Refugees from generation to generation - Preventing statelessness by advancing durable solutions in the Great Lakes Region - Democratic Republic of the Congo

1. Summary

This study investigated risks of statelessness among long-term refugees in three countries of the Great Lakes region in Africa: Democratic Republic of Congo (DRC), Rwanda and Uganda. The study focused on refugees who had left their country of origin more than twenty years ago – defined as “long-term” refugees for the purposes of the study – and their descendants born in the country of asylum.1 The populations considered in this report are refugees of Rwandan origin in DRC, refugees of Congolese origin in Rwanda, and refugees of Congolese and South Sudanese origin in Uganda. The study involved both an analysis of laws and policies in all the countries studied, including the countries of origin of the refugees, and quantitative and qualitative research among refugees and host communities. The objective was to understand in greater depth the risk of statelessness among these long-term refugees and their descendants, and potential durable solutions that mitigate this risk. In the context of stateless persons, whether or not they are also refugees, a durable solution is linked to the recognition or granting of a nationality. Among these solutions, the study considers the improvement of access to civil registration and other identity documents, as well as the legal pathways to local integration in the country of asylum, including the possibility of acquiring nationality.

The study found that the vast majority of these long-term refugees had no identity documents of any kind issued by their country of origin. The only official identification recording their nationality is therefore their refugee registration document (issued by the authority of country of asylum, often with UNHCR support).

Most adult refugees have no birth certificates, essential for proof of connection of parent and child on the basis of which nationality might be claimed. Among those born in the country of origin, only 8 percent of the adult long-term refugees surveyed for this report had a birth certificate. Although birth registration has improved significantly for children of refugees born in the country of asylum in recent years and is nearing complete coverage in Rwanda (including for those born in the country who are now adults), only 28 percent of adult refugees born in Uganda, and 6 percent of adults born in DRC held a birth certificate.

Unsurprisingly, a majority of the refugees surveyed stated that their preferred solution to end their refugee status started with resettlement in a third country. Yet, when asked which country they felt closest to, more than 62 percent named the country of asylum (rising to 70 percent of those living in urban areas), and almost half stated that their preferred solution would be to remain in that country.

Although only a minority (12 percent of the total) said that they wished to acquire the nationality of the country of asylum, focus groups indicated that the implications and possibilities of changing legal status were not fully understood, and that this percentage might well increase if the options were easier to access and with greater awareness of the processes. In practice, it is hard for any applicant to acquire nationality based on long-term residence in any of the three countries of asylum, because of the legal and procedural barriers. Although acquisition of nationality based on marriage is relatively more accessible,

UNHCR is only aware of a small handful of successful applications by long-term refugees to acquire nationality in Uganda or Rwanda, in most cases based on marriage to a national, and none in DRC.

One reason for wishing to retain refugee status (22 percent of all those surveyed) is that s o long as refugee status is viewed as indefinite and refugee identity documents are renewable the status functions as a form of permanent residence in the host country. Refugee status provides the legal residence permit and identity documents that refugees need to access services and facilitate freedom of movement in the country of asylum, as well as receive entitlements to some (limited) humanitarian assistance from UNHCR and partners and the host government. However, refugee status is not intended to be permanent, and is thus precarious over the long term. In the case of refugees who fled the events in Rwanda between 1959 and 1998 in particular, UNHCR recommended in 2013 that the “ceased circumstances” clause under the 1951 UN Convention Relating to the Status of Refugees could be invoked, although a majority of countries in the Great Lakes region, including DRC and Uganda, have decided not to do so.

In some other contexts, statelessness has only become apparent when refugee status ends (or an asylum application fails), and repatriation is neither desired nor possible to arrange because of lack of proof of a nationality of origin. This was the case, for example, for former Angolan refugees turned back at the border between DRC and Angola during the repatriation process in 2010. Recognition of refugee status thus conceals the risks of statelessness created by gaps in laws and procedures relating to nationality in the countries of origin and of asylum.

As a first gap, the refugee registration and status determination processes do not generally consider whether a person might be stateless or at risk of statelessness, but only eligibility for protection as a refugee. This is true in very many countries, including those considered for this report , and especially when recognition of refugee status is done on prima facie basis and not through individual determination.

Secondly, there are major gaps in birth registration coverage and legal frameworks. Birth registration is the most authoritative evidence of the facts on the basis of which nationality may be determined.

Although the laws of all three countries considered in this report establish the right to free and compulsory birth registration, with no exclusion for refugees or children of other foreigners, birth registration rates have historically been low in all three countries. While these rates are increasing for current births, only in Rwanda is there a systematic effort to carry out late registration for all births of refugees (including for adults) that have taken place in the country of asylum. However, universal birth registration in itself is not sufficient to resolve statelessness, especially if the nationality of parents is uncertain or undocumented or if the child cannot acquire their nationality. In many countries, including DRC and Rwanda, national laws and procedures provide that the nationality of children born outside the country will only be recognised if the parents register the birth with the consulate, or the foreign birth certificate is transcribed into the civil registry of the country of origin. Special procedures to bypass these formal legal requirements are usually incorporated into the tripartite agreements for “comprehensive durable solutions” (including repatriation or local integration) made between UNHCR and the governments of the countries of origin and asylum of the refugees. But the situation is different outside of such contexts. Refugees cannot easily approach the embassies of their country of origin, since it may put at risk their refugee status; and almost all are in any event unaware of such requirements. Because the interpretation of the law of another country in relation to attribution of nationality to a child born abroad is a complex question, not within the competency of a civil registrar, UNHCR does not recommend that birth certificates record the nationality of a child. In any event, a record of the nationality of parents or child mentioned in a birth certificate issued by the country of birth does not bind the authorities of the country of origin of the parents. These problems related to birth registration and conflicts of law increase risks of statelessness and impede durable solutions for long-term refugees – yet they lack clear international guidance for their resolution.

Thirdly, there are important gaps in the nationality laws of all three countries, and their implementation in practice, especially in relation to protection against statelessness for children born in their territory. All three countries provide in principle for a child of unknown parents found in the territory (a foundling) to be granted nationality. To provide real protection against statelessness, it is important that this protection apply not only to newborn babies. It is positive, therefore, that Rwanda defines a foundling as any child “without comprehensive information pertaining to the identity of his or her parents or his or her origin”.

However, this protection is restricted to newborn children in DRC, and to children under five in Uganda.

Although the nationality code in DRC provides for the right to nationality for children of stateless parents, and for those born in the territory to be able to acquire nationality at majority, there are no procedures to allow these provisions to be implemented in practice. Rwanda’s 2021 nationality law establishes the most comprehensive protections against childhood statelessness. However, the law also imposes the requirement that all children must apply for recognition of nationality, rather than providing for (automatic) attribution of nationality by operation of law in most cases, potentially leaving some children at risk of statelessness even if both their parents are Rwandan nationals. Uganda establishes no general rights based on birth in Uganda for those who are not members of one of the indigenous communities listed in a schedule to the constitution, creating significant risks of statelessness. This even includes the children of parents who registered or naturalised as Ugandan citizens before their birth, who must apply for citizenship in their own right after accumulating the required period of residence as an adult (residence as a minor is not counted for the purposes of registration or naturalisation; while minor children can also not be included within a parent’s application to naturalise ). Since the required period of residence for naturalisation is 20 years, even the stateless child of a former refugee born in Uganda could only acquire Ugandan citizenship at 38 years old at the earliest. Naturalisation based on long residence is generally very hard or impossible to access for refugees in all three countries (as it is throughout the African continent, except in the few cases where there have been special initiatives to facilitate acquisition).

The key issues in preventing statelessness among refugees and their descendants therefore include assessing potential statelessness as part of refugee registration, and/or when applicable, individual refugee status determination procedures; the issuance and renewal of refugee identity documents; ensuring universal birth registration for all children of refugees born in country of asylum (with attention to the details that should be recorded in the birth register and especially the birth certificate); and the facilitation of access to substitute civil registration certificates for those whose births or marriages took place in another country. There is also the need to establish of minimum rights to nationality based on birth in the territory of the country of asylum, as well as the possibility of acquisition of nationality based on long-term residence, and the removal of procedural barriers to accessing these rights.

The detailed content of such provisions can seem quite abstract, but they profoundly impact upon the search for durable solutions for these long-term refugees. The practical implications reported by the refugees themselves relate to livelihoods, including access to food, housing, healthcare and education, and freedom of movement. The idea that a legal change of nationality is even possible can be hard to grasp. However, a significant minority mentioned access to identity documents in the country of asylum (and their renewal) and civil registration among the main problems they faced. Expired or inaccessible identity documents also restrict freedom of movement and access to services – meaning that there is overlap among these responses.

Many refugees are closely integrated into the societies where they now live, even as the older refugees in particular retain links to their countries of origin. There is a need to develop legal pathways that allow for this integration in their host country to be fully recognised: it is neither practical nor desirable for refugee status to be maintained over multiple generations, and risks of statelessness are compounded.

There are often political challenges to the development of pathways towards acquisition of nationality, and the challenges over questions such as rights of access to land need to be resolved. There are also potential dangers if individuals feel pressurised into accepting a new status as an alternative to refugee status, especially if it may lead to the cessation of their refugee status, or does not provide a route to (re)acquisition of nationality. However, the indefinite status of refugee is also not sustainable, and creates its own political dangers, if a group that as a matter of fact is permanently resident is at the same time permanently excluded from full membership of society. It is also notable that in Uganda, where focus groups were also conducted with host communities, no objection was expressed to the concept that refugees might acquire Ugandan citizenship; a view confirmed by survey data from other sources.

The 1951 UN Refugee Convention provides for the naturalisation of refugees to be facilitated. The 1969 African Refugee Convention calls for the “settlement” of refugees to be secured. In addition to these provisions relating to the status of adults, there are stronger rights to nationality in case of children born in the country of asylum. Article 6(3) of the African Charter on the Rights and Welfare of the Child provides, in line with the UN Convention on the Rights of the Child, that every child has the right to acquire a nationality. Article 6(4) adopts a similar minimum protection to that provided in Article 1 of the Convention on the Reduction of Statelessness, requiring states to provide in law that “A child shall acquire the nationality of the State in the territory of which he [sic] has been born if, at the time of the child’s birth, he is not granted nationality by any other State in accordance with its laws."

The risks of statelessness created by refugees’ lack of documentation and weakening connections to their country of origin increase with each successive generation born in exile. The risks can, however, be mitigated through reforms to bring national laws into line with international law, including African regional standards, especially by providing rights to acquire nationality for children born in the country of asylum. In addition, access should be facilitated to the procedures for adults to be able to acquire nationality in the country of asylum that already exist in law but are inaccessible to refugees.