statelessness in europe and good practice regarding statelessness determination and the protection...

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the protection of stateless personsthe protection of stateless persons Statelessness in Ireland

Dublin, 21 October 2014

Chris NashDirector, European Network on Statelessness

chris.nash@statelessness.eu

European Network on Statelessness

The European Network on Statelessness (ENS) is a network of non-governmental organizations, academic initiatives, and individual experts committed to address statelessness in Europe.

We believe that all human beings have a right to a nationality and that those who lack nationality altogether – stateless persons – are entitled to adequate protection.

We are dedicated to strengthening the often unheard voice of stateless persons in Europe, and to advocate for full respect of their human rights. We aim to reach our goals by conducting and supporting legal and policy development, awareness-raising and capacity building activities.

European Network on Statelessness 2

Outline of this session

Why is statelessness determination necessary? What are the main building blocks of a

statelessness determination procedure? What legal status and benefits for stateless persons

in a migratory context? What are the relevant standards? What good practice exists?

A. International standards

B.Good practices

C.Issues to consider

- STRUCTURE

- ACCESS

- PROCEDURE

- ASSESSMENT

- APPEAL

- STATUS

Determination procedures for non-refugee stateless persons

UNHCR Guidelines No.2 and No.3

1954 Convention does not explicitly prescribe how statelessness should be determined

But … it does establish standards of treatment which can only be applied by States if they can establish who are the recipients

Two outcomes – 1) Finding that a person is stateless = protection, or 2) Confirmation that person is a national = prevention

Migratory vs in situ context

Two different contexts:

• countries that host stateless persons who are predominantly of a migrant background

• Countries that have in situ stateless populations

Recognition as a stateless person is not a substitute for acquisition of nationality but an interim measure until a nationality can be acquired (e.g. through naturalisation)

Some examples

Warda: Stateless Palestinian, born and raised in Kuwait Moved to Spain 5 years ago as a student, when her

residence permit expired she “overstayed” As a stateless person, cannot return to Kuwait with

long-expired documentsMarco: Born in Italy 10 years ago, his parents are stateless

Roma migrants from Serbia Under Italian law he should have acquired Italian

nationality at birth (to avoid statelessness), but his birth was never properly registered, so he remained stateless

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FRANCE

ITALYSPAIN

HUNGARY

LATVIA

MEXICO

GEORGIA MOLDOVA

SLOVAKIA PHILIPPINES

TURKEY UK

Existing state practiceAs of May 2014: 12 states’ legislation defines statelessness as a protection ground per se

Specific rules in law, clear or relatively clear procedural framework: Spain (2001), Latvia (2004), Hungary (2007), Moldova, Georgia and the Philippines (2012), UK (2013)

Clear protection ground in law, but no detailed procedural rules: France (1953), Italy (since the 70s), Mexico (2007)

Clear protection ground in law, but just basic (yet incomplete) framework: Slovakia (2012), Turkey (2013)

No single “best practice”, all models have important achievements and challenges

Several other states are working towards the establishment of such a system

Building blocks – Structure

Which authority should be in charge? No general rule, state practice varies If limited caseload → Centralised and

specialised authority is preferable Key considerations:

• Ensuring access to both RSD and statelessness procedure

• Prioritise asylum claim (suspend enquiries)

• Proper training and development of expertise

Building blocks – Access

Conditions for submitting a claimNo lawful stay requirement No time limitsFlexible framework: language,

reasonable formal requirements, physical and geographical access

Rights during procedure

Building blocks – Procedure

Realistic time limit (6+6 months)

Free-of-charge interpretation and translation

Access to state-funded legal aid or other forms of professional legal assistance

Mandatory personal interview

Access to and supervisory role of UNHCR

Building blocks – Assessment Shared burden of proof (cooperation) Lower standard of proof (“establish to a

reasonable degree”, “substantiate”) Limited assessment only where applicant

has a relevant nationality connection Contacting foreign authorities Examination of the practice as well as the

law in relation to nationality in the relevant state (access to accurate and up to date info)

Building blocks – AppealEffective remedy against refusal

National structures and practices may vary, but: Automatic right to appeal Both on facts and law Appeal and judicial review with independent,

preferably centralised and properly trained bodies

Possibility to grant protection Same procedural safeguards as at first

instance (interpretation, legal aid, hearing, etc.)

Status of stateless persons – RightsIssuance of a residence permit is crucial (with some exceptions) and should attach as a minimum these rights:

Right to work, unrestricted access to the labour market

Right to education, unrestricted access to primary, secondary and higher education

Access to health care and social assistance

Family reunification

Facilitated access to naturalisation

The UK experience

2011 UNHCR/Asylum Aid mapping studyClose dialogue and access to dataThe UK government’s responseInitial feedback on the new procedure

European Network on Statelessness 16

Campaign to protect stateless persons

European Network on Statelessness 17

ENS petition and animation

European Network on Statelessness 18

THANK YOU!THANK YOU!

Chris NashEuropean Network on

Statelessness