Nationality, Immigrants, Refugees and Internally Displaced Persons (IDPS)

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Nationality

  • Charles G. Fenwick- “Nationality may be defined as a bond which unites a person to a given state which constitutes its membership in a given state, which constitutes his membership in a particular state , which gives them a claim to the protection of the state and which subjects him to the obligations created by the laws of the state.”

  • J.G Starke- “Nationality maybe defined as the legal status of membership of the collectively of individuals whose acts, decisions and policy are vouchsafed through the legal concept of the state representing those individuals.”

  • Article 15 of the Universal Declaration of Human Rights (UDHR) provides that “everyone has the right to a nationality” and that “no one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.”

Modes of Acquiring Nationality

According to Oppenheim, there are five modes of acquiring Nationality.

1. By Birth

  • all those persons take birth within territorial limit of state and acquire nationality also known as the principle of Jus Soli.

  • Jus Sangunis is a principle by which nationality is determined or acquired by the nationality or ethnicity of one or both parents

2. By Naturalization

  • Marriage

  • Legitimation

  • Option

  • Acquisition of domicile

  • Appointment as Govt. Official

  • Grant on application of the State

3. By Resumption- he may resume, recover his original nationality when it is lost, recover after fulfilling certain conditions.

4. By Subjugation- if any territory becomes a part of India those persons from such territory shall automatically become citizen of India.

5. By Cession- when a part of the territory of a state is ceded to another state. All Nationals of the former acquires the nationality of the latter state.

6. By Option- when the state is proportioned into two or more States, the nationals of the former state have an option to become the nationals of any of successor States.

7. By Registration

Loss of Nationality

  • By Release: by application.

  • Deprivation : certain states have municipal laws and breach of that leads to deprivation of nationality.

  • Expiration: As per the legislation nationality expires due to overstay in another country.

  • Renunciation: They have the right to renounce the nationality in case of double nationality of the children. For ex in Great Britain certain municipal laws give the option of renunciation on attainment of certain age

  • Substitution: In this case a citizen loses nationality of one state automatically if he acquires some other nationality.

Statelessness

  • Art 1 of the convention relating to the status of stateless person, as one “who is not considered as a national by any State under the operation of its Law.”

  • In 1949 the UN expanded the definition and included de facto statelessness.

Kinds

  • Original and absolute

  • Relative and subsequent

Immigrants

  • People migrate for different reasons, such as reuniting with their families; seeking better economic opportunities; and escaping human rights abuses, including armed conflict, persecution, and torture.

  • Migrants are generally entitled to the same human rights protections as all individuals.

  • States may limit migrants’ rights in some ways, such as with regard to voting and political participation.

Internally Displaced People (IDPs)

  • Internally displaced people (IDPs) have not crossed a border to find safety. Unlike refugees, they are on the run at home.

  • IDPs stay within their own country and remain under the protection of its government, even if that government is the reason for their displacement. They often move to areas where it is difficult for us to deliver humanitarian assistance and as a result, these people are among the most vulnerable in the world.

  • People forced to flee or leave their homes usually in armed conflict

  • Unlike refugees, these internally displaced persons do not have a special status in international law with rights specific to their situation.

  • United Nations High Commissioner for Refugees, guided by the 1951 United Nations Convention Relating to the Status of Refugees and its 1967 Protocol.

Refugee

According to Article 1 of the 1951 UN convention, modified by 1967 protocol, A refugee is a person who has been forced to flee his or her country because of persecution, war or violence. A refugee has a well-founded fear of persecution for reasons of race, religion, nationality, political opinion or membership in a particular social group.

Conditions Qualifying to be a Refugee

  • presence outside home country

  • fear of discriminated persecution.

  • incapacity to enjoy the protection from own Nation.

According to United Nation Commissioner for Refugees (UNHCR) ‘Asylum Seekers is a person whose claims has not been evaluated’, hence that make them different from refugee.

Legislation

  • Only international norm applying to refugees at global level are 1951 UN Convention relating to the status of refugees or Geneva convention.

  • Geneva Convention and its protocol have been ratified by almost 150 states to date. India is not a signatory.

  • 1967 protocol relating to the status of refugees.

Rights and Duties of Asylum Seeker and State

  • Right to seek but not to be granted as an obligation.

  • State should refrain from actions that would endanger asylum seekers like returning them to their original country .

  • (Each state is free to establish the conditions to establish asylum .)

  • UNHCR has duty to supervise the application but task of interpreting the convention has fallen to domestic law makers and courts.

  • Art 31 of Geneva convention- entering of the seekers unlawfully into a state does not forfeit their chance of becoming a refugee if they fulfil the criteria, provided their life and freedom was threatened, if they report immediately to the authorities, showing good reason for illegal entry.

  • Restrictions on their movement can be imposed.

  • Art 26 grants rights to choose their residence and to move freely.

  • Rights given to the refugees should be at par with population.

First Tier Rights on the Basis of Presence of Refugees Merely

  • Art 4- Freedom of Religion

  • Art 13- Property Rights

  • Art 22-Primary Education

  • Art 16(1)- the right to access to the courts

  • Art 31(2)-Right to move freely, subject to justifiable restrictions.

The Second Tier of Rights Are to be Granted when Refugees Are Lawfully Present

  • Art 17- right to paid employment.

  • Art 17(2)- right to work without any restrictions after a period of three years of extended residence.

  • Art 32- Assylum seekers can be asked to move to the third country, but those lawfully present can’t be expelled.

Principle of Non- Refoulment

  • Article 33-No State shall expel or return (“ refouler “) a refugee in of the territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

  • Article 33(2)- The provision may not be claimed by a refugee who represent a security threat to the country.

Questions

1. What does the principle of Jus Soli mean?

  1. People who acquire nationality by birth.

  2. Citizenship is determined or acquired by the nationality or ethnicity of one or both parents

  3. By restitution

  4. By subjugation

Answer: A

2. Article 33 of Geneva convention deals with:

  1. Right to work without any restrictions after a period of three years of extended residence.

  2. Right to paid employment.

  3. Property Rights

  4. Non Refoulment

Answer: D