In November 2017, Switzerland will come before the UN Human Rights Council for Universal Periodic Review (UPR). In view of this upcoming review, ENS and humanrights.ch, together with the Institute on Statelessness and Inclusion and Terre des Hommes, lodged a joint submission this week asking the Council to hold Switzerland to account on its human rights record on statelessness.
The UPR Process and Switzerland
The UPR process, now in its third cycle, requires all UN member states to undergo a systematic and regular review of their human rights record every 4.5 years. As part of this process, NGOs can submit information about a country’s record on particular human rights issues to be considered alongside evidence from other UN agencies and the state itself, during its review session. The outcome of the UPR is a series of recommendations, which the state must either note or accept, and then work towards addressing until its next review.
ENS, its members and partners regularly contribute our expertise on statelessness in Europe to the UPR process. Other ENS blogs here and here, have described the UPR in more detail, including how it can be used to address statelessness. Our joint submissions to past UPRs can all be found here.
Although not explored in any detail, the issue of statelessness was touched on during Switzerland’s first and second cycle UPR reviews in 2008 and 2012. In 2012, it received a clear recommendation to ratify the 1961 Convention on the Reduction of Statelessness. Switzerland is party to the 1954 Convention, but not the 1961 Convention. Disappointingly, the Swiss Government rejected this recommendation, but announced instead that it would accede to the 1997 European Convention on Nationality. As its next UPR approaches, this has not yet happened. Switzerland still has some way to go to reduce the phenomenon of statelessness and defend the legal rights of stateless people, as we outlined in our joint submission.
Statelessness in Switzerland
One of the key challenges in Switzerland is that information about who is stateless is limited and lacking clarity, with different categories and numbers reported in different publications. Part of the reason for this is the narrow definition of statelessness applied by the authorities and the lack of a formal Statelessness Determination Procedure to identify and recognise stateless people. Accordingly, the number of people actually recognised as stateless remains relatively low.
People who are recognised by the Swiss authorities as stateless are granted a temporary residence permit with similar rights to refugees. They then become eligible for permanent residence after five years, however, a rule change in 2015 means that from 2019, they will have to wait for 10 years before becoming eligible for permanent residence, which will leave people in long-term limbo and at risk of discrimination. A further issue is that people seeking recognition of their statelessness are not granted any kind of temporary protection during the process, leaving them at risk of destitution, exploitation, and detention.
Preventing childhood statelessness
Switzerland also lacks some of the necessary legal safeguards in its nationality laws to protect children from statelessness. Contrary to international law, if a child is born in Switzerland to stateless parents or parents who can’t pass on their nationality, they are born stateless and safeguards to prevent continued statelessness are inadequate as naturalisation requires a five-year period of legal residence. Addressing this kind of gap in nationality laws that renders children stateless or at risk of statelessness is a key feature of ENS’ ongoing #StatelessKids campaign.
Barriers to naturalisation
Another area where Swiss law and policy falls short of international standards is in providing a facilitated route to naturalisation for stateless people. As noted above, under certain conditions, stateless children can access facilitated naturalisation; but there is no such facilitated procedure for adults. Because of the federal structure of citizenship in Switzerland, there are even additional requirements around integration at a local (Cantonal or Municipal) level, that must be met by applicants. Even more hurdles to naturalisation are being introduced with a new Citizenship Act coming into force in 2018, making access to citizenship for stateless people increasingly difficult in practice.
Risk of arbitrary detention
There is also a risk of arbitrary detention in the Swiss context, mainly due to the lack of a dedicated procedure to identify and determine statelessness. Because applicants for residence as a stateless person are not granted any form of temporary status while they wait for a decision, particularly those whose stay in Switzerland is irregular or who are subject to a removal order, are at risk of entering a vicious cycle of detention, release and re-detention, until their nationality status can be determined.
Time to hold the Swiss Government to account
All the concerns outlined above are explored in more detail in our joint submission, which culminates in a series of suggested recommendations for the Swiss Government to ratify relevant international instruments, introduce a formal Statelessness Determination Procedure, improve the identification and protection of stateless people, and raise awareness about statelessness and the rights of stateless persons. We hope not only that these issues will be considered during the UPR session in November, but that a focus on statelessness and the fundamental right to a nationality during the session, can serve as a catalyst for change in Switzerland and beyond.