“Everyone has the right to a nationality”

The EU’s response to statelessness - Where next after Luxembourg?

21 April 2016 | Chris Nash, Director of the European Network on Statelessness
European Migration Network meeting on statelessness in Luxembourg

I arrived in Luxembourg last week, curious to see further evidence of how policy-makers and other EU stakeholders intend to take forward the first ever conclusions on statelessness adopted by the European Council last December during the Luxembourg Presidency. Time will tell, but I came away optimistic that real progress is possible over the coming years, albeit if this will need to happen in a measured and politically sensitive way.

The occasion to assess this was the European Migration Network (EMN) Conference ‘Tackling Statelessness: Exchange of Experiences and Good Practices’ - organised by the EMN National Contact Point in Luxembourg, and bringing together representatives from governments, EU institutions, inter-governmental organisations, academia and civil society from across the European Union.

Tackling Statelessness: Exchange of Experiences and Good Practices

The conference was opened by Corinne Cahen, the Luxembourg Minister of Family Affairs and Integration, who reinforced the human impact of statelessness by recounting a recent meeting she had with a young migrant from Tunisia who had been left stateless by that country’s gender-discriminatory nationality laws. This theme was taken up by the next speaker, Professor Christine Schlitz, who reflected on the profound psychological and emotional consequences of statelessness, particularly for young adolescents at a crucial stage of development in forming their identity. These opening remarks as well as a #IBelong campaign update and short film presented by UNHCR helped set the tone for the positive discussions and conclusions that followed.

On behalf of ENS, I was invited to present during the first panel on ‘Statelessness in the EU’, and specifically to provide a comparative overview of approaches to statelessness determination – drawing on research conducted through our members and outlined in the ENS Good Practice Guide on Statelessness Determination and the Protection Status of Stateless Persons, as well as referencing UNHCR’s comprehensive and authoritative Handbook on Statelessness Determination. Our good practice guide was created as a tool for states interested to set up a statelessness determination procedure – very relevant given that (disappointingly) of the 86 signatories to the 1954 Statelessness Convention only a handful of states have introduced dedicated procedures, the majority in Europe (including France, Georgia, Hungary, Italy, Kosovo, Latvia, Moldova, Spain and the UK – and with limited provision existing in Slovakia, Switzerland and Turkey, as well as procedures in the pipeline in other countries such as Greece as reported on this blog last week). So although it might be overblown to describe Europe as leading the way, there does at least exist a solid foundation of good practice from which to draw at the regional level.

The need for a more coordinated exchange of such good practices among Member States was highlighted by Magnus Ovilius from the European Commission. In a wide-ranging presentation which demonstrated that statelessness is now firmly on the Commission’s radar, he confirmed that he had requested EMN to instigate an Ad Hoc Query via all national contact points in order to gather existing practices and data as a baseline from which to move forward, and as a basis for more coordinated (non-binding) action among Member States. There was an exchange of views about the EU’s competence to address statelessness and specifically the extent of the legal basis afforded by Article 67 (2) of the Treaty, and linked to this, the need for any approach to respect national sovereignty in this domain. Yet there was optimism that necessary political will could be fostered, and in this regard it was instructive to hear from Pascal Schumacher (Permanent Representation of Luxembourg to the EU) on how momentum had been achieved leading to the adoption of Council Conclusions, as previously also recounted on this blog. It is to be hoped that the forthcoming Slovakian Presidency of the EU can take forward this mantle. Magnus Olivius also made the point that even if there is not (currently) the political mandate/space to legislate on these issues at EU level, it is important to look at what we can do practically, without changing EU legislation, to improve the situation of stateless persons in Europe. This suggested a serious (and commendable) intent by the Commission (and by extension EMN) to not only study the issues but also to catalyse further practical action where there is space to do so.

While much of this discussion focussed on the treatment of third country nationals, several interventions highlighted that Europe is also a producer of stateless and hence that action is not only required in a migratory context. In a powerful presentation Soraya Post MEP declared it ‘completely unacceptable’ that children continue to be born stateless in Europe, and highlighted the nexus with discrimination and particular problems experienced by Roma and Sinti minorities. Magus Ovilius eloquently conceded that “the safety net to address statelessness in Europe has holes in it big enough for blue whales to swim through”. Reference was also made to findings from ENS’s ‘No Child Should be Stateless Report’ which found that more than half of European states are failing to uphold their international obligations to prevent childhood statelessness. Laura van Waas from the Institute on Statelessness on Inclusion highlighted the legal advocacy her organisation is doing through UN human rights mechanisms. She also made the important point that intervention by states to address childhood statelessness is needed at an earlier stage, for example that states having in place adequate statelessness determination procedures resulting in grant of a residence permit to stateless parents can help reduce the risk that they in turn pass statelessness on to their children. Professor Rene de Groot raised the very pertinent question of whether some situations relating to the determination of statelessness could be subject to a preliminary ruling procedure before the Court of Justice of the European Union (CJEU) if an otherwise stateless person could claim to be a European citizen? Other interventions highlighted the need to also improve the process of data collection given current gaps. While we know, for example, that 8,974 stateless children have been born in Sweden, available data in many other countries is far more patchy. Finally, it was both noteworthy and encouraging to hear IOM’s Alice Sironi present on how her organisation is increasingly interested in and working to help persons who are stateless or at risk of statelessness in the migration context.

Conclusions and policy recommendations for the EU: where do we go from here?

Clearly it is not possible to attribute all the perspectives and conclusions from this conference, and reported in this blog, as being representative of the position of all EU Member States and institutions. Or to conclude definitively, after years of neglect, that an apparent new appetite for reform can be sustained and converted into real change on the ground. However, an encouraging dynamic of this conference (certainly compared to discussions of only a few years ago) was that the focus was very much on ‘how’ to tackle statelessness rather than ‘why’, or ‘what’ is the problem. And however modest in scope, the Council conclusions adopted during the Luxembourg Presidency do provide a vital platform from which there is potential to move forward.

This was evident in the conference conclusions and recommendations, very ably captured and presented by Professor Rene de Groot during the closing session, and repeated below:

  1. In light of the 2012 EU pledge, Cyprus, Estonia, Malta and Poland should accede to the 1954 Convention as soon as possible.
  2. All Member States should implement the obligations of the 1954 Convention properly. In particular, they should facilitate the naturalisation of stateless persons residing on their territory and thus facilitate their access to European citizenship.
  3. In light of the 2012 EU pledge, Member States that have not yet acceded to the 1961 UN Convention on the Reduction of Statelessness should be encouraged to consider accession.
  4. All Member States should be encouraged to implement the obligations of the 1961 Convention properly, and to take due account of UNHCR Guidelines and the Tunis Conclusions on the interpretation of the rules of that Convention.
  5. There is a need for improved exchange of information on statelessness determination procedures, and this should be assessed in light of guidance contained in the UNHCR Handbook on Protection of Stateless Persons
  6. In particular, statelessness determination procedures should include the following safeguards:
    • They 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
    • 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.
  7. Data should be collected by Member States 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 and also communicated via EMN.
  8. In order to promote the correct implementation of international standards, the European Union 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.
  9. 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.
  10. It is necessary to clarify the status of Latvian non-citizens and Estonian persons of undetermined citizenship under international and European law, in order to give them and their descendants access to rules that protect (otherwise) stateless persons.
  11. In order to enhance the avoidance and reduction of statelessness in the European Union and the fair treatment of stateless persons, it is essential that exchange of information via and debates in the European Migration Network continue.

In terms of EMN’s commitment to take forward this work, it was encouraging to hear both the Hungarian and Irish National Contact Points intervene to confirm forthcoming statelessness roundtables to be held in Budapest and Dublin respectively, the latter just next month.

It is also to be hoped that the Ad Hoc Query and exchange of information requested by the Commission via EMN can, and will, result in a subsequent report/guidelines that can be adopted as a shared roadmap for all Member States. And which facilitates an ongoing process of implementation that respects the national sovereignty of states while also fully upholding the rights owing to stateless persons. ENS stands ready to support and contribute to this process, and to monitor progress.

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