Law Council of Australia

International Law Section

Stateless individuals and their right to liberty

23 October 2024

For stateless individuals in international law, the concept of assured protection is as coveted as it is uncertain. International movements, such as the UNHCR’s 2014 ‘iBelong’ Campaign, promised to end statelessness by 2024. However, the collapse of national regimes and interstate conflicts have made this target unrealistic. Article 1.1 of the 1954 Convention Relating to the Status of Stateless Persons defines a stateless person as someone "who is not considered as a national by any State under the operation of its law." Statelessness can occur at birth, from fleeing conflict or discrimination, or through the rise and fall of nations.

Two primary legal mechanisms operate under international law to protect stateless individuals: the 1954 Convention Relating to the Status of Stateless Persons (the 1954 Convention) and the 1961 Convention on the Reduction of Statelessness. These frameworks establish basic rights and protections for individuals who would otherwise be in a 'grey zone' of international law.

The 1954 Convention outlines key human rights, such as the right to housing, freedom of religion, and access to education, while the 1961 Convention obliges states to issue birthright citizenship and nationality to those "who would otherwise be stateless." However, one of the most pressing issues facing stateless individuals is the deprivation of liberty in migration cases, often leading to arbitrary detention. As a result, stateless individuals can become “refugees in orbit,” perpetually deprived of liberty due to their lack of legal documentation or recognised status, despite the right to liberty and protection against unlawful detention under Article 9.1 of the International Covenant on Civil and Political Rights (ICCPR).

The recent High Court case of NZYQ v Minister highlights both the strives and continued limitations of a stateless person’s right to liberty. The decision marked a fundamental change from the HCA’s position relating to the detention of stateless immigrants. Immigration processing in Australia led to an average detention period of 806 days in 2023. This is partly attributable to the High Court’s 2014 decision in Al-Kateb, bestowing powers upon the Minister to indefinitely detain non-citizens by removing the maximum detention period. This was a pertinent human rights issue for stateless individuals, for whom it was far more difficult to find a durable solution.

NZYQ was a stateless man previously living in Myanmar who was unable to return due to a fear of persecution. He was stripped of his temporary Australian visa in 2015 following a criminal sentence and imprisonment. However, after having served the 3 years in prison, NZYQ was denied an Australian visa due to his characterisation as a serious danger to the community. For the following decade, Australian authorities attempted to remove NZYQ, however no nation was willing to accept him due to his statelessness, leaving him stripped of his liberty and basic rights.

In its decision, the High Court overturned Al-Kateb on the basis that arbitrary detention contravenes Australia’s constitution and its international obligations. As a result, stateless individuals cannot be arbitrarily detained where there is no legitimate prospect of removal in the foreseeable future. While hailed as a significant victory for the rights of stateless individuals in Australia, restrictions on NZYQ’s liberties persist. New legislation has imposed some 28 restrictions, which include curfews, electronic monitoring and a discretionary power on behalf of the Minister to imprison any individual in breach of their conditions for a minimum one-year sentence.

While international frameworks provide basic human rights for stateless individuals, it is ultimately up to individual signatory states to adopt and implement baseline protections. The protection of a stateless person’s right to liberty appears to have been advanced in Australia following the case of NZYQ. Undoubtedly this case represents a step forward in these protections, yet durable solutions for stateless people leaving immigration detention and their right to liberty continues to be clouded with uncertainty.

Disclaimer: This communication presents a spotlight on the position of Stateless individuals and their subjugation to arbitrary detention under international law. However, it does not constitute legal advice. It does not represent the position of the ILS or the Law Council of Australia. Please consult wider legal commentary to inform yourself on the subject.

Last Updated on 14/03/2025

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