All European Union States but four (Malta, Poland, Cyprus, and Estonia) have ratified the 1954 Convention relating to the status of stateless persons (the 1954 Convention), which is the cornerstone of the international protection framework for the protection of stateless persons. The 1954 Convention provides the internationally accepted definition of ‘stateless person’ as ‘a person who is not considered as a national by any state under the operation of its law.’ Furthermore, it provides a set of basic rights and freedoms that stateless persons should enjoy, depending on their ‘attachment’ to the State.
However, one major weakness of the 1954 Convention is that it does not address how to identify its beneficiaries. This raises the questions of whether specific status determination procedures are needed and, if so, what their constituent elements should be. Another main flaw is that the 1954 Convention does not require a State to grant lawful status, even when it finds a person to be stateless.
Despite some recent studies, for example by ENS and UNHCR, many issues remain relatively unknown about the implementation of the 1954 Convention and determination of statelessness at the national level. Therefore, in a recent study, I set out to help fill this gap and shed light on current procedures and practices in ten European Union States that are parties to the 1954 Convention. These States are the Czech Republic, France, Germany, Greece, Hungary, Italy, the Netherlands, Spain, Sweden, and the United Kingdom.
For each State I assessed whether basic principles of justice in the context of the determination procedures are met, namely: a designated decision maker in charge of statelessness applications; legal assistance and the opportunity to present the case in person; reasonable length of time of the procedures and a right to appeal; the burden of proof must require the applicant to submit all reasonably accessible evidence and the decision maker to assist in obtaining and presenting all reasonably available evidence. The standard of proof must allow applicants to establish to a reasonable degree that the person involved is not considered a national by any State. Finally, adequate reception support must be provided to the applicant during the procedure, as well as protection against expulsion and immigration detention.
The findings of my research show that these essential procedural elements are relatively better ensured in States that have adopted specific statelessness determination procedures (the UK, Hungary, France, Italy and Spain) than in the others.
Germany, Greece, the Netherlands, the Czech Republic, and Sweden have no legal framework to identify stateless persons. Although States have discretion in adopting different types of statelessness determination procedures, in these cases, they cannot be said to implement their international obligations fully or efficiently. In these States, stateless persons are often forced into refugee determination procedures. For those with claims of persecution, asylum is the appropriate way to present their cases. On the other hand, asylum applications are not for persons who do meet the definition of a refugee and who, in the absence of a statelessness determination procedure, are left with no clear solution to address their lack of nationality. In Germany, the Netherlands, the Czech Republic, and Sweden, stateless persons may qualify for lawful status on the grounds that it is impossible to leave the country, but this is usually a residual category. In addition, these procedures treat stateless persons as other irregular migrants and ignore their special protection needs. For instance, in the Netherlands, applicants are required to show official evidence in support of the claim that they cannot return. In Sweden, decision makers take a strict approach on proving identity. Greece appears to provide the least protection of all States, as it does not even grant permits to persons it considers unable to leave the country (ie. where return is impossible).
However, at the same time, shortfalls are also apparent in those states that have adopted statelessness determination procedures. Firstly, the burden of proof is often too high and rests on the applicant, who must prove that he does not have any nationality. In effect they must prove a negative, and often lack the ‘standing’ to compel countries (with whom they are connected by birth, marriage or descent) to confirm whether or not they are a national. This evidentiary challenge can be exacerbated if applicants are destitute or detained. Hence, the search for necessary supporting evidence and information, which may require a collaborative approach with other States, is lacking in most cases. Hungarian law is the only good example, as it explicitly sets a lower burden of proof, providing that the applicant can prove or substantiate his claim.
Secondly, the right to a review or appeal is generally included in most States but is subject to restrictive grounds. When no specific procedure exists and a discretionary power is used to grant a stay of deportation or temporary or exceptional stay, such as in the Czech Republic and Sweden, there are no rights to a review before a court.
Thirdly, there is no free legal assistance to prepare cases in the first stage of the procedures (except in Hungary and in limited cases in Germany). In the appeals stage, State-funded legal representation is usually provided, but there are issues concerning its quality. However, in France and Greece, free legal assistance is rarely provided on appeals, either.
Regarding the issue of status, States with statelessness determination procedures as defined by law provide a grant of residence to recognized stateless persons, which triggers the ‘lawfully staying’ rights under the 1954 Convention. States with no provisions to identify stateless persons have different approaches regarding the form of stay that is granted, if any, to stateless persons. In any case, if statelessness has not been established, a stateless person will only be entitled to the rights that are granted to any other alien under the same circumstances and will be unable to access all of the rights that are provided for in the 1954 Convention. Practically, the lack of proper legal status can thus render any protection framework meaningless.
In conclusion, at present the 1954 Convention is still implemented very differently across EU States in terms of legal undertakings, political will and even perceived obligations. Whereas there is reason to expect a gradual progression towards the adoption of dedicated statelessness determination procedures in more countries, it cannot be said that the trend is already towards that of their harmonization. Much more work needs to be done to encourage states to properly implement their obligations under the 1954 Convention by adopting statelessness determination procedures guaranteeing the essential elements of justice discussed above and, upon recognition, granting lawful status as a stateless person.
This blog is based on the full article which has been published in the International Journal of Refugee Law (2017) 29(1) 42-83, and can be found at https://academic.oup.com/ijrl/article-abstract/29/1/42/3823331/A-Comparative-Analysis-of-Statelessness?redirectedFrom=fulltext