“Everyone has the right to a nationality”

Statelessness in Ireland – international obligations and national reality

22 April 2015 | Catherine Cosgrave, Managing Solicitor at the Immigrant Council of Ireland

Ireland has adopted a somewhat incoherent approach in matters related to international conventions.  Sometimes, Ireland will not sign or ratify a convention, for example, the Convention on the Rights of Persons with Disabilities, until it can comply with the relevant obligations. On other occasions, the fact that it does not comply does not appear to present any such barrier.  However, in such instances, Ireland can then suffer from what might be described as legislative transposition disorder and prefers, often for dubious or unclear reasons, not to transpose, or to only partially transpose, the convention into domestic law.

The approach taken by Ireland to the 1954 UN Convention relating to the Status of Stateless Persons and the 1961 Convention in the Reduction of Statelessness is a case in point.  Although, Ireland signed these respective Conventions in 1962 and 1973, decades later Ireland lacks a formal stateless determination procedure and, consequently, even the rights of stateless persons that have been provided for in domestic law, such as access to citizenship, remain inaccessible to the individuals they were intended to assist. 

In 2004, shortly after the Immigrant Council of Ireland opened, I met Piotr, a young man who had been living in Ireland for almost a decade. A failed asylum seeker, he had a deportation order issued against him and, with no permission to work and no access to social benefits or education, he was destitute and extremely dispirited. As a lawyer, it is not uncommon to meet individuals who have not been removed following the issuing of a deportation order but the circumstances of this situation were quite unusual.  He had not ‘gone underground’ and was not seeking to evade removal. In fact, entirely fed-up, he wanted to leave Ireland if only there was someplace he could actually go.  By this stage, for almost two years, he had been fulfilling his monthly reporting requirements to the police and was assisting the authorities in making arrangements for his forcible removal from Ireland. Entirely cooperative, he had met with officials from various embassies who, having assessed the situation, had determined he was not a citizen of their country and confirmed that they were not willing to accept him.

Upon review of his file of papers, it seemed to me that, although not directly stated by the applicant, statelessness was at the heart of his application for asylum and permission to remain in Ireland. This, however, was not argued by the lawyers who had acted for him during those applications and it was not considered as an issue by those charged with determining his applications. Piotr had effectively been assessed as an economic migrant whose asylum application was unfounded. My guess was that statelessness is a concept perhaps understood by drafters of international conventions but not necessarily named by those directly affected or recognised, in the absence of training, by lawyers or civil servants.

In an effort to try to help him, I made an application to revoke the deportation order on the grounds of statelessness, arguing that failure to so and to also require his continued reporting to the police was tantamount to inhuman or degrading treatment, as prohibited by Ireland’s international and human rights obligations.  Following months of deafening silence and the issuing of reminders, the application was rejected outright. Despite the available information, in particular the evidence regarding inability of the authorities themselves to establish his citizenship and identify a state willing to accept him, the relevant government department categorically asserted that they believed Piotr to be a citizen of a particular country and refused to consider his application further. 

At that time, the Immigrant Council of Ireland was not recognised, as it is now, as an Independent Law Centre and, unfortunately, there was nothing further that I could do to assist him to challenge the decision in the courts. Efforts were made to refer Piotr to a private lawyer but, totally discouraged at that stage, he gradually disengaged and I lost contact with him.  Sadly, I don’t know what happened to Piotr or if his situation has ever been resolved. Moreover, despite the lack of data confirming the extent of statelessness in Ireland, it is clear that Piotr’s situation was not an isolated case.

In the decade that has followed since I met Piotr, as evidenced by UNHCR last year, Irish state responses to statelessness have to date been ad hoc and inconsistent. It is my experience that stateless persons in Ireland can find themselves in prolonged situation of legal limbo due to the sheer length of time and difficulties encountered in progressing statelessness determinations and other immigration or citizenship-related applications, during which time individuals are unable to work, travel or access basic services and, in some instances, have been prosecuted for failing to have identity documents.  

Individuals, and their lawyers, must be tenacious in pursuing and protecting their rights. To my knowledge, only two formal declarations of statelessness have been made in Ireland – one to a client of our office after four years pursuing the issue, including litigation in another country, and another to a client of private firm, Brophy Solicitors, but only after High Court proceedings were issued in an effort to progress the case.  

In several cases, it is clear from administrative decisions that the applicants’ statelessness is implicitly recognised by the authorities but no formal declaration has been issued. However, the very same individuals, in the seemingly endless catch-22 scenario, when applying for citizenship on grounds of statelessness will be asked to provide a declaration of statelessness, or provide evidence of their nationality and identity that the same government department has already accepted, when previously granting a residence permission, cannot be obtained! 

Requests to provide a declaration of statelessness also persist, despite the fact that the current Minister for Justice and Equality, in reply to a Parliamentary Question in June 2014 has stated that there are “no immediate plans to introduce a formal determination procedure” in Ireland, as it “necessary to avoid a situation where Ireland, as a small country, could become a destination for stateless persons seeking access to a determination process” and has also verbally confirmed that no further statelessness declarations will be issued.

This statement was most disappointing and, regrettably, it seems likely that in the absence of political will to introduce determination procedure, it will remain necessary to litigate in individual cases. For many reasons, our clients do not always want to litigate the issue.  Aside from the sheer length of time that it can take to progress a court case, for those who have managed to gain some form of residence, including permission to work, there is no access to legal aid and they risk potential huge costs if litigation is not successful. There are also concerns that future citizenship applications in Ireland may be jeopardised.

At the Immigrant Council of Ireland, it remains our view that the need for a durable solution for stateless persons persists. The fact that at least two declarations of statelessness have been issued in the recent past is most definitely progress and usefully establishes precedent that future applicants may rely upon.  It will be difficult for the state to argue that there is no mechanism for issuing declarations when declarations are known to have been issued in the past.  Furthermore, a number of activities including research, media coverage, legal training and national conferences hosted by the Immigrant Council of Ireland and UNHCR, as well as our involvement with the European Network on Statelessness and its pan European campaign last year, have steadily contributed to growing awareness of the issues faced by stateless persons amongst the wider public, policy and law makers, and, crucially in terms of access to justice, more specialist lawyers tackling these issues on behalf of their clients. 

The recently published General Scheme of the International Protection Bill, which is a first legislative step towards the introduction of a single protection procedure in Ireland, could provide a meaningful opportunity to address the existing lacunae and for Irish law to provide a human rights compliant procedure for the determination of the status of stateless persons in Ireland.  In the interests of fulfilling Ireland’s international obligations and, more importantly, protecting the rights of extremely vulnerable individuals, like Piotr, this would be a far better way to move forward.

For these reasons, notwithstanding the current challenges, the Immigrant Council of Ireland is cautiously optimistic that the rights of stateless persons will be addressed by the Irish government and, hopefully, sooner rather than later.

 

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