“Everyone has the right to a nationality”

Strategically litigating statelessness: ENS’s three-year strategy

2 February 2015 | Adam Weiss, European Roma Rights Centre

The European Network on Statelessness (ENS) is launching its three-year litigation strategy, based on the belief that part of the fight to end statelessness in Europe must happen in court. 

Statelessness in Europe is exacerbated by States’ failure to live up to commitments they have made (directly or indirectly) at international and European levels to respect the rights of stateless people, as well as because of misunderstandings about those commitments that need clarification by judges. 

Like any strategic document, the litigation strategy had to balance ambition and resources.  The ambition is to see ground-breaking cases in supreme courts, constitutional courts, the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU), confirming and enforcing States’ obligations to reduce statelessness and protect stateless people.  ENS’s resources are in some ways limited – a small secretariat and limited funding – but in others enormous: over 80 members who, together, have a full picture of the legal and social realities of statelessness across the continent.  Equally all strategic litigation must be conducted in accordance with the organisation’s charitable purpose.

Framing the strategy was an exciting challenge.  A group of committed members met in The Hague on 14 September 2014.  We had to agree on what strategic litigation meant to us (we agreed it involved cases that bring about policy change designed to ensure States meet their obligations to reduce statelessness and protect stateless people) and what kind of role ENS would have in litigation (we identified three: supporting individual, proactive cases designed by members; supporting members who have a legal aid practice to identify strategic cases in their practice; and intervening or supporting third-party interventions in cases).  We agreed that our cases always need to have a European focus, but do not necessarily have to aim at reaching the European courts (CJEU and ECtHR); our network means we can learn from and share victories at national level.  We agreed to be cautious: ENS is a new organisation and our first cases will determine our reputation and, so, our effectiveness.  Perhaps most importantly, we agreed that we needed to stay flexible: we have identified priority areas of focus and projects but we must stay open to new possibilities to use the courts. 

During and after the 14 September meeting, we settled on three current areas of focus with related projects.  One is already at an advanced stage of development: ENS is working with two members, the European Roma Rights Centre and Praxis, to challenge administrative regulations in Serbia that prevent parents without identity documents from registering their children’s birth.  It is a visible example of the connection between birth registration and statelessness: as Praxis has consistently maintained, restrictions on birth registration result in Roma statelessness being passed from generation to generation.  This work will support ENS’s recently launched campaign ‘None of Europe’s Children Should be Stateless’. The right of every child to be registered and have a name is clearly established in the UN Convention on the Rights of the Child (Article 7(1)) and the International Covenant on Civil and Political Rights (Article 24(2)), but is not respected in many European countries.  Although the European Court of Human Rights has never dealt with such a case, it seems clear from that Court’s case law that this issue clearly engages the right to respect for private and family life (Article 8 ECHR). See, e.g., Mikulic v Croatia (2002), § 53.  It is hard to imagine that the European Court (or a national court following its case law) would find that refusing to register the birth of a child born on its territory would be “necessary in a democratic society”, one of the requirements for such a refusal to be compatible with Article 8 § 2.

The second project, on detention, will develop alongside ENS’s separate project seeking to protect stateless people from arbitrary detention.  Various international instruments restrict the ability of States to detain people for immigration purposes, perhaps most importantly, in the European context, Article 5 § 1(f) of the European Convention on Human Rights.  Indeed, the European Court of Human Rights recently made clear in a judgment analysed on this blog that the detention of stateless people for immigration purposes is particularly likely to be found arbitrary, because of the decreased likelihood of finding a country to which they can be expelled.  EU law holds even more potential.  The CJEU has already delivered helpful judgments interpreting the Return Directive (Directive 2008/115), the EU-law instrument governing detention for immigration purposes, and which is far more specific about limiting detention than the ECHR and other international instruments; we will have an eye on possibilities to secure a ruling from the Luxembourg Court clarifying EU Member States’ to keep stateless people in immigration detention could have an enormous impact across the twenty-four states where the Directive applies. 

Building on the recent ENS campaign to protect stateless persons in Europe, ENS members are also dedicated to taking forward the work on statelessness determination procedures by finding and supporting cases that require States to set them up.  ENS has published a discussion paper examining whether the ECHR imposes an obligation on states to determine whether an individual is stateless. This work is currently unfunded; it will be part of the work of implementing the strategy to find the funding.

Any litigation strategy makes the assumption that the rule of law is strong enough to guarantee implementation of judgments.  The stateless are the epitome of political outsiders: once there are favourable court judgments, we will have to fight to make sure they are respected.  There is a limit to what lawyers can do, and ENS is well set up for this further fight: its members also include activists, researchers, and communications specialists.  We are not pretending that a few big-bang judgments will solve statelessness in Europe.  But we know that without litigation we will not meet our aims.  By the end of these three years, we hope to point to the first judicial landmarks around which we will build a future Europe where everyone has a nationality.

Adam Weiss is a member of the ENS Advisory Committee and author of the ENS litigation strategy. For further information or to receive the full strategy document then please contact adam.weiss@errc.org or chris.nash@statelessness.eu

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