We must not allow stateless people to be made outsiders

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Jamie Chai Yun Liew is a lawyer based in Ottawa and the author of the novel Dandelion.

Growing up, my immigrant father used long-winded lectures to punish me. He would sit me and my siblings down and implore us to imagine what it was like to grow up like him. As we rolled our eyes, he would reiterate that because of our fortunate position in life, we shouldn’t throw it away with our misbehaviour, our relaxed attitude about our school work or lack of work ethic.

My father’s life story seemingly fits into the Canadian migrant narrative. He came as a young economic migrant, sponsored his spouse and several siblings, worked in blue-collar jobs and raised a family. But I never felt like my father’s story was typical. No one around me had the same kind of migration story. I had never heard of anyone being stateless other than members of my family.

My father was born stateless in Brunei, a country that did not and still doesn’t give citizenship to Chinese people born within its territory. A person is stateless when they have no citizenship whatsoever. People who are stateless are homeless in some respects, with no country claiming them as their own. Some may have permanent residence or temporary residence, while others have no immigration status at all.

They live in limbo because without permanent legal status such as citizenship, it is like having no legal identity. Without this, simple things many of us take for granted, such as opening a bank account or getting a driver’s licence, are just aspirations. More significant consequences include the inability to go to school or access health care. Some stateless people suffer severe consequences such as arrest, detention, deportation, mental-health issues, exploitative working conditions and poverty.

As a child, I didn’t really understand the term “stateless.” At first, I thought my father meant he wasn’t given a birth certificate. This is a frequent occurrence for stateless people – the lack of documentation that registers their birth, name and legal standing. But it is more than the lack of the piece of paper that my father was referring to. It was how one could be made invisible, disposable and foreign in a country one considers their home.

My father was able to escape a life of limbo and vulnerability by immigrating to Canada. When I was younger, I thought his story was fantastical, unique and obscure. Years later, after practising immigration law and becoming a law professor, I started to see not only frequent occurrences of statelessness but a growing community of scholars writing about the topic.

The United Nations High Commissioner for Refugees estimates that more than 10 million people around the world are stateless. The very nature of statelessness makes it impossible to know precisely how many people are stateless, and the number could be much higher given that it is governments doing the counting and stateless people have very good reasons to hide. Statelessness is not just an issue in developing countries, but exists everywhere, even in Canada and the United States.

It was its pervasiveness that led me to go back to where my family has roots to try to get a better understanding of why statelessness exists. I spent a few months in Malaysia, where there is a significant stateless population and a robust advocacy community supporting stateless people. Over chili crab in Kota Kinabalu, in a humid community centre in Klang, in the waiting room of a government registrar in Penang, and even in the air-conditioned malls of Kuala Lumpur, I met stateless people, their families, lawyers, paralegals, members of parliament, and advocates with community and non-governmental organizations.

In one meeting with a lawyer in a beautiful office of a commercial law firm in Kuala Lumpur, she showed me a file that had the client’s name on it. It was the same as my last name, Liew. At a registration rally in Penang, where 60 stateless people and their families attempted to submit citizenship applications, I sat at a table with Chinese fathers who spoke my mother tongue, Hokkien, and told me their children could not attend school because they were stateless. One father told me, “How can they tell me my own child is a foreigner when I am not!”

In these multiple encounters, I had an out-of-body sensation that I was peering into an alternate universe where I was stateless. I saw my name on legal files and documents, and I saw my own father sitting at the table with other fathers. Indeed, had my father stayed in Southeast Asia, I would be stateless today.

As an academic, I gathered firsthand accounts on how the legal system in Malaysia has failed stateless people. But behind the law is a system in place that is stacked against certain ethnic groups.

My research gave me an understanding of how vestiges of British colonial law, administrative systems and government led to the development of a racialized notion of citizenship in postcolonial Malaysia. This can be found in its constitution and other laws and is being implemented through the discretionary power of front-line clerks reviewing citizenship applications.

I saw the role that administrative and legal decisions had in creating foreigners out of kin. The starkest example was when a stateless woman told me that her citizenship was taken away at a government counter simply because she didn’t “look Malaysian.”

People who had long-standing, genuine connections and bonds with a country were nevertheless made to be outsiders. I saw, in my research, that even though one could be born in a particular country, of parents who were citizens of that country, who lived their entire life there speaking the language and performing the customs, it might not be enough. For some, if your face doesn’t look like the dominant race, you may never belong, and never be granted the coveted status emblematic of belonging – citizenship.

Months later, when I returned to Canada, I started to see the same trends in the cases I had long taught in my immigration law class. The same colonial tools were reproduced in our legal systems to claim a person as not being a citizen of Canada.

Perhaps the most glaring example was Deepan Budlakoti, who was born in Canada in 1989. The case centred around Canada’s Citizenship Act excluding birthright citizenship from those born of persons who were in the country for diplomatic reasons. The central question was whether Mr. Budlakoti’s parents could be considered employed by a foreign government at the time of his birth.

The facts are murky since a former diplomat confirmed Mr. Budlakoti’s parents quit before he was born and a doctor affirmed his parents worked for him at the time of his birth. But the federal government unearthed paperwork showing the diplomatic status of Mr. Budlakoti’s parents was valid at the time of his birth. Canadian courts have accepted the version of facts that Mr. Budlakoti’s parents, who were cooks and cleaners, were employed by the Indian embassy at the time of his birth and therefore he was excluded from acquiring citizenship by being born in Canada.

The Federal Court of Appeal found this despite the fact that Mr. Budlakoti lived in Canada all of his life and had in the past acquired a Canadian passport. Notably, the court denied such a decision would make Mr. Budlakoti stateless, finding that he may qualify for citizenship under the laws of India. This was despite the fact that in attempting to deport Mr. Budlakoti, Canada has not been able to deport him to India since it has denied he is a citizen of India.

Other cases involved stateless refugee claimants whose applications were denied because they had the mere opportunity to gain citizenship somewhere. One notable example is the case of Chime Tretsetsang, a stateless refugee from Tibet who was denied refugee protection in Canada on the flimsy notion that he could possibly obtain citizenship in India. Indeed, the court in this case refused to consider Mr. Tretsetsang stateless and maintained that he could obtain Indian citizenship despite no assurances given by India and no evidence that citizenship would be granted.

In my research, the common thread I have pulled in many cases of statelessness in Malaysia and Canada is the idea that people can be made to be foreigners even where there is little to no evidence they are citizens of another country – or even non-citizens of a country they claim to have membership in.

The mere possibility that they could be citizens of another country is all that legal decision makers have relied on. This is astonishing given the kinds of evidence people need to provide to prove anything in court. These legal findings – that persons are not stateless and are foreign citizens – are based on nothing but pure speculation.

There is a global trend where certain racialized groups will always be considered foreign, other, stranger. This is in the absence of concrete proof that they are citizens of other states. It may also contradict established facts that these people may have deep bonds with Malaysia or Canada. Such ties include birth within the territory, parents or grandparents who have permanent residence or citizenship, years of residence within the country, fluency of the language and cultural customs of the dominant culture of the state, and an absence of affinity or connections to other foreign states. These are factors long recognized in international law as demonstrating citizenship.

As I explored the legal barriers and consequences, as well as the political and social implications of how we treat stateless people, what stayed with me most was how statelessness made people feel and what it did to their conception of their own identity and where they belong.

I found stateless people exhibited a dual personality. At times they were insecure of their place and feared offending anyone around them. They exhibited a perpetual need to please, assimilate and demonstrate that they could blend in. At other times, they displayed a sharp knack for surviving, being resourceful and resilient, manifesting a stubborn insistence that they are citizens in all but name.

They were eloquent, intelligent advocates and a force that governments could not ignore or brush under the rug. I started to appreciate the performances my father carried out and the fear that still seeps out with his parental but cautionary comments to me today to not draw too much attention to myself.

While my father was able to meet the then-requirements for economic immigration to Canada, he has never forgotten the instability and uncertainty he felt as a stateless person. For the millions who remain stateless, many have no legal recourse to obtain any immigration status anywhere. Scores of stateless persons are children born into countries that refuse to treat them like kin, and they suffer when they are denied schooling, health care, jobs and even a home.

It is an urgent time to be talking about statelessness because the very act of making people stateless and declaring they are foreigners is used as a tool in troubling postcolonial contexts including the genocide of the Rohingya people in Myanmar, and the stripping of citizenship from millions of Muslims in Assam, India.

We must challenge the default position that we should necessarily trust those around us and the state in telling us who are members of our community. And we need to start conversations to find productive ways to welcome home our fellow citizens, and be critical about how a person is cast as a stranger, other and foreigner.

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