“Everyone has the right to a nationality”

Bulgaria is introducing a statelessness determination procedure. Or is it?

8 September 2016 | Dr. Valeria Ilareva, Foundation for Access to Rights - FAR
Diana Ilareva

On the surface, yes, Bulgaria is for the first time introducing a statelessness determination procedure in its national legislation. But scratch a bit deeper and it’s obvious that the qualification criteria threshold is so high that it renders the new protection provisions practically inapplicable.

Back in June the Bulgarian Parliament adopted the first reading of a Draft Law amending the Aliens Act, introducing a new Chapter on “Granting the status of stateless person in Bulgaria under the Law on Ratification of the Convention on the Status of Stateless Persons, adopted by the United Nations Organization in New York on 28 September 28 1954”. The draft bill was submitted to the parliament by the Bulgarian Government and it’s expected that the second and final reading will happen soon.

The introduction of a statelessness determination procedure is in principle a welcome development. It has been а long time in the making, after Bulgaria ratified the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness back in 2012. Bulgaria needs implementing national legislation that would make the application of the 1954 Convention operational. There are many undocumented stateless persons in Bulgaria that have been looking forward to the moment, when they would finally be able to have their statelessness recognized and consequently obtain access to fundamental human rights.

One of these stateless persons, to whom we provide legal aid at Foundation for Access to Rights - FAR, is Akram (not his real name), a rejected asylum seeker. His parents were Iraqi nationals. He was born in an Iraqi prison, because his father was "against the regime of Saddam Hussain". In prison, his father was separated from the family and they never saw him again. Akram was only a month old when he and his mother and sister were expelled to Iran in 1982. According to the Iraqi legislation, his mother could not pass on her citizenship; only his father could do that. Akram remained stateless and did not even have the right to marry the woman whom he loved in Iran. He arrived in Bulgaria in 2011. There, he approached the Iraqi embassy and he was issued with an official document stating that there were no documental records for him to be a citizen of Iraq. Currently Akram is residing illegally in Bulgaria. His biggest fear is to be placed in immigration detention. He knows about the draft legislation and is awaiting it with great expectations. However, would he be able to avail himself of the statelessness determination procedure in Bulgaria as it stands now?

Article 21b (1) of the Draft law provides the following definition of a stateless person:

“The status of stateless person may be granted to a foreigner who was born or has entered legally on the territory of Bulgaria, has been granted long-term or permanent residence and who is not a citizen of any country in accordance with its legislation.”

The proposed provision only includes foreigners who cumulatively meet the three conditions stated in the provision, excluding foreigners who did not enter Bulgaria legally and those lawfully residing foreigners who do not hold permanent or long-term residence permit. With those conditions in place, Akram would not qualify for the status of a stateless person in Bulgaria, because, in the first place, he entered the country illegally.

Article 1 of the 1954 Convention reads that the term “stateless person” means a person who is not considered as a national by any State “under the operation of its law”. As the UNHCR Handbook on Protection of Stateless Persons (2014) sets out, this means both what the law says and how it is implemented. In contrast, the Bulgarian definition (“in accordance with its legislation”) only includes what the law says. The UNHCR Handbook and the UNHCR Guidelines on Statelessness No.2 (HCR/GS/12/02), paragraph 17, raise concerns about the requirement that applicants for statelessness determination be lawfully within a State:

“Everyone in a State’s territory must have access to statelessness determination procedures. There is no basis in the Convention for requiring that applicants for statelessness determination be lawfully within a State. Such a requirement is particularly inequitable given that lack of nationality denies many stateless persons the very documentation that is necessary to enter or reside in any State lawfully.”

Many of the protection rights included in the 1954 Convention are intended for stateless persons not lawfully in the State. Furthermore, the rights to non-discrimination and equality are not conditional upon lawful presence and often can only be met if statelessness is identified.

Article 21d (1.1) of the Bulgarian Draft law states that applications for statelessness status are rejected, if the applicant “does not meet the conditions of Art. 21 b.” Thus, the exclusion of individuals who have not entered the country legally and/or who do not have a permanent/long-term residence permit goes against the main principle behind the 1954 Convention of protecting the stateless.

In the reasoning to the Bulgarian Draft Law, it is stated that – following an analysis of the European good practices – the working group on the draft law “has found it appropriate to adopt the Hungarian practice”. Therefore, it is noteworthy that on 23 February 2015 the Hungarian Constitutional Court declared "that lawful stay requirement in statelessness determination breaches international law" and quashed the lawful stay requirement as of 30 September 2015. After the Hungarian Constitutional Court judgment, persons that did not enter Hungary legally or that are residing in the country unlawfully have access to the process of the determination of statelessness.

Article 21c (1) of the Draft law provides that the competent entity issuing the decision granting or refusing the status of a stateless person is the Director of the Migration Directorate at the Ministry of the Interior. This is also the competent body to issue ‘coercive administrative measures’ against migrants such as removal and detention orders.

Article 21d (1.2) of the Draft law provides that the application will be terminated when “the applicant does not submit within the time limit required additional data or documents necessary for the procedure for granting the status of stateless person”. Here it is important to mention that the UNHCR Handbook, paragraph 91, alerts that “requiring a high standard of proof of statelessness would undermine the object and purpose of the 1954 Convention”. UNHCR advises states to adopt a similar standard of proof to the one required for refugee status determination. In addition, paragraph 89 of the UNHCR Handbook explains that the burden of proof in statelessness determination is a shared one by both the applicant and the determination authority. The Bulgarian draft law stipulates that the procedure for establishing the relevant circumstances for recognising the status of a stateless persons will be determined by the implementing regulation of the law.

Bulgaria ratified the 1954 Convention with a number of reservations, among which are the reservations to Article 27 (Identity Papers) and Article 28 (Travel Documents) of the 1954 Convention. The draft ratification law provides that “Certificate for travel abroad of a stateless person” shall be issued to stateless persons who have acquired this status on the territory of the Republic of Bulgaria and who have a permit for permanent or long-term residence in accordance with the domestic legislation. However, Bulgaria cannot invoke its reservations to the 1954 Convention with regard to statelessness determination or to claim that because of these reservations, the proposed definition of a stateless person in the draft law doesn’t breach Bulgaria’s international obligations. The reservations restrict the issuance of travel documents, but do not prevent the State from recognizing that these persons are stateless. It is another issue whether the authorities’ intention is indeed to prevent freedom of movement of stateless persons to other countries.

The scope of the statelessness definition in the national statelessness determination procedure has important practical implications. Forthcoming ENS research report on immigration detention of stateless persons in Bulgaria (to be published in November 2016) reveals a range of related systemic problems. In cases of undocumented stateless persons, upon issuance of removal and detention orders, they are often "assigned" as citizens of a country of origin that they are deemed to have come from or have some cultural or historical link to. Statelessness is usually not identified and these persons become extremely vulnerable to arbitrary and prolonged detention. Unless the statelessness determination procedure is in accordance with the international treaty to which Bulgaria is a party, stateless persons in Bulgaria will remain in legal limbo of illegally staying non-removable ‘foreigners’ and Akram’s greatest fear that he may be detained might well come true.

Photo credit: Diana Ilareva

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