“Everyone has the right to a nationality”

Time to put statelessness on the EU agenda!

16 December 2013 | Katja Swider, University of Amsterdam

The Stockholm Programme, which sets out the EU migration policy agenda for 2010-2014, is approaching its end. Time has come to reflect on achievements and failures of the EU in the field of migration, as well as to shape a vision for the future.  In this context, the Dutch Ministry of Security and Justice hosted an EU-wide conference last week, bringing together academics, policy makers, and representatives of civil society and international organizations to brainstorm about the future of EU’s migration policy. One of the 24 workshops was dedicated to the topic of statelessness, during which Tamás Molnár and I presented the ‘academic’ perspectives on statelessness in the EU, followed by a lively discussion among all the participants. The latter included representatives of Dutch, Estonian, Greek, Hungarian, Latvian, Luxemburgish, Maltese, Polish and Romanian governments, as well as representatives of the UNHCR and civil society organizations, academics, and researchers from all over the EU.

So what did we learn about the potential role of statelessness in EU’s post-Stockholm Programme? 

The discussion evolved around three main questions.

Question 1: Does the EU have competence to address statelessness?

An earlier post on this blog already recognized the difficulty of bringing up any nationality-related questions on the EU level due to the Member States’ sovereign rights in regulating access to nationality. However, the participants of the workshop agreed that Member States’ sovereignty on nationality matters is not absolute, and moreover statelessness involves a broader range of issues than merely that of access to nationality. While the reduction and prevention of statelessness undoubtedly rely on nationality laws, the protection of stateless persons, which is by far a more immediate and pressing issue on the EU’s territory at the moment, lies predominantly within the domain of migration law. EU’s extensive powers in the field of migration therefore form a solid basis for addressing at least some aspects of statelessness, in particular the protection of stateless persons through migration policy. In addition, the dynamic development of the concept of EU citizenship, as well as the growing importance of the EU Charter of Fundamental Rights, perhaps can equip the EU for scrutinizing Member States’ nationality laws, especially when statelessness is at stake. 

What about subsidiarity?

Even if the EU has the competence in the field of statelessness, the principle of subsidiarity requires establishing that the EU level is more suitable for addressing relevant problems, as opposed to the national or local levels. This leads us to the next question.

Question 2: Why should the EU get involved?

The workshop produced a number of arguments justifying EU’s involvement, such as: 

    • the ‘equal treatment’ argument

It is unfair that persons in a similar situation within the EU are treated differently. Only an EU-wide coordination can ensure equal treatment of stateless persons across all Member States.

    • the ‘race to the bottom’ argument

Without the EU coordination, in the context of open internal borders, each Member State will try to offer less protection to stateless persons than the neighboring state, in order to avoid attracting stateless persons who need assistance. This eventually leads to a very low overall standard of protection for stateless persons in the EU, and even to violations of relevant international obligations by the Member States.

    • the ‘practice what you preach’ argument

If the EU does not take measures on statelessness within its borders, then how can it have a clear conscience when addressing statelessness in its foreign policies? This argument is less relevant for the considerations on subsidiarity, but is nevertheless a very important reason for the EU to take a strong stance on statelessness within its borders.

Question 3: How can the EU get involved?

Considering the relative non-existence of any targeted EU action on statelessness, I was pleasantly surprised that the first two questions were answered by the workshop’s participants with a solid ‘yes’. 

The last question triggered more debate. Proposals varied from the innocent ‘include references to statelessness in EU’s policy statements’ to a rather ambitious ‘grant EU citizenship to stateless people within the EU’. Another set of suggestions involved the EU supporting in various ways the recent trend among its Member States to establish and improve statelessness determination procedures. Considering the EU’s experience in setting standards for status determination of asylum seekers, the step to statelessness status determination would perhaps not be that big. 

EU migration fatigue

On numerous occasions during the conference the Brussels based civil servants observed that the process of achieving the Stockholm goals was long, frustrating and tiresome, that no one is interested in re-opening those negotiations, and that perhaps the post-Stockholm programme will therefore be a very thin one… It therefore might be questionable whether statelessness will manage to make its way into EU’s migration policy agenda given the general ‘migration fatigue’ in the EU. But that is not to say that this should not be attempted.

Call for action! Share your ideas with the Commission

DG Home Affairs is open for suggestions about its future policies! Perhaps this is an opportunity for interested civil society organizations and academics to submit thoughts and ideas on whether, why and how the EU should address statelessness. The deadline is the 21st of January!

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