“The applicant, a stateless person” – Roma, statelessness and the European Court of Human Rights

Ivan Kochovski, Member of Macedonian Young Lawyers Association
/ 7 mins read

On 15 June 2017, the European Court of Human Rights (ECtHR), communicated the case HASANI v. the former Yugoslav Republic of Macedonia (Application no. 4558/17). This is the most recent case which deals with a stateless Roma applicant, portraying the crippling effects statelessness and lack of documentation has on the Roma community in the Western Balkans.

Ms. Emrana Hasani, an ethnic Roma, fled the violence and persecution in Kosovo in 1999 with her family, when she was only 10 years old. Ever since, she has lived in Macedonia as a person under international protection. She has not been able to marry her partner as she does not have and cannot acquire the necessary personal documents from Kosovo, her country of origin. Kosovo has not recognized Ms. Hasani as a national, and she hasn’t acquired Macedonian nationality through naturalization due the lack of personal documents. She is, in fact, stateless. She has been able to legally reside and access basic services in Macedonia solely based on her international protection status. Her partner, and their four children, are all Macedonian nationals.

In 2007, the Ministry of Interior of Macedonia terminated her international protection status and ordered her to leave the country. The reasoning behind the decision was that the circumstances for which her status was granted have ceased to exist and, at the same time, she has not taken any action to regularize her status through marriage, i.e. by marrying her partner who is a Macedonian citizen and with whom she has lived in in a non-formal partnership for a number of years. The termination decision does not provide any analysis or insight into which circumstances have changed or whether going back to Kosovo would pose a danger to her, as she has claimed. At the same time, the decision does not provide details on the ways in which Ms. Hasani could have married her partner and regularized her residence, without the proper documentation. The decision does not make any reference to the fact that Ms. Hasani has not been recognized as a national by any state.  

Unwilling to leave her family behind, and still fearing the risks of going back to Kosovo, Ms. Hasani has been challenging the status termination decision for nearly 10 years. The Administrative Court of Macedonia accepted her appeals (on both procedural and substantive grounds) and returned the decision to the Ministry of Interior for re-examination on three occasions. Each time, the Ministry issued nearly identical decisions, stressing that she has failed to regularize her residence by marrying her long-term partner.  

In 2015, ruling on yet another appeal by Ms. Hasani, the Administrative Court changed the approach and upheld the Ministerial decision. The Court reasoned that Ms. Hasani has failed to show that she would be subjected to inhuman and degrading treatment if returned to Kosovo and that she had not taken any action to marry her partner, thus regularizing her residence through marriage. Following the Ministry’s arguments, the Court did not accept the argument that Ms. Hasani does not have and cannot obtain the necessary personal documents in order to marry her partner. The Higher Administrative Court, as the highest instance in this case, upheld this decision in 2016 and ruled against Ms. Hasani. With this, the Ministerial decision to terminate Ms. Hasani’s international protection status came into force.

Fearing the risk of deportation to Kosovo, Ms. Hasani submitted an application to the ECtHR. She complains that she faces a risk of deportation to Kosovo where she would face inhuman and degrading treatment (under Article 3 of the European Convention of Human Rights), that she does not have an effective remedy against her possible deportation to Kosovo (Article 13 in conjuction with Article 3), and that such (risk of) deportation significantly infringes upon her right to family and private life (Article 8). While Ms. Hasani has not yet been deported to Kosovo, the legal uncertainty and risk of forced removal looms over her as she awaits the ECtHR decision.

The ECtHR, in its communication, has focused on the deportation aspect of the case, including the risk of inhuman and degrading treatment if returned, the effective remedy against it, and the possible violation of family life if returned. All very relevant, and crucial aspects of the case.

However, this case raises two more important aspects. The first is the use of marriage, or lack thereof, as a protection termination ground. The authorities have terminated Ms. Hasani’s asylum status since she did not take action to formalize the marriage with her partner. The lack of formalized marriage with a Macedonian national and the failure to regulate one’s residence status in that manner is not a termination ground under the Macedonian asylum legislation. In repeatedly issuing decisions with identical reasoning, the authorities gave Ms. Hasani two options, either to marry her partner or leave the country. This approach by the authorities is not only in violation of the national asylum legislation, but is also a direct interference with Ms. Hasani’s private life and her right to choose the type of relationship she wants to have with her partner. Furthermore, throughout the evidently lengthy procedure the authorities failed to adequately take into account the fact Ms. Hasani was simply not able to obtain the necessary documents to marry her partner even if she wanted to.

This leads to the second aspect which the case implicitly deals with, statelessness and lack of documentation. Ms. Hasani was born in household conditions and has therefore never been registered in the birth registries in Kosovo. She is stateless, and without the necessary birth certificate she cannot initiate a nationality acquisition procedure, neither in Kosovo nor in Macedonia. A fundamental part of the problem is that she has never been recognized as stateless, even though both Kosovo and Macedonia do not recognize her as their national. Macedonia does not have a statelessness determination procedure, and therefore cannot formally establish the fact that she is stateless. While Kosovo introduced a statelessness determination procedure in 2015, Ms. Hasani cannot make use of it as she fears returning to Kosovo. This exacerbates the situation, since she cannot enjoy her rights as a stateless person and cannot make use of the facilitated naturalization procedure in Macedonia. The only access to her rights and services was through her international protection status, which has now been terminated. At the moment, Ms. Hasani lives in Macedonia as a (formally unrecognized) stateless person, without any documentation, legal status or access to rights. For this reason, the opening sentence of the communication by the ECtHR, “The applicant, Ms. Emrana Hasani, is a stateless person” comes as an important sign in the recognition of her statelessness.

While Ms. Hasani’s case may seem complex and unique, it is reflective of a wider and protracted issue in Macedonia and the Western Balkans. Statelessness among the Roma in the region has crippling effects both on an individual and group level, as it is both a cause and a result of the systemic discrimination, marginalization and lack of access to rights that the community has been facing.

Statelessness among the Roma in the countries of the former Yugoslavia has gained attention on the European and global level due to efforts by both civil society and international organizations. The European Roma Rights Centre, the Institute on Statelessness and Inclusion and the European Network on Statelessness in partnership with civil society organizations from South East Europe have presented the causes and crippling effects statelessness has in the region among the community in the report Statelessness, Discrimination and Marginalization of Roma in the Western Balkans and Ukraine. ENS and UNHCR organized a meeting at the European Parliament in late November 2017, calling EU members states and candidate countries to take decisive steps to remove procedural and practical obstacles which prevent many Roma in acquiring a nationality, ensure that all children acquire the nationality of the country in which they are born if they would otherwise be stateless and to eliminate discriminatory practices which deny many Roma a nationality or effective access to it. Furthermore, UNHCR as part of their #iBelong campaign published the report “This is our home” – Stateless Minorities and their Search for Citizenship, which illustrates the destitution in which the stateless Roma live in and systematic nature of the problem. Working to raise awareness on Roma statelessness in Macedonia in partnership with the Macedonian Young Lawyers Association, UNHCR produced a video which vividly portrays the situation of a stateless Roma person in Macedonia.

The judgement in Ms. Hasani’s case by the ECtHR will come at a pivotal time. While it primarily relates to the risk of deportation and the international protection status of Ms. Hasani, it will undoubtedly have to reflect on the statelessness and documentation aspects of the case. As such, it will have a lasting effect, hopefully positive, on the resolution of the issue both for Ms. Hasani and the stateless Roma community in the region.

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