The new law should raise the standard of protection for those applying for stateless status and equate it to Spain’s law on asylum which offers a temporary stay permit and the right to work for those awaiting the outcome of their asylum claim.
A person is stateless if they lack a nationality, regardless of whether they have been officially identified by the competent authority. This means that when authorities grant an individual with stateless status, they are being retroactively recognised as such, and must be treated and protected as potential stateless persons pending official recognition. However, this is not the case for those awaiting a decision on their stateless status application in Spain. Whilst Spain’s law on asylum provides asylum seekers with a set of rights, such as a temporary stay permit and the right to work while they await the outcome of their application, those applying for stateless status are not granted such protection.
Statelessness in Spain
As highlighted in Spain’s Statelessness Index country profile, Spain is party to both the 1954 and 1961 Conventions, but not to the European Convention on Nationality. It is one of the few States that has a centralised administrative statelessness determination procedure in place, which ultimately leads to a stateless status granting automatic permanent residence and authorisation to work in the country. These good practices, however, are not matched with adequate protection for those applying for stateless status, and there are critical gaps within the statelessness determination procedure. Statelessness in Spain is a largely migratory phenomenon, with Saharawis representing 95% of stateless status applicants and 99% of those granted stateless status overall. 1,593 out of 1,690 applications (and 1,781 out of 1,791 favorable decisions) in 2019 were lodged by and granted to people of Saharawi origin. The data from January to March 2020 shows a similar pattern.
During and after the statelessness determination procedure
The 1954 Convention does not oblige State parties to establish a statelessness determination procedure. They therefore have considerable discretion to decide whether or not to implement a specific process leading to stateless status, and how to design it if they commit to doing so. This allows for critical protection gaps which, in the case of Spain means that stateless applicants are in no better position than that of undocumented migrants. It could be argued that Spain is not breaching its international obligations because it has a procedure the 1954 Convention does not even ask for. However, the Convention includes a specific package of rights for those identified as stateless, and for stateless people that may not even be considered lawfully present in the territory of a State party, such as the right to free access to the courts. Closing existing gaps both in the treatment of stateless applicants during the statelessness determination procedure and once they are formally recognized as stateless is therefore crucial in order to prevent harmful situations for the very people the 1954 Convention seeks to protect.
The 1951 Refugee Convention also does not include rules for a procedure determining refugee status, but asylum seekers in Spain are safeguarded against certain risks and protected with a set of rights that stateless status applicants are barred from. Asylum seekers are potential officially recognised refugees and the Spanish legislation takes this into account. The same rationale should be applied to stateless status applicants, but this is not yet the case. Unlike asylum applicants, stateless status applicants do not have the right to a temporary stay permit (unless they are minors, they applied within the one-month deadline or are lawfully staying in the territory); the right to work from six months after lodging their applications; the right to free legal aid throughout the procedure; the right to apply for the status at border crossing points; the right to contact UNHCR; and the right not to be expelled from the territory or detained for migration-related purposes.
The protection gap between asylum seekers and stateless status applicants narrows when they are recognised as international protection beneficiaries (refuge or subsidiary protection) or as stateless persons, respectively, but even at this stage, equality is never reached. The former enjoy a dedicated family reunification scheme, whereas stateless persons must follow the burdensome rules designed for all foreigners in general, which include documentation requirements too onerous to meet for most stateless persons. Refugees also benefit from a shorter lawful residence requirement of five years to apply for Spanish nationality, while stateless persons must adhere to the general rule of ten years for foreigners. Paradoxically, being identified and recognized as stateless in Spain does not facilitate naturalisation, despite the fact that stateless people are those most in need of a nationality. The granting of stateless status, no matter how extensive the rights arising from it might be, is never the equivalent of acquiring a nationality.
The need for a comprehensive international protection and statelessness legal framework
The current statelessness determination procedure is not mandated by law, but by a decree with a lower legislative status. Also, despite the fact that stateless people are highlighted by UNHCR as amongst the most vulnerable in the world, statelessness is not included within the list of vulnerable situations under Spanish legislation. Spain is set to reform its asylum law and it is time to include stateless persons within the new legal framework in order to create a new law on international protection and statelessness that equates the rights of asylum seekers and beneficiaries of international protection with the rights of applicants for stateless status and recognised stateless persons, in order to harmonize protection at the highest level.
Priorities may shift due to the current pandemic, but the needs of those lacking a nationality will continue to exist until sufficient protections and preventative measures are in place. The new law should raise the standard of protection and reduce the period required in law to apply for Spanish nationality. It is not only a matter of safeguarding against any risks arising from the absence of a nationality, but it is also about the socioeconomic integration of stateless people in Spain. This can only be achieved through stay and work authorisations, protection against removals and immigration detention, asserting UNHCR’s role in the procedure, and including statelessness as a category within the list of vulnerable situations in Spanish law.