Ireland’s ad-hoc approach is failing stateless persons: Dublin seminar highlights shortfalls and need for formal procedures

Catherine Cosgrave, Legal Services Manager, Immigrant Council of Ireland
/ 8 mins read

In December 2015, the Council of the European Union’s Conclusions on Statelessness invited the European Commission to launch exchanges of good practices among Member States, using the European Migration Network as a platform. 

While Ireland has not yet established a formal statelessness determination procedure, France has one of the longest established procedures in Europe and the UK introduced a new procedure three years ago. French and UK officials accordingly agreed to come to Ireland to share their experiences in establishing and operating such procedures in their respective countries at a seminar  'Statelessness Determination Procedures: Policy Options, Practical Experiences and Challenges', jointly hosted by jointly hosted by EMN Ireland and UNHCR Ireland in Dublin yesterday.  The seminar followed a conference hosted by the Luxembourg EMN National Contact Point (NCP) last month, and covered on this blog.

The seminar in Dublin commenced with a presentation by Anne Sheridan, EMN Ireland who provided an overview of the current international legal regulatory framework, highlighting some of the rights provided for stateless persons under domestic legislation including potentially faster access to citizenship and waiver of the fees that are usually required of naturalisation applicants in Ireland.  Susan McMonagle, UNHCR Ireland then outlined global trends regarding statelessness, drawing attention to the very real and troubling issue of childhood statelessness, including how this remains to be addressed by some European states, for example, Norway.

On behalf of the Immigrant Council of Ireland, I had been invited to provide an insight into the experiences of stateless persons in Ireland and what is entailed in seeking to regularise their status. I referenced the situation of Piotr, who I had written about for this blog last year, and also discussed two further cases that, although now successfully resolved, took over four years and seven years respectively to resolve, and which entailed multiple applications and repeated representations to several units within the same Government Department to deal with.

The first case concerned an individual who had first come to Ireland as an EU citizen exercising free movement for work purposes and, three years later, received notification that his citizenship had been unilaterally revoked on the grounds that he had allegedly obtained citizenship of another country, which he had not. Stripped of a passport, he sought to deal with this at arm's length by instructing lawyers to challenge the decision of the relevant authorities but was unsuccessful on a technical point concerning time periods for challenging administrative decisions. Subsequently he was granted an Irish travel document for the purposes of travelling to his country of birth to make enquiries about his entitlement to take up citizenship there. Despite providing written evidence to the contrary from his country of birth, his application to be determined as a stateless person and to be granted Irish citizenship (under the relevant legislation referred to above), no decision was forthcoming until judicial proceedings were threatened. A formal declaration was eventually issued, as was a positive citizenship decision and, as an officially recognised stateless person, the naturalisation fees were waived.

The second case concerned an application to revoke a deportation order on grounds of statelessness in circumstances where the young person concerned had been cooperating for over four years with efforts to forcibly remove him after he had failed in an asylum application as an unaccompanied minor. During this time he had languished in a hostel, unable to work or to access education. Following comprehensive representations, that application was successful and he was granted a temporary residence permit for one year, which was subsequently renewed twice for periods of three years and last year he was granted Irish citizenship. However, during each renewal process and also the citizenship application, the very same representations regarding statelessness had to be made. No formal declaration of statelessness was ever issued and, as such, he was required to pay the naturalisation fee of €950, noted to be one of the highest in Europe.

Drawing on these case studies, I highlighted how despite the absence of a formal stateless determination procedure, the Irish authorities are nonetheless dealing with stateless applications but in an ad hoc and unsatisfactory way. Arguably the manner in which cases are dealt with does not represent cost-effective or efficient administration for the Irish authorities and, in terms of access to justice, there are significant issues regarding procedural fairness in terms of transparency, processing times, lack of appeal procedures and little or no evidence of shared burden in terms of assessing the applications. As a non-profit independent law centre, the Immigrant Council of Ireland does not charge legal fees but we also do not have capacity to provide legal representation to all individuals who may require it. To this end I also noted that access to justice, could prove extremely difficult, if not impossible, for individuals like Piotr without means or access to civil legal aid.

As a lawyer and law reform campaigner who has advocated for the rights of stateless persons and for the introduction of a procedure for over a decade, I am always greatly interested to hear more about the procedures that have been introduced in other jurisdictions, especially in the UK, which Irish policy and lawmakers frequently look to when considering migration policy matters. Lea Jones and her colleague, Sarah Richardson, Policy Adviser and Case worker respectively on statelessness at the UK Home Office provided a very comprehensive overview of the UK stateless determination procedure, introduced in 2013 in response to a challenge from UNHCR to put beyond doubt the UK's commitments towards stateless persons and to implement a visible procedure. Although the procedure appears to be relatively accessible by applicants, the burden of proof is placed on applicants, although caseworkers are required to assist and make further enquiries. It was acknowledged that the procedure does not comply with all of the UNHCR procedural recommendations in so far as there is no right of independent appeal and, following a recent policy review in February 2016, there is no longer an interview in all cases.  It also appears that there is a relatively high refusal rate with, at the end of 2015, only 40 positive decisions as compared to 550 refusals out of approximately a total 1500 applications. It was suggested that the high refusal rate arises from a significant number of applications from persons who are not stateless and are seeking to delay their removal from the UK.  However, it was also clear that the number of positive decisions is only in respect of those individuals who are granted stateless leave to reside in the UK and does not reflect the numbers who may have been identified as stateless but are deemed admissible to another country. More comprehensive disaggregated data in this regard would be instructive. Equally, it would seem important for research to be done on the quality of decision-making, particularly given that this is a procedure in its relative infancy.

Following the presentation of the UK Home Office, Mourad Derbak, OFPRA outlined how the French authorities have been dealing with stateless claims over a long period since before World War I, originally by way of administrative procedures but now, since 2015, regulated by law.  Similar to the UK procedure, the French procedure entails a written application form to be used by applicants, but there is first an initial screening of applications to assess whether the matter is not totally unfounded. It appears that the number of applications has remained relatively static in recent decades with on average 200 per year, a relatively small number in the context of overall migration and asylum applications in France.  Approximately a third of all claims are successful and, in contrast to the UK, a stateless determination always results in the grant of residence permits, including family reunification rights.  Whilst noting the obligations on stateless persons to establish their claim, OFPRA noted the importance of flexible and nuanced approach to the assessment of applications and, in particular, accepts that there can often be a difference between nationality laws on paper and how they are respected in practice, or not, by the authorities of some countries.  All applicants may have an interview and if it is evident that it would be difficult for the applicant to do, then OFPRA engages with the relevant authorities to ascertain particular matters. In assessing the particular claim and the question of whether citizenship may be theoretically available, the reasonableness of the criteria to be fulfilled in a particular instance will also be taken into account. In this regard, it would appear that the assessment of evidence is fair and the burden of proof is shared. To conclude, Mr. Derbak underscored that the rights of stateless persons must be respected and strongly encouraged the Irish authorities not to be afraid of having a procedure.

In the open discussion that followed the presentations, we were reminded that, as I had set out in a post for this blog this time last year, the Minister for Justice and Equality has stated there are no immediate plans to introduce a formal determination procedure in Ireland. So, it was extremely encouraging to hear a senior civil servant from the Irish Naturalisation and Immigration Service confirm that the Minister has however now requested that the issue be looked at. 

Next week, the Universal Periodic Review examination of Ireland will take place in Geneva and the need for statelessness in Ireland has been raised by civil society as an issue to be addressed. Here at the Immigrant Council of Ireland we remain convinced of the need to find durable solutions, including the introduction of an effective and efficient procedure that will better serve the needs of stateless persons in Ireland. We look forward to continuing to engage with all stakeholders to achieve this.

Attended by nearly fifty representatives from civil society organisations, lawyers, academics, researchers and policy makers from a number of government departments, yesterday’s seminar provided a timely opportunity to raise awareness of the issues faced by stateless persons globally and in Ireland, to learn more about established procedures in our neighbouring countries and to engage in an informed dialogue about the form that a procedure might take in Ireland.

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