“Everyone has the right to a nationality”

ENS Interview - Nacho Hernández

26 June 2020

ENS caught up with Nacho Hernández, Lawyer in the International Affairs Department of Fundación Cepaim, a Spain based civil society organisation and active ENS member. We spoke about adding a country profile for Spain to the Statelessness Index and what this tells us about the country's law, policy and practice on statelessness, as well as ongoing advocacy efforts to bring the rights of stateless people in line with those afforded to asylum seekers and refugees in Spain. 

Fundación Cepaim joined ENS in 2017. Your work in Spain focuses on social inclusion, defending equal rights and fighting poverty. How does statelessness and your membership of ENS fit into this wider work?

At Fundación Cepaim, we try to address and prevent social and residential exclusion through different means, such as equality and non-discrimination, or gender mainstreaming, and different projects, for example, reception for undocumented migrants, refugees, asylum seekers and stateless persons; housing; youth and family intervention; and community-based development. Whilst the number of people affected by statelessness in Spain is not high, it has been increasing in recent years. As one of the social organizations managing the national reception system for refugees, asylum seekers and stateless persons, we directly assist them by way of legal, psychological and social support. Our advocacy work in the field of international protection includes statelessness, and this issue is one of our top priorities.

Stateless people who enter the reception system stay within the project for up to 18 months. They are accommodated in shared, but private, apartments and are provided with material reception conditions to cover all their basic needs. They are also offered Spanish classes, and are assisted by social workers, psychologists and lawyers, who deal with their stateless status applications during the procedure.

To build links with people affected by statelessness and facilitate their engagement in our work and advocacy, we held a workshop with affected communities in Madrid in partnership with ENS in spring 2019. We also organized a public conference on statelessness in Murcia last autumn, at which ENS was invited to speak. We had everything set and ready to host the pan-regional conference scheduled for May 2020, together with ENS and the University of Alicante, on ending statelessness in Europe, bringing together 300 stakeholders. We have also helped ENS in translating key reports and papers into Spanish, and have coordinated the research leading to Spain’s country profile on the Statelessness Index. Our advocacy goals now target the reform of the new law on asylum, in which we are defending the inclusion of statelessness to improve the rights of applicants and beneficiaries of the stateless status, and the reduction of the ten-year residence requirement to two years for stateless individuals in Spain to naturalise.

This year, Fundación Cepaim and ENS launched a Statelessness Index country profile page on Spain. What does the Index tell us about Spain’s law, policy and practice in relation to statelessness, and how are you planning to use this to support your work?

Creating a Spain country profile for the Statelessness Index was a joint initiative by Spanish members of ENS, including CCAR (Comissio Catalana d' Ajuda al Refugiat), ourselves, and two individual members, Arsenio G. Cores and Aleksandra Semeriak. The research leading to the Index allowed us to look into national law and practice in order to identify gaps we may have missed previously. It is a major tool that will help push our advocacy efforts both on international protection and naturalisation, as well as other areas. It is not only useful for researchers, but for everyone interested in the subject and is suitable for lawyers, legal practitioners, students, academia, journalists, civil society organisations, affected communities and others.

The work on the Index showed, as expected, both some good practices and gaps. Spain is party to both the 1954 and 1961 Convention and has a dedicated statelessness determination procedure in place. However, the inequalities between asylum seekers and applicants for the stateless status in terms of rights they are entitled to during the procedure indicate that, although the SDP can be considered as a good practice as it leads to a stateless status which automatically provides their holders with a long-term residence and work permit, it does not adequately fulfil the needs of those applying for such status, as they lack adequate protection in the meantime. For instance, they may be granted a temporary stay permit during the statelessness determination procedure and they are not entitled free legal aid, affecting the quality of their applications, which are submitted in written form. Interviews may be conducted if the decision maker decides to do so. These issues are addressed in detail within the Statelessness Index Country Survey and will also be discussed in my blog that will be published on the ENS website later this week. In addition, we are closely monitoring the situation in Spain as we will update the Index annually.

This May, Fundación Cepaim and ENS planned to organise a three-day pan-regional conference at the University of Alicante. Whilst the outbreak of COVID-19 in Europe meant that we had to postpone the conference, we are very much determined to proceed once it is safe to do so in 2021. What is the ambition behind the conference, and how will it support your work in Spain?

We had everything up and running, all set and ready to celebrate the conference this May in Alicante. We were counting the days left. It is sad that we could not finally meet, but we are sure we will have the chance to hold it whenever is possible in the future. Our commitment is as strong as ever. This conference has been designed to be an inclusive gathering aimed at bringing together 300 participants, including affected communities, decision makers, lawyers, and civil society organisations. This conference will allow stakeholders to share information, concerns, proposals and solutions to the gaps and issues regarding statelessness that need to be urgently addressed in Europe and in Spain. It will serve as a platform for all voices to be heard and for decision makers and government representatives to know what persons affected by statelessness have to say from their experience. Gaps exist both in law and in practice, and so the experiences of legal practitioners and affected communities will complement each other at the conference.

Spain has some good practices to be shared across Europe, and we should build on this as well as on the commitment of the Spanish government to reduce and prevent statelessness to improve the conditions of both recognized stateless persons and those applying for status, as well as to facilitate their access to Spanish nationality through naturalisation. Statelessness is a major human rights issue. Civil society organisations working in the field of human rights may sometimes forget that beyond international protection, there are populations lacking a nationality who need responses and adequate protection. This conference will show the importance of having a nationality and the critical impact its absence has for stateless persons.

Meanwhile, the need to address existing protection gaps faced by stateless people, often made worse by the impact of COVID-19, remains as critical as ever. This is why ENS and Fundación Cepaim are planning to organise a series of online webinars, starting in September. What can people expect from these webinars?

Together with ENS, we will host a pan-regional webinar which will bring together key actors to discuss galvanising action on statelessness in Europe, which will also serve as an introduction to a series of webinars on statelessness within the Spanish context. We are currently working on the design and scope of each webinar, but we hope that the first webinar on Spain will showcase the Index, which will be presented by the research team and experts. This will allow participants to understand the current protection gaps within Spain’s current statelessness determination procedure and naturalisation process. This will frame the second and third webinars, as they will focus on these two areas and how to address them by offering solutions. One will be devoted to the need for a reform of the Law on Asylum to include the statelessness determination procedure in order to equate the rights of stateless persons to those of asylum seekers and refugees. The final webinar will focus on the reduction of the time frame for residence-based naturalisation for stateless people in Spain, by way of a proposal to the Spanish Parliament regarding a reform of the Civil Code. We aim to bring together decision makers, civil society organisations, affected communities, experts and others working to end statelessness in both Spain and Europe.

Stateless people are often among those most impacted by the COVID-19 global pandemic. How are you witnessing the pandemic and the impact of response measures in Spain, and how is it affecting the work of your organisation?

Spain has been very much affected by the COVID-19 pandemic. It soon became one of the countries in the world where the virus had the biggest impact and strict lockdown measures were in place to prevent the spread of the virus. Crises always have a deeper impact on vulnerable persons, including migrants, moreover if they are undocumented, asylum seekers or stateless. Due to the measures taken by the Spanish government temporarily closing its offices and suspending procedures, international protection applications dropped dramatically from 37,000 between January and the end of March to just 130 in April and May. No figures are reported on applications of the stateless status during this later period. Data on statelessness is not as widely available as on international protection.

The government extended the expiry date of all documentation belonging to migrants, such as asylum seekers, temporary stay visa holders, and it did so in the case of applicants for stateless status, but only to those who had been granted a temporary stay permit. Unlike asylum seekers, stateless status applicants may be granted an authorisation during the procedure, so those lacking documents were neglected by the authorities without breaching any law provision. Therefore, some stateless status applicants are treated as general undocumented migrants, with limited access to basic rights. On the other hand, detention facilities were emptied, as all migrant detainees were released within six weeks of the declaration of the state of emergency. Detention lost its legal basis as it can only be applied to ensure deportations and can only last for 60 days. Spain closed its borders and countries rejected people arriving from Spain, so detention could no longer be supported as a valid legal option. The government has recently issued some orders facilitating the regularisation of undocumented migrants lifting some burdensome requirements that are even more difficult to meet under the current circumstances. In the so-called arraigo social, undocumented migrants who stay in Spain for at least three years and who can prove they have a job offer can be granted a temporary residence and work permit. However, the emergency situation made the government issue an order allowing for replacing that requirement with that of having enough resources to cover their basic needs and their families’.

The pandemic has affected our activities, as we had to adjust to working from home and taking shifts at the offices to comply with the lockdown and social distancing rules. We have still received people into our programs, including 46 former migrant detainees, but their stay has been automatically extended, which means that the places have been “locked” and at one point, the lack of available spaces prevented people from entering the system as usual.

While we are living through unprecedented times, the fight to end statelessness continues. What is Cepaim’s main goal and focus for your statelessness work over the next twelve months?

Our main advocacy efforts are related to the topics that will be addressed during the series of webinars this autumn. Before the state of emergency was declared in Spain, we were involved in consultations with the authorities as they announced they were willing to reform the Law on Asylum, given it is outdated and is yet to transpose the EU Directives on international protection. Our goal is to improve the material reception conditions of asylum seekers and refugees, include more safeguards in the international protection procedure, and critically, to include the statelessness determination procedure so that stateless persons, either applicants for the status or those formally recognized as stateless, can enjoy the same rights, guarantees and material reception conditions designed for asylum seekers and refugees in Spain. We hope consultations resume soon, since the reform process can be lengthy, and we believe this issue should be urgently addressed. Our proposal for a Civil Code reform reducing the time frame from ten to two years in order for stateless persons to naturalise received positive feedback by decision makers and stakeholders back in October 2018 at a conference on statelessness we organized at the University of Murcia along with the Legal Clinic of its Faculty of Law. We have been working closely with this Legal Clinic and we are about to finalise the proposal, which will be then sent to the Spanish Parliament.

I cannot finish this interview without referring to the Conference in Alicante. The series of webinars do not replace such a relevant gathering. We plan to reconvene it whenever is safe and appropriate to do so. It is still a top priority in our agenda.

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