Hélène Lambert’s research while affiliated with University of Technology Sydney and other places

‘Time’ plays an important role in refugee status determination (RSD) because whilst fear must be current, the fear relates to present or future risk. This article examines the role of time in RSD and how time impacts upon the granting of refugee protection. Thus it concentrates on the test of a ‘well-founded fear’ in article 1A(2) of the Refugee Convention. Claims from persons fleeing armed conflict raise particular challenges because of the fluidity, unstable conditions, and protracted character of conflicts. Furthermore, the unpredictable nature of conflict means that people are, at times, already fleeing from harm that might well eventuate in the future but that is not yet current. Drawing on jurisprudence of the senior courts and appeal tribunals in Australia and the United Kingdom (UK), the article shows how these have long engaged with considerations of time in refugee matters. In determining who qualifies for refugee protection, courts and tribunals look backwards and forwards. Hidden within this process are assumptions about time that lie – almost invisibly – at the heart of the protection regime. When assessing whether a person has a ‘well-founded fear’ of being persecuted, the courts in Australia and the UK embrace a future-looking approach; a ‘clear and present danger’ is not required. The timeframe is that of the ‘reasonably foreseeable future’, situated somewhere between the ‘not too remote’ and the ‘present or immediate future’. This necessarily contains a degree of predictive speculation, understood to mean an exercise in prediction falling short of fact-finding. To be sure, foreseeability and certainty of risk are not to be conflated. Yet, at times, conflation between the two has occurred (by courts and tribunals), leading to exclusionary practices and outcomes. This has been the case, for example, where the situation in the country of origin was relatively stable but nevertheless fluid, meaning that while there could be a significant risk in the future, the risk was low at the time the decision was made. Considering that armed conflict continues to be the main driver for people claiming refugee protection in Australia and the UK, how senior courts and appeal tribunals understand and apply the timeframe of reasonable foreseeability in fluid situations (between peace and conflict) is key. This article highlights some best practices in that regard, including ensuring that this timeframe does not expand and contract with the apparent certainty or uncertainty of a situation.

The current pandemic and concomitant framework of crisis has led to unprecedented restrictions on global movement, and hence on the ability of refugees to seek protection. These measures have been implemented as a matter of urgency on account of the immediacy of the public health challenge, yet risk violating international refugee and human rights law. This experience provides an opportunity to reflect on an equally compelling, although less imminent, threat, namely displacement linked to the impacts of climate change. This article considers these twin challenges and reflects on the capacity and limits of international law to address both crises, while balancing the competing rights and interests at stake. It argues that a key challenge for international law and policy is how to harness the sense of urgency generated by COVID-19 for the long-term ‘climate crisis’, without resorting to emergency mechanisms of reactive, short-term, restrictive, and exceptional measures.

Chapter 3 considers the role of nationality in the protection and enjoyment of human rights. It examines the history of international law’s involvement in and regulation of matters concerning nationality, thereby providing a crucial link between Chapter 2 and Chapters 4, 5, and 6. It begins by reviewing the traditional position whereby considerations of nationality, including the practice of re-admission for non-nationals, fell within the reserved domain of states through their own nationality laws. The chapter outlines the evolution of international human rights law and its impact on state discretion, such that in many instances, deprivation of nationality (i.e. denial of nationality and/or withdrawal of nationality) may now well violate norms of international law. The chapter therefore examines deprivation of nationality, and the consequences for the persons concerned, in treaty law, UN documents, and the jurisprudence of international and regional courts.

Chapter 6 considers in what circumstances a stateless person may cease to be entitled to protection or indeed excluded from refugee protection. It begins by examining in what situations Article 1C of the 1951 Refugee Convention may apply to a stateless person, before turning to consider the application of Article 1D (in relation to Palestinians) and Article 1E (de facto nationality) to refugee claims by stateless persons. It also examines the application of Article 1F to stateless persons. This issue is particularly pertinent given a renewed focus by states on the invocation of citizenship laws, and in particular the withdrawal of citizenship, to respond to the threat of so-called ‘home-grown’ terrorists.

This book addresses a critical gap in existing scholarship by examining statelessness through the prism of international refugee law, in particular by examining the extent to which the 1951 Refugee Convention protects de jure stateless persons. It responds to the need for a coherent and inclusive legal framework to address the plight of stateless individuals who fear persecution. The central hypothesis of this book is that the capacity and potential of the 1951 Refugee Convention to protect stateless persons has been inadequately developed and understood. This is particularly so when we consider the significant transformation that has occurred over the past sixty years in delimiting state discretion in matters of nationality, including in relation to the acquisition and deprivation of nationality, and the treatment of non-nationals. While it may once have been correct to assume that matters of nationality were largely outside the realm of international law, the advent of international human rights law in particular has limited state sovereignty in this respect. Accordingly, whether a stateless person is also a refugee potentially admits of a very different answer in light of modern international human rights law as compared to 1951.

Chapter 5 analyses the meaning of ‘being persecuted’ for a Convention reason as it applies to stateless persons, by examining its interpretation and application in the case law of the leading common law and civil law jurisdictions. It begins by addressing deprivation of nationality (namely, denial of nationality and active withdrawal of nationality), and denial of the right to enter one’s country. It then considers other forms of harm related to an absence of nationality such as the right to education, right to work, right to health, right to liberty, and right to family and private life. It concludes by examining instances where claims for refugee protection failed but complementary protection may nevertheless be relevant. This may be the case where, for instance, no nexus exists between persecution and the Convention reasons, where the level of harm was not sufficient to constitute persecution, or where Article 1F applied to exclude a stateless (refugee) person from protection.

Chapter 1 introduces the context and relevance of the book; its scope, its methods, and outline. It articulates the challenges faced by the international community as a result of the separation of the international regime for the protection of refugees and stateless persons respectively into two distinct instruments. It explains that the book focuses on the potential of stateless persons who are outside their country of former habitual residence to obtain protection as refugees in international law. Hence, it is primarily concerned with stateless persons on the move between states, or stateless persons who have already moved (and not with the stateless in situ ), because it is members of this group who require recognition of their status in order to establish themselves in a new country following a decision to flee.

Chapter 2 sets the context of the book by examining the history and background to the formulation of two distinct regimes for refugees and stateless persons, respectively: the 1951 Refugee Convention and the 1954 Convention . It briefly reviews the pre-Second World War position, before examining in depth the UN’s seminal 1949 Study on Statelessness, which was the precursor to the formulation of the 1951 Refugee Convention . It also analyses the extensive debate by the Ad Hoc Committee on Statelessness and Related Problems on whether to separate issues relating to statelessness from the Refugee Convention . While the focus of the book is very much on the 1951 Refugee Convention , important insight into the contemporaneous understanding of the connection between stateless persons and refugees is provided in the drafting history of the 1954 Convention —given its proximity to the 1951 Refugee Convention . Chapter 2 therefore also analyses this history in order to assess whether it provides further insight into the scope, as understood at the time, of the 1951 Refugee Convention vis-à-vis stateless persons.

Chapter 7 concludes with a reflection on the relationship between stateless persons and the 1951 Refugee Convention , in the context of sixty years of doctrinal development in human rights law, and what this re-consideration may suggest for the protection of stateless persons pursuant to the 1951 Refugee Convention . It considers briefly the practical issues raised by this conclusion, particularly in those states that have a domestic procedure under both the 1951 Refugee Convention and the 1954 Convention . Finally, it reflects on the need for future research on distinct but related issues, suggesting scope for a rich scholarship to develop which will complement and support the international community’s efforts to protect stateless persons, and ultimately eliminate statelessness.

Chapter 4 discusses preliminary issues relating to access to refugee status for stateless persons. It begins by considering the fundamental question of whether stateless persons should be protected per se under the 1951 Refugee Convention or whether they must meet the same criteria as those with a nationality, namely well-founded fear of being persecuted on a Convention ground. The chapter further provides guidance on establishing lack of nationality in the refugee status determination context and considers questions such as the determination of the country of reference, voluntary renunciation, and the imposition of nationality without consent, concluding with an examination of the meaning and interpretation of ‘country of former habitual residence’.