THIS IS EXTRACTED FROM THE FORTHCOMMING REPORT OF STATELESSNESS ENCYCLOPEDIA ASIA PACIFIC (SEAP). THE FULL REPORT WILL BE LAUNCHED IN JANUARY 2023. THE CONTENT PROVIDED BELOW IS SUBJECT TO CHANGE.

A.  Laws

  •  Citizenship Law (jus sanguinis/jus soli)

The citizenship laws of six states (Afghanistan, Bhutan, India, the Maldives, Nepal and Sri Lanka) operate through jus sanguinis structures. While the laws of all of these states are underpinned by the same principle of citizenship by descent, there is a great variance in the structure of their laws, with many containing complex limitations on the grant of citizenship. The laws of two states – Afghanistan and Bhutan – provide an automatic grant of citizenship where a child is born within our outside of the state to two citizen parents. The citizenship law of Afghanistan also provides avenues for children born to one citizen parent and a foreign national, the law of Bhutan does not have explicit provision of citizenship to this group. The citizenship laws of two states (India and Sri Lanka) provide some differential treatment between children born within or outside of the country. Indian citizenship also operated through a jus sanguinis structure, with children born in India only considered citizens by birth if both parents are citizens of India or if one parent is a citizen of India and the other is not an illegal migrant. Children born outside of India to at least one India parent are considered citizens by descent so long as their birth is registered, and they are not also considered a citizen of other country.  Sri Lankan citizenship is provided through jus sanguinis provisions providing for automatic citizenship for children born in Sri Lanka to a Sri Lankan citizen parent. For children born outside of Sri Lanka to a citizen parent, their birth must be registered in order for their citizenship to be recognised.

Two states (Maldives and Nepal) with jus sanguinis structures also have discriminatory provisions in their laws which restrict the ability of conferral of nationality onto children. The laws of the Maldives containing religious discrimination (and potentially some gender discriminatory provisions) and the laws of Nepal gender discrimination. Citizenship law of the Maldives operates through jus sanguinis provisions that provide automatic citizenship to a child born to a citizen of the Maldives regardless of their place of birth. Maldives citizenship laws however discriminates on religious grounds barring non-Muslims from being recognised as citizens of the Maldives. The citizenship law of Nepal operates through jus sanguinis provisions, which contain gender discriminatory elements. While the 2015 Nepali Constitution provides that a person with permanent domicile in Nepal born to a Nepali father or mother shall have citizenship by descent, it further provides that when a child is born to a Nepali citizen mother, there will only gain citizenship by descent when the father is not identified. Further, when a child is born to a citizen mother and a foreign father, citizenship can only be acquired through naturalisation — there is no equivalent provision for a national father and foreign mother.

Two states (Bangladesh and Pakistan) have combined jus soli and jus sanguinis structures to their citizenship laws. The laws of Bangladesh provide for both jus soli and jus sanguinis citizenship, however, in practice citizenship by birth appears to only be provided when a child is born in Bangladesh to two Bangladeshi citizen parents. The jus sanguinis provision of the Bangladeshi citizenship law provide that a child born either within or outside of Bangladesh to a Bangladeshi citizen by birth automatically acquires citizenship by descent. The citizenship law of Pakistan operates through both jus sanguinis and jus soli provisions. Pakistan’s jus soli provisions have been interpreted to provide citizenship to all children born on the territory of Pakistan, except those whose fathers have diplomatic immunity, or are enemies or aliens. Jus sanguinis provisions provide that a child born outside of Pakistan to a Pakistani citizen by birth automatically acquire Pakistani citizenship, while those born to a citizen by descent must register the birth.

The laws of three states (Bangladesh, Nepal and Pakistan) contain gender discriminatory provisions that limit the ability of married women to transfer their nationality to foreign spouses on the same basis as men.

  • Treaty ratification status

No South Asian state has ratified either Stateless Convention. Only one state (Afghanistan) is a contracting state to the Refugee Convention and its Protocol. However, there is a high rate of ratification of the key human rights treaties, with all eight states in the region party to the CRC and CEDAW and seven states (all state apart from Bhutan) to the ICCPR, ICESCR, and ICERD. There are no relevant reservations to note.

B. Population

  • Reported stateless persons

In 2021, states in South Asia reported 939,542 stateless persons to the UNHCR representing an increase of over 50,000 persons in the last year. Bangladesh is the largest hosting country both within South Asia and the Asia Pacific broadly with a population of 918,841 stateless persons. Afghanistan, Bhutan and the Maldives did not report stateless populations. All other states (Bangladesh, India, Nepal, Pakistan and Sri Lanka) only provided statistics covering forcibly displaced (refugee) stateless populations, with no states providing figures on in situ stateless populations. The UNHCR has noted that regarding Afghanistan, Bhutan, Nepal, Pakistan and Sri Lanka ‘UNHCR has information about stateless persons but no reliable data. Known stateless populations not included in the UNHCR reporting figures include the Lhostshampa of Bhutan, ethnic Bengalis and long-term Afghan refugees in Pakistan.

  • Persons at risk of statelessness

Millions of Afghanis have fled Afghanistan due to wars and persecution in the country, with 2.7 million Afghan refugees globally at the end of 2021. Due to loss or denial of identity documents, the children of many Afghan refugees and asylum seekers are at risk of statelessness. Further, access to identity documentation has rendered potentially millions of women in Afghanistan at risk of statelessness. 5A 2016 study found that 52% of women in general held no identity documentation, with this rate increasing to 75% among female IDP’s.

There are a number of different populations groups in India at risk of statelessness including Tibetan and Sri Lankan refugees, ethnic minority groups living in border regions (including the Chakma, Hjong and Kutchi communities) and former Kashmiri militants. Ethnic minority groups include Dalit and Madheshi communities in Nepal face issues of accessing citizenship and identity documents and are at risk of statelessness.

  • Undetermined nationalities

In 2019 India’s National Register of Citizens in Assam excluded over 1.9 million Assamese, leaving them labelled as foreigners or ‘D voters’ and the validation of their citizenship at the hands of the foreigners’ tribunals. As of December 2021, 143,466 persons were declared foreigners by the foreigners tribunals, 121,598 persons have been declared as Indian citizens. Another 123,829 cases remain pending before the tribunals. The UNHCR has noted that ‘various studies estimate that a large number of individuals lack citizenship certificates in Nepal. While these individuals are not all necessarily stateless, UNHCR has been working closely with the Government of Nepal and partners to address this situation. In 2016 the Forum for Women law and Development projected that by 2021 as many as 6.7 million people would be without citizenship certificates. In Pakistan Ethnic Bihari communities also hold an uncertain status with limited information available on their citizenship status. The community largely comprises of persons repatriated to Pakistan following Bangladeshi independence (and their descendants), some of whom hold passports and documentation, yet continue to face discrimination and exclusion.

  • Stateless Refugees

The entire reported stateless population in South Asia are stateless refugees. The UNHCR has noted that the reported populations in India (20,154) and Nepal (465) are stateless Rohingya refugees, this is not explicitly stated for the other countries in the region. There has been an extensive focus on Rohingya in Bangladesh by UN bodies, academics and NGOs, specifically since the mass displacement which occurred in 2017. Most of the more than 900,000 Rohingya refugees in Bangladesh reside within refugee camps in Cox’s Bazaar, facing limited access to health and social services, education and living in conditions that have been condemned by residents, international organisations and NGOs.

The true scale of the Rohingya refugee population in South Asia is estimated to be thousands higher than reported figures. Human Rights Watch has estimated that Rohingya’s registered with UNHCR in India (20,154) represent half of the total population of 40,000 Rohingya refugees in India. A recent statement by a spokesperson for the Pakistani Foreign Office suggested that as many as 400,000 Rohingya refugees may be in Pakistan (compared to the reported 47).

Other groups of refugees affected by statelessness include, as many as 73,404 Tibetan refugees and more than 92,000 Sri Lanka refugees in India. 6,365 Bhutanese Lhostshampa refugees in Nepal, many of whom are stateless.

  • Other Populations of note

It is important to note two population groups within South Asia who have had their stateless status ‘solved’ in recent decades yet continue to face discrimination and social exclusion. In Bangladesh, the Urdu-speaking (Bihari) community who have resided in Bangladesh since independence, yet were only recognised as citizens from the early 2000’s. However, the Urdu-speaking community, with a population size estimated to be 300,000, continue to face discrimination and marginalisation including through the denial of passports, physical isolation in refugee-like camps and denial of services. The granting of citizenship to the ‘Hill Country’ (or ‘Up-Country’) Tamil population in Sri Lanka 2003, who had been deprived of citizenship since 1948 has both been held up as a success story of ‘solving’ statelessness and analysed for the continuing discrimination faced by the population group despite their citizenship status being resolved.

C.  Stakeholders

Twenty-six former SNAP members were based in South Asia, with twenty being active members. This included:

  • Chowdhury Abrar, Refugee and Migratory Movements Research Unit (RMMRU), University of Dhaka (Bangladesh)
  • Khalid Hussain, Council on Minorities (Bangladesh)
  • Hasan Mohammad, Al-Falah (Bangladesh)
  • Kamrun Nahar, Naripokkho (Bangladesh)
  • Manzoor Hasan, BRAC University (Bangladesh)
  • M. Parivelan, Tata Institute of Social Sciences (India)
  • Sanoj Rajan, Ansal University New Delhi (India)
  • Saud Tahir, Socio-Legal Information Centre (Human Rights Law Network)/ Refugee Rights Initiative (India)
  • Ravi Hemadri, Development and Justice Initiative (India)
  • Sabin Shrestha, Forum for Women Law and Development (Nepal)
  • Neetu Pokhare, Alliance on Social Dialogue (Nepal)
  • Kritagya Ra, Forum for Women Law and Development (Nepal)
  • Sanulal Maharjan, Center to Assist & Protect Child Rights (Nepal)
  • Imran Laghari, Human Rights Alliance (Pakistan)
  • Ali Ahmed Palh, RightsNow Pakistan (Pakistan)
  • Hina Tabassum, Children and Women’s Trust (Pakistan)
  • Syed Nadeem Farhat, Institute of Policy Studies (Pakistan)
  • Muhammad Haider Imtiaz, Aurat Foundation/ Faraz, Haider, Moazzam & Co. (Pakistan)
  • Ashok Xavier Gladston, Independent (Sri Lanka)
  • Nadine Vanniasinkam, International Centre for Ethnic Studies (Sri Lanka)

NFA has continued to work with a number of organisations in Bangladesh and has established a close partnership with the Council of Minorities, a CSOs promoting the rights of minority populations within Bangladesh led by Khalid Hussain, a formerly stateless member of the Urdu-speaking community.

Website: https://www.com-bd.org/

In India, first SNAP and now NFA have worked closely with Development and Justice initiative (DAJI). DAJI has undertaken extensive work in Assam, mapping statelessness and documenting exclusion while providing support to people excluded by the National Register of Citizens.

Website: https://www.daji.org.in/

In 2020, the Right to Nationality and Citizenship Network (R2NC) was formed as a coalition of individuals and CSOs aiming to raise awareness and advocate for people’s right to nationality within India. NFA has worked closely with the network and its members.

Website: https://www.right2nationality.in/

Crucially, NFA has continued to grow our relationship with organisation working within Nepal including the Citizenship Affected People’s Network Nepal led by and comprised of persons affected by Nepal’s gender discriminatory citizenship laws, including organisation President Dipti Gurung. Internationally, the Global Campaign for Equal Nationality Rights has undertaken extensive work on the impact of gender discriminatory citizenship laws within Nepal.

NFA has partnered with two organisations in Pakistan, Musawi and Imkaan Welfare Organisation.

D.  Causes of Statelessness

  •  Discriminatory nationality laws

As noted above, two states within South Asia have discriminatory provisions in their laws which restrict the ability of conferral of nationality onto children. The laws of the Maldives containing religious discrimination (and potentially some gender discriminatory provisions) and the laws of Nepal gender discrimination.  Limitations within the citizenship laws of Nepal mean that children born to a mothers who is a citizenship by descent can only gain citizenship by descent when the father is not identified. Further, in instances where a child is born to a citizen mother and a foreign father, citizenship can only be acquired through naturalisation (where children born to citizen fathers gain citizenship by descent). As many as 400-500,000 persons are estimated to have been rendered stateless due to these discriminatory provisions.

The laws of three states (Bangladesh, Nepal and Pakistan) also contain discriminatory provisions that inhibit the ability of married women to confer nationality onto foreign spouses.

As previously mentioned, the entire reported stateless population within South Asia comprise of stateless refugees, largely Rohingya from Myanmar. As outlined in the Myanmar and Southeast Asia chapters, the statelessness of the Rohingya community is largely caused by ethnic discrimination embedded in the citizenship laws of Myanmar.

Other ethnic minority groups have been impacted by discriminatory nationality laws which either indirectly excluded population groups or ignored them entirely. Urdu-speaking ‘Bihari’ communities were excluded from accession Bangladeshi citizenship until court intervention in 2008 due to discriminatory interpretations of the citizenship law. Ethnic minority groups including the Mosuli and Jogi (or ‘Magat’) communities who have lived semi-nomadic existences in Afghanistan from generations have been largely excluded from the operation of citizenship laws due to ethnic discrimination based on their historic connections to neighbouring countries.

Statelessness among Muslim and ethnic minority populations in India — including persons excluded by the National Register of Citizens in Assam and Rohingya refugees —is further protracted by their discriminatory exclusion from the Citizenship Amendment Act 2019. The Citizenship Amendment Act provides a pathway to Indian citizenship for ‘illegal migrants’ in India who belong to Hindu, Christian, Buddhist, Jain, Parsi and Christian faiths from Afghanistan, Bangladesh and Pakistan. Notably, persons of Islamic faith are excluded from the amendment, an act labelled by numerous commentators as being discriminatory or religious grounds.

  •   Lack of legal safeguards

The citizenship laws of three countries (Afghanistan, Nepal and Sri Lanka) provide limited protection for foundling children, with no countries provide broad protection for foundling children. In Afghani citizenship law a child found in Afghanistan will be considered a citizen of Afghanistan if documentation of their parent’s citizenship is not available. Similarly, the citizenship laws of Sri Lanka provide that a foundling child of unknown and unascertained parentage will be considered a citizen of Sri Lanka until the contrary can be proven. The citizenship law of Nepal provides that foundling children are considered citizens by descent until their father or mother is identified.

The jus soli provision that exist in the citizenship laws of two countries (Bangladeshi and Pakistani) may provide foundling children access to citizenship, however the in-practice application of these laws are less generous. Pakistan’s jus soli provisions on paper provide citizenship to all children born on the territory of Pakistan, except those whose fathers have diplomatic immunity, or are enemy aliens. However, the children of Afghan refugees who have resided in Pakistan for decades have explicitly been excluded from the operation of these jus soli provisions with the High Court of Pakistan explicitly labelling Afghan refugees as foreigner and aliens.

The citizenship laws of three countries (Bhutan, India and the Maldives) do not address access to citizenship for foundlings.

None of the countries in South Asia provide explicit protection for children born to stateless parents. The jus soli provisions of two states (Bangladesh and Pakistan) would appear to provide access to citizenship for stateless children, however their application in practice is far less certain. While there is no specific provision providing for access of citizenship for stateless children at birth in Afghanistan, however under the citizenship laws of the country stateless persons may obtain citizenship at the age of 18. Bhutanese, Indian, Maldivian, Nepali, and Sri Lankan citizenship laws do not address access to citizenship for children of stateless parents.

  •  Citizenship stripping

In the late 1980’s, members of ethnic Nepali communities known as ‘Lhotshampas’ living in the south of the country were labelled as non-citizens through a census count, stripping them of their Bhutanese citizenship. In the early 1990’s the Bhutanese government began expelling persons from their land and the country with as many as 100,000 refugees arriving in Nepal during the 1990’s.

The history of the National Register of Citizens in Assam is political complex and driven by ethnic and religious tension spanning back to the period of partition between India and Pakistan. In 2019 the final National Register of citizenship excluded 1.9 million residents from the list – essentially stripping them of their citizenship. Persons excluded from the National Register of Citizens must in turn apply to the government or Foreigners Tribunal to have their citizenship status verified, with those unable to verify their status as citizens rendered stateless.

Historic statelessness among Hill Country Tamil was largely based on the discriminatory implementation of citizenship laws at the time of Sri Lankan independence in 1948 which indirectly excluded Hill Country Tamils from citizenship.

  • Statelessness and climate change

With the highest elevation point of the Maldives being 2.4 meters above sea-level, the impacts of climate-induced sea-level rise and in turn the potential risks of statelessness caused by ‘disappearing states’ has been discussed in detail. It is unclear the extent of the impacts of the recent devastating floods across Pakistan on compounding statelessness among already marginalised population groups.

  •   Administrative barriers

Administrative and practical barriers, including security concerns, restrictions imposed by male family members and lack of financial means have fundamentally limited the ability of women in Afghanistan to gain identity documentation and to confirm their status as citizens. Similarly in Nepal, administrative and policy barriers affect the ability of marginalised groups including LGBTQIA+ communities and women from accessing citizenship certificates. Children born to citizen mothers continue to face a number of administrative barriers in gaining birth registration and citizenship certificates.

Administrative and policy practice have led to the citizenship laws of Bangladesh shifting in application from jus soli to jus sanguinis in their application. This ‘paradigmatic policy shift has compounded intergenerational statelessness among children born in the country, especially among Rohingya refugees. In 2020 it was estimated that more than 75,000 Rohingya children has been born in the Cox’s Bazaar Refugee camp since 2017.

In India, Barriers to birth registration among Sri Lankan refugee populations and ethnic minority groups including the Kutchi community residing in border regions of the country places these populations at risk of statelessness. Discriminatory administrative barriers are largely the cause of statelessness among ethnic Bengali communities in Pakistan. Despite their right to citizenship existing under the written law, it is estimated that 70–80% of the Bengali population in Pakistan do not have identity documents. The position of ethnic Bengali’s was worsened through the introduction of digitized ID cards, with the government discriminating and, in some cases, stripping persons of citizenship and labelled Bengali community members as aliens.