UNHCR on Nationality Issues in Asylum Cases

13 December 1994

Rosemary Melville
Acting Director, Asylum Branch
Office of International Affairs
Immigration and Naturalization Service
425 Eye St., NW (ULLICO building)
Washington, D.C. 20536

RE: Nationality Issues in Asylum Cases

Dear Ms. Melville:

First, I offer you my congratulations on your recent appointment, albeit temporary, to the directorship of the Asylum Division. We look forward to working with you over the coming months.

Second, I write in response to questions raised at several recent UNHCR trainings with asylum officers regarding asylum seekers who came from countries that have recently broken up into new countries. In particular, such questions have been posed with regards to asylum applicants from the former Soviet Union, the former Ethiopia, and the former Yugoslavia.

The scenario presented in each of these contexts is virtually identical: the applicant holds a passport issued by a government that no longer exists in the same form. In some of these cases, the applicant is clearly eligible to return to their place of former residence within one of the newly constituted countries making up the former country. In other instances, the person may be eligible to return to a newly constituted country within the former country in which s/he did not formerly reside (e.g. an ethnic Russian from a non-Russian republic).

In such cases, as in all other cases, UNHCR's position is that a determination must first be made as to whether the applicant meets the so-called inclusion clauses of the 1951 Convention/1967 Protocol Relating to the Status of Refugees. To do so, it must be determined whether the applicant has a well-founded fear of persecution in his or her country of nationality or last habitual residence. Paragraph 89 of the UNHCR's Handbook on Procedures and Criteria for Determining Refugee Status (1992) recommends that in those cases in which nationality may be unclear, refugee status should be determined in a similar manner to that of a stateless person, i.e., instead of the country of nationality, the country of the applicant's former habitual residence shall be taken into account. Thus, in cases where the applicant holds a passport from a State that no longer exists, it may be appropriate to view that applicant's claim as if he or she is stateless.

Should the applicant fail to fulfill the inclusion clauses, the officer's inquiry may terminate at that point. However, if the applicant meets the inclusion clauses, it must be determined whether any of the so-called cessation or exclusion clauses apply. The Handbook recommends that the cessation and exclusion clauses be interpreted restrictively because of the serious consequences that may befall a person who has a well-founded fear of persecution but is excluded from obtaining refugee status.

Of particular relevance in the cases raised by your officers is Article 1C(3) of the 1951 Convention\1967 Protocol Relating to the Status of Refugees. This article provides that:

[The] Convention shall cease to apply to any person falling under the terms of [the inclusion clauses] if...[h]e has acquired a new nationality and enjoys the protection of the country of his new nationality.

In some of the cases described above, the applicant may be eligible for citizenship in one of the newly created countries within the former state of their nationality, e.g., Eritreans from Ethiopia may be eligible for Eritrean citizenship; ethnic Russians from non-Russian republics may be eligible for citizenship in the new Russia, etc.

It is UNHCR's view that in such circumstances the asylum seeker must have acquired a new nationality from the new country in question before Article 1C(3) may be invoked to exclude a person from refugee status. This means that the applicant must have engaged in affirmative acts to obtain the new nationality, or that the new nationality has been conferred on him or her in such a way that an affirmative act on his or her part is not required. (1)

Thus, in those cases in which the person merely possesses the possibility of acquiring a new nationality but has not availed him or herself of such possibility to date, the applicant should not be denied refugee status pursuant to Article 1C(3) of the Refugee Convention/Protocol. (2)

We note, however, that in those cases in which the applicant has entered or resided in a newly constituted country where he or she is clearly eligible to acquire the nationality of that new country, Article 1C(3) may be applicable to such an applicant. In such instances, the applicant has reasonable access to the protection of a new country and should be expected to avail him or herself of such protection.

Nevertheless, in such cases, the applicant is still entitled to show that he or she could not enjoy the effective protection of such country. See Handbook, para. 107. Effective protection means that the person must be able to enter his or her new state of citizenship, reside there with protection against deportation or expulsion, and enjoy a reasonable expectation that his or her basic human rights will be fully respected. If these conditions are not present, the person may present a valid claim to refugee status in another country.

I hope this opinion is useful to the Asylum Division in addressing such cases. Please do not hesitate to contact me if our Office can be of further assistance on this or other matters.

Sincerely,

Rene van Rooyen
Representative

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(1) A relevant example of the later situation occurred when the Federal Republic of Germany conferred German nationality on various categories of refugees of German ethnic origin in Austria by law on February 22, 1955. Such persons were deemed German nationals unless they renounced such citizenship within one year of the law's passage. The UNHCR Executive Committee took the position that such persons ceased to be refugees under Article 1C(3) of the Convention. See J. Hathaway, The Law of Refugee Status, 210-11, n. 129 (1991), citing U.N. Doc. A\AC. 79\37 at para. 129.

(2) We note that such a position is consistent with the view found in U.S. case law that Jews fleeing persecution are not precluded from obtaining refugee status in the United States merely because of the outstanding offer of citizenship available to them under Israel's Law of Return. See Matter of Soleimani, Int. Dec. #3118 (BIA 1989).