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Committee on Civil Liberties, Justice and Home Affairs II

With the European Union reiterating its commitment to prevent and end statelessness in Europe, what further steps should the European Union take to safeguard the fundamental rights of stateless persons and provide them with access to public services?

 

Submitted by: Ada Yıldırım (TR)

Imagine the fundamental rights you get to enjoy on a daily basis: Access to education and public health services or the right to employment. An estimate of 600.000 persons in Europe cannot avail themselves of aforementioned fundamental rights, making them prone to grave violations of their human rights and exposed to persecution and forced displacement, discrimination and inhumane treatment. In the absence of effective measures to identify, register and protect stateless persons, are barred from participating in society, accessing public services and opportunities.

 

«I want them to have what I did not have. I don’t want them to live my life […] I am nobody. If I disappeared from the face of the Earth, nobody would have known.»

-Ionela, Romania, mother of stateless Roma children[1]

Key terms

  • Stateless persons are defined as persons who are not considered as nationals by any State under the operation of its law. In the absence of any form of nationality, stateless persons are not afforded the protection afforded by a legal connection with any state;

  • Nationality is the legal status of belonging to a particular state. It can be acquired through birth, descent, marriage, adoption or naturalisation;

  • Citizenship connotes the legal concept in which a state grants certain rights and duties to those who fulfill the legal requirement to become a citizen of the state;

  • De jure statelessness refers to the status of an individual who does not hold the nationality of any state. Whereas de facto statelessness implies that an individual does not enjoy the protection of any government without being denationalised.

 

 

Relevance of the Topic

 

There is an estimated number of 600.000 stateless persons living in Europe with an estimate of 2.100 being children.[2] Without belonging to any state, stateless persons cannot enjoy the rights nor the protection which a state would otherwise provide to its nationals, as the right to education, employment, health care or voting are inherent to and inseparable from nationality or state citizenship. Therefore, stateless individuals are more vulnerable to human rights violations, prone to persecution and forced displacement, face greater restrictions in freedom of movement and difficulties in accessing education, health, employment and other services which require documentation. As a result of their legal status, stateless persons often live in conditions of protracted marginalisation and discrimination. To date, only a handful of the Member States apply measures to prevent statelessness, reduce it in number, identify and protect stateless persons. Therefore, an enhanced cooperation and exchange of good practices between Member States is imperative.

 

Key Conflicts

 

Immigration law, policies and practices do not take into account the unique characteristics that sets stateless persons apart from migrants. Its causes might be ethnic and gender discrimination in nationality laws conflict between or gaps in nationality laws and state succession. The absence of a birth registration and documents certifying birth as well forced displacement might further put individuals at risk of statelessness.[3] Statelessness per se is not a ground for obtaining a protection status in most Member States. Only a handful of Member States operate a specific protection regime for those without a nationality, meaning that stateless persons who do not qualify for refugee status or subsidiary protection can further obtain a legal status on the mere ground of statelessness.[4] Moreover, there is no homogeneity among Member States who operate specific protection regimes as regards to the stateless documentation procedures.[5]

 

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Yet, without an effective and adequate stateless documentation procedures, stateless individuals cannot avail themselves of their fundamental rights granted in international conventions and are likely to endure a vicious cycle of costly and burdensome administrative procedures, under the constant risk of arbitrary arrest and detention. The lack of effective and adequate documentation procedures in its Member States calls for the European Commission to promote the idea of creating common statelessness specific protection mechanisms. However, the attribution of nationality and citizenship remains within each sovereign state’s discretion. Therefore, Member States remain the sole legislator of their nationality laws and cannot be obliged to comply with a harmonised approach set out by the European Commission.[6]

 

Moreover Member States appear to have taken on the race to the bottom approach. In providing a lower standard of support and protection to stateless individuals, Member States attempt to deter stateless persons from migrating to their state from one of the neighbouring states.[7] The ever-lowering standards might lead to a very low overall standard of protection for stateless persons and prompt violations of international human rights standards. Only a coordinated effort by the European Commission will ensure that aforementioned considerations do not play a role in the domestic politics and that Member States which strive to comply with their international law obligations on statelessness should not be hindered in their efforts by fear of attracting a disproportionate number of stateless persons from other Member States that avoid complying with international standards.[8]

 

Stakeholders

 

The European Commission retains the legislative power to develop mechanisms for the identification and protection of stateless persons in the field of immigration and asylum of third-country nationals. Furthermore the European Commission plays a vital role in stimulating cooperation and exchange between its Members States with regard to statelessness prevention policies and the treatment of stateless persons.

 

Member States are the central stakeholders when aiming at identifying the underlying drivers of defective statelessness determination. Member States retain full sovereignty on drafting their nationality laws and play a pivotal role in addressing the loopholes resulting from conflicting nationality laws between Member States.

 

Council of Europe has for a long time made significant efforts with regard to the avoidance and reduction of statelessness. In addition, the Council of Europe has engaged in numerous bilateral activities aimed at avoiding and reducing statelessness, in particular in states which had experienced situations of State succession and in other states which intended to accede to the European Convention on Nationality.

 

The United Nations High Commissioner for Refugees (UNHCR) exercises its mandate in assisting forcibly displaced and stateless people, refugees and asylum-seekers. It is committed to humanitarian and critical emergency assistance and aims at safeguarding the rights and the well-being of those who have been forced to flee.

 

Non-governmental organisations provide humanitarian aid and on-site support through material donations, integration initiatives and legal aid. As a network of non-governmental organisations, the European Network on Statelessness aims to increase awareness, advocates for legal policy developments and supports capacity building activities in the field of statelessness.

 

Existing Measures and Current Legislation

 

The 1954 Convention relating to the Status of Stateless Persons is an international framework setting out a minimum standard of rights and defining the legal status of a stateless person. It requires that stateless individuals have the same rights as citizens to freedom of religion and education of their children.

 

The 1961 Convention on the Reduction of Statelessness establishes a set of rules for the conferral, withdrawal and renunciation of nationality as a preventative framework for the reduction of statelessness. It requires contracting states to attribute nationality to a child born in their territory if the child would otherwise be stateless.

 

The European Convention on Nationality embodies a set of general principles applying to all aspects of nationality. It is designed to make the process of acquiring nationality and recovering from a former one easier, to , to ensure that nationality is lost only for good reason and cannot be arbitrarily withdrawn, to guarantee that the procedures governing applications for nationality are just, fair and open to appeal, and to regulate the situation of persons in danger of being left stateless as a result of state succession. Europe is the only region to adopt its own dedicated and detailed convention on nationality.

 

Directive 2011/95/EU declares that recognised stateless persons are entitled to subsidiary international protection. It grants access to residence permits, travel documents, employment, education, social welfare, healthcare and housing. It further aims at setting common criteria for the identification of stateless persons and guaranteeing access to a minimum level of benefits in all Member States.

 

Statelessness Determination Procedures serve to identify stateless persons and grant them protection status. They are imperative for safeguarding the fundamental rights of stateless individuals. States have broad discretion in the design and operation of statelessness determination procedures.

 

Food for thought questions

  • How can the European Commission cooperate with national governments and the civil societies to uphold and protect the fundamental rights of stateless persons?

  • What preventative measures and mechanisms can be implemented to counteract the root causes of statelessness?

  • What measures can be taken to promote greater coherence in the recognition and determination of stateless persons?

  • Should Member States consider lowering the requirements for acquiring nationality, citizenship or residency?

 

 

Links to further research and materials

 

Video: Why don't these 10 million people belong?, UNHCR

 

Poster: What is statelessness, UNHCR

 

Infographic: What does it mean to be stateless?, European Network on Statelessness

 

Video: Stateless determination procedures, UNHCR

 

Global 2014-24 Action Plan to End Statelessness, UNHCR

 

Statelessness in the EU, EMN Inform Report, European Commission

 

Identifying stateless persons in the EU, Intervention by Vincent Cochetel, UNHCR

 

Protection and Identification of Stateless Persons through EU Law, Working Paper, Swider, K

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