“Everyone has the right to a nationality”

“What do you mean by stateless?” – Arbitrary detention of stateless persons in Poland

20 November 2015 | Katarzyna Przybysławska, Legal Aid Centre The Haliny Nieć
Protecting Stateless Persons from Arbitrary detention in Poland

In Poland statelessness doesn’t exist. Or so it would seem, for there are almost no official records of stateless persons. Those who are stateless are labelled differently for the purposes of various proceedings. Absence of a uniform approach reflects the state’s lack of interest in resolving the precarious position of this group.

Despite its declared commitment to uphold human rights, Poland remains one of four EU states (alongside Estonia, Malta and Cyprus) still not party to either of the UN Statelessness Conventions. Even though Poland admittedly took steps aimed at reducing statelessness by adopting a new law on citizenship in 2012, a formal procedure to identify stateless persons has not yet been introduced. This results in protection gaps and exposes stateless persons to arbitrary detention. Paradoxically, it is the prospect of imminent detention that seems to be the main factor deterring stateless persons from coming forward and approaching state authorities to initiate legal proceedings to regularise their status. With the threat of detention, many prefer to live in a legal limbo as “invisibles”, remaining on the margins of society, without any legal guarantees and access to enjoyment of the most basic of rights.

In conducting the research on the use of arbitrary detention in Poland, the invisibility of this group was the primary obstacle. Typically, during the stakeholder interviews, the officials would squint at the term “stateless”, acting surprised, puzzled or confused. Invariably the disoriented squint would be followed by a simple yet meaningful question along the lines: “What do you mean by stateless?”.

Scarcity of available data itself illustrates that statelessness is a hidden issue in Poland, and the relatively small size of the stateless population seems to be used as a key argument for ignoring their plight. As there is no homogenous group of stateless persons, nor a stable in-situ residing population, every case is regarded as a separate occurrence rather than as a part of a broader phenomenon. Paradoxically the small scale of statelessness hampers the attempts to introduce legal changes to resolve the issue.

According to data gathered through the 2011 Polish Census, 8,805 people were documented as having “undefined nationality” and 2,020 as “stateless persons". This data is likely to contain some inconsistencies due to the fact that there was no verification of the results. According to a different data source – the Office for Foreigners - in 2014 there were 6,621 stateless persons in the country, of which 38 submitted asylum applications and 22 were granted refugee status. The Office also has records of 625 stateless persons holding valid residence cards in 2014.

In 2014, of the 2,916 foreigners apprehended by Border Guards, 753 persons were detained. In 364 cases, alternative measures were applied. In comparison, in 2013, before alternatives to detention had been introduced, 1,738 people were detained. The Border Guards do not gather separate statistics on apprehended or detained stateless individuals. However, during the last two years, the Border Guard requested foreign diplomatic missions to identify 1,392 persons, of which, 927 were successfully identified. The status of the remaining 465 persons is unclear, but many are likely to be at risk of statelessness, if not stateless. This indicates that one of the crucial issues in Poland is addressing the gaps in identification procedures which are central to determining the status of those whose nationality is not clear.

Poland is party to most international and regional treaties reinforcing the right to nationality and protection of stateless persons, including the ICCPR, CERD, CRC and CEDAW. Significantly though, Poland has not acceded to the 1954 and 1961 Statelessness Conventions and has signed but not ratified the European Convention on Nationality. The introduction of a new citizenship law in 2012 allowed for the commencement of the ratification process of the European Convention on Nationality. Furthermore, in November 2014, the Ministry of Interior announced that it had decided to recommend that Poland signs the 1961 Convention on the Reduction of Statelessness while further analysis was being prepared in order to decide whether accession to the 1954 Convention Relating to the Status of Stateless Persons is also possible and indeed necessary. This matter was also taken up by the Polish Ombudsperson. It remains to be seen how these announcements will translate into actions, especially after the recent parliamentary elections which brought about a radical shift in the political scene.

One of the biggest gaps in Polish law currently excludes protection or provision of status to stateless persons solely on the basis of being stateless. This often directly affects those most vulnerable and in need of a durable solution. The lack of a proper statelessness determination procedure often leads to a situation in which these individuals are left in limbo and pushed into invisibility. This is further compounded by the fact that foreigners can be detained solely for the purpose of confirming their identity. After entering detention the focus turns to removal, which in the case of stateless persons is in itself problematic, and does not take into account protection needs of the individual

Because removal in case of stateless persons is often impossible, what should be only short-term detention in preparation for removal, becomes long-term detention. The issue of lengthy detention, particularly for administrative reasons is a key concern, which could be avoided if alternative protection mechanisms for this group were to be put in place.

Acceding to the 1954 Convention Relating to the Status of Stateless Persons and introducing a statelessness determination procedure is no miracle cure for all the above protection gaps and shortcomings, but it would be a solid foundation for addressing the plight of those stateless or in risk of statelessness and perhaps an instant remedy for squinting.

On 20 November the European Network on Statelessness and Legal Aid Centre released the report “Protecting stateless persons from arbitrary detention in Poland”. You can download the full report [pdf] and [pdf - Polish] and the summary version [pdf] and [pdf - Polish].

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