“Everyone has the right to a nationality”

Statelessness protection in Belgium

1 September 2014 | Christelle Chiurulli, Lawyer, Belgium

In its report of 2013 (Mapping Statelessness in Belgium ), the UNCHR has estimated the total number of people affected by nationality problems in Belgium at around 13,000 individuals – this includes persons registered as stateless but also a large number of persons whose nationality is recorded as ‘unknown’ and for whom it is not clear if they hold a nationality or are stateless. This is a significant number for a country with nearly 12 million people.

Belgium ratified the 1954-Convention relating to the status of stateless persons  54 years ago and acceded to the 1961-Convention on the 1st of July this year (2014). Therefore, we may expect that stateless persons in Belgium benefit of a satisfactory legal status and protection. But this is not the case.

Despite the importance and the reality of the phenomenon, Belgium has not yet put in place a specific framework for the protection of stateless persons … which is also the case for many other States that have also ratified the 1954-Convention.

We have no specific procedural rules in Belgium to determine who is stateless. So, we apply general texts of laws like the Judicial Code or the general Law on the foreigners in order to find the basis for statelessness determination and the rights that stateless persons can enjoy in the Belgian territory.

In these general regulations, a person who wants to be qualified as a “stateless” in Belgium has to file an “ex parte” application before the Tribunal of First Instance of his place of usual residence. To do that, the Belgian law requires the intervention of a lawyer (who must be paid or work prodeo).

Many legal commentators have expressed their regret that the issue of statelessness has been left to the judicial Courts which have no particular expertise in this specific matter. In fact, the Belgian procedure for determining statelessness has many shortcomings. The main ones are the following:

  1. We have no formal procedure established by the law which makes our procedure unclear, not sufficiently transparent (a lot of people doesn’t know the existence of such a procedure) and inequitable. Yet these are the criteria of a fair trial, accordingly to the Article 6 ECHR. Moreover, the Courts apply general rules which can have varied interpretations, especially the statelessness definition itself can be subject to various interpretations. In fact, there have already been cases where certain Courts didn’t recognize a Palestinian as stateless while other Belgian Courts have done so and granted them the status of stateless persons;
  2. The Judges and the Court Staff are not sufficiently trained in the particular issue of statelessness. They are not fully aware of what it means to be a stateless person in daily life, and therefore, they don’t know what the appropriate rules to apply are to remedy to their problems. They need a specific information on this matter in terms of guidance and regulations, exactly as they have on the law of divorce, bankruptcy, etc.
  3. Belgium has 28 Tribunals of First Instance, divided across two Language Regions. Each Tribunal has its own case law on the determination of statelessness. Therefore, an individual could be denied his stateless status even if he would have obtained it in the neighboring Tribunal!

A solution to these shortcomings which is often proposed by those who write about the issue would be to give jurisdiction for the determination of statelessness to the Office of The Commissioner General for Refugees and Stateless Persons (the “CGRA”), an administrative authority which is already responsible for granting the refugee status. This would actually give more transparency to the process and we would then have uniform case law. Moreover, the procedure would be entrusted to people who are accustomed to the problems met by foreigners living in a vulnerable situation. This solution has actually been examined by our different governments since 2011… yet no reform has been initiated to date.

Once recognized as a stateless person, individuals can enjoy the Status provided by the 1954-Convention. The minimum protection established by the 1954-Convention has been applied in Belgium and the treatment may even surpass this because of the application of human rights standards. Indeed, in respect of some rights, Belgian legislation goes further than the 1954-Convention and gives greater protection than the international convention. This is the case for protection against discrimination (we have more prohibited criteria), freedom of association (we have no nationality requirement), access to compulsory education (which is free and without a legal stay requirement) and more.

What is unfortunate is that Belgium has not filled the gaps already present in the 1954-Convention Status. The most important one is certainly the lack of automatic right to stay. In Belgium, recognised stateless persons, contrary to recognized refugees, do not have an automatic right to stay in the territory. They must regularize their stay following the same channels as other foreigners, but their specific difficulties such as the lack of identity documents and the lack of a country of origin make this a problem. In fact, Belgian law obliges foreigners to ask for a right to stay at the Belgian Embassy  in their country of origin. But Stateless persons don’t have a country of origin. So the only way they can regulate their stay is by trying to demonstrate exceptional circumstances or medical reasons, which isn’t easy, even for foreigners with nationality. And the Courts consider that being a Stateless person isn’t itself an “exceptional circumstance” under the Belgian law on the stay of foreigners.

A reform is required to put stateless persons on an equal footing with the refugees with regards to a right to stay. In fact, without any country where these people without nationality can be sent back and with the difficulties they have to face to obtain a right to stay by following the ordinary procedures, the stateless persons are leave in a “no man’s land” where they can’t be expelled but where they also can’t stay.

With the recent ratification of the 1961-Convention, no doubt that many changes will be needed in the Belgian proceedings regarding to Statelessness. First, I hope this ratification will bring more attention to the problem of statelessness and the need to take further measures to respond to this problem (in terms of jurisdiction for determining who is statelessness and the right to stay). Nevertheless, this ratification will mainly have effects on the Belgian Nationality Law. This law actually conforms with the 1954-Convention (which doesn’t impose the naturalization of stateless persons), but in regards to the 1961-Convention which aims to reduce statelessness, a lot of shortcomings arise (especially with the residence requirement). But, that is a matter for another article.

To find more about the Belgian situation and the protection of statelessness in general, you will find my book here: "Protection des apatrides, état des lieux".

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