Course: Citizenship and National Identity

Module 3: Statelessness & Other Consequences

This module explores how deprivation of citizenship can lead to statelessness and limit access to basic rights.

This module explores the consequences of citizenship deprivation, with a focus on statelessness and its corresponding consequences, including indefinite detention and refugee crises. We will also consider how the denial of nationality can limit access to fundamental rights and protections.

Statelessness

Statelessness is a highly vulnerable condition that leaves individuals exposed to arbitrary treatment and denial of basic rights. It may result from a range of factors, including discriminatory laws, gaps in citizenship legislation, state dissolution or succession, or the arbitrary deprivation or exclusion from citizenship.

Fact box: De jure & De facto statelessness

De jure stateless – A stateless person ‘who is not considered as a national by any State under the operation of its law’ (Article 1 of the 1954 Convention Relating to the Status of Stateless Persons)

De facto stateless – where such persons are persons outside the country of their nationality who are unable or, for valid reasons, are unwilling to avail themselves of the protection of that country. (UNHCR, Handbook on Protection of Stateless Persons, 2014)

Preventing Statelessness

From a human rights perspective, a key consideration in the state’s approach to the citizenship framework is the prevention of statelessness.

Statelessness: Perpetuating Marginalization and Discrimination

It is important to address statelessness within the broader context of minority rights. Another critical dimension associated with statelessness is its gendered impact.

Case Presentation: Impact of Citizenship deprivation in Assam, India

The citizenship determination processes in Assam have led to the exclusion of 1.9 million individuals from the NRC, and over 160,000 people have been declared foreigners by the FTs. While those excluded from the NRC technically have the right to appeal before the FTs, no structured mechanism has been initiated since the final NRC list was published. Although official data on the number of affected Bengali speaking Muslim minorities is unavailable, developments surrounding the enactment of the CAA, 2019 indicate that Bengali Muslims are likely to be disproportionately impacted, facing heightened risks of in situ statelessness, prolonged detention, and violations of other fundamental rights.

Fact box: In Situ Statelessness

Refers to people born or residing in their country of residence who are denied or deprived of nationality, leaving them stateless within the borders of their own country, despite their strong connection to it, often due to discrimination, gaps in nationality laws, or administrative barriers.

Indefinite Detention

International law upholds the right of every individual to liberty and security of person. In situations where an individual’s citizenship status is uncertain, particularly as a stateless person, they are at heightened risk of being subjected to prolonged or even indefinite detention, since the absence of citizenship prevents both legal recognition and removal.

Fact box: Definition of Detention

Detention refers to the deprivation of liberty or confinement in a closed place which a person is not permitted to leave at will, including, though not limited to, prisons or purpose-built detention, closed reception or holding centres or facilities. (UNHCR Detention Guidelines)

Human Rights Standards on Detention

Immigration detention refers to the “deprivation of an individual’s liberty, usually of an administrative character, for an alleged breach of the conditions of entry, stay or residence in the receiving country.” Due to the lack of a clear detention policy in many countries, such detentions do not meet the standards of international human rights law safeguards. This leads to arbitrary practices, including prolonged confinement without case-by-case assessment on the need for detention, lack of due process, and minimal safeguards. Although detention for deportation is meant to be administrative, many states apply penal measures, leading to significant gaps between domestic practices and international legal norms.

Human Rights and Immigration Detention

International human rights standards establish a presumption against the arbitrary detention of refugees, asylum seekers, and migrants, emphasizing that vulnerable groups, such as children, stateless persons, pregnant women, the elderly, and persons with disabilities, should not be detained.

While detention of asylum seekers and immigrants is permitted only in exceptional circumstances, it must be governed by domestic legislation aligned with international human rights standards. Such detention must be necessary, proportionate, and reasonable, assessed on a case-by-case basis and only be for a minimal period of time. These safeguards apply regardless of immigration status, and all detainees are entitled to extensive rights and safeguards, which authorities must uphold in both letter and spirit.

Alternatives-To-Detention

Alternatives to detention (ATD) are any legislation, policy or practice, formal or informal, that ensures people are not detained for reasons relating to their migration status. It is a legal requirement under international human rights law to consider multiple alternatives to detention before detaining an individual. The following are key factors to consider against detention:

Children cannot be detained due to their parent’s or their migration status, and family unity should not justify their detention. Alternatives must be pursued for the whole
Refugees have the right to contact UNHCR, and all immigration detainees are entitled to consular assistance as part of due process.
Detention must be a last resort, with alternatives like registration, bail, periodic reporting, community supervision, or designated residence considered first.
Proper documentation supports these alternatives, helping prevent re-detention and enabling access to work, healthcare, and housing. Legal frameworks are essential to ensure accountability and uphold standards.

Case Presentation: Detention in Assam

In 2023, the state established India’s largest detention centre in Matia, located in Assam’s Goalpara district, with a capacity to hold up to 3,000 individuals.

Detention centre in Assam, India

Two categories of detainees in Assam:

– Declared foreigners (DFN) – DFNs are persons declared as foreigners by Foreigners Tribunals as discussed in Module 2. Since Assam is the only state that has constituted Foreigner Tribunals till now, DFNs are a category specific only to Assam.

– Convicted foreigners (CFN) – CFNs are foreigners who have been convicted by criminal courts for specific immigration offences (eg. entry without documents, use of forged documents) and have to undergo criminal sentences.

Both DFNs and CFNs are held in detention for the purpose of deportation.

Detention Centres in Assam: Legal Challenges and Safeguards

Prior to 2023, detention centres were operating out of 6 district and central jails in Assam. Since 2018, there has been ongoing litigation over the overcrowded and poor conditions in these centres.

The Supreme Court of India laid down directives –

Highlighting the deplorable conditions inside detention centres, risk of indefinite incarceration of detainees awaiting deportation, as well as issues pertaining to overcrowding and congestion in prisons during the COVID-19 Pandemic.
Release of detainees held for over two years, subject to surety bonds. However, many remain detained due to their inability to meet the strict release conditions, stemming from socioeconomic constraints.

Human Rights Safeguards:

As discussed above in “Human Rights Standards on Detention”, detention should always be a last resort, subject to tests of necessity, proportionality, and reasonableness, and must be time-bound. Despite this, Assam lacks a legal or administrative mechanism to prevent indefinite detention. The three-pronged test is not applied, and procedural safeguards remain absent. While deportation is cited as the rationale, it is only feasible for CFNs with verified nationality. For DFNs, whose nationality is often undetermined and whose only genuine connection may be to India, prolonged detention continues without a clear legal basis.

Push-Back strategy in Assam

In 2025, the Government of Assam implemented a push-back policy, involving the forced removal of individuals declared foreigners by the Foreigners Tribunals, often sending them across the state’s borders, most commonly into Bangladesh. This practice has sparked serious human rights concerns, especially for those whose nationality remains disputed or unverified. The articles below capture the lived experiences and human rights impacts of such actions:

Arshad Ahmed, Mahibul Hoque, ‘Foreigners for both nations’: India pushing Muslims ‘back’ to Bangladesh, 24 June, 2025, available here
Angshuman Choudhury, Assam’s Plan To Expel ‘Illegal Migrants’ Overnight Is A New Extrajudicial Model Of Mass Disenfranchisement, 15 September, 2025, available here

Refugees and statelessness

Statelessness does not automatically result in refugee status, but the lack of citizenship can increase vulnerability to persecution and displacement, often leading individuals to seek asylum or refugee protection. How does the experience of the Rohingyas demonstrate the ways in which statelessness can contribute to persecution and forced displacement?

Fact box: Definition of Refugee

“someone who owing to well- founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

(Art 1 of The Convention Relating to the Status of Refugees (1951) and Art 1 (2) & (3) of The Protocol Relating to the Status of Refugees (1967).)

Please note that there are specific exceptions to this definition, even if an individual otherwise may meet its criteria. For example, those suspected of war crimes, crimes against humanity, serious non- political crimes, or actions against the principles of the United Nations.

Case Presentation: The Rohingyas

The Rohingya are one of the largest stateless populations in the world, facing double marginalisation. Denied citizenship in Myanmar, they also face the challenge of not being granted legal status as a refugee in the countries to which they flee to escape persecution. This lack of recognition leaves them in legal limbo, deepening their vulnerability and restricting access to basic human rights.

Crimmigration: Refugees or Undocumented as Offenders

Scholars have described crimmigration “as an intersection of immigration and criminal legislation and the increasing use of enforcement tools associated with criminal punishment”.

This overlapping has taken place in three ways:

immigration and criminal law have increasingly blended into each other;
immigration enforcement has begun to mimic criminal law enforcement;
procedural aspects of prosecuting immigration violations have acquired traits of criminal trials.

Detention and deportation are central mechanisms through which this overlapping operates. These practices have significantly undermined the human rights of non-citizens, creating new forms of vulnerability. In Assam, India, for example, detention is officially considered an administrative tool to facilitate deportation. In practice, however, detainees experience it as a form of punishment, often held in facilities that function like prisons, where the deprivation of liberty is compounded by socio-economic marginalization.

A similar pattern can be seen in the case of the Rohingyas in Bangladesh, who are confined to refugee camps. Despite their displacement and well-founded fear of persecution, most are denied formal recognition as refugees or asylum seekers and are instead treated as illegal residents under Bangladeshi passport and immigration laws.

Although the legal and institutional contexts of detention and refugee policy differ between India and Bangladesh, the lived experiences of those affected, and their limited access to basic human rights, reveal significant commonalities. This is especially true when both states fail to provide exemptions for vulnerable groups such as refugees, asylum seekers, trafficked individuals, or long-term residents with generational ties to the country. Instead, they are collectively categorized under the broad and punitive label of “illegal migration.”

Additional Resources

Questions for reflection and discussion

When you hear the term “statelessness,” what vulnerabilities come to mind? How do the Rohingya case studies help illustrate these risks?
Do you see ways in which the State might also be impacted, directly or indirectly, by how it addresses or fails to address the situation of Bengali-speaking Muslims and Rohingyas?
The Rohingya are stateless and often not recognized as refugees in the countries where they seek safety. What does this double exclusion show about gaps in international protection, and how might similar risks apply to Bengali-speaking Muslims in India?

Excercise

Developing Guidelines for Citizenship

Task:

You are part of a team tasked with drafting a new citizenship law for a country. Formulate a set of guiding principles or policy guidelines that would shape the proposed citizenship law. Your framework should aim to prevent statelessness, promote equality, and uphold human dignity.

Guiding questions:

What safeguards could be included to prevent discrimination and statelessness?
How can administrative procedures, such as registration, verification, or appeal, be made fair, transparent, and accessible?
What legal remedies should be available to individuals who are excluded from citizenship or declared foreigners?

For Guidance:
You may draw on international principles and examples discussed in the course and found in the additional resources section (for instance, provisions from the Universal Declaration of Human Rights, the 1954 and 1961 Statelessness Conventions, or national good practices).