“Everyone has the right to a nationality”

Hungarian Constitutional Court declares that lawful stay requirement in statelessness determination breaches international law

2 March 2015 | Gábor Gyulai, Refugee Programme Coordinator at the Hungarian Helsinki Committee

Until now, only lawfully staying persons could initiate a statelessness determination procedure in Hungary. After nearly eight years of struggle against this unlawful and unreasonable restriction, the Hungarian Constitutional Court last week declared it unconstitutional (for breaching international law) and deleted this restrictive provision from the law.

Statelessness does not affect significant numbers of people in Hungary although its individual ramifications are as serious as anywhere. Despite some clear gaps in the legal safety net in place to prevent statelessness at birth, there are neither many new cases of statelessness created, nor significant populations without a nationality in the country.

Interestingly though, since 2007 Hungary has been at the centre of interest in the “statelessness world”, as one of the first countries to have established a well-regulated statelessness determination procedure and a specific stateless status, often referred to as one of the exemplary practices in a global context. In recent years, several state delegations have visited Hungary to learn about the Hungarian statelessness determination procedure and the country’s legislation served as a source of inspiration for others as well. At the same time, the unquestionable achievements of this model were largely overshadowed by an undue restriction in domestic law, which before last week’s court ruling only allowed lawfully staying foreigners to apply for stateless status in Hungary.

Stateless persons typically have no or extremely limited access to personal documents (such as a passport or identity card), and most stateless migrants in need of international protection may face insurmountable difficulties to fulfil the very strict material conditions for a lawful entry and stay in Hungary. Prescribing lawful residence as a pre-requisite of submitting an international protection claim can be compared to a measure that only allows having access to health care services those who are already recovered from their illness.

No wonder then that from the beginning the Hungarian Helsinki Committee and the UNHCR have been advocating in various ways against this provision, which was introduced “in order to prevent abusive claims” – according to its official justification. UNHCR guidance has made it clear that this restriction is not allowed under international law, a position echoed both by the UN Special Rapporteur on Racism and the Council of Europe Commissioner for Human Rights in their recent recommendations for Hungary. Yet, the Hungarian government refused to heed these criticisms, and the well-constructed Hungarian statelessness determination procedure with all its important procedural safeguards remained a reserved domain of the selected few who had already managed to establish lawful residence in the country (e.g. as a foreign student). Not too surprisingly, the number of claims for stateless status remained extremely low (in 2014, for instance, only 8 claims were registered). Also, this approach made the country’s otherwise laudable and useful international activities as a “statelessness champion state” somewhat absurd.

A particularly complex individual case demonstrated the absurdity of the Hungarian regulation in 2014 better than anything else before. A previously rejected applicant for stateless status submitted a second protection claim. In light of new evidence and the UNHCR’s position, the Office of Immigration and Nationality (OIN) modified its previous conclusion and accepted that the applicant “substantiated his statelessness”, nevertheless it rejected to grant stateless status, with reference to the lack of lawful stay when submitting the claim (even though the applicant has been living in Hungary for several years). The rejection was appealed at court, and the first-instance judge decided to refer the case to the Constitutional Court, which has the right to quash legislative provisions if they are in breach of international legal obligations. Both the Hungarian Helsinki Committee (also on behalf of the European Network on Statelessness) and the UNHCR participated in the case as third party interveners and presented their views in a detailed submission

The Constitutional Court delivered its judgement on 23 February 2015, which finally put an end to nearly eight years of advocacy struggle. The judgment concludes that the lawful stay requirement is not merely a procedural rule (as argued by the OIN), but a material one that modifies the definition of a stateless person as compared to the one included in Article 1 of the 1954 Convention relating to the Status of Stateless Persons, an article for which no reservations or modifications are allowed, and thus it unduly narrows the personal scope of the Convention (paragraphs 23 and 27 of the judgment). In the Court’s view, this conclusion is further supported by the fact that under the Convention certain rights are to be accorded only to lawfully staying stateless persons, while other rights to all of them, and this distinction indicates that the drafters did not see a general need for a lawful stay condition. The Court therefore agreed with the petitioner first-instance court and the third-party interveners and quashed the lawful stay requirement as of 30 September 2015 (allowing some time for the legislator for related adjustments in other legal provisions).

The judgment also points out that notwithstanding the unconstitutionality of excluding unlawfully staying persons from statelessness determination and stateless status the Convention does not stipulate that the act of unlawful entry or stay shall automatically be considered lawful (paragraph 31). This highlights what I believe is one of the greatest gaps in the 1954 Convention, namely the lack of a “non-penalisation for irregular entry” provision, similar to Article 31 of the 1951 Refugee Convention. This issue will be no doubt subject to further debates both in academia and among practitioners around the world.

Finally, it cannot be overlooked that the judgment heavily relies on UNHCR guidance and it even stipulates that “While the [UNHCR] Guidelines belong to the so-called non-binding international instruments, it is nevertheless indisputable that the UNHCR is the most authentic entity to interpret international legal questions and practice related to the Statelessness Convention” (paragraph 18). Such an emphasis on the UNHCR’s specific expertise and authority on this issue is definitely a crucial confirmation of the organisation’s statelessness mandate.

The Hungarian Constitutional Court’s judgment represents an important milestone in our long journey to improve the conditions of stateless migrants in Europe and beyond. From now on, it will hopefully be easier to look at the Hungarian procedural model as a genuinely positive example in all its aspects. Also, countries considering the introduction of a statelessness-specific determination and protection mechanism will be further discouraged to introduce such unreasonable restrictions. The Hungarian Helsinki Committee and the European Network on Statelessness will closely monitor the legal amendments that will follow the judgment in Hungary, as well as we will continue to work for the creation of inclusive, accessible and effective statelessness-specific protection regimes all around the world – now with an additional supportive tool at hand.

 

Gábor Gyulai is a Trustee and President of the European Network on Statelessness as well as the author of the ENS ’Good Practice Guide on Statelessness Determination and the Protection Status of Stateless Persons’. Last year ENS ran a pan-European campaign seeking to improve the protection of stateless persons – including the publication of this compilation of individual testimonies.

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