The Charter of Fundamental Rights and the protection of stateless people in the EU: a dormant giant?

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Dr Tamas MOLNAR, legal research officer on asylum, migration and borders European Union Agency for Fundamental Rights (Vienna)*
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The EU Charter: a robust normative layer

Despite the re-emergence of the issue of statelessness on the international agenda and the intensifying discourse on those matters in the EU context, the role of the EU Charter of Fundamental Rights (‘Charter’), and more broadly that of EU law, is often overlooked when it comes to the protection of stateless persons living in the EU. True, EU law only lays down sporadic rules concerning stateless persons and debates are not yet settled around EU competences to adopt specific legislation to protect the stateless. However, the Charter definitely represents an existing additional layer of legal protection for them, with the power of primary EU law and having the same legal effect as the EU founding treaties.

Several rights enshrined in the Charter apply to everyone, regardless of nationality and third-county nationals’ migration status or one’s statelessness. Fundamental rights of universal application are in particular those set out in the Dignity and Freedoms Chapters of the Charter. These include human dignity, the right to life, the right to physical integrity, the prohibition of torture and inhuman or degrading treatment, the right to liberty and security, the right to family life, non-discrimination, the rights of the child, or the right to an effective remedy etc. Therefore, stateless persons also enjoy this minimum set of fundamental rights guaranteed by the Charter.

This blog entry will explore the potential of the Charter to offer legal protection for the stateless living in the EU, namely through the lenses of non-discrimination and the protection from arbitrary detention.

Non-discrimination

In the EU Council Conclusions on statelessness, adopted in December 2015, the Council and the Member States acknowledged the importance of strengthening the protection of stateless people, “thus allowing them to enjoy core fundamental rights and reducing the risk of discrimination or unequal treatment”. Political actors have thus expressly called for equal treatment with respect to this particularly vulnerable group.

Black letter EU law can help back it up. The Charter also sets forth the fundamental right to non-discrimination (Article 21). The wording of its first paragraph establishes an open list of prohibited grounds, extending to any ground of status discrimination, including nationality or the lack thereof. Hence, non-discrimination might apply to the interface between stateless persons and other groups such as Member States’ own nationals or other EU citizens. The second paragraph of the same article refers to nationality as an explicit, self-standing prohibited ground, but with significant possible limitations built in. The common understanding amongst EU lawyers is that nationality-based discrimination has traditionally been forbidden between nationals of different EU Member States. However, it is not the only legally tenable interpretation in light of the text of the Charter and this Charter provision has not been applied yet by the EU Court to third country nationals or stateless persons. Therefore, the nationality-triggered applicability of the non-discrimination clause to stateless persons is still an option within the perimeters of the Charter. It is so especially in light of the case law of the European Court of Human Rights, which prohibits discrimination based on nationality under very strict review, and which case law must be duly taken into account when interpreting Charter rights corresponding to rights guaranteed by the European Convention on Human Rights, as the one at hand. Overall, it clearly provides for an entry point for stateless persons to seek protection under the Charter against unlawful discrimination. The recently registered European citizens’ initiative titled “MinoritySafePack” can feed into these endeavours in the future. It envisages calling the European Commission to propose amendments of EU legislation in order to guarantee approximately equal treatment for stateless persons and EU citizens.

Protection from arbitrary detention

Under the Charter, everyone has the right to liberty and security of person (Article 6), which includes the prohibition of arbitrary detention. The right to liberty and security is not absolute and may therefore be restricted. However, any restriction on this right must be strictly construed. This approach has been taken by the EU Court when stipulating that “given the importance of the right to liberty and security of the EU Charter, and the severity of the interference that detention presents, limitations on this right shall only be allowed when strictly necessary” (see cases J.N. (C-601/15 PPU), para. 56 and Al Chodor (C-528/15), para. 37-39). The Court emphasised that, as detention in the context of migration constitutes a serious interference with the right to liberty, it must be “subject to compliance with strict safeguards, namely the presence of a legal basis, clarity, predictability, accessibility and protection against arbitrariness.” (Al Chodor (C-528/15), para. 40). As summarised by the Equal Rights Trust Guidelines to Protect Stateless Persons from Arbitrary Detention (2012), detention of stateless people will be arbitrary unless it is (i) provided for by national law; (ii) carried out in pursuit of a legitimate objective; (iii) non-discriminatory; (iv) necessary; (v) proportionate and reasonable; and (vi) carried out in accordance with the procedural and substantive safeguards of international law.

Typically, stateless persons in the migratory context end up in pre-removal detention if found in an irregular situation. In its 2010 report, the EU Fundamental Rights Agency (FRA) noted that for stateless persons the likelihood of successful removal is slim, as there is no country of nationality which is obliged to take the person back and the country of former habitual residence often denies admission to stateless persons who have left. It can easily lead to prolonged and thus arbitrary detention. This situation is implicitly addressed by the EU Return Directive (2008/115/EC) according to which detention must end when “a reasonable prospect of removal no longer exists”. By virtue of the EU Court’s authentic interpretation, reasonable prospect of removal does not exist where it appears unlikely that the person concerned will be admitted to a third country, having regard to detention periods allowed by the Directive (maximum 6 months, which be can extended by further 12 months). Added to this, if the maximum period of detention laid down by the Directive has expired, Member States must immediately release the person concerned, even in absence of valid travel or identity documents and if means of subsistence or accommodation are lacking (Kadzoev (C-357/09 PPU), paras. 59-67). All these judicial pronouncements represent an important legal safety net for stateless persons to rely on in EU Member States against arbitrary detention. Lately, the revised EU Return Handbook, which gives practical guidance for national authorities carrying out return related tasks, also echoes the Kadzoev doctrine, expressly in the context of statelessness. Herein, the Commission calls on Member States to pay attention to the specific situation of stateless persons when assessing the (absence of) reasonable prospect of removal.

Against that backdrop, FRA has freshly reminded Member States to this obligation in its report mapping the European legal and policy framework on immigration detention of children, published in June 2017. In the Agency’s opinion, detention to secure return is not lawful in the absence of realistic prospects for removal. EU Member States could thus consider introducing a presumption against detention for de jure and de facto stateless persons, including children. This should be in cases where it is evident from past experience that the country of former habitual residence will not readmit the person or, for de facto stateless persons, the country of nationality will refuse any cooperation in establishing the nationality and issuing related travel documents.

Final thoughts

The above certainly shows that legally binding EU rules, most importantly fundamental rights, are out there and the scene is set for granting firmer protection for the stateless in application of the EU Charter. A very practical and easy-to-access online tool developed by FRA, called “Charterpedia”, is of great help in identifying not only the pertinent Charter articles, but it also provides article-by-article the relevant fundamental rights jurisprudence of the EU Court and the ECtHR, alongside with leading domestic cases relating to the Charter adjudicated by apex national courts.

Bringing individual cases to courts to litigate with the toolkit of arguments derived from the Charter, coupled with national courts’ willingness to refer Charter-based preliminary questions to Luxembourg and the case law of the EU Court are essential elements to activate this dormant giant, the Charter with respect to protecting fundamental rights of stateless persons. It could thus contribute to make fundamental rights a reality for everyone in the European Union – also for this often invisible and forgotten group of vulnerable people called the stateless.

* The views expressed in this blog entry are solely those of the author and its content does not necessarily represent the views or the position of the European Union Agency for Fundamental Rights.

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