“Everyone has the right to a nationality”

Litigating for the stateless – a bumpy, but steady road upwards

23 July 2013 | Maxim Ferschtman is Senior Legal Adviser on equality and citizenship at the Open Society Justice Initiative

Ever wonder why there are so few cases on statelessness before international supervisory bodies and regional courts? The task of browsing through online case-law databases can be completed quickly. Why are there not many cases while the estimate is that there are approximately 12 million stateless persons worldwide? Well, this is partly because it is not an easy area for litigation. As a litigating lawyer I see two main reasons for this.

Firstly, the law for a litigator who assists a stateless person is not as straightforward so as to allow him to make hard and clearly compelling arguments. And secondly, stateless persons find themselves in a vicious circle of vulnerability when confronting the State in court to be recognised as stateless and to avail themselves of the protections they should be entitled to.

Law

As to the first point, there are the pillars of statelessness law such as the 1954 UN Convention Relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness as well as regional instruments, e.g. the American Convention on Human Rights, the African Charter on Human and Peoples' Rights, the European Convention on Nationality, the Council of Europe Convention on the Avoidance of Statelessness in Relation to State Succession and of increasing importance EU law provisions relating to European Citizenship. One should also note the existence of protection instruments for specific groups such as the UN Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child.

In addition there are many soft law sources such as the UNHCR Concept of Stateless Persons under International Law ("Prato Conclusions") and Guidelines on Statelessness 1,2, and 3, Human Rights Council resolutions relating to nationality and statelessness, African Commission on Human and Peoples' Rights Resolution on the Right to Nationality, Council of Europe Recommendations related to nationality and statelessness to name but a few. The latter documents provide useful and necessary guidance but lack the prerequisite binding force when relying on them before a national judge.

And while many States have taken upon themselves international obligations to prevent or reduce statelessness, the overarching premise on which this area of law operates is the prerogative of the State whom to consider as its citizens, whom to grant its citizenship and under which conditions it may take citizenship away. Accordingly, both States and many judges see international instruments aimed at preventing statelessness as something the Contracting States should strive for rather than a hard legal obligation by which the States need to abide. Possibly even more troubling is the repeatedly heard – and wrong - State argument in relation to persons who either risk becoming stateless by being deprived of their only citizenship, or who request to be recognised as stateless, that they could obtain another citizenship in view of their or their parents’ national or ethnic origin. See on this an earlier blog by Amal de Chickera on the particularly disconcerting case B2 v The Secretary of State for the Home Department. Moreover, the ECHR (which does have direct application on the national legal order and under which convention the European Court issues legally binding judgments) does not provide for an expressa right to nationality, or a provision which would explicitly prohibit rendering a person stateless. Instead the only recently developing approach is for an extensive interpretation of ‘classic’ human rights such as the right to respect of private life (art 8 ECHR), see e.g. the European Court of Human Rights in Genovese v. Malta:

“While the right to citizenship is not as such a Convention right and while its denial in the present case was not such as to give rise to a violation of Article 8, the Court considers that its impact on the applicant’s social identity was such as to bring it within the general scope and ambit of that Article.”

[…]

“The provisions of Article 8 do not, however, guarantee a right to acquire a particular nationality or citizenship. Nevertheless, the Court has previously stated that it cannot be ruled out that an arbitrary denial of citizenship might in certain circumstances raise an issue under Article 8 of the Convention because of the impact of such a denial on the private life of the individual.”

In sum, we have yet to obtain clear judicial, authoritative and undisputed guidance on the definition of statelessness and what the rules should be in relation to assessment and burden of proof in relation the supposed possession of citizenship or the active task of acquiring it. The same is true to the safeguards surrounding deprivation of citizenship, national or European.

Personal/practical issues

As regards the second point, it will not be a secret to those working on this issue, that stateless persons are a vulnerable if not the most vulnerable and marginalized group in our societies. They encounter a plethora of obstacles in their daily life. Often undocumented and without a residence permit in the country where they have ended up residing, they lack access to the most basic facilities of subsistence and are excluded from society. See UNHCR’s presentation on ‘Problems Faced by Stateless People’.

In addition and in contrast to others/citizens who wish to exercise their rights in court, stateless people face severe obstacles in accessing the courts.  As mentioned above, more often than not, they do not have a valid residence permit to stay in the State where they reside, do not dare contact or confront the authorities or appear in court for fear of arrest, detention and subsequent (attempts of) deportation. There are also situations where a stateless person cannot even make an appeal to court because of the lack of legal identity.

Lastly, but no less important, historically the lack of attention paid to the statelessness issue among both lawyers and NGOs means that stateless persons will often lack necessary support if and when they engage in court cases. This is partly why statelessness cases come up only occasionally and do not have a momentum behind them which is needed to raise awareness about the seriousness of the issues at stake. This hampers the possibilities to properly engage in strategic litigation on statelessness, seeking a judicial and therefore binding clarification of issues such as the definition of statelessness, the State and individual responsibilities in determining the status of a (potentially) stateless person - all this preferably at the highest international level.

So what needs to be done to get statelessness litigation going?

The above discussion prompts me to suggest the following modalities and tools for a better informed and targeted engagement in litigation for stateless people:

Awareness raising/training: Lawyers, State officials and judges should become much more aware of the issues, both legal and practical, faced by stateless persons. A certain degree of legal and even judicial activism should in this context not have a negative connotation (if ever). It would be helpful to set up professional associations or working groups of lawyers and judges specializing in statelessness law who could draft e.g. litigation tool-kits. UNHCR could play an active and steering role here.

Documentation and analysis of case-law: Extensive comparative review is necessary of as many domestic jurisprudential practices and developments on statelessness as possible. This happens to some extent already on UNHCR’s REFWORLD pages on statelessness. Databases such as BAILII are useful in this respect as well. The analysis would certainly provide a good insight into where there are gaps, inconsistencies and simply misunderstanding in the application of statelessness law.

Advocacy and community support: Groups that support stateless persons locally should be set up and to the extent they exist, organise themselves better, coordinate and make a strong public appearance. These groups should benefit from the experience, support, input and even active participation of larger and established (inter)national NGOs.

Networking for cases: ENS, its partners and members provide a unique opportunity to reach out at the local level to identify possible clients/claimants, investigate facts and identify potentially strong cases. Through the Network all parties involved can benefit from an exchange of information, get advice on how to mount a litigation strategy, including advocacy and publicity work, get academic input and assistance in formulating the best legal arguments possible.

Of course all this requires resources and ENS is currently exploring options to strengthen its ability to play its role in taking forward the above steps in helping to bring about a greater and more effective use of strategic litigation.

The bottom line is that stateless people should be lifted out of obscurity, protected and given legal identity and status. They need to be integrated into the societies where they have lived all too long in the margins. Courts should be open to provide them that remedy.

Maxim Ferschtman is also a member of the ENS Steering Committee. You can find this blog on the new ENS Facebook page https://www.facebook.com/EuropeanNetworkOnStatelessness  Also see ENS's 2012/13 Annual Report

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