“Everyone has the right to a nationality”

Access to protection: promising newcomers?

3 August 2012 | Gabor Gyulai

“We might give you protection, but you might not be allowed to stay here until we decide”. Sounds absurd, right? Yet the right to remain on the territory while one’s claim for protection as stateless person is being processed is far from being embedded in existing national protection schemes.

 

Nearly six decades after the adoption of the relevant UN convention, stateless persons must still to browse the world map for a long time in order to find a country that would grant them a protection status. Despite a clearly positive tendency in recent years (especially in Europe), still only a handful of countries operate an effective legal mechanism for the identification and protection of stateless persons. Even these regimes suffer from a number of shortcomings, especially when it comes to providing effective access to determination procedures. Probably the most general gap in the “older” statelessness-specific protection systems is the lack of a proper temporary status for applicants while their claim is being processed. In France, an applicant has no entitlement to a temporary residence permit and as a result can even be expelled, deported and detained before the competent state authority can decide the claim. The situation is not spectacularly better in Spain or Italy either. In these states, only the possibility exists of granting a residence permit during the statelessness determination procedure, without any obligation or clear legal standard. As most stateless persons lack a residence entitlement and often even a passport, they can be negatively affected by measures concerning irregular migrants (detention, destitution, etc.), even if in many cases deportation to the “country of origin” may not be a viable option in practical terms. As a parallel, imagine a situation where asylum-seekers can be returned to their country of origin before an in-merit decision is taken on their protection claim. Many of them might not even be alive by the time the eventual recognition of refugee status would reach them…

 

In such a context, all efforts to create new national protection regimes are naturally the centre of much interest. Moldova and Georgia are two “newcomers” that adopted legislation in 2012, with the aim of establishing a statelessness-specific protection mechanism. Fortunately, both countries’ legislators understood the absurdity of the above situation and followed the recommendations of the UNHCR and members of the European Network on Statelessness in this respect. The Moldovan law adopted earlier this year specifies that “the applicant has the right to stay on the territory of the Republic of Moldova during the examination of his/her claim and may only be removed from the territory for reasons of national security and public order”. Moreover, the competent authority is bound to “issue the applicant a document confirming his/her status (confirmation certificate) for the whole period of the examination of his/her application”. The freshly-adopted Georgian law explicitly stipulates that in case of “an applicant who stays on the territory of Georgia unlawfully during the status determination, his/her stay in the country shall be considered as lawful” and that applicants with no other legal grounds for their stay shall not be expelled during the statelessness determination process. A similar understanding of this issue was further reflected by two earlier bills in the United States, both of which included provisions aiming at the establishment of a determination and protection mechanism for stateless people. Both bills – neither of which was ultimately adopted – would have offered the right to work to applicants awaiting the determination of their status as stateless persons.

 

These developments indicate a positive on the path to ensuring that, through the creation of clear legal standards, all statelessness-specific protection regimes enable applicants to remain on the territory in decent and humane circumstances during the determination process. The advocate for the cause of the stateless cannot but hope that states will realise that it is not enough to create a hypothetically functioning protection system, ensuring that all of those in need have proper access to it is not any less important.

 

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