EXECUTIVE SUMMARY OF A STUDY FOR THE EUROPEAN PARLIAMENT CIVIL LIBERTIES COMMITTEE (LIBE) Full study (121 pages) accessible HERE
Authors: Prof Gerard Rene’ DE GROOT, Katja SWIDER, Olivier WONK
The aim of the present study is to describe the practices and approaches in all EU Member States concerning the prevention and eradication of statelessness. For that purpose the study analyses the relevant international and European standards (Chapter 2) and assesses the national practices in light of these standards (Chapter 3). Since the prevention and eradication of statelessness depends on proper mechanisms to identify stateless populations, the subject of procedures for determining statelessness is addressed. We also investigate whether installing such a procedure creates a ‘pull factor’ (Chapter 4). The study ends with a detailed analysis of the possible role of the European Union in preventing and reducing statelessness (Chapter 5).
International and European standards to prevent and end statelessness
- Important standards on the avoidance and reduction of statelessness can be found in the 1954 United Nations (UN) Convention relating to the status of stateless persons, the 1961 United Nations (UN) Convention on the reduction on statelessness and the 1997 Council of Europe (CoE) Convention on Nationality.
- The European Union pledged at the UN High-level Rule of Law Meeting in New York, which took place in September 2012, to stimulate EU Member States to address the issue of statelessness by ratifying the 1954 UN Convention and considering the ratification of the 1961 UN Convention.
- For the interpretation and further development of standards following from these conventions, the UNHCR Guidelines on Statelessness, published in 2012, and Recommendation 2009/13 of the Council of Europe on the position of children in nationality law are of paramount importance.
- Landmark court decisions are the 2010 decision of the Court of Justice of the European Union in Janko Rottmann v. Freistaat Bayern (C-135/08) (concluding that deprivation of nationality, with statelessness as a result, may only happen after applying a proportionality test to such a measure) and the 2011 European Court of Human Rights decision in Genovese v. Malta (application no. 53124/09) (concluding that nationality is part of one’s personal identity and as such protected by the concept of private life under Article 8 ECHR) as well as the 2014 decision in Sylvie Mennesson v. France (application no. 65192/11) and Francis Labassee v. France (application no. 65941/11) (stipulating that aspects relating to one’s social identity need to have consequences for the nationality position of children born from cross-border surrogacy arrangements).
Assessment of Member State rules in light of international and European standards
- The comparative analysis shows that several Member States violate international and European standards regarding protection against statelessness.
- This is not only true for Member States that are not bound by the relevant international treaties, but also for Member States that have acceded to these conventions.
- Moreover, the standards of protection against statelessness differ considerably between the Member States.
- This is particularly problematic for the grounds for loss, since the loss of a Member State’s nationality, resulting in statelessness, implies the loss of European citizenship.
- Exclusion from both the protection that nationality offers and the benefits of EU citizenship prevent people from accessing fundamental civil, political, economic, cultural and social rights and put them at risk of repeated or prolonged detention and destitution.
- There is a need for greater clarity as regards the legal position of permanent resident non-citizens in Latvia and Estonia, who formerly held the citizenship of the Soviet Union, in light of international and European law. Indeed, in order to avoid that the activation of statelessness will prevent or reduce provisions, States sometimes deliberately do not classify a person as “stateless”, but assign the person involved a different label. This occurred in Latvia and Estonia with the introduction of the special status of “permanent resident non-citizen” in Latvia or a “person of undefined nationality” in Estonia.
Protection of stateless persons in the migratory context and statelessness determination procedures
- Dedicated procedures for determining statelessness are lacking in most EU
Member States, apart from France, Italy, Spain, Latvia, Hungary, United Kingdom,
Slovakia and Belgium.
12.This entails a serious risk that stateless persons are not properly identified.
- Without proper identification, it is unclear whether stateless persons are accorded appropriate treatment in line with the Member States’ international commitments, in particular the 1954 UN Convention, which has reached near-universal ratification among EU Member States.
- The Member States are therefore encouraged to install determination procedures, drawing on the guidance of UNHCR as laid down in the 2014 Handbook on Protection of Stateless Persons.
- The Handbook allows States to exercise broad discretion in the design and operation of statelessness determination procedures so as to tailor the procedure to their domestic situations.
- Evidence that the introduction of procedures to determine statelessness would act as a pull factor for stateless persons to come to the EU is lacking. However, it is likely that more people will make use of existing determination procedures in the near future due to the growing influx of refugees, some of whom may claim to be stateless.
Possible role of European Union in addressing statelessness
- Different reasons can be advanced why the objectives related to the protection and identification of statelessness can best be achieved at the EU level.
- First, only a coordinated effort by the EU will avoid the ‘race to the bottom’ phenomenon, which would be caused by the fear that stateless persons in the EU will choose to seek protection in the Member State that offers the easiest access to the recognition of their status as a stateless persons and the best subsequent protection.
- Second, developing and implementing internal minimum standards on the protection and identification of stateless persons is a prerequisite for exporting these standards abroad and a necessary first step towards fulfilling the pledge made to the UN.
- Third and finally, the existence of the status of a stateless person is already acknowledged in the laws within the Common European Asylum System. Even though statelessness is not a separate protection ground within the Common European Asylum System, it is argued that the frequent references to this legal status require that stateless persons are identified in a consistent manner across the Member States. The divergence in statelessness determination outcomes can lead to discrepancies in the implementation of some provisions.
- Different treaty provisions can be identified in the Treaty on the Functioning of the European Union (TFEU) that may serve as a legal basis for EU legislation on the identification and protection of stateless persons.
- Legislative action of the EU can first of all be based on Article 21(2) TFEU (EU citizenship) due to the link between determining statelessness and EU citizenship.
- Also the wording of Articles 78 (asylum) and 79 (immigration) TFEU provides sufficient flexibility to serve as a basis for EU legislation on the identification and protection of stateless persons.
- A third and final legal basis for EU legislation on statelessness is Article 67(2) (general provisions of an Area of Freedom, Security and Justice) in conjunction with Article 352 TFEU (‘flexibility clause’ of EU competences).
- Different situations relating to the determination of statelessness can be envisaged where a preliminary ruling procedure before the CJEU could clarify the interaction with EU citizenship.
- An EU Directive on the determination of statelessness would prevent Member States offering a (better) protection regime to bear a much larger burden than Member States that offer less beneficial protection, or none at all.
- Member States are encouraged to exchange information on policies regarding the prevention and reduction of statelessness and the treatment of stateless persons, and to increase awareness of problems regarding statelessness by improving the availability of statistical data on stateless persons within the EU.
- Aspects of statelessness that need to be addressed through migration law are the regularisation of residence of stateless persons as well as – in exceptional cases – the regulation of return to a previous country of residence. The EU has competence to address these issues on the basis of Title V, Chapter 2 TFEU, and has already extensively legislated on such matters in the context of asylum law.
- In light of the above-mentioned pledge, Cyprus, Estonia, Malta and Poland should accede to the 1954 UN Convention relating to the status of stateless persons as soon as possible.
- All Member States should implement the obligations of the 1954 UN Convention properly. In particular, they should facilitate the naturalisation of stateless persons residing on their territory and thus facilitate their access to European citizenship.
- Member States that have not yet acceded to the 1961 UN Convention on the reduction of Statelessness should be encouraged to consider accession to that Convention.
- All Member States should be encouraged to implement the obligations of the 1961 UN Convention properly and to take due account of the Guidelines of the UNHCR on the interpretation of the rules of that Convention.
- The European Commission should initiate a European Union Directive on statelessness determination procedures. Next to procedural issues in the narrow sense, this Directive should include rules on the burden of proof, standard of proof and indicate the application ratione personae (i.e. who has access to the procedures). The Directive should follow as far as possible the Guidelines on statelessness determination procedures issued by the UNHCR and reproduced in the UNHCR Handbook on Protection of Stateless Persons.
- In order to properly identify stateless persons, Member States are strongly encouraged to introduce statelessness determination procedures. While these procedures can be tailored to their domestic situation, the following safeguards are imperative: the procedures must be available for all persons claiming to be stateless and who are present on the territory of the State involved. Decisions must be taken within a reasonable length of time and a right of appeal to an independent body must be guaranteed. The burden of proof must be regulated in a way that, on the one hand, requires the applicant to submit all evidence reasonably available to her or him, and that, on the other, requires the determining authority or court to obtain and present all evidence reasonably available to it. The standard of proof that may be required is that it is established to a reasonable degree that the person involved is not considered as a national by any State, with which he or she has a relevant link, under the operation of its law.
- Regulation (EC) No 862/2007 of 11 July 2007 on Community statistics on migration and international protection should be amended in order to oblige Member States to collect data on the number of stateless persons born on their territory, the number of stateless persons living on their territory, as well as the number of persons with undetermined nationality living on their territory, and to communicate these data to Eurostat.
- In order to promote the correct implementation of the obligations following from the 1954 and 1961 UN Conventions, the European Union should develop an effective mechanism for the exchange of information in order to enable Member States to learn of each other’s practices. The EU should establish a more effective mechanism for the exchange of information regarding national regulations and policy measures in areas related to nationality, when they affect Union citizenship and their obligations to both other Member States and the Union. The European Commission should relaunch and re-visit Council Decision 2006/688/EC of 5 October 2006 on the establishment of a mutual information mechanism concerning Member States’ measures in the areas of asylum and immigration.
- The European Union should take measures in order to ensure that stateless persons living on the territory of a Member State have facilitated access to residence permits.
- It is necessary to clarify the status of Latvian non-citizens under international and European law, in order to give them and their descendants access to the protection of in particular the rules of the 1961 UN Convention in those Member States that are party to the Convention or have other domestic rules in force that protect (otherwise) stateless persons.
- In order to enhance the avoidance and reduction of statelessness in the European Union and the treatment of stateless persons, it is advised that the European Parliament asks the European Commission for a biannual State of the Art Report, preferably to be delivered for the first time in 2018.