About this topic
This topic gives a correct legal label to people who move, or who have no State at all: nationals, stateless persons, internally displaced persons (IDPs), immigrants, refugees and asylum seekers. Each label carries different rights and different protectors.
Five people to be labelled:
- Neha, a software engineer from Pune, accepts a job in Canada and moves there on a work permit.
- A cartoonist in a neighbouring country mocks the ruling party; the police smash his studio, two friends disappear, and he crosses a border to ask for protection.
- A fisherman from a small Pacific island watches the sea swallow his village and moves abroad.
- A farming family flees a civil war to a relief camp 300 kilometres away, still inside their own country.
- A baby is born in a country that gives nationality only through parents, to parents whose own country gives it only to children born on its soil.
Picture every State as a house, and nationality as the key to that house. Every person in this topic can be sorted by asking three questions:
- The key: Does the person hold a key (a nationality)?
- The border: Is the person still inside his own house (country), or outside it?
- The motive: Did the person leave by choice, or because of fear?
Key, border, motive. Ask these three questions and every status in this topic (national, stateless person, IDP, immigrant, asylum seeker, refugee) falls into place.
Nationality: the key to the house
Meaning of nationality
The classic description of nationality comes from the International Court of Justice (ICJ) in the Nottebohm case.
Nottebohm case (ICJ, decided on 6 April 1955): Friedrich Nottebohm, born in Germany, had lived and traded in Guatemala for over 30 years. In 1939, after only a brief visit, he obtained the nationality of Liechtenstein. Liechtenstein later brought a claim against Guatemala on his behalf. Held: since his real life was in Guatemala, Liechtenstein could not use this thin link to protect him against Guatemala. Principle: nationality must rest on a genuine connection; the key should match a real home.
The Court described nationality as:
"a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties".
Definition to memorise: nationality is a legal bond based on a social fact of attachment, a genuine connection of existence, interests and sentiments, together with reciprocal rights and duties (Nottebohm case, ICJ, 1955).
Who decides who gets the key
Article 1 of the Hague Convention of 1930 on Certain Questions Relating to the Conflict of Nationality Laws provides:
"It is for each State to determine under its own law who are its nationals. This law shall be recognised by other States in so far as it is consistent with international conventions, international custom, and the principles of law generally recognised with regard to nationality."
- First sentence: gives each State freedom to decide who its nationals are.
- Second sentence: other States need recognise that choice only so far as it is consistent with international conventions, custom and generally recognised principles. This explains why Guatemala did not have to accept Liechtenstein's grant of nationality to Nottebohm.
Modes of acquiring nationality
A State hands over its key at one of three moments:
- at birth;
- later in life;
- when the map is redrawn (change of territory).
1. At birth: jus soli and jus sanguinis
Two rules compete at birth.
| Jus soli | Jus sanguinis |
|---|---|
| "Right of the soil" | "Right of blood" |
| Looks at the place of birth | Looks at the parents' nationality, wherever the child is born |
Many States mix the two rules.
2. Later in life: naturalisation, marriage and adoption
- Naturalisation: a foreigner earns the key by satisfying conditions laid down by the State, most often long lawful residence.
- Marriage or adoption: many systems also open doors to nationality through marriage or adoption.
3. Resumption: a lost key returned
A lost nationality can also be returned. This is resumption. Indian law gives a clean illustration in Section 8 of the Citizenship Act, 1955:
- When a citizen renounces Indian citizenship, every minor child of that person also ceases to be a citizen.
- The proviso allows the child to resume citizenship:
"Provided that any such child may, within one year after attaining full age, make a declaration in the prescribed form and manner that he wishes to resume Indian citizenship and shall thereupon again become a citizen of India."
4. When the map is redrawn: cession and subjugation
Cession transfers territory from one State to another, usually by treaty. The people of the territory generally take the new sovereign's nationality.
Puducherry is India's own example of cession. France ceded Puducherry, Karaikal, Mahe and Yanam to India by a treaty signed in 1956, which came into force on 16 August 1962.
Section 7 of the Citizenship Act, 1955 was built for such moments:
"If any territory becomes a part of India, the Central Government may, by order notified in the Official Gazette, specify the persons who shall be citizens of India by reason of their connection with that territory; and those persons shall be citizens of India as from the date to be specified in the order."
Subjugation is where a conqueror annexes territory and absorbs its people. It is now mainly history, because Article 2(4) of the United Nations Charter forbids the threat or use of force against the territorial integrity or political independence of any State.
| Cession | Subjugation |
|---|---|
| Transfer of territory from one State to another, usually by treaty | A conqueror annexes territory and absorbs its people |
| People generally take the new sovereign's nationality | People are absorbed by the conqueror |
| Example: Puducherry, ceded by France to India | Now mainly history, because of Article 2(4) of the UN Charter |
Nationality as a human right
Because the key matters so much, nationality is treated as a human right. Article 15 of the Universal Declaration of Human Rights (UDHR), 1948 says:
"Everyone has the right to a nationality. No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality."
The Declaration is a General Assembly resolution, not a treaty, but it has shaped many later treaties and constitutions.
Nationality and citizenship
In the house picture, nationality is the front-door key; citizenship adds the keys to the inner rooms where public decisions are made.
| Nationality | Citizenship |
|---|---|
| The front-door key | The keys to the inner rooms |
| Tells the world where a person belongs | Gives a share in public decision-making, such as voting and standing for election |
Usually one person holds both, but not always.
Under United States law, a person born in American Samoa is a national of the United States without being its citizen.
Stateless persons: no key at all
Definition
Article 1(1) of the Convention relating to the Status of Stateless Persons, 1954 says:
"For the purpose of this Convention, the term 'stateless person' means a person who is not considered as a national by any State under the operation of its law."
A stateless person is one who is not considered as a national by any State under the operation of its law (Article 1(1), 1954 Convention).
Accidental statelessness
The baby shows how statelessness happens by accident. Her parents' country follows only the soil rule (jus soli), so it gives nothing to a child born abroad. Her birth country follows only the blood rule (jus sanguinis), so it gives nothing to a child of foreigners. She ends up with no nationality at all.
The Convention on the Reduction of Statelessness, 1961 closes this gap. Its Article 1 begins:
"A Contracting State shall grant its nationality to a person born in its territory who would otherwise be stateless."
Nationality is granted either:
- at birth, by operation of law; or
- later, on application, under conditions the Convention permits.
Deliberate statelessness
Statelessness can also be deliberate. Most Rohingya are not recognised as citizens under Myanmar's citizenship law of 1982, making them one of the world's largest stateless groups.
Internally displaced persons (IDPs)
The second question asks whether the person is still inside his own house. The international border divides two legal worlds. Those who are forced to flee but never cross it are internally displaced persons.
Definition
The Guiding Principles on Internal Displacement, 1998 describe IDPs as:
"persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural or human-made disasters, and who have not crossed an internationally recognized state border."
Elements of the definition:
- persons or groups of persons;
- forced or obliged to flee or leave their homes or places of habitual residence;
- in particular as a result of, or to avoid the effects of, armed conflict, generalised violence, human rights violations, or natural or human-made disasters;
- who have not crossed an internationally recognised State border.
The farming family that fled a civil war to a relief camp 300 kilometres away, inside their own country, are IDPs. Their suffering may equal a refugee's, but legally they are still at home.
Who protects IDPs
Principle 3 of the Guiding Principles says:
"National authorities have the primary duty and responsibility to provide protection and humanitarian assistance to internally displaced persons within their jurisdiction."
- There is no worldwide treaty for IDPs.
- The Guiding Principles are not binding as such, though they restate existing human rights and humanitarian law.
- Kampala Convention: Africa went further. The African Union's Kampala Convention, adopted on 23 October 2009 and in force since 6 December 2012, is the first binding treaty on internal displacement for a whole continent.
The crossing of an international border is the dividing line between an IDP and a refugee. The primary duty to protect IDPs lies on their own national authorities (Principle 3).
Immigrants: leaving by choice
The third question is about motive: choice or fear. Choice makes an immigrant.
Neha moved to Canada for a better job. Her own State still protects her, so she can return whenever she wishes. She is an immigrant.
Immigration may be:
| Regular immigration | Irregular immigration |
|---|---|
| With permission | Without valid documents, or beyond the permitted stay |
Indian law: the entry, stay and exit of foreigners in India are now governed by the Immigration and Foreigners Act, 2025, in force since 1 September 2025. It replaced older laws, including the Foreigners Act, 1946.
Refugees: leaving because of fear
Fear makes a refugee.
Definition: Article 1A(2) of the 1951 Convention
The definition is in Article 1A(2) of the Convention relating to the Status of Refugees, 1951.
- Time limit in the original text: the Convention originally covered only events before 1 January 1951.
- 1967 Protocol: the Protocol relating to the Status of Refugees, 1967 asks States to read the definition as if the words "As a result of events occurring before 1 January 1951 and" and "as a result of such events" were omitted.
So read, a refugee is any person 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."
The five links of the refugee definition
Treat the definition as a chain of five links. Break one, and Convention protection fails.
- Location: only someone beyond the borders of his own country (or of his former home country, if he is stateless) can qualify. The farming family fails right here.
- Well-founded fear: the fear is personal, but the word "well-founded" demands an objective basis in facts about that country, such as the cartoonist's smashed studio and missing friends.
- Persecution: the Convention leaves it undefined, but it means serious harm, such as threats to life or freedom. It differs from prosecution (see the table below).
- The reason (Convention grounds): race, religion, nationality, membership of a particular social group, or political opinion. The list is closed. The social group category is the most elastic; UNHCR guidance, for example, treats people persecuted for their sexual orientation as such a group.
- Failure of protection: the person is unable, or through fear unwilling, to accept his own State's protection, whether because the State is the persecutor or because it is too weak to stop others.
Five links: location outside the country, well-founded fear, persecution, a Convention reason (race, religion, nationality, particular social group, political opinion: a closed list), and failure of State protection. All five must be present.
Persecution and prosecution
| Prosecution | Persecution |
|---|---|
| Trial under an ordinary law | Serious harm, such as threats to life or freedom |
| Trying a tax evader under an ordinary tax law | Jailing a man for 10 years for a petty offence because of his faith: "persecution in a courtroom costume" |
Refugee status is declaratory
Recognition records refugee status; it does not create it.
A birth certificate records a birthday but does not create it. Likewise, recognition records refugee status but does not create it. A person is a refugee as soon as he meets the definition.
Exclusion: Article 1F
Article 1F excludes anyone about whom there are serious reasons for considering that he committed:
- a crime against peace, a war crime or a crime against humanity;
- a serious non-political crime outside the country of refuge before his admission there; or
- acts contrary to the purposes and principles of the United Nations.
Asylum seeker
An asylum seeker is simply the person whose claim is still waiting to be decided.
The cartoonist is an asylum seeker from the moment he asks for protection until his claim is decided.
Who breaks the chain
Many people who move do not satisfy all five links.
- Economic migrants break link four (no Convention reason).
- Disaster victims usually break links three and four (no persecution and no Convention reason).
- Those fleeing war and generalised violence often break link four as well.
Teitiota v. New Zealand (UN Human Rights Committee, views published in January 2020): a man from Kiribati said rising seas made his return dangerous. New Zealand refused protection. Held: no violation of his right to life, since the risk was not yet imminent and Kiribati, with international help, still had time to act. But the Committee accepted that serious climate harm could, in future, bar a State from sending people back. Principle: a person fleeing climate harm is not a Convention refugee, but human rights law (the right to life) may one day bar his return.
Regional widening of the definition
Because those fleeing war and generalised violence often fall outside link four, Africa and Latin America widened the definition.
- Organisation of African Unity (OAU) Refugee Convention, 1969: adds people fleeing external aggression, occupation, foreign domination or events seriously disturbing public order.
- Cartagena Declaration, 1984: follows a similar path for Latin America.
Immigrant, asylum seeker, refugee and IDP compared
| Status | Crossed an international border? | Motive | Protection |
|---|---|---|---|
| Immigrant | Yes | Choice (for example, a better job) | Own State still protects him or her; can return at will |
| Asylum seeker | Yes | Fear; claim not yet decided | Shielded by non-refoulement while the claim is pending |
| Refugee | Yes | Well-founded fear of persecution for a Convention reason | 1951 Convention and 1967 Protocol; non-refoulement |
| IDP | No | Forced to flee (conflict, violence, rights violations, disasters) | Own national authorities have the primary duty |
Rights of refugees: asylum and non-refoulement
The right to seek and enjoy asylum
Article 14 of the UDHR says:
"Everyone has the right to seek and to enjoy in other countries asylum from persecution. This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations."
Mark the verbs: seek and enjoy. Article 14 does not give a right to be granted asylum. No State is forced to grant asylum to all who ask.
Non-refoulement: the real shield
The neighbour may refuse to adopt you, but he may not push you back into the burning house. A State need not grant asylum, but it may not send a refugee back to danger.
Article 33(1) of the 1951 Convention says:
"No Contracting State shall expel or return ('refouler') a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion."
Article 33(2) limits the protection:
"The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country."
Two exceptions therefore exist under Article 33(2):
- a refugee reasonably regarded as a danger to the security of the host country;
- a refugee who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.
- Asylum seekers: because refugee status is declaratory, UNHCR applies non-refoulement to asylum seekers awaiting decisions.
- Customary law: UNHCR regards non-refoulement as customary international law, binding even on States outside the Convention.
| Asylum (Article 14, UDHR) | Non-refoulement (Article 33, 1951 Convention) |
|---|---|
| Right to seek and enjoy asylum | Prohibition on expelling or returning a refugee to territories where his life or freedom would be threatened |
| No State is forced to grant asylum to all who ask | The State may not push the refugee back into danger |
| Not available for prosecutions genuinely arising from non-political crimes or acts contrary to UN purposes and principles | Not available to a danger to national security or a person convicted of a particularly serious crime who is a danger to the community |
The 1951 Convention and the 1967 Protocol
- Time limit: the 1951 Convention originally covered only events before 1 January 1951; the 1967 Protocol removed this limit.
- Geographic limit: the 1951 Convention also let States confine it to events in Europe. The 1967 Protocol applies without any geographic limitation, except where a State had already declared one under the Convention.
- Independent instrument: under Article 1 of the Protocol, parties undertake to apply Articles 2 to 34 of the Convention to refugees as newly defined. So a State may join the Protocol alone, as the United States did.
- Parties: nearly 150 States are parties to one or both instruments.
| 1951 Convention | 1967 Protocol |
|---|---|
| Originally limited to events before 1 January 1951 | Removes the time limit |
| Allowed States to confine it to events in Europe | No geographic limitation, except where a State had already declared one under the Convention |
| Contains the refugee definition (Article 1A(2)) and non-refoulement (Article 33) | Independent: parties apply Articles 2 to 34 of the Convention (Article 1 of the Protocol); a State may join the Protocol alone (for example, the United States) |
India is a party to neither the 1951 Convention nor the 1967 Protocol. It relies on its general law on foreigners, on executive policy, and on Article 21 of the Constitution, which protects the life and personal liberty of every person, citizen or not.
India and refugees: Mohammad Salimullah v. Union of India
How far Article 21 reaches was tested in this case.
Facts
- The petitioners were Rohingya who said they fled Myanmar in December 2011 and were registered with UNHCR.
- They filed a writ petition in 2017 after the Ministry of Home Affairs asked the States to start deportation processes.
- In 2021, reports said about 150 to 170 Rohingya held in a sub-jail in Jammu, turned into a holding centre, faced deportation.
- The petitioners sought their release and a bar on deportation.
Arguments
| Petitioners | Union of India |
|---|---|
| Non-refoulement is part of Article 21 | India is party to neither the Convention nor the Protocol |
| Articles 14 and 21 protect non-citizens | Non-refoulement binds only contracting States |
| India is bound through instruments it has joined, such as the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child | Porous borders and organised illegal entry threatened national security |
The petitioners also relied on the ICJ's order of 23 January 2020 in The Gambia v. Myanmar.
Decision
On 8 April 2021, a Bench led by Chief Justice S. A. Bobde refused interim relief.
- National courts may draw inspiration from international conventions so long as they do not conflict with municipal law.
- The Court would not comment on events in another country.
The core reasoning reads:
"It is also true that the rights guaranteed under Articles 14 and 21 are available to all persons who may or may not be citizens. But the right not to be deported, is ancillary or concomitant to the right to reside or settle in any part of the territory of India guaranteed under Article 19(1)(e)."
Yet the Court added a safeguard:
"it is made clear that the Rohingyas in Jammu, on whose behalf the present application is filed, shall not be deported unless the procedure prescribed for such deportation is followed."
Mohammad Salimullah v. Union of India (order of 8 April 2021): Rohingya registered with UNHCR, some held in a sub-jail in Jammu turned into a holding centre, sought release and a bar on deportation, relying on non-refoulement as part of Article 21. Held: interim relief refused. Articles 14 and 21 are available to all persons, citizens or not, but the right not to be deported is ancillary or concomitant to the right to reside or settle in any part of the territory of India under Article 19(1)(e); the Rohingya in Jammu shall not be deported unless the prescribed procedure is followed. Principle: in India, a refugee can insist on fair procedure but holds no treaty-based right against removal.
The Foreigners Act, 1946, on which the Union relied, has since given way to the Immigration and Foreigners Act, 2025.
Lesson from Salimullah: in India, a refugee can insist on fair procedure, but holds no treaty-based right against removal. Articles 14 and 21 protect non-citizens too, but the right not to be deported was treated as ancillary to the right under Article 19(1)(e).
Quick revision
- Three questions sort every person: key (nationality?), border (inside or outside own country?), motive (choice or fear?).
- Neha holds a key, left by choice and can return: she is a regular immigrant.
- The cartoonist crossed a border in fear of persecution for political opinion: he is an asylum seeker now, will be recognised as a refugee if his claim succeeds, and is shielded by non-refoulement meanwhile.
- The fisherman crossed a border, but his danger is not persecution for a Convention reason: he is not a Convention refugee, though human rights law may one day block his return (Teitiota v. New Zealand).
- The farming family never crossed the border: they are internally displaced persons, protected first by their own State.
- The baby holds no key: she is stateless, unless her birth country applies the 1961 Convention on the Reduction of Statelessness.
