent paragraphs the Court found that these violations also deprived the Kenyan children on Nubian descent of their right to health and their right to education. In other words, positive findings on all fronts for the applicants.

Follow Up

Of course, it remains to be seen what the impact of the case will actually be on affected communities. Kenya was instructed to come up with an implementation plan, which would have to include some legal mechanisms to register extant stateless minor  Nubians as Kenyan, as well as a method of birth registration and subsequent acquiring of citizenship that is non-discriminatory and functioning.

In the meantime, lawyers have some excellent new case-law. This case speaks to, specifically:

• the fact that statelessness is not "in the best interests of the child"
• the link between birth registration and preventing statelessness
• the impact of statelessness and legal invisibility on the ability of a child to access his health and education rights
• additional barriers to birth registration and citizenship on the basis of ethnicity/ origin of parents can constitute discrimination.

All in all a big win, and a situation that lawyers interested in statelessness and legal invisibility will definitely want to keep an eye on.

You can read more on the case here: Open Society Justice Initiatives- Nubian Minors v. Kenya

And for a cool multi-media website on Kenya's Nubians, check out this online exhibit by Greg Constantine: Kenya's Nubians- Then and Now

Alabama Latinos protest "Juan Crow" Immigration Law

Scenes from an protest in June, photo by Mark Almond/ The Birmingham News

Good news out of Alabama today, as Latinos across the state stay home from work as a show of solidarity against the dreadful, recently upheld immigration law (HB-56). The law, which is likely the most punitive in the country, requires a number of harsh measures aimed at making the state as uncomfortable as possible for undocumented migrants. As its written the law has provisions that make it a crime to transport undocumented immigrants (because you can tell, just by looking at them) and makes it illegal for colleges to enroll undcocumented students (because, once again, university admission counselors are perfectly equipped to make immigration status determinations.)  Most importantly, the law requires police to verify immigration status during many routine encounters, such as traffic stops. Not only that, but in a move that brazenly violates federal jurisprudence, the law requires schools to verify immigration status while enrolling children. The effect of these measures is to encourage police harassment of Latinos, to cause children to stay home from school, and to reduce an entire segment of the population to living in fear and uncertainty.

That's why its very encouraging to see Latinos across the state- both documented and undocumented- staying home from work to peacefully protest.

"We want the mayor, the governor, this judge to know we are part of the economy of Alabama," said Mexican immigrant Mireya Bonilla.

Its important to note here that even US citizens are participating in this protest, according to reports. Given the nature of immigration status, it is more than clear that a law that provides for measures against people "suspected of being illegal" is code-wording for  Latino. State governments need to know that when they pass laws that broadly encourage racial profiling and discrimination against Latinos, that the legally-present won't keep silent so as not to be lumped in with the undocumented.

CBS News: Hispanics Skip Work to Protest Immigration Law
The Birmingham News: Looking at the Human Side of Alabama's Immigration Law

Sweden: Refoulement of Kurds to Iran?

According to Change.org, 20 Kurdish refugees have sewed their mouths shut in Sergels torg while facing imminent deportation to Iran.

With their lives on the line, the asylum seekers -- all of whom are documented refugees with the United Nations -- have taken the extraordinary step of going on a hunger strike to protest their deportation. Several of them have been hospitalized after collapsing from hunger. Those remaining have sewn their mouths shut.

This isn't the first time that Sweden has been in the limelight for  deportation of Kurds. Last January UNHCR spoke out against the deportation of Iraqi Kurds back to some of the most dangerous regions in Iraq, and stated that they most likely should have been covered by the Refugee Convention or the Qualifications Directive.

Now there is a petition to the Swedish Migration Board to save these Iranian Kurds from being deported, and it already has more than 36,000 signatures. You can add yours here.

Non-Citizen News Round Up

Photo by Sandy Huffaker for the NY Times

US: Programs aimed at helping settled refugees to start their own farms are gaining traction across the country, as well as making farmer's market offerings more diverse.
When the Uprooted Put Down Roots (via the NY Times)

Australia: UNHCR endorses the controversial Malaysian refugee swap deal? According to this article, the High Commissioner feels refugees are better off in Malaysia, where at least they can work.
Australia's Malaysia Refugee Swap Deal Gets Support from UNHCR (via All Headlines News)

Cuba: Numbers of emigrants going up, likely due to stalling economy
Number of Cuban Migrants Has Surged in 2011 (via Miami Herald)

Mozambique: UNHCR will follow up last years program of mapping and documenting statelessness with a program this year to register Mozambique-born stateless persons. An estimated 2 million people are at risk.
UNHCR to Support Registration of Stateless People (via All Africa Global Media)

Norway: As "paperless" youth gain increased intention in Norway, some are calling for the revival of the Nansen Passport.
Effort Grows to Revive Nansen Passport (via Norway International Network)

Ryan Gosling on immigration...

Like this shoutout to Margot Canady, via  Jezebel.

Human Rights Watch on Immigrant Injustice in the US

Grace Meng, a researcher from Human Rights Watch, has a great commentary today about the decline in living conditions for undocumented immigrants in the United States.
We already know that the conditions in states that have passed punitive immigration laws (eg: Alabama) have deteriorated significantly, but Meng points out that the Obama administration's stance has the ICE tormenting undocumented people all over the country.

Undocumented immigrants have long been afraid of government officials, but that fear is now translating into a fear of the justice system. Immigrants avoid going to court in communities from Fresno to Rochester, even to pay traffic tickets or to help a family member with translation, because Immigration and Customs Enforcement agents like to hang out by the courthouse. In North Carolina, a victim of domestic violence told me she would never again call the police for help after being questioned more about her immigration status than her safety the first time she called.

Naturally, this fear is likely to continue until Congress passes some form of Comprehensive Immigration Reform. In the meantime, we will have to hope that SCOTUS gets its hands on the Alabama law or one like it and strikes down punitive laws like this for good.

UNHCR launches new campaign against Statelessness

A photo by Greg Constantine for a UNHCR photo essay on statelessness.

Just in time for the 50th anniversary of the 1961 Convention, UNHCR announced today that they are launching a new campaign to combat statelessness.

"These people are in desperate need of help because they live in a nightmarish legal limbo," says António Guterres, the UN High Commissioner for Refugees. "This makes them some of the most excluded people in the world. Apart from the misery caused to the people themselves, the effect of marginalizing whole groups of people across generations creates great stress in the societies they live in and is sometimes a source of conflict."

So that's good news, right? The campaign will apparently entail renewed efforts to encourage states to sign the statelessness convention, challenges to citizenship laws that left people out after state succession, and publicity to clarify definitions and get the issue "on the public agenda."

It's heartening to see that statelessness is receiving so much attention lately! Let's hope the mounting pressure from UNHCR has an impact!

Consequences of statelessness/ legal invisibility

The inability to prove your own nationality can be a major obstacle in realizing even the most basic of human rights. For example, in many ex-Yugoslav states, all citizens of a certain age are required to hold a valid state-issued identification card which is necessary for accessing a number of social services. The application for the card requires documents that a stateless or legally invisible person is unlikely to possess, such as birth certificate and proof of citizenship. Without this card or other forms of identification, living a normal life is difficult. In Macedonia, for instance, ARKA writes that Roma without verifiable citizenship or birth certificates are denied access to “education, health services, housing, formal employment, financial services social security, justice, property rights, legal marriage, and participation in the democratic process.”  And of course, without a passport, individuals are also restricted in their freedom of movement.

The problem has significance at systemic levels, as well. The lack of accurate statistics on birth rates can mean insufficient budgetary allocations for school and social welfare systems. Additionally, municipal planning policies for housing and basic amenities such as water may be skewed by a lack of official housing registrations. And when the government doesn’t have accurate information about the population, employment policies also suffer. This is a particular issue for populations who are vulnerable to employment discrimination, as Roma often are.

The repercussions also extend to democracy and public safety. Without identification, a significant portion of the population cannot vote or be elected to public office. Further, they are far more vulnerable to practices such as human trafficking and child prostitution. Without official proof of age they may also be at risk for child labor and early marriage. And more generally, without identification the government at every level cannot keep track of this population, or take precautions to ensure their safety. And, when parents are stateless, they are far more likely to pass this status down to their children, since identification is required to register birth and paternity in many cases.

So in sum, statelessness means being paralyzed- unable to access your rights and improve your life- and, like a communicable disease, you have to watch your children go through the same frustrating process without being able to help.

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Photo via UNHCR.

Statelessness versus Legal Invisibility under International Law

International law identifies two types of stateless people, de facto and de jure. International standards such as the Statelessness Convention are primarily designed to protect de jure stateless persons, ie, those who are legally without citizenship from any country. However, it has long been acknowledged that this definition accounts for only a portion of the individuals who are not receiving the protection of a nation state.

“De facto stateless persons” has been used in the past to refer to those individuals who do not meet the definition of the Statelessness convention, but other than being defined in the negative this term is not widely agreed  upon. A group of UNHCR experts recently defined de facto stateless persons as “persons outside the country of their nationality who are unable or, for valid reasons, are unwilling to avail themselves of the protection of that country.” The “valid” reasons for its ineffectiveness generally connect to the reasons for one becoming a refugee under international instruments. For instance, being unwilling to avail oneself of government protection due to persecution on the basis of race, religion, political views, or membership in a particular social group. Escape from genocide or conflict are likely other valid reasons. 

 

The Equal Rights Trust has adopted a more expansive definition. In their “Draft Guidelines on the Detention of Stateless Persons” they write that “a person who has a legal nationality which is not effective- for example, a person who does not benefit from consular protection from his or her country of evident nationality- is considered de facto stateless.” The difference between the two definitions is that one indicates that the de facto stateless person is always at least a refugee, while the other one acknowledges that many individuals lack state protection in a way that falls short of outright persecution.

Regardless of which definition is accepted, it is doubtful that states are legally bound by the Stateless Convention to protect de facto stateless persons. However, many have argued that they should receive the same level of protection, since they are largely facing the same risks. UNHCR has on occasion argued that both categories should receive state protection and a 2010 UNHCR report on the topic argues that de facto stateless persons fall under UNCHR’s mandate, so long as they are outside of their country and unable to receive protection from their home country.

  

Legally Invisible Persons

If de facto stateless persons receive limited protection in comparison to de jure, then even less protected are individuals that fall short of either definition. For example, individuals of indeterminate nationality, or unable to prove their nationality, or inside the country of their origin but unable to receive the protection connected to citizenship.

For the purposes of this blog, individuals barred from enjoying effective citizenship for any reason (short of voluntary disavowal) shall be referred to as  “legally invisible,” a term borrowed from Praxis, a Serbian NGO that works with many such cases. As Praxis points out, legally invisible persons “do not have the possibility to live their lives like other citizens… [they are] not recognized as legal subjects.”  Since the distinction between “legally invisible” and “stateless” may be hazy in some cases, the following list attempts to differentiate between the two groups.

Stateless Persons:

• Are not considered citizens by any state
• Cannot, without hardship, produce documents allowing them to easily gain or regain citizenship
• May have been deprived of citizenship by an act of state, or by the dissolution of the state
• Are in most cases outside their state of origin
• Are, in the case of de facto stateless, unable or unwilling to receive state protection because of recognized reasons, such as due to persecution

Legally Invisible Persons:

• Have a valid claim to citizenship
• Cannot prove this claim due to a number of reasons, such as lack of access to documents, complexity of registration process
• May have automatically acquired citizenship at birth or through other operation of law
• May be inside or outside their state of origin.

In sum, for a person to be stateless, they need to have no citizenship, ineffective or otherwise. Since a determination of this type requires, at the very least, information from both the records of the person and the records of the government, it is not immediately apparent whether a person seeking assistance is de facto or de jure stateless, or legally invisible. However, since the risks for both groups overlap heavily, it makes sense in my opinion to address the problems together, while keeping in mind that these concepts are different and are not totally agreed upon under international law.

Denmark: Points and Palestinians

Denmark's ousted Immigration Minister

For the last few weeks Denmark has been rocked by a political scandal featuring leaked documents, intrepid reporting, a shady minister and... stateless Palestinians?

That's right. Denmark, being a signatory to the 1961 Convention on the Reduction of Statelessness, is required to offer citizenship to children born in the country who would otherwise be stateless. On the contrary, it was recently revealed that a number (36, to be exact) of youngsters of Palestinian heritage had been rejected when they applied for citizenship- and that far more had never been informed about their right to become Danish.

Worse, it turns out that this human rights violation was more than just an oversight. The Immigration Minister, Birthe Hornbech, when questioned earlier in the month about her possible involvement, denied any prior knowledge of the mistake and claimed the rejections occurred under earlier administrations.  However, leaks soon made their way out that confirmed that Hornbech knew about the error- as far back as 2008- and failed to inform anyone. She even asked for and recieved legal advice that directly contradicted Denmark's procedure. Now, being forced to file a report at the prompting of a media investigation, Hornbech has been fired as the government tries to distance itself from her actions. But so long as its just an isolated incident, alls well that ends well, right?

Or, one could see this in the context of further worrying anti-immigrant developments that have been occurring in the country in the last year. For instance, in January the government announced a new point system that would make the country's already strict requirements for foreign spouses even tougher. It requires, among other things, that the Danish spouse put up a large sum of money, that both spouses be 24 years old, and that the foreign-born spouse pass a language and knowledge test. In other words, they are trying to make it extremely difficult for Danes to marry foreigners, and possibly violating the ECHR by interfering in the right to private and family life.

These developments are worrying, and are significant of a larger swing to the right throughout Europe. The question is, to what extent can countries' prior generous human rights commitments restrain them from making the temporarily popular decisions that violate them? Denmark would be a good case to watch.