“Everyone has the right to a nationality”

Landmark hearing of the European Parliament calls for bold action to address statelessness in the EU

6 July 2017 | Chris Nash, Director of the European Network on Statelessness and Laura van Waas, Co-Director of the Institute on Statelessness and Inclusion

For us and others who have been working to get statelessness higher up the EU’s agenda, last week’s landmark hearing in the European Parliament was a significant step forwards, and an important success for the 22,000 supporters who signed the ENS StatelessKids campaign petition which was addressed during the hearing.

Both of our organisations were invited to give evidence at Thursday’s joint hearing held by the Justice and Home Affairs Committee (LIBE) and the Petitions Committee which also heard from a range of other experts including UNHCR, UNICEF, the European Commission, the EU Fundamental Rights Agency, the EMN statelessness Platform and the authors of the LIBE’s own statelessness study published in 2015. The hearing allowed MEPs to debate what LIBE chair Claude Moraes subsequently described as a ‘blueprint for bold action to address statelessness’ during this EP VoxBox filmed immediately afterwards. In a wide-ranging debate among MEPs at the hearing, there appeared to be welcome consensus about the need for the European Parliament to now adopt and implement a dedicated strategy to address statelessness. Perhaps even more importantly, there seemed to be an emerging recognition by MEPs of the need for EU institutions to start to perceive the issue differently as part of a holistic approach which places safeguarding EU citizenship at its core.  

Clarifying what is at stake

One of the challenges when discussing statelessness with an audience that is relatively new to the issue, or at least does not fully recognise its relevance to its own mandate or area of operation, is that the term itself – “statelessness” – can get in the way a little. This is also true of the EU context, in which two particular difficulties arise.

Firstly, since statelessness describes the absence of nationality, there is a presumption that it is a problem that falls squarely (and only) within the domain of nationality law. Since this is an area of law and policy for which authority remains vested with individual member states, statelessness must by definition be an issue over which the EU lacks competence. There is a perception that while the EU may have reason to want to address situations of statelessness within its borders, its institutions simply lack the mandate to act. However, for stateless persons who arrive as part of the mixed flow of migrants and refugees into Europe, their statelessness manifests more urgently as a migration problem.

As non-nationals of any state, EU or otherwise, the main concern of stateless migrants is gaining permission to reside, so as to be able to enjoy the security and exercise the rights that come with residence. In this respect, the now-antequated descriptor of those lacking nationality as “unprotected persons” (used in the 1949 UN Study of Statelessness) arguably does a better job of explaining the predicament for stateless persons arriving in Europe and the response that it demands. Crucially, as the study on statelessness prepared for the LIBE Committee and presented by Katja Swider at the hearing points out, this means that: “the protection of stateless persons needs to be achieved predominantly through the domain of migration law […] the EU has competence to address these issues on the basis of Title V, Chapter 2 TFEU, and the EU has already extensively legislated on such matters in the context of asylum law” (p. 57). Once what is at stake for such cases of statelessness has been clarified in this manner, the conversation can be taken forward because the question of competence is clarified with it.

The second complication that the term “statelessness” can unwittingly bring to a debate about how the EU could or should address the phenomenon is that it can conjure up an image of stateless persons as (always and only) outsiders, asking to be let in. Perceived in this way, the stateless person is someone who has come from elsewhere – even if, in fact, he or she was born in an EU member state. Perceived in this way, the stateless person is someone who must earn the privileged status of national – even if, in fact, an EU member state with which he or she has strong ties has colluded to create statelessness by failing to apply safeguards which it is under an international obligation to implement. Perceived in this way, the stateless person is a victim who may be pitied and offered charity – even if, in fact, he or she is an EU citizen whose status as a rights-holder is being denied. Again, this is a challenge which the study for the LIBE Committee seeks to explain (p. 55) and which was also recognised during the hearing..

Picture the scenario of a child born on the territory of an EU member state, to parents who are stateless or otherwise unable to pass on their nationality. International law obliges the state where a child is born to grant nationality if that child who would otherwise be stateless, in order to realise their fundamental right to acquire a nationality (as protected, for instance, under the Convention on the Rights of the Child). But what if the EU member state in question has neglected to incorporate the required legislative safeguards to protect a child born on its territory from statelessness (a widespread reality in the EU, as demonstrated by ENS research). The child in question is not an outsider: he or she enjoys a genuine connection to the state of birth and would have had access to its nationality if the state had adhered to its international obligations. Or what if the state does have a safeguard in place in its law, but when a child is born stateless on its soil, the bureaucratic aparatus fails – or refuses – to recognise this to be the case and the safeguard is nothing but a hollow promise (another real-world problem in the EU, as illustrated for instance by the Zhao case which is currently pending before the UN Human Rights Committee). The child does not need to earn his or her nationality: it is an entitlement that remains unfulfilled – in such cases under both international and domestic law.

In the situations outlined here, the stateless person is not only denied the right to acquire a nationality by an EU member state, he or she is also denied the rightful status of EU citizen. In some contexts then, to clarify what is truly at stake, it may be helpful to supplement the language of “statelessness” with a depiction of the reality of an EU citizen who is being denied his or her EU citizenship. This clarification – and the alternative vocabulary that it introduces to the converstion – helps to drive home how difficult to maintain that statelessness is an issue beyond the reach of EU law, even when it comes to the realm of nationality law responses.

Developing and taking forward a dedicated strategy to address statelessness in the EU

In this blog it is not possible to do justice to each and every valuable intervention made last Thursday, and at the hearing it was explained that an immediate and first step for the LIBE and PETI Committees would be to capture and compile these contributions as the basis for devising and taking forward a dedicated strategy to address statelessness in the EU. However, it is worth highlighting some key ideas and recommendations discussed which hopefully will be taken up as part of the dedicated strategy and related efforts at a regional level.

Some important recommendations have already been usefully articulated in this Euractiv article co-authored by the hearing’s co-chairs Claude Moraes and Cecilia Wikstrom, and  which highlights the urgent need to harness political will to ensure that all EU member states accede to the the two UN statelessness conventions, include and implement necessary safegurards against statelessness in domestic nationality laws, and introduce dedicated determination procedures to identify and protect stateless people. The article also emphasises the need for EU institutions, including the European Parliament, to fully integrate the protection of stateless people and prevention of statelessness into the EU’s asylum acquis, child rights agenda and frameworks for ending discrimination.

Other recommendations that surfaced during the hearing centred on the important monitoring role of the Parliament, including with regard to implementation of the European Council conclusions on statelessness adopted in 2015 but yet to show tangible process despite the establishment of a European Migration Network (EMN) statelessness platform as mandated by the conclusions. In this regard, it was suggested that the European Parliament should seek periodic updates on progress made by the platform, and more broadly should ask the European Commission to provide a biannual State of the Art report on progress with addressing statelessness in the EU. This could be supplemented by monitoring visits and reports by for example the LIBE Committee. Linked to this, and recognising that the current lack of reliable data is hampering an effective response, it was proposed that the Parliament should call for Regulation (EC) No 862/2007 of 11 July 2007 on Community statistics on migration and international protection to be amended in order to oblige member states to accurately record the number of stateless people born and living on their territories. Finally, it was recommended that the European Parliament should adopt a dedicated resolution on statelessness in order to help consolidate and focus efforts, and to underpin its strategy.

There was also a recognition of the need to reach out to and work with the the Council of Europe which has a long history of addressing issues relating to nationality and statelessness (for example, recently adopting an Action Plan on refugee and migrant children which includes a discrete action on ensuring children’s right to acquire a nationality). Here the role of the UNHCR and UNICEF joint-led coalition was also acknowledged, as was the continuing importance of UNHCR’s ibelong campaign which seeks to eradicate statelessness globally by 2024. Particular attention was drawn to a planned High Level event that will be organised by UNHCR in 2019, and which will provide an opportunity for states to report on unilateral action taken (including accessions and/pr legislative changes and other steps) as well as to make new statelessness-related pledges. Equally, it will provide the European Union with a chance to  showcase and/or pledge multilateral action. Moreover, it will hopefully also encourage overdue implementation of a pledge made by the EU in New York in 2012 that all member states would accede to the 1954 statelessness convention but which has not yet been fulfilled (Estonia, Cyprus, Malta and Poland are still not parties).

Backing up promises with concrete action and results

While awareness-raising work has clearly been important in bringing about events like last week, the sobering reality is that many of the individuals we featured in our campaigning work remain stuck in limbo today, and the legislative and policy gaps that cause this remain unaddressed. Take Andreea who featured in our #StatelessKids animation, nine years old and and unable to attend school in her country of birth, Romania. Yet Romania has still not adequately addressed obstacles to birth registration or amended its nationality law to include full safeguards against statelessness. Or take Sarah, stateless and unable to progress her life in the Netherlands, who told her story in an animation we used to promote our 2014 protection campaign. Although the Netherlands is now consulting on a proposal to introduce a dedicated statelessness determination procedure, as things stand, this would not lead to a guaranteed right of residence which is exactly what Sarah requires to end her predicament. Or take the case of Roman who featured in our Still Stateless Still Suffering report but subsequently tragically died alone, desperate and destitute after having spent more than 20 years living in limbo in Slovakia without ever being able to regularise his status or experience the sense of belonging that a nationality bestows. For him any solution is now too late.

What these stories show is that the condition of statelessness will not resolve itself. Unless governments and other actors take necessary action then we will condemn countless others to a fate like Andreea, Sarah and Roman. We hope that last week’s hearing is further evidence that we can count on the European Parliament as a powerful ally in efforts to address statelessness, and we very much welcome its promise of bold action. But this must now be backed up with actual action and results, and for our part we remain committed to helping ensure that this happens.

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