Introduction

In 2014, on the sixtieth anniversary of the UN Convention Relating to the Status of Stateless Persons (UNHCR, 1954; henceforth the 1954 Statelessness Convention), the UNHCR set a goal of readdressing the position of world's stateless people. These are the people who are literally ‘citizens of nowhere’ (Lynch and Cook, 2006: 1): according to the 1954 Statelessness Convention (Article 1.1), they are ‘not considered as a national by any State under the operation of its law’. The final aim of the renewed interest in the position of stateless people was to eradicate statelessness by 2024, that is, by the seventieth anniversary of the Convention. In order to reach this goal, the UNHCR introduced a Global Action Plan to End Statelessness 2014–2024 (UNHCR, 2014a). The plan lists ethnic discrimination as one of the causes of the lack of nationality (UNHCR, 2014a: 14) but does not single out any particular stateless group. However, the cover of the Global Action Plan to End Statelessness itself included a photo of what seemed to be a frightened child looking through the glass window. The caption read: ‘Roma girl in Croatia already knows the difficulties of being stateless. She lives with her family in a makeshift room with no running water, electricity or sanitation. They survive by collecting scrap metal’ (UNHCR, 2014a: cover photo). The caption tried to capture the value of citizenship that Hannah Arendt (1968: 298) described as the ‘right to have rights’.

Three years after the Global Action Plan to End Statelessness was published, the UNHCR issued a report that estimated that 75 per cent of stateless people belonged to minority groups (UNHCR, 2017c). Among the minority groups vulnerable to statelessness that the report specifically highlighted was Roma in North Macedonia, currently an EU candidate country which was established after the disintegration of Socialist Yugoslavia. Whilst portraying statelessness as a global problem, the report ended with examples of statelessness from countries on the outer edge of the EU, which could suggest that minorities in the EU do not face a similar predicament. ¹ However, the issue of minority statelessness in the EU has been raised in the European Parliament by the then Swedish MEP Soraya Post, as quoted at the start of this chapter. Similarly, the predicament of minority statelessness in Europe has been raised by a number of NGOs (such as the European Network on Statelessness, the Institute for Statelessness and Inclusion and the ERRC, among others) at the 2018 UN Minority Forum in Geneva, which that year addressed statelessness as its main topic.

Romani minorities throughout Europe face challenges when accessing the rights they have been granted as citizens, as I have explored in previous chapters. Even when Roma have possessed minority rights, these have not guaranteed a more equal position as citizens either in the national or in the broader European context. Two main conclusions emerged from the analysis in the EU NRIS Framework and the states’ actions based on it: (1) despite some local stories of success, the Framework had not achieved its main goal of eradicating the inequalities Romani minorities face as citizens of the EU Member States (European Commission, 2018b); and (2) the main reason for this failure was that it had no comprehensive strategy for how to recognise and address systematic antigypsyism, a special form of racism targeting Romani minorities (see Chapter 1). The link between anti-Romani racism and limited access to rights granted to Roma has been very well researched (McGarry, 2017). Yet it has only been in recent years that policy itself has started catching up and recognised the severity of this form of racism. At the end of the EU NRIS Framework, the European Parliament published a Resolution stating that future initiatives dealing with the position of Roma need to first address antigypsyism. Nevertheless, whilst having an extensive focus on the rights dimension of citizenship (Joppke, 2007), the EU NRIS Framework completely ignored the status dimension and its relationship to citizenship. It assumed that all Roma in the EU have some national citizenship even when they are not EU citizens (European Commission, 2011b: 2).

Against this backdrop, the chapter examines two issues: first, whilst much scholarly and activist literature has focused on antigypsyism and its consequences, very few studies have made direct reference to the formation of racialised citizenship (Kóczé and Rövid, 2017: 688). Does the example of stateless Romani minorities show that citizenship itself can be a covert racialised formation? Second, it explores the formation of racialised citizenship on the status dimension axis (that is the access to citizenship itself), underscoring in particular how it contributes to the phenomenon of minority statelessness.

Hannah Arendt (1968) highlighted the connection between the position of minorities and statelessness in The Origins of Totalitarianism. Here she also conceived the theoretical foundations for statelessness research. Yet the question of why certain minorities are specifically vulnerable to statelessness has remained under-researched. After analysing the contexts in which Roma have become at risk of statelessness (in particular countries such as the Czech Republic, the former Yugoslav space and Italy), this chapter asks what the similarities and differences in the production of minority statelessness are in other contexts. It compares the position of stateless Roma with that of Russian-speaking minorities in the Baltic states, which constitute Europe's most well-documented case of minority statelessness. Second, it compares the position of stateless Romani minorities with two other well-researched cases of minority statelessness beyond Europe: the Dominicans of Haitian descent in the Dominican Republic and the Rohingya minority in Myanmar. It finishes with a comparison with another less-examined case of minority statelessness in Europe, the children of the Windrush generation in the UK.

The contexts in which these minorities have become stateless are very diverse – both geographically and politically – yet I claim that the mechanisms that states used to render them stateless were very similar: state authorities applied their ‘acts of sovereignty’ (Nyers, 2006) to construct these minorities as stateless by introducing legislation, discourses and practices that retroactively transformed them from citizens to irregular or illegitimate migrants. However, I also argue that these transformations did not necessarily translated the lack of citizenship into the lack of ‘the right to have rights’ (Blitz, 2017; Swider, 2017): that is, what I call the total infringement of citizenship. I argue that the total infringement of citizenship follows from minority statelessness when racialised citizenship formation is already in place. This chapter initially illustrates some of the main ambiguities around statelessness in general. It then highlights how selected scholars have theorised racialised citizenship; following a the comparative analysis of minority statelessness examples, it explores the question of when the total infringement of citizenship occurs.

The ambiguities around statelessness

Statelessness, both as a legal status and as sociological reality (Sigona, 2015), generates many ambiguities. The first concerns the number of statelessness people in the world and how can they ever be counted. The 2016 UNHCR Global Trends report estimated that at least 10 million people were stateless but, at the same time, noted that different countries around the world documented only 3.2 million (UNHCR, 2017a). There are at least two reasons for the discrepancy in numbers and for why so many stateless people do not have a recognised statelessness status. First, states are sometimes not aware of their existence or, more often, they do not recognise that these people are stateless and see them as potentially citizens of another state (Minority Rights Group International, 2017). In later publications, the UNHCR acknowledges that ‘millions of people around the world are denied nationality’ (UNHCR, 2020). As a part of the Global Action Plan to End Statelessness, the UNHCR started highlighting the issue of statelessness with an ‘#IBelong Campaign’, in which UNHCR teams conducted interviews with stateless people around the world in order to make these minorities visible.

The second ambiguity important for this chapter concerns minority statelessness: not all minorities are equally at risk of statelessness, and not even all the people who are recognised as members of the same minority are at risk. It is the minorities who are caught in the circle of marginalisation (Kingston, 2017) and who are reconfigured from traditional minorities to foreigners (Hayes de Kalaf, 2019). Can we then talk about racialised citizenship regimes if not all who are categorised as members of a minority are subjected to the same treatment? Until recently, statelessness has been an under-theorised non-citizenship status (Belton, 2011; Staples, 2012; Tonkiss and Bloom, 2015). Although Arendt (1968) set the theoretical foundations for the scholarly enquiry into statelessness, less research has been conducted on the position of stateless persons than on the status of refugees and other migrants (Belton, 2011; Foster and Lambert, 2019). Stateless people have also not been at the forefront of debates in the international community. Whilst 145 states are parties to the 1951 UN Convention Relating to the Status of Refugees, and 146 to the 1967 Protocol, only 91 are parties to the 1954 Convention Relating to the Status of Stateless Persons, and just 74 to the 1961 Convention on the Reduction of Statelessness. However, more recently there have been more theoretical debates and research on statelessness (Weissbrodt, 2008; Sawyer and Blitz, 2011, Blitz and Lynch, 2011; Staples, 2012; Lawrance and Stevens, 2017; Bloom et al., 2017; Owen, 2018; Gibney, 2019). These debates have shown that the status of a refugee and the status of a stateless person do not necessarily overlap. Moreover, a great number of stateless persons have never left the territory where they were born and so, rather than being stateless in a migratory context, they are stateless in situ (Belton, 2015; Vlieks, 2017).

The concept of statelessness has multiple definitions, and this can lead to confusion. The 1954 Statelessness Convention offered the following legal definition of de jure statelessness in Article 1.1: ‘the term “stateless person” means a person who is not considered as a national by any State under the operation of its law’ (UNHCR, 1954). Yet in practice, some groups have been considered to be stateless in a political but not necessarily in a legal sense. For example, some political science scholars have argued that the Scottish in the UK and Catalans in Spain are stateless nations (Keating, 2001). However, they are not legally stateless as they possess citizenship of the UK and Spain respectively. Roma, Kurds and Palestinians are similarly categorised as stateless nations in political terms, and often they are also stateless legally or are at least lack effective citizenship that would secure their rights (Jenne, 2000; Molavi, 2013; Fiddian-Qasmiyeh, 2015). ²

The second puzzle around the definition of statelessness arises from the distinction between de jure and de facto statelessness. David Weissbrodt (2008: 84) has stated that ‘[p]ersons who are de facto stateless often have nationality according to the law, but either this nationality is not effective or they cannot prove their nationality’. Human rights activists have been critical of the concept of de facto statelessness, as some states have used it in order to refrain from recognising individuals who were de jure stateless (Van Waas and De Chickera, 2017; Manby, 2015). The 2010 UNHCR Prato Conclusions offered another definition of de facto statelessness: ‘de facto stateless 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, 2010). As for de jure statelessness, the UNHCR Prato Conclusions of 2010 and 2014 UNHCR Handbook on Protection of Stateless Persons urged the authorities responsible for determination of statelessness not to leave the definition to endless legal acrobatics but to carefully consider the states with which an individual could have genuine links (UNHCR, 2014b).

Recent research has shown that the reality of statelessness and the lack of citizenship can be much murkier in practice and needs to be analysed beyond the scope of the legal definition (Sigona, 2015; Sardelić, 2015; Bloom et al., 2017). As a result, David Owen (2018) has introduced a new concept of de jure statelessness as either structural or administrative: structural de jure statelessness arises from the right of a state to determine its own citizenry, whilst administrative de jure statelessness derives from the lack of relevant documents, especially birth certificates. Unlike Weissbrodt's definition, Owen's conceptualisation recognises individuals who are not able to prove their nationality as de jure stateless.

The Global Action Plan to End Statelessness did not specifically talk about minority statelessness, but it hinted that there were people who belonged to minorities that were stateless. It identified ‘prevailing social views regarding ethnic, racial, religious or other minorities’ (UNHCR, 2014a: 15) as one of the main obstacles to implementing its plan for reducing and ultimately ending statelessness. Both the 2014 Global Action Plan to End Statelessness and the 2017 UNHCR statelessness report (UNHCR, 2017c) highlighted that minorities were at increased risk of becoming stateless. These documents also captured the position of those people who have not been legally recognised as stateless in the states where they reside, but are nevertheless without access to citizenship (Sardelić, 2015). Both publications also follow Arendt's assumption that stateless minorities lack the protection of human rights and that it is only with citizenship that these rights can be guaranteed. However, this chapter analyses the reasons why not all minorities are equally vulnerable to statelessness. Whilst some lack political rights (Swider, 2017), others also have no official access to social and economic rights, for example the right to education, work and healthcare. The chapter argues that it is individuals in the latter group who usually also fall into the regime of deportability (De Genova, 2002) and irregularisation (De Blois et al., 2015), even in cases where the stateless minorities in question have never crossed any borders themselves. These stateless minorities have been reinterpreted as aliens and stripped of rights on the basis of practices of racialised citizenship regimes.

I apply the theoretical conceptualisation of racialised citizenship regimes to the socio-legal analysis of minority statelessness. The cases of stateless Romani minorities and Russian-speaking minorities are generally connected to the postsocialist state disintegration, and those of the Haitian Dominicans and Burmese Rohingya to postcolonial contexts. To analyse the acts of sovereignty, I examine how the citizenship acts and other relevant pieces of legislation have been constructed, as well as exploring the policy reports of international organisations (such as the UNHCR, the CoE, and the Inter-American Commission on Human Rights (IACHR) that deal either with statelessness or with the position of minorities. Research on stateless Romani minorities in this area has already been done before (Cahn, 2012; Sardelić, 2015; Sigona, 2015; Bhabha, 2017), so this chapter aims to shed a new theoretical light on it by applying the concept of racialised citizenship. The chapter then compares the position of stateless Roma with the position of Russian-speaking minorities who are Latvian and Estonian non-citizens: can their statelessness also be considered a product of a racialised citizenship regime? In a different postcolonial context, around 200,000 Dominican citizens of Haitian descent were stripped of their citizenship retroactively and pronounced illegal immigrants. Similarly, the Rohingya in Myanmar were previously thought of as a traditional minority, but were not recognised as such in the 1982 Myanmar Citizenship Law. The chapter concludes with the case of the Windrush generation as a window onto the link between racialised citizenship regimes and minority statelessness.

Enquiry into racialised citizenship regimes

How can racialised aspects of citizenship regimes contribute to minority statelessness in a legal sense? I follow the socio-legal definition of citizenship regimes introduced by Shaw and Štiks (2010: 6): ‘the concept encompasses a range of different legal statuses, viewed in their wider political context, which are central to exercise of civil rights, political membership and – in many cases – full socio-economic membership in a particular territory’. In its 2017 report Denial and Denigration: How Racism Feeds Statelessness, the Minority Rights Group International highlighted minority statelessness as ‘often an outcome of discrimination and racism’ (Minority Rights Group International, 2017). The question, though, remains: what is the connection between minority statelessness and racism, or racialised citizenship to be more exact?

David FitzGerald indirectly connected racialised citizenship to statelessness by arguing that the racialisation of citizenship emerges ‘through rules of birthright acquisition, naturalization and denationalization’. Racialised citizenship can also manifest itself as a preferential treatment of a more dominant group and not only as discrimination of the group subjected to racism (FitzGerald, 2017: 130). He defines racism and race in the following way:

The ‘inalterability of belonging’ is the most important feature of racialised citizenship, according to FitzGerald, and this feature defines it as a particular subset of ethnic discrimination. Whilst forced assimilation might be discriminatory, he claims, it is not a feature of racialised citizenship as it implies that the boundaries between groups can be altered (FitzGerald, 2017: 132). FitzGerald identifies the trend of deracialisation of citizenship over history, but points out that racialised citizenship still appears in contemporary contexts, as in the case of the mass denationalisation of Dominicans of Haitian descent (FitzGerald (2017: 132).

In another attempt to classify racialised citizenship, Paul Silverstein (2008) connects it to Balibar and Wallerstein's understanding of ‘racism without race’ or cultural racism. Cultural racism is founded on perceived cultural differences that classify groups but not necessarily biological features. In other words, Balibar and Wallerstein connect racism to alleged ‘insurmountable cultural differences’ (Balibar and Wallerstein, 1991: 28–9). Whilst analysing the manifestly neutral content of French citizenship, Silverstein identified racialised practices towards citizens from former colonies and especially citizens with Muslim backgrounds. In a more recent attempt to classify racialised citizenship, Nelson Torres-Ríos (2018) uses doctrinal legal research to claim that Puerto Ricans are second-class US citizens. Although according to the 1917 Jones Act they are US citizens, Puerto Ricans have no right to vote at the US national level if they reside in Puerto Rico (Torres-Ríos, 2018: 7). Studying US Supreme Court decisions, Torres-Ríos argues that Puerto Ricans have been described as racially inferior as a justification for second-class citizenship (Torress-Ríos, 2018: 22).

Another account of racialised citizenship maintains that racialised citizens are not mere observers of their predicament but contest it both in public and in private spheres (Erel and Reynolds, 2018; Bauer 2018). None of the previous theoretical comprehensions of racialised citizenship has explicitly dealt with whether and how it is connected to the creation of stateless minorities. There is research that discusses statelessness and racialisation (Molavi, 2013; Kingston, 2017; Hayes de Kalaf, 2019), but it does not go into sufficient depth to offer a definition of the concept of racialised citizenship itself. This chapter also acknowledges previous research which showed that stateless minorities are not simply passive observers of their own predicament, but also search for alternative ways to access rights that are denied to them by law (Sigona, 2015; Sardelić, 2017b). However, it also takes a step back to analyse the reasons why certain minorities end up as stateless in the first place. It recognises that there are limits to what non-citizens, especially stateless persons, can achieve with their acts of citizenship (Bloemraad et al., 2017).

Instead of doctrinal legal research, I use the socio-legal approach of constitutional ethnography as developed by Kim Lane Scheppele (2004: 395): ‘Constitutional ethnography is the study of the central legal elements of polities using methods that are capable of recovering the lived detail of the politico-legal landscape.’ Citizenship (or the lack thereof) is one such ‘central legal element of polities’. Using constitutional ethnography to analyse selected cases of minority statelessness, I claim that racialised citizenship regimes in contemporary contexts of statelessness embrace a much more fluid approach than the ‘inalterability of belonging’. Instead racialized citizenship captures the ‘reinterpretation of belonging’. It renders some minorities stateless by making a proxy connection between migration and race (De Genova, 2002; Bhambra, 2018). Racialised citizenship regimes recategorise previous minority citizens as ‘illegal immigrants’, and this leads to minority statelessness. The total infringement of citizenship occurs when this process is also coupled with the withdrawal of the wide array of rights associated with citizenship status.

Varieties of minority statelessness

According to Nicholas De Genova (2017: 18), the construction of a migrant status arises from the processes of unequal bordering, which assign uneven rights to different statuses:

The processes of bordering appear even in cases where those designated as migrants have never crossed any borders themselves, but the territorial borders or citizenship regime may have changed (De Genova, 2017: 28). Whilst migrant statuses are hierarchical and unequal, in most common understandings citizenship status should represent an equal status for all who possess it, with few legitimate exceptions (such as children who are semi-citizens: Cohen, 2009). Yet numerous studies have shown that citizens can be unequal in terms of rights even if they all possess the same citizenship status (Rigo, 2005; Cohen, 2009; Hepworth, 2014; Nyers, 2019). Some citizens are more vulnerable to arbitrary deprivation of citizenship, leading to statelessness: this illustrates the inequality among citizens to its extreme. Similar to how irregular migrants are constructed through the regular processes of bordering (De Genova, 2017), the practices which arbitrarily deprive some minorities of their citizenship are rarely random themselves but have a certain logic behind them: they show states’ systematic denials of citizenship (Stevens, 2017a) and some common structural or administrative features of statelessness (Owen, 2018).

As newer studies critical of Arendt's conceptualisation of statelessness have argued (Swider 2017; Blitz, 2017; Stevens, 2017a), not all cases of statelessness necessarily lead to a loss of rights, nor do they necessarily arise from a totalitarian state. It is here that the concept of total infringement of citizenship can be introduced to represent (usually unrecognised) statelessness status coupled with the loss of human rights. This is where stateless people fall into the category that Arendt (1968: 299–300) called the ‘abstract nakedness of being nothing but a human’. The total infringement of citizenship is ultimately linked to racialised citizenship regimes.

One of the predicaments that stateless minorities face is states’ denial of their statelessness, where their de jure stateless status is often not recognised. States would usually categorise them as irregular, undocumented or illegal migrants who have come from somewhere else. Yet it is the states in question that construct these minorities as stateless by means of laws and policies that take their citizenship status away on the territory where they were previously citizens. The clearest example of such practices can be found in instances of state disintegration, such as the cases of Roma in the former Czechoslovakia and Yugoslavia and Russian-speaking minorities in the Baltic states.

Romani minorities

When discussing statelessness and the position of minorities, Arendt does not mention Romani minorities despite the fact they were subjected to similar citizenship deprivation practices to Jews before and during World War II (Sardelić, 2017c). Roma were not recognised as a minority in the Minority Treaties, and Arendt only examined the position of minorities mentioned in them. Romani minorities faced statelessness during the disintegration both of Czechoslovakia and of former Yugoslavia (Sardelić, 2015). The fact that both peaceful and violent disintegrations led to the most marginalised populations ending up at risk of statelessness shows that wars were not a decisive factor for the risk of statelessness. The most important factors were the redrawing of borders and the transforming of criteria as to who constitutes citizenry.

Around 150,000 Roma were required to acquire citizenship in the Czech Republic after its independence in 1993, and as many as 25,000 of them found themselves at risk of statelessness (Linde, 2006; Kochenov, 2007). The socialist Czechoslovak government relocated numerous Roma from the Slovak to the Czech part of the federation. The official reason given was the availability of employment in the more industrialised regions. Unofficially, the government applied this policy so that the Romani population would be evenly distributed in both parts of the federation and not concentrated in one part (Kochenov, 2007; see also Chapter 2). However, in many cases Romani individuals did not have their residence properly registered in the Czech part. After the fall of the Berlin Wall, most relocated Roma lost their previous employment through factory closures, and many were forced into informal work (Donert, 2017). This affected their citizenship status. Because all Czechoslovak citizens had held either Slovak or Czech republican citizenship since 1969 (Baršová, 2014), Roma who were relocated from Slovakia to Czechia were identified as Slovak republican citizens, as were their children, who might have never been in Slovakia (Kochenov, 2007).

In 1992 the Czech government introduced a new Citizenship Act (Baršová, 2014), which when applied in 1993 meant that all residents with Slovakian republican citizenship had to naturalise as Czech citizens after the ‘velvet divorce’. There were no criteria that would directly target Roma, but the marginalisation and stereotypes of Roma left them in legal limbo and without the possibility of naturalisation. According to the provisions in Article 7 of the 1993 Citizenship Act, only residents with officially registered residence and with no criminal record for five years could naturalise. This rule disproportionally affected Roma who were either not officially registered or had criminal records due to misdemeanours (informal work or minor thefts, for example). According to Beata Struhárová (1999), L’udovít Gorej, a Romani man with a Slovakian republican citizenship who was raised in an orphanage on Czech territory from infancy, was sentenced to expulsion in 1996 because he stole €4 worth of sugar beets. Between 1994 and 1997, 663 individuals designated as Slovak citizens were expelled. The vast majority were expelled for minor offences and were Roma (Struhárová, 1999). The state authorities treated many Roma as thieves or unsettled nomads and therefore as underserving of Czech citizenship. This was despite the fact that the former socialist government had relocated them and their unemployment was a consequence of broader transition processes.

Critical civil society reports showed that the inability to access citizenship according to new laws disproportionally affected Roma and stressed that the new Czech authorities designed these policies in a way to exclude Roma (Šklová and Miklušáková, 1998). In 1996 the Czech government amended the Citizenship Act, giving the Ministry of Interior discretion to overlook the clean record requirement for naturalisation. In 1998 Václav Havel gave an amnesty to all Slovak citizens who had been sentenced for less than five years (Struhárová, 1999). The Citizenship Act was again amended in 1999 so that citizens of the former federation could become Czech citizens by declaration (Baršová, 2014).

Roma who resided in the Czech territory were mostly entitled to Slovak citizenship and were therefore not considered to be de jure stateless. Czechia used this fact to retroactively irregularise their status and designate them as migrants, which made them deportable (De Genova, 2002), despite the fact that at the time they did not cross any international borders and many of them did not even cross the Czech republican border. Whilst the 1993 Citizenship Act did not create a statelessness situation per se, it left future generations of Roma at risk of administrative de jure statelessness (Owen, 2018) and without access to rights connected to citizenship and even residence. The provisions in the 1993 Citizenship Act targeted Roma as a racialised group: national authorities ascribed nomadism and criminalities as cultural traits of Roma. The initial Czech Citizenship Act, therefore, can be regarded as an outcome of a racialised citizenship regime as it made a great number of Roma unable to naturalise because of their belonging to a particular minority group.

Whilst most cases of hindered citizenship access after Czechoslovakia's disintegration were typically resolved with the amendments to the Citizenship Act by the turn of millennium, the issue remained a protracted and intergenerational problem for Romani minorities after the collapse of Yugoslavia. The statelessness of Romani minorities from the former Yugoslav space was a result of restrictive citizenship acts (similar to those in the Czech case), destruction of citizenship registries, forced displacement and overall discrimination against Roma (Cahn, 2012; Sardelić, 2015).

In the aftermath of the Yugoslav wars and multiple border re-drawings, many Romani individuals became forcedly displaced, particularly those who fled during the 1998–99 war in Kosovo (Perić and Demirovski, 2000) to North Macedonia and other parts of what was then the Federal Republic of Yugoslavia: Serbia and Montenegro. Roma who fled to North Macedonia crossed an international border and, in most cases, received a form of refugee status (Sardelić, 2015). By receiving refugee status, they fell under the 2010 Prato Conclusions definition of de facto statelessness. Yet Romani individuals who fled to Serbia and Montenegro did not cross any internationally recognised borders at the time, as Serbia, Montenegro and Kosovo were still one state (Sardelić, 2018). They were hence categorised as internally displaced persons. In subsequent years, Montenegro proclaimed its independence (in 2006, with wide international recognition), as did Kosovo (in 2008, with limited international recognition). In addition, many birth registries and other vital state records were destroyed or relocated during the war in Kosovo (UNHCR, 2011).

The emergence of new borders caused a conundrum in citizenship and migrant taxonomy in the post-Yugoslav states. Whilst previously being in the domain of a single state, the internally displaced persons found themselves in a new citizenship constellation (Bauböck, 2010) of three independent states (Sardelić, 2015). Montenegro's independence was internationally recognised, but in official documents the state authorities continued to refer to forced Romani migrants from Kosovo as internally displaced persons and not as refugees (Džankić, 2012; Sardelić, 2015), and hence they were not accorded rights as refugees. At the same time, they were not given the rights of citizens either. To paraphrase De Genova's (2017: 18) words, ‘borders cross everyone, including those who never cross borders’.

Montenegro's parliament made amendments to the Law on Foreigners to include the definition of a stateless person (Article 2) in 2017 and statelessness determination procedure (Article 59) in 2018 after the Universal Periodic Review highlighted the absence of this procedure (UNHCR, 2018a). The law identified the right of temporary residence for stateless persons. Yet it left those Romani minorities, who were administratively de jure stateless because of a lack of documents, in legal limbo (Owen, 2018). According to the 2018 European Commission Montenegro report, a ‘new law on foreigners adopted in February 2018 [and] a separate procedure for determining statelessness was introduced. So far, there are no officially recognised stateless persons, despite having an estimated number of 486 people who consider themselves stateless living in the country’ (European Commission, 2018a: 29). A previous UNHCR report stated that the former Yugoslav states (excluding Slovenia), who were signatories of the 2011 Zagreb Declaration, estimated around 20,000 individuals without proper personal identification documents and who were hence at risk of becoming de jure statelessness (UNHCR, 2011: 3).

Many Romani individuals who crossed internal republican borders in socialist Yugoslavia still cannot regularise their citizenship status, not simply because of discrimination and socio-economic disadvantages, but because of the way legal acts of citizenship in the newly established states are set (Sardelić, 2015). In 2004 the Croatian Constitutional Court decided on a case where a Romani woman born in the territory of today's BIH wanted to naturalise as a Croatian citizen after living for decades in Croatia in a civil partnership with a man who was a Croatian citizen. One of the conditions of naturalisation is that the person wanting to acquire citizenship has to be proficient in the Croatian language and Latin script and be familiar with Croatian culture and social arrangements (see Croatian Citizenship Act of 1991). However, the applicant in question was illiterate and could not prove her knowledge of the Latin script. The judgement of the Constitutional Court (U-III/1918/2000) did not mention that she was of Romani origin or explain why this woman was illiterate (because of the enduring educational discrimination of Roma; see Chapter 3) (Constitutional Court of Croatia, 2003). However, in a dissenting opinion, one of the judges questioned whether the criterion of proficiency in Latin script should apply to former Yugoslav citizens in any event. The judgement also ignored the statelessness circle: the Constitutional Court noted that the Romani woman in question could not attain Croatian citizenship since she was not legally married to the Croatian citizen. This ignored the fact that individuals in post-Yugoslav countries cannot marry if they do not possess a birth certificate, and this is one of the main reasons for the reproduction of statelessness in the former Yugoslav countries (Kingston, 2017).

As in the Czech case, it was civil society actors in the region, such as the WeBLAN (Western Balkans Legal Aid Network), ³ and international NGOs, such as the ERRC, the European Network on Statelessness and the Institute for Statelessness and Inclusion, who highlighted the predicament of stateless Roma in the post-Yugoslav states most widely, through the #RomaBelong campaign (ERRC, 2017). In the case of the Yugoslav countries, it would be difficult to prove that the newly established definitions of citizenry were a direct attempt to exclude Roma since they were more noticeably targeted at others (Sardelić, 2015). However, Roma had more difficulties with regularising their status in the long run than other minorities who might have been initially targeted. Although states contributed to the position of Roma with historical racist practices (such as segregation and forced relocations), they did not acknowledge their position when constructing the new citizenship legislation.

The conflict in former Yugoslavia shaped Roma's risk of becoming stateless both within and beyond the borders of the post-Yugoslav states and had a spill-over effect on forced migrants who became at risk of statelessness in Italy. According to the Statelessness Index Survey of 2019, there were 732 persons in Italy with statelessness status. However, there were estimates of up to 15,000 people being stateless without their status being legally recognised, and ‘most belong to the Roma community originating from former Yugoslavia’ (European Network on Statelessness, 2019: 9). As Nando Sigona (2015) has pointed out, Italy passed a law at the beginning of the 1990s according to which any child of a stateless person can become an Italian citizen. However, there was a catch-22: for the child to become an Italian citizen, her or his parents had to have their legal status regulated in Italy with documented legal residence as well as proof that no other state has considered them their citizens. A clear majority of Romani forced migrants from Yugoslavia could not regulate their status, owing to the initial lack of documents when they fled their countries and their inability to retrieve these documents in the newly established countries. Additionally, whilst Italy has now a fee-free statelessness determination procedure, accessing statelessness status cannot only be valued in terms of monetary compensation. Besides access to rights with recognised citizenship status, the statelessness status would give the individuals in question the same access to social welfare and healthcare as any other ‘lawfully resident foreigner’ (European Network on Statelessness, 2019: 31). This shows that it is not merely citizenship that gives the ‘rights to have rights’: the right to have rights precedes citizenship and starts with any form of legal status, even that of a stateless person. Whilst initially Romani refugees were from former Yugoslavia, what thresholds would they now have to cross to become a recognised part of Italian citizenry? With states refusing to recognise these Roma as part of Italian society, and denying rights connected to this status, Romani refugees in Italy (mostly situated in so-called campi nomadi) remain on the fringes, where they depend on familial and other networks through which they gain rights denied by the state (Sigona, 2015). Racialised citizenship regimes are not a reality for either post-conflict or postsocialist contexts: they are a very real experience within the EU itself.

Russian-speaking minorities in the Baltic states

According to the 2017 UNHCR Global Trends report, the largest documented stateless populations in the EU live in two Baltic states: 233,571 in Latvia and 80,314 in Estonia (UNHCR, 2018a). These stateless populations mostly belong to Russian-speaking minorities who are not proficient in the majority languages (Estonian and Latvian): ⁴ in the Soviet period, Russian was also an official language. However, despite the fact that these populations fit the 1954 Statelessness Convention's definition of de jure statelessness, Estonia and Latvia do not consider them to be stateless in their national legislation. They are legally recognised in Latvia as ‘non-citizens’ by the former USSR Citizens’ Act (Krūma, 2015: 8), and in Estonia as persons of ‘undefined’ (Järve and Poleshchuk, 2010: 1) or ‘undetermined’ (Semjonov et al., 2015: 1) citizenship and, consequently, labelled as aliens.

Whilst Latvia distinguishes between stateless persons and non-citizens in its laws (Krūma, 2015: 7) and has signed and ratified 1954 and 1961 Statelessness Conventions, Estonia did not sign the Conventions and does not include statelessness as a category in its law (Semjonov et al., 2015). International organisations, such as the CoE, the UN and the OSCE, refer to these populations as stateless in their reports (Kudaibergenova, 2020). Yet the state authorities in Latvia and Estonia do not recognise them as stateless. For example, the Latvian government states on its website: ‘Latvia's non-citizens are not stateless persons. The protection provided to non-citizens in Latvia extends beyond that which is required by the 1954 Statelessness Convention. The fact that non-citizens cannot be considered stateless persons has been acknowledged by the United Nations High Commissioner for Refugees (UNHCR) – see UNHCR's Global Trends report (published on 19 June 2017)’ (Government of Latvia, 2018). The Global Trends report, however, counts Latvian non-citizens as stateless, but concludes that they do not fall under the protection of the 1954 Statelessness Convention because their basic human rights are already protected by the Latvian state as they have guaranteed residence and diplomatic protection (UNHCR, 2017a: 69). The Estonian authorities have claimed they have not acceded to the Statelessness Conventions because ‘in their assessment, there are no stateless persons in Estonia, just a number of individuals with undefined citizenship’ (Semjonov et al., 2015: 15; emphasis added).

After the Soviet Union's disintegration in the 1990s, the official discourse of the three Baltic countries was that they were not declaring independence, but rather restoring it from the Soviet occupation. Unlike the two other Baltic states, Lithuania adopted the so-called zero option after the restoration of its independence in 1990: all residents either were automatically citizens (those who had citizenship before 1940 and their descendants) or had relatively unobstructed access to it (Kūris, 2010). The two main minorities, the Russians and the Poles, were relatively small in Lithuania and did not represent a threat to Lithuania's national identity (Kūris, 2010). Estonia and Latvia took a different approach: individuals who were Estonian and Latvian citizens before 16 June 1940 and their descendants were automatically Estonian and Latvian citizens, whilst those who migrated after this date had to naturalise. The naturalisation process included a test in the majority languages, Latvian and Estonian, the only two official languages after the collapse of the Soviet Union. At the beginning of the 1990s, the radical political discourse described the migrants who came to Estonia through the USSR's state-promoted relocation policy as illegal: ‘During the autumn/winter of 1991–92, some Estonian politicians, including a number of representatives with the congress of Estonia, argued that all those who entered Estonia after 16 June 1940, did so illegally and therefore have no automatic right to citizenship’ (Semjonov et al., 2015: 1). Subsequently, in 1992, around 500,000 people in Estonia (representing 32 per cent of the population) were deprived of their citizenship (UNHCR, 2016, 16) and 700,000 in Latvia (Ivlevs and King, 2012: 4).

The position of non-citizens in Latvia and aliens in Estonia represents a special conundrum in statelessness studies. As they are in stricto sensu not citizens of any state, they fit the definition of statelessness, but not that of the total infringement of citizenship. Their statelessness is unrecognised and is formulated as a different ‘non-citizenship’ status. At the same time, their rights are approximated to those of citizens: with the major exception of political rights (voting rights), non-citizens of Latvia and people with undetermined citizenship in Estonia possess other economic and social rights that most stateless populations do not (Swider, 2017). One of these rights is the possession of non-citizen and alien passports, which gives their holders a right to visa-free travel in the Schengen countries as well as the Russian Federation. Aliens in Estonia and non-citizens in Latvia are protected against deportation, and the states recognise their link with the territory. This is why Kochenov and Dimitrovs (2016: 64) conclude that they cannot be considered stateless in the same way as other populations:

In subsequent years, both Latvia and Estonia amended their citizenship legislation so as to reduce childhood statelessness. The first reforms for facilitated access to citizenship in Estonia began in 1998 (Kudaibergenova, 2020) and culminated in 2015, when all children under fifteen born in Estonia to alien parents automatically became citizens (if their parents did not submit a written objection), whereas in 2013 they became citizens upon their parents’ request (Semjonov et al., 2015; Krūma, 2015).

Nevertheless, despite such appropriations, Russian speaking-minorities are discriminated against not only in the political domain, but also in terms of employment and access to education (Kudaibergenova, 2020). They are clearly unequal to those who hold Estonian or Latvian citizenship because they are in stricto sensu de jure stateless. Yet the question is whether their statelessness can be connected to racialised citizenship and the total infringement of citizenship. The initial citizenship acts in Latvia and Estonia did make citizenship acquisition difficult, but the legislation introduced subsequently acknowledged that Russian-speaking minorities belonged to those territories, although their belonging was clearly unequal.

Haitians in the Dominican Republic

Kristy Belton (2011: 59) argues that the in situ statelessness of Haitians in the Dominican Republic represents a case of rooted displacement, and she calls this group ‘non-citizen insiders’. Since the 1920s, Haitians have been crossing to the Dominican Republic as migrant workers (via an undefined border), especially in the then flourishing sugar industry after the US occupation of both Haiti and the Dominican Republic (Belton, 2015). Many Haitians were employed as undocumented workers. Until 2010, the Dominican Republic generally applied the jus soli principle granting citizenship on the basis of birth on its territory except for children of diplomats, who fell into the ‘in transit’ category. The children of undocumented migrants were entitled to Dominican citizenship if they were born on its territory. The deprivation of citizenship started with a systematic refusal by the Dominican authorities to issue birth certificates to children of undocumented Haitian migrants. In 2013 the Dominican Republic's Constitutional Court limited the jus soli principle by reinterpreting the 1929 Citizenship Act and associating the irregular migrant status with the ‘in transit’ status. With this reinterpretation, the authorities of the Dominican Republic retroactively deprived around 200,000 Dominican citizens of Haitian descent of their citizenship and made all who came to the Dominican Republic after 1929 stateless (IACHR, 2015: 21).

The IACHR report stated that the deprivation of citizenship was accompanied by discourses demanding that Haitians be deported from the country because they were portrayed in the Dominican media as criminals (IACHR, 2015). Although of Haitian descent, these former Dominican citizens had never known Haiti as their home country (Belton, 2015; Hayes de Kalaf, 2019). Racism towards Afro-descendants had historical roots in colonialism and slavery, but also in the nation-building of the Dominican Republic, which constructed its historical narratives from white Spanish heritage as distinct from black Haitians. Yet, according to the IACHR (2015: 144), there was also widespread denial of racism: ‘For their part, at every meeting held with the State, all officials firmly denied the existence of racism or discriminatory practices in the country against Dominicans of Haitian descent, Haitians, or persons of African descent in general.’ The deprivation of citizenship was not directly racist, but it targeted undocumented migrants, who were, according to the new interpretation, ‘in transit’. However, most of the people ‘in transit’ were of Haitian descent, and the reinterpretation of the Constitutional Court did not give them any possible means of being naturalised. The decision of the Constitutional Court brought about a total infringement of citizenship, which took away both their citizenship status and any accompanying rights as part of a highlighted racialised (Hayes De Kalaf, 2019) citizenship regime.

Rohingya from Myanmar

The 2017 UNHCR Global Trends Report stated that there were 1.5 million stateless Rohingya in Myanmar and Bangladesh (UNHCR, 2018a). Rohingya minorities have been described as ‘the world's most persecuted minority’ (OHCHR, 2017). Many reports on statelessness have claimed that Rohingya became stateless through the 1982 Citizenship Law because they were not recognised under the 135 ‘national races’ that were present in the country in 1823, that is, before the British colonial occupation of Burma (Kyaw, 2017; Cheesman, 2017). However, on the basis of primary sources in the Burmese language, some scholars have argued critically that the development of citizenship policies and practices has not been as straightforward as that portrayed by major international organisations (Cheesman, 2017; Kyaw, 2017; Parashar and Alam, 2018). These scholars have argued that the 1982 Citizenship Law did not itself deprive Rohingya of their citizenship, but the practices of the state authorities destroyed the documents of Rohingya proving their citizenship, or refused to register them according to the new Citizenship Act.

The first postcolonial Constitution of Burma (drafted in 1947) introduced the terms ‘Indigenous races’ and ‘national races’, but did not name Rohingya as one of the national races. However, the 1948 Citizenship Act recognised virtually all the inhabitants of Burma as citizens. Belonging to one of the pre-1823 Indigenous or national races was not the only possible way to be recognised as a citizen of Burma (Parashar and Alam, 2018). Although Rohingya were not explicitly recognised as belonging to one of the national races in the legislation, they were recognised as such in later parliamentary debate (Parashar and Alam, 2018). Tracing the genealogy of the concept of ‘national races’, Nick Cheesman (2017) argues that they emerged as a determinant of Burmese politics more recently, in 1964. At this point the political discourse in Burma started changing when General Ne Win gave centrality to the concept of ‘national races’ in his Union Day speech (Cheesman, 2017: 465). As the borders between Myanmar, Bangladesh and India were initially poorly defined, the discourse accompanying the concept of ‘national races’ was that there had been continuous ‘illegal migration’ to Myanmar from the neighbouring countries since the colonial period.

In the ensuing decades, the status of Rohingya also changed dramatically: previously thought of as one of the national races, they were increasingly perceived as foreign Bengalis who came to Myanmar as British-sponsored labour migrants, and as ‘illegal migrants’ who arrived after Burmese independence (Parashar and Alam, 2018). The 1982 Citizenship Law indeed gave primacy to ‘national races’, but it also included safeguards according to which those recognised as citizens in the 1948 Citizenship Law could not be automatically deprived of citizenship. Rather, the Rohingya were deprived of citizenship because the authorities refused to register them as citizens (Parashar and Alam, 2018) and instead gave them white temporary residence cards (Kyaw, 2017; Cheesman, 2017). The official Burmese explanation for this practice was that the Rohingya have dubious citizenship status and that it still needed to be determined whether or not they were citizens of Myanmar (Kyaw, 2017). It was the introduction of these cards that left Rohingya in legal limbo, as neither citizens nor foreigners in Myamar, and not the Citizenship Act itself, as is often wrongly stated (Kyaw, 2017; Cheesman, 2017). Since membership of the ‘national races’ is the most important political category in Myanmar, Rohingya activists argued that Rohingya too are a national race on the basis of historical sources (the government of Myanmar and Buddhist nationalists dispute this claim; see Cheesman, 2017). The practices of the state caused multiple forced displacements of people with ambiguous legal status both within Myanmar and in neighbouring countries, especially Bangladesh. Rohingya were the minority who were most hit by the irregularisation of their status and displacement as the practices and discourses transformed them from previous citizens to less than aliens (as they also did not have a clear foreigner status).

Children of the Windrush generation in the UK

The context of postcolonialism did not only affect statelessness outside Europe, but contributed to it also within Europe. Since 2012 the UK Home Office had been introducing ‘hostile environment’ immigration policies. The so-called Windrush generation scandal in 2018 demonstrated a product of this policy: the hostile environment did not simply address the situation of ‘illegal immigrants’, but also contributed to the ‘production of illegality’ (De Genova, 2002b) not only of migrants, but also of those with precarious citizenship. It transformed citizens into ‘illegal migrants’. The term ‘Windrush generation’ refers to people who went to the UK from the British Caribbean colonies between 1948 and 1971, beginning with the Empire Windrush, the first ship that arrived with the new workers the UK needed because of the labour shortages after World War II (Pennant and Sigona, 2018). According to the 1948 UK Citizenship Act, they were citizens at the time of their arrival, not immigrants. When the status of colonial citizenship regime changed, the 1971 Immigration Act gave the Windrush generation automatic ‘leave to remain’ in the UK, which granted them access to the new British citizenship. Many of them did not regularise their status as citizens because the ‘leave to remain’ status already provided them with the right to work, education and access to healthcare (Sigona, 2018). Another reason was the inexplicably high citizenship registration fee (Harvey, 2018). The only proof that the Windrush generation had of their ‘leave to remain’ status were their landing cards, which the UK Home Office destroyed in 2010 (Sigona, 2018).

The Windrush generation were former UK citizens who became ‘aliens who are citizens’ (Stevens, 2017a: 217) and hence deportable to the Caribbean states of which they were never citizens. The ‘evidentiary challenges’ (Stevens, 2017b: 3) that the Windrush generation faced left their children born in the UK in an exemplary case of administrative statelessness (Owen, 2018). Their parents’ inability to prove their citizenship and the ‘leave to remain’ status created a legal limbo for the next generation since they fell in the category of people ‘who cannot prove what they are not, not a citizen of any state or “stateless”, any more than they can prove who they are’ (Stevens, 201b7: 3). The Home Office's destruction of landing cards left the Windrush generation and their children with no viable options to prove their citizenship or to provide a case against being deported. Without access to healthcare, work and housing, they felt the consequences of the hostile environment: when they were constructed as ‘illegal immigrants’, ‘borders pervade everyday lives’ (Tonkiss, 2018).

The denial of citizenship to the Windrush generation still needs to be researched further. At present, it is not possible to conclude that the destruction of the landing cards by the Home Office was a direct racist action. But the end product was the same: it was black UK citizens who had difficulties in proving their identity. As Tonkiss (2018) comments: ‘The construction of nationality also intersects with other perceived markers of social diversity … It is predominantly these people, and not their white counterparts with similar family histories of migration, who are persistently required to prove their belonging.’ The destruction of landing cards led to the total infringement of citizenship because racialised citizenship was embedded within British citizenship legislation and practices by the authorities. At the time when the Windrush generation arrived in the UK, they did not nominally cross any borders of the British Empire: yet it was the change in the citizenship regime and subsequent practices of the state that rendered them ‘illegal immigrants’ and caused the total infringement of citizenship.

Total infringement of citizenship: a conclusion

This chapter has analysed five cases of minority statelessness, two of them connected to postsocialist contexts (Romani minorities and Russian-speaking minorities) and three to postcolonial contexts (Dominicans of Haitian descent, Rohingya and the Windrush generation). The contexts within which the minority statelessness occurred are diverse, yet they all reveal one commonality: previous citizens were transformed into unwanted, undocumented or irregular aliens through the reinterpretation of their belonging and reconstruction of citizenry, which cemented the inclusion of most, but made the citizenship of some others precarious. In all the cases analysed, the states were (at least initially) unwilling to recognise minorities who were deprived of citizenship as being stateless, but rather described them as foreigners from somewhere else. In most cases, the transformation from citizens to aliens also meant a total infringement of citizenship (that is, deprivation of citizenship accompanied by deprivation of political, economic and social rights). The exceptional case was the Russian-speaking minorities in Estonia and Latvia: whilst they were clearly discriminated against in their everyday lives, the two Baltic states did not deny that the minorities belonged to the state and gave them residency rights and protection from deportation. They did, however, introduce a hierarchy of belonging, and whilst the minorities had most of the rights of full citizens, they lacked voting rights.

Aside from the Russian-speaking minorities in the Baltic states, each of the cases discussed can be categorised as a stateless minority with total infringement of citizenship: the deprivation of citizenship was accompanied by deprivation of political, social and economic rights. In addition, whilst the number of Russian-speaking minorities without citizenship is well documented, the numbers in other cases are only estimates. These cases also show that total infringement of citizenship was based on racialised citizenship regimes. According to citizenship laws, discourses and practices relating to citizenship and belonging, all these minorities were denied their belonging to the states in questions. They found themselves with in-between statuses (Sardelić, 2015; Lori, 2017), fitting neither the definition of citizens nor that of stateless persons. Nevertheless, racialised citizenship regimes are transformable and can, with time, be either fortified or abolished. The study of racialised citizenship regimes shows that whilst minority statelessness does often occur in postsocialist or postcolonial settings, it cannot be regarded as a simple straightforward result of the end of socialism or colonialism. Whilst these served as the background for previous discrimination, it is just as much the introduction of new legislation, discourses and practices by (officially democratic) states that deny citizenship and construct minority statelessness.