“Everyone has the right to a nationality”

Statelessness having been mapped, it’s time to act now for Belgian authorities, before momentum passes

13 February 2013 | Ruben Wissing, Jurist policy coordinator at Belgian Refugee Council (BCHV-CBAR)

Last Wednesday 6th February 2013, UNHCR finally presented its ‘Mapping Statelessness in Belgium’ report in the National Parliament.

At the ministerial meeting to commemorate the 50th anniversary of the 1961 Convention on the Reduction of Statelessness in Geneva in December 2011, the Belgian government already announced and later pledged to accede to the 1961 Convention and to introduce a new procedure for the determination of statelessness to be conducted by the Commissioner General for Refugees and Stateless Persons (CGRS).   It repeated this in its governmental agreement of 6th December 2011 and the secretary of state for Asylum and Migration Maggie De Block confirmed it once more in her note of general policy for the Belgian House of Representatives of 21st December 2012.

With the finalization of the Mapping study by UNHCR’s Regional Representation for Western Europe in Brussels, in partnership with the Centre for Equal Opportunities and Opposition to Racism in Belgium and in collaboration with the Research Centre in Population and Societies of the Catholic University of Louvain (UCL), all elements seem to be in place now for the Belgian government and parliament to live up to its promises.  Since 2014 will be the year in which Belgium, once again,  holds its ‘mother of all elections’, which traditionally paralyses all legislating activity from at least half a year beforehand, time is running very short.

Mr Jozef de Witte, the president of Centre for Equal Opportunities and chair of the session in the buildings of the National Parliament, and Mr Paolo Artini, UNHCR’s deputy regional representative, reminded the political authorities about these repeated engagements at the public event.  And there seemed to be some awareness of the urgency of the matter when Mr André Fréderic, vice-president of the House and member of the prime minister’s party, opened the event with the statement that the time for complaining was over and that it was time for action now.  Regrettably though the secretary of state herself was not present at the event.

The Mapping report itself consists mainly of an analysis of available statistics, primarily from census and administrative data, given a human face through interviews with (potentially) stateless  people about the protection and other problems they may face. The research also analyses existing legislation on statelessness determination procedures and enjoyment of rights under the 1954 Convention and the compatibility of national legislation with the 1961 Convention.  The researchers also consulted with the different relevant ministries, the Aliens Office, the CGRS, different Crown Prosecutors’ Offices, judges, the Naturalization Commission of the Chamber of Representatives, a representative of civil registrars, the Federal Mediator, lawyers and NGOs, including notably the Belgian Refugee Council (CBAR/BCHV).

At the event the statistical part of the research was presented by Mr Koen Dewulf of the Centre for Equal Opportunities.  Most recent numbers (2010-’11) show there are 672 stateless people and no less than 4,823 people of ‘undetermined’ nationality with a valid residence permit of more than three months.   A significant number of them are recognized refugees (42 per cent of this population in 2007).  For lack of any centralized administrative procedure, each year about a hundred persons apply before the judicial courts to be recognized as stateless. Although the Belgian Nationality Code attributes Belgian nationality to children born in Belgium from 1984 on if they would otherwise be stateless and this has made the number of stateless people born in Belgium drop, still most stateless and persons with an undetermined nationality were born in Belgium, followed by other Europe countries of origin, namely the former Soviet Union, ex-Yougoslavia, Germany and Romania.

Already by collecting and analyzing the data, the researchers ascertained a lack of coherence and awareness with public authorities about the phenomenon of statelessness.  It has been impossible to provide a complete picture of the stateless population in Belgium for multiple reasons: part of the stateless population is living illegally in Belgium, people in a statelessness determination procedure are not granted any temporary legal stay, nor do those who are recognized as stateless get regularized automatically, all of who are thus not in the statistics as being stateless.  Also there is uncertainty about the definition of statelessness, interpretations by municipalities and the judiciary vary and there is a multiplicity of administrative categories used to classify recognized stateless people and people who may be stateless.  A lot of improvement could be made by standardizing registration practices of nationality of children at communal level, of applications to and judgments by the courts at the ministry of Justice and of statelessness as a ground for regularization decisions at the Aliens Office and by a better collaboration between the Minsitry of Justice and Internal Affairs as to registrations in the national register.

How unknown the phenomenon really is with the broad public as with public authorities as well became vividly clear once more from the testimonies by Dr Nouné Kara Khanian, originating from an Armenian enclave on Azerbaijan’s territory close to Karabagh, and, on video, Ms Railya Abulkhanova, a Tatar professor from Kazakhstan, about their daily struggles with society to claim their most basic of rights.  

From the perspective of prevention and reduction of statelessness, UNHCR’s protection officer on Statelessness in Western Europe, Ms Inge Sturkenboom made quite a positive analysis of the Belgian Nationality Code of 1984, that already implemented most of the obligations the 1961 Convention entails.  UNHCR still recommends the Belgian authorities to adhere to the Convention and revise identification and registration practices of children as being stateless to assure a correct application of the guarantees from the Nationality Code.  

As regards to the statelessness determination procedure  Ms Veronique de Ryckere, who supervised the Mapping project for UNHCR, explained in how far the currently existing procedure under the judiciary’s competence suffers from a lack of centralized information, strongly varying procedural durations, differences in interpretation of the statelessness definition and variable burdens and standards of proof (demanding a negative prove of absence of any nationality).  UNHCR recommends Belgium to elaborate a stateless determination procedure by an independent, centralized and accessible public authority, with decisions within reasonable delays, access to free judicial assistance, and an effective remedy, as implicitly and explicitly demanded by the 1954 Convention to which Belgium is already a party.

The current status of recognized stateless itself is also problematic in Belgium since it is very precarious because it does not automatically lead to a legal residence status.  Many subjective rights are exactly attached to such a residence permit (such as the right to work, to social benefits, health care, travel documents) and the risk to be detained or even expulsed (in the case of undetermined nationality) persists in the meantime.   To get a residence permit, a recognized stateless person has to resort to one of multiple existing procedures, all just as insure as to its outcome: asylum procedure, regularization, also some judicial decisions have granted residence permits before.  And this while the Council of State has determined the state of being stateless an inhuman and degrading treatment on several occasions.  UNHCR recommends the Belgian authorities to work out a system in which recognized stateless are granted a residence permit, and pending their procedure a temporary one.

Throughout the report itself, UNHCR’s recommendations and the interventions by the authorities and the audience at the event, it was clear that some recurring questions seem to be waiting for a clear answer before final decisions on procedure and status will be made by the political authorities.   The first is the, at first sight theoretical, question of the nature of the right to have a nationality and/or to be recognized as stateless.  Since the Belgian Constitution determine droits civils to belong to the competence of civil law courts exclusively, the answer on this question might have an influence on which authority the competence for a statelessness determination procedure (in first instance and in appeal) could be conferred to.  Although there was a political agreement to confer it to the CGRS, an independent federal public authority that that already bears the competence in its name, the Commissioner General Mr Dirk Van den Bulck himself fears that a future procedure might be declared unconstitutional if the question does not get a conclusive answer first.  Besides this he is also worried about the impact an exemplary Belgian statelessness determination procedure (as compared to other states) might have on the already tested asylum procedure, that also belongs to its competence.  The interdependence and order of examination of the different protection statuses (refugee, subsidiary protection, statelessness) does not seem to be completely solved yet.   Another outstanding question is to which kind of residence permit a recognition of statelessness will lead and if this will be an automatic consequence of such a decision at all. 

Concluding the event, Mr De Witte invited to government and the legislator once more to take up their responsibility now and fulfill their promises.  The first phase of putting the phenomenon into numbers being finished, the necessary second of evidence based policy should follow from it.  A  legal initiative for an improved  determination procedure and residence status has to be taken for a vulnerable category of people to get the protection they urgently need and are entitled to, however unknown their problem or even limited their number is. 

There’s some hope now, but some obstacles need to be overcome urgently to prevent this exceptional momentum from passing.

 

More info:

http://www.unhcr.be/fileadmin/user_upload/pdf_documents/UNHCR-Statelessness_in_Belgium-Full_Report.pdf

http://www.unhcr.be/fileadmin/user_upload/pdf_documents/UNHCR-Statelessness_in_Belgium-Summary-ENG-FRA-NED.pdf

http://www.dekamer.be/kvvcr/pdf_sections/home/6%20februari%202013.pdf

www.cbar-bchv.be

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