Nationality, is an issue that affects us in many different aspects: it can serve as proof of a legal and political connection between an individual and a State or as a key element of one’s social identity and sense of belonging. Statelessness, on the contrary is the absence of nationality. Article 1 of the 1954 Statelessness Convention defines a stateless person as a person who is not considered as a national by any State under the operation of its law. Stateless persons live in conditions of protracted marginalization and discrimination, facing numerous difficulties, such as the inability of receiving medical assistance, enrolling in educational programs, acquiring property, being legally employed, marrying or opening a bank account.
Even though statelessness can occur in various contexts, its most common causes include state succession, ill-defined or discriminatory nationality laws, arbitrary deprivation of nationality, displacement and forced migration, birth to a stateless person, lack of birth registration or inability to satisfy certain requirements for the acquisition of nationality. There are approximately 600.000 stateless persons in Europe. Given that statelessness is both a cause and a consequence of forced displacement, these numbers may increase due to the migration crisis. This is one of the reasons why the Justice and Home Affairs Council conclusions of 3 and 4 December 2015 mandated the European Migration Network (EMN) to establish a platform for exchange of information and good practices. The EMN Platform on Statelessness was established by the Steering Board of EMN on 20 May 2016.
The EMN Platform on Statelessness has the intention to raise awareness in regards with statelessness and to bring all the relevant stakeholders in the field together: representatives of Member States, European Commission, European Parliament, European agencies, international organisations, and NGOs.
The first objective of this platform was to determine the state of play of statelessness in the European Union. The platform used the EMN ad-hoc query system in order to obtain the information from Member States. The key findings of this Inform are:
- 24 Member States are State Parties to the 1954 Convention Relating to the Status of Stateless Persons (1954 Convention) and 19 Member States are State Parties to the 1961 Convention on the Reduction of Statelessness (1961 Convention).
- There is no homogeneity among Member States in the procedures through which statelessness is determined. The diverse ways in which States determine statelessness can be grouped in the following categories:
- Dedicated administrative determination procedures
- General administrative procedure or inside another administrative procedure
- Ad-hoc administrative procedures
- Judicial procedures
- In the majority of Member States there is no direct link between the determination of statelessness and the issuing of a specific residence permit. Only a few grant a residence permit to an individual as a consequence of his/her recognition as a stateless person. In the large majority of the Member States, recognized stateless persons must apply for a residence permit on other grounds if they wish to regularise their status.
- Access to the labour market, education and training as well as health care and social aid does not depend on the determination of statelessness but on the residence permit that the stateless person can obtain causing a legal vacuum for stateless persons who cannot obtain a residence permit even where their stateless status has been identified.
- Most Member States facilitate to a certain extent the access to nationality for children born stateless in their territory. In most, the principle of ius soli applies for granting nationality at birth to children born stateless in the country, albeit under certain circumstances. Most of the Member States not applying the ius soli principle at birth facilitate the acquisition of nationality via naturalization at a later stage. However, in most Member States legal gaps remain meaning that some children born stateless in their territory cannot have access to nationality.
- There is no specific determination procedure for stateless unaccompanied minors. Most of the Member States having a determination procedure for adults apply it to unaccompanied minors so the procedures are not adapted to the vulnerability of this category of applicants.
- With the exception of a few Member States, children born en route to the EU who arrive without a birth certificate cannot obtain a birth certificate or an equivalent document in the country of arrival.
On 20 October 2016, the EMN Inform entitled “Statelessness in the EU” was presented at the Luxembourg Permanent Representation to the European Union with the presence of representatives of Member States’ Permanent Representation to the European Union, UNHCR and the European Network on Statelessness. The outcome of this meeting was introduced in an updated version of the Inform.
In order to evaluate the progress made since the Council conclusions were adopted, the EMN Platform on Statelessness, in collaboration with UNHCR and ENS, organized a conference in Brussels on 18 January 2017 entitled “Addressing Statelessness in the European Union: One year on from the adoption of European Council Conclusions”, where the new version of the Inform was launched. The engagement of the Maltese Government to include in its Presidency agenda the issue of statelessness determination, and to discuss it in the Strategic Committee on Immigration, Frontiers and Asylum (SCIFA) setting is an encouraging sign, and signals a positive intent to move forward with the Council conclusions.
The conference had as main key speakers Joseph Mizzi, Advisor of the Ministry of Justice, Culture and Local Government of the Maltese Government and Vincent Cochetel, Director of the Bureau for Europe of UNHCR and Magnus Ovilius, chair of the European Migration Network.
In order to analyse the current situation facing stateless persons in Europe and to consider the key findings of the EMN Inform, two panels were organized as follows. The first panel entitled “Identifying and protecting stateless persons in a migratory context” was moderated by Inge Sturkenboom of UNHCR and had the participation of the following panelists: Tamas Molnar from the European Union Agency for Fundamental Rights, Céline Chateau, from the LIBE Secretariat of the European Parliament, Stephen Ryan, Director of DG Migration and Home Affair and Zsófia Huszka, of the Hungarian Immigration and Asylum Office. In his presentation Mr Molnar made a legal analysis of the European Chart of Fundamental Rights and the protection of stateless persons in the EU and referred to the limited case law develop by the CJEU and the ECtHR. Mr Ryan, European Commission reminded us that the European Commission has a limited competence with regard to nationality issues which continues to be a competence of Member States. Ms Chateau elaborated on the various resolutions of the European Parliament that cover statelessness and on some of the findings of the study Practices and approaches in EU Member States to Prevent and End Statelessness which will be discussed in the LIBE Committee in May 2017. Ms. Huszka made a presentation of the Hungarian Statelessness Determination Procedure.
The second panel dealt with “Preventing childhood statelessness”. This panel was moderated by Pascal Schumacher, JHA Counsel of the Luxembourg Permanent Representation to the EU. The panelist of this panel were: Chris Nash, Director of the European Network on Statelessness, Verena Knaus, Senior Policy Advisor in the UNICEF Brussels office and Margaret Tuite, European Commission coordinator for rights of the Child (DG Justice). During this panel, Chris Nash, Director of the European Network on Statelessness and Verena Knaus, Senior Policy Advisor in the UNICEF Brussels office highlighted the increased risk of statelessness among children born to refugees and migrants and the importance of birth registration. See for example UNICEF, Uprooted, the growing crisis for refugee and migrant children, and ENS, No Child Should be Stateless. Margaret Tuite, the European Commission coordinator for rights of the Child (DG Justice) also highlighted the need to collect accurate data and called for special attention to the situation of Roma children.
The main conclusions of the conference were:
- There is agreement that statelessness should indeed be eradicated as far as possible.
- In order to further eradicate statelessness a practically oriented approach is necessary in regard to vulnerable stateless individuals in each EU Member State while acknowledging the fact that stateless individuals in certain Member States have acquired significant rights equivalent to nationality and where the individual is stateless but is entitled to education, health benefits and labour market without being discriminated.
- There is concern of the vulnerability of children in the statelessness context, including with regard to the disappearance of unaccompanied minors who arrive in Europe.
- There is no common statelessness determination procedure between Member States.
- There should be a clear differentiation between the Statelessness Determination Procedure (SDP) and the asylum procedure in order that the SDP will not be misused by rejected asylum seekers in order to delay their return to their countries of origin.
The EMN Platform on Statelessness can implement an action plan as follows:
- Coordinate with NGOs and international organisations (UNHCR and UNICEF) the implementation of a mapping exercise identifying vulnerable stateless persons in the Member States, as a first step and then expand this action to other stateless individuals. This action will allow UNHCR and/or UNICEF and NGOs to directly address the competent authorities in the respective Member States in order to solve the legal situation of these identified individuals.
- Foster and develop a common approach by which Member States can work towards introducing or improving Statelessness Determination Procedure at the national level - which the Maltese Presidency may take forward under their EU Presidency agenda. The Platform will contribute through the exchange of good practices and the development of non-binding guidelines.
- Determine through the use of EMN tools the costs of procedure for regularizing the situation in the Member States in order to bring this under Member States Practitioner’s Agenda. In order to implement these actions, the EMN will resources to the Platform, allowing for the creation of a working space were the contributions and best practices can be shared and discussed. Also, the Platform will organize a follow-up meeting in six months’ time to take stock on the progress that done with regards to the deliverables in advance of the next annual conference.
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