“Everyone has the right to a nationality”

Mapping statelessness in Portugal - setting out a roadmap towards enhanced protection of stateless people

8 November 2018 | Ana Sofia Barros, UNHCR consultant
Mapping statelessness in Portugal - UNHCR

UNHCR launched a Global Campaign to End Statelessness in November 2014. As part of the #IBelong campaign, the organisation conducted a number of mapping studies on statelessness across the world, including ten studies in Europe, with the aim of improving quantitative and qualitative data on stateless populations (the strategy for this campaign is described in UNHCR’s Global Action Plan to End Statelessness: 2014 – 2024 – mapping studies are part of outputs under Action 10). The Portuguese mapping was finalized in October 2018, bringing attention to a topic that has previously been neglected in the country.

Mapping Statelessness in Portugal analyses Portuguese legislation relating to statelessness, including nationality and migration laws, and presents available official statistical data. It is enhanced by empirical evidence obtained from interviews with stakeholders, ranging from Government representatives, to frontline social workers as well as stateless people and individuals at risk of statelessness. Like with mapping studies in other countries, the challenges to obtain information were significant, mainly owing to a general lack of awareness about the nature of the issue in Portugal. The absence of a national statelessness determination procedure (SDP) further contributes to lack of data and understanding of the issue.

The study’s assessment of legislation shows that Portugal ratified the major international and regional treaties relevant to statelessness. Furthermore, its domestic law complies, in many aspects, with the international standards laid out in these treaties. The Portuguese Constitution grants stateless persons a wide variety of rights, and its nationality law has become increasingly inclusive, incorporating important safeguards to prevent and resolve cases of statelessness. Problems arise, however, in practice. Procedures related to both the acquisition of Portuguese nationality and the proof of statelessness are burdensome, as they impose heavy formal requirements of documented evidence. Moreover, and beyond written law, the lack of awareness about the legal implications of the phenomenon by public administration services has meant that cases presenting strong indications of statelessness are not framed in such terms by those who apply the law. This represents a lost opportunity to provide the necessary protection to those at risk of statelessness.

Throughout the study, several cases were identified where the individuals’ apparent entitlement to Portuguese nationality under substantive law stumbled across these procedural obstacles, leaving them in a stalemate situation for years on end. Most cases were linked to a lack of collaboration from the embassies or consulates, which fell short in providing the support needed to obtain a birth certificate or a passport. The group experiencing this included irregular migrants without identification documents from their country of origin, as well as children born in Portugal to foreign parents with an irregular presence in the country. Often, these individuals’ ordeal, or that of their parents, found its roots in the decolonization of Portugal’s former African colonies in 1974 and 1975 and the resulting loss of Portuguese nationality, without the subsequent acquisition of the nationality of the newly formed states.

Other individuals identified fell through the cracks of the legal regime - the only (temporary) solution to their plight being the recognition of their stateless status through an SDP. These individuals were not born in Portugal and resided in the country completely undocumented. The only means of access to Portuguese nationality available to them would be to regularize their stay with the Immigration and Borders Service and then naturalize after five years. Yet, regularization in such circumstances is only possible through an exceptional rule in Portuguese Immigration Law and the decision to grant a temporary residence permit is discretionary. None of the identified individuals had been able to benefit from this regime.

All cases mentioned above do not appear in official statistics on statelessness in Portugal. Instead, official statistics refer to stateless people who have been encountered by the Immigration and Borders Service in the context of asylum, either when an asylum-seeker claims to be stateless or when the asylum-seeker was previously listed as stateless during registration in the EU relocation programme. Official numbers also include stateless people who are in the process of being granted residence permits, where their statelessness status has been pre-determined elsewhere, as well as stateless individuals identified in the process of acquiring Portuguese nationality. These official statistics point to only dozens of stateless individuals, despite the evidence from this mapping demonstrating that many more could potentially be identified.

Drawing on these findings, Mapping Statelessness in Portugal presents a series of recommendations to the authorities, including the identification and recognition of the statelessness status, the adoption of a more flexible approach in the application of the nationality regime, and the need for capacity building and  awareness raising among both Government entities and civil society organizations.

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