oas course on statelessness: procedures for determining statelessness status laura van waas -...
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OAS Course on Statelessness: Procedures for
Determining Statelessness Status
Laura van Waas - Statelessness Programme - Laura.vanWaas@tilburguniversity.edu
Setting the Scene
You work at a civil registry office and a man approaches the desk, claiming that he is stateless. He explains that he needs to travel abroad to seek specialised healthcare and asks for your help to get him a travel document.
What can / should you do?
You are an immigration officer who oversees expulsion proceedings. You are worried about a case of a woman who has been held in immigration detention for 7 months now because you are unable to find a country willing to admit her.
What can / should you do?
Statelessness Programme
Statelessness Status Determination?
Statelessness status determination procedures can…
Be a precursor to issuing a stateless person travel documentHelp states to find an appropriate solution for people trapped in immigration detentionBe key to ensuring that stateless people enjoy rights to which they are entitled under international lawFacilitate the application of safeguards that prevent new cases of statelessness [e.g. where a parent’s statelessness has been established]Increase visibility of issue of statelessness
Statelessness Programme
SSD: General Considerations
Who should determine statelessness status?
Who should initiate the procedure?
Who should be obliged to establish statelessness?
What kind of evidence should be admitted?
How much evidence is needed to establish statelessness?
What should be the status of applicants awaiting status determination?
Statelessness Programme
Competent Authority
Who should determine statelessness status?
Centalised vs. decentralised authority
New / separate vs. existing body [e.g. integrate into asylum or immigration
procedures?]
Specialised expertise and training
Binding effect of determinations
Right to an effective remedy
Statelessness Programme
Who should initiate the procedure?
Determination upon the request of the applicant
Determination at the initiative of the state, ex officio?
Procedures should be simple and accessible
[e.g. reasonable fees, availability of legal aid]
Determination should be on individual basis
Statelessness Programme
Initiating the Procedure
Burden of Proof
Who should be obliged to establish statelessness?
Necessity of sharing burden of proof, between applicant and state what can each contribute?
Applicant’s role: to cooperate to establish relevant facts State’s role: to facilitate search for evidence
Burden of proof may also shift during procedure, e.g from applicant to state
Statelessness Programme
Evidence
What kind of evidence should be admitted?
Assessment of nationality law and practice
All available evidence should be considered
Contacting foreign authorities
[not appropriate if there are protection concerns]
Non-response from foreign authorities as evidence?
Hearing the applicant
Statelessness Programme
Standard of Proof
How much evidence is needed to establish statelessness?
Any state vs. all states with which state does applicant have links?
Substantiate vs. prove
Evidentiary requirements should not be so onerous as to prevent stateless people enjoying protection
Statelessness Programme
“Applicant Status”
What should be the status of applicants awaiting status determination?
Minimum set of rights
Avoidance of arbitrary detention
[alternatives to detention]
Statelessness Programme
“Statelessness Status”
What should be the status of persons recognised as stateless? Stable legal status residence and rights
Pathway to nationality?[link to facilitated naturalisation for stateless persons]
Statelessness Programme
Final Observations
Statelessness Status Determination not just relevant to state parties of 1954 Statelessness Convention practical solution for any state facing cases
Expert meeting conclusions on Statelessness Status Determination Procedures and Status (Dec. 2010)
UNHCR Guidelines (forthcoming 2012)
Technical support from UNHCR
Examples of existing state practice
Statelessness Programme
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