“Everyone has the right to a nationality”

Addressing the anomaly of statelessness in Europe: An EU law and human rights perspective - Doctoral (PhD) thesis

Published: March 2019

KATALIN BERÉNYI, Ph. D. RESEARCH ASSOCIATE, BUDAPEST CENTRE FOR MASS ATROCITIES PREVENTION, BUDAPEST

PDF icon Addressing the anomaly of statelessness in Europe: An EU law and human rights perspective.

European policy-makers and national legislators continue to assume that issues related to nationality remain subject to the sovereignty of Member States, failing to put in place legislative and policy frameworks providing for the identification and protection of stateless individuals as rights holders. Thus, one of the major questions I addressed in my doctoral research was whether and how EU Member States could be legally obliged to provide for the identification and protection of stateless persons in a comparable way. My findings reside in a normative model for an EU directive providing for an EU-harmonized protection framework for stateless persons, consisting of minimum standards of treatment, a statelessness determination procedure and a statelessness-specific protection status, to be implemented in each EUMS.

As I argued at the public defense of my doctoral dissertation ("Addressing the anomaly of statelessness in Europe: An EU law and human rights perspective") on 10 December in 2018, based on Articles 18 and 67(2) TFEU, supported by Article 21(2) of the EU Charter, the situation of stateless persons in the EU could be addressed through the lenses of equality and non-discrimination (not only in the migratory context), whereby the TFEU provides the necessary legal basis for the adoption of such an EU directive.  In my dissertation I thus sought to offer a normative model for the aforementioned directive providing for an EU-harmonized protection framework for stateless individuals, consisting of minimum standards of treatment, a statelessness determination procedure and a statelessness-specific protection status to be put in place by every EUMS.  Building on the key findings of my dissertation, I suggest the following elements to be considered for the foreseen EU Directive:

First, minimum standards of treatment for stateless persons should envisage:

  • Treatment irrespective of the treatment afforded to citizens or other aliens; 
  • The same treatment as nationals;
  • Treatment as favorable as possible and, in any event, not less favorable than that accorded to aliens generally in the same circumstances; and
  • The same treatment accorded to aliens generally.

These minimum standards of treatment should be complemented by the minimum rights envisaged by the 1954 Convention based on Articles 12-32, establishing a broad range of civil, economic, social and cultural rights for States to accord to stateless persons, including but not limited to those relating to personal status, property rights, access to courts, gainful employment, housing, education, public relief, social security, as well as crucial administrative measures.

Second, the statelessness determination procedure to be put in place should:

  • Be formalized in law;
  • Be transparent, efficient and easily available;
  • Be gender-sensitive respecting for the specific protection needs of women;
  • Ensure that potentially affected persons should be informed about their right to initiate a status determination procedure;
  • Provide facilitated access to the procedure to both potentially affected stateless migrants and in situ stateless persons in Europe, irrespective of the lawfulness of their stay;
  • Be initiated via written or oral application by the affected individual, irrespective of the (il)legaliy of his or her stay on the territory of the given state, in a language that the applicant understands;
  • Operate an efficient referral mechanism based on the close cooperation of the local, regional and central authorities, as well as involved non-governmental actors;
  • Have due regard of whether the concerned individual have an effective nationality or not, allowing for the de facto stateless persons to be included in the status determination procedure and thus the potential grant of a protection status (until they are naturalized);
  • Imply a lowered standard of proof in statelessness determination for the applicant, enabling the claimant to only substantiate the foundedness of her/his claim;
  • The competent authority should assume an active role in establishing relevant facts and provide assistance in verifying potential national ties upon request by the applicant;
  • Take note of the vulnerabilities of children whereby ex-officio guardians are appointed to assist to cases of unaccompanied minors;
  • Respect the right to appeal against rejected applications and thus a judicial review of administrative decisions should be available where the proceeding judge is entitled both to annul the administrative decision and to grant stateless status; 
  • Include important procedural safeguards relating to the avoidance of childhood statelessness, non-removal of the applicant until the outcome of the determination process, access to legal counsel and the right of appeal amongst others;
  • Entail the grant of a legal/protection status to regularize the situation of the individual in the host country.

Third, the statelessness-specific protection status should:

  • Be granted to stateless persons identified through the determination procedure;
  • Be granted to recognized stateless persons who are thereby able to claim protection based on their statelessness which should be explicitly set out as a protection ground in itself;
  • Regularize the individual’s stay on the territory of the EUMS as a legal status;
  • Serve as a temporary measure to address the protection needs of stateless persons until they can apply for naturalization;
  • Entail the grant of a basic set of rights linked to the recognition, such as the right of residence, the right to work, access to health care and social assistance, the right to travel documents and access to facilitated naturalisation.

In my view, this EU-harmonized legal framework could provide comparable protection to stateless individuals residing in Europe, including stateless persons who recently arrived to Europe in the migratory context, as well as persons belonging to minorities living without an effective nationality in the EU. In order to address statelessness further from a minority rights perspective, in my new role as Associate Researcher at the Budapest Centre for Mass Atrocities Prevention, I strive to advance policy discussions on tackling statelessness affecting minorities, by flagging the nexus between not having a nationality, systematic exclusion and vulnerability of persons belonging to stateless minority groups to mass atrocities and radicalization.

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