Austria is often praised by its official representatives as a model country concerning human rights protection, with a positive record on implementing decisions by the European Court of Human Rights and a successful candidacy for the UN Human Rights Council 2019-21. Nonetheless, there is a huge blind spot within Austria's human rights record. When it comes to the recognition and protection of those living without a nationality in Austria, recent country data published as part of the Statelessness Index reveals huge gaps. Although these shortcomings have already been highlighted by a range of actors including UNHCR, the Committees on the Rights of the Child and the Elimination of Discrimination Against Women and several NGOs, Austrian decision makers have failed to follow up on their recommendations to date.
In recent years, Austrian authorities have deprived people of their Austrian nationality because they were accused of having illegally obtained another nationality, in most cases Turkish nationality, leaving many of them stateless. This practice only came to an end when the Austrian Constitutional Court, in a December 2018 judgement ruled that the evidence produced by the Austrian authorities was not authentic, and after the Court of Justice of the EU delivered its March 2019 judgement in the case Tjebbes et al.
Statelessness undefined and unidentified
Despite its obligations under international law, Austria still lacks a dedicated statelessness determination procedure to identify and protect stateless people living on its territory. It does not have a definition of a stateless person in national law, meaning the 1954 Convention does not have direct effect. This leads to different nationality categories such as stateless, undetermined nationality and unknown nationality being applied inconsistently by different authorities or even by different officials within the same authority. Most authorities apply a very narrow definition of statelessness, particularly in terms of evidential requirements. In 2011, Austria pledged its readiness to improve its implementation of the 1954 Convention but, nine years on, no further action has been taken.
The Statelessness Index also highlights gaps in Austrian nationality law, including a violation of the UN Convention on the Rights of the Child, which leaves children born stateless in Austria at risk of growing up without a nationality. The current law only allows stateless children to acquire Austrian nationality when they are between 18 and 20 years of age. Many of these children have inherited their statelessness from parents who were stateless before them, while others are the first in their family to experience statelessness, falling victim to a gap or conflict in nationality laws.
It is about the people, not the data
The number of people in Austria potentially affected by statelessness has constantly grown throughout the last decade. According to Statistik Austria, 4,252 stateless people, 747 individuals of unknown nationality and 12,043 persons of undetermined nationality were registered in the Central Register of Residents as of 12 February 2020. As already established by UNHCR in its 2017 Mapping Study, the majority of stateless people living in Austria (or their parents) were born abroad. Research shows that this steady rise in numbers is very likely linked to the forced migration of stateless Kurds and Palestinians from Syria to Europe.
But as Petr Baroch from the Organisation for Aid to Refugees rightly argues, statelessness should not remain an issue of depersonalised data or legalistic human rights talk. If one wants to improve the lives of stateless people, one has to focus first and foremost on the people themselves and their stories of being marginalised, put at risk of discrimination and human rights abuses. After more than ten years as a legal counsellor for people in asylum and return procedures and now as an independent human rights consultant, I have come across many stateless families and individuals who simply could not access their human rights. This was all because their statelessness was either not identified by the Austrian authorities, or identification did not enable them full enjoyment of the rights laid down in the statelessness conventions, such as receiving a residence permit, being allowed to work or having access to facilitated naturalisation.
The real-life consequences of statelessness
When thinking about the impacts of statelessness on people’s lives, Hassan* is the first person who comes to my mind. After a very long journey that started in Western Sahara, he finally came to Austria where he applied for asylum several times. Every application was rejected, but Austria could not find a country that would accept him. He found himself in immigration detention for several months year after year, although all embassy delegations repeatedly denied that he was a citizen of theirs. I no longer provide legal counselling at detention centers, but I am afraid that if I would go there now, chances are high I would meet Hassan again.
Then there is Dmitri. He was born in a disputed part of the former Soviet Union and had to flee during civil war. His birth was never documented by any authority and there are no ancestors left who could testify his birth. Although his asylum application in Austria was finally rejected, Dmitri still managed to get a permanent residence permit and lead an independent life in Austria. Although he soon met all substantial requirements for acquiring Austrian citizenship, it took him years, with the only document missing being a birth certificate. According to Austrian civil status law, stateless people or those with undetermined nationality have the right to late birth registration in Austria. However, the identification and lack of a legal definition of a stateless person in domestic law creates barriers in practice. For several years, Dmitri was sent from one embassy to another in order to confirm his nationality or the lack thereof. Even when his stateless status was identified by one authority official, another official from the same authority came to a different conclusion, further prolonging Dmitri’s quest to document his birth and acquire a nationality. In similar cases, access to late birth registration was only granted after a court complaint had been filed.
And then there was Fatima and her family. She is a Syrian national while her husband Muhammad is a stateless Palestinian from Syria. She fled Syria’s civil war together with her husband in early 2016 and they were recognized as refugees in Austria. Fatima’s children were born stateless in Austria. Fatima cannot pass on her nationality because of gender discriminatory rules in Syrian nationality law and her children will have to wait until the age of 18 before they can finally apply for Austrian citizenship. When Fatima and Muhammad showed me their children’s documents, I couldn’t believe what I saw. While the asylum authority identified them as being stateless, their Austrian birth certificates read undetermined nationality and their residence registration form set their status as unknown nationality. Three different categorisations for the same person. This would not only turn any interaction with an Austrian authority into an odyssey, but also potentially make it hard for the children to lead a normal life, and join their school friends on excursions abroad or be eligible for scholarships or other educational programmes in Austria.
Uncovering the blind spot
These are just a few of many examples of the negative consequences of statelessness on individual lives. It is, however, entirely preventable if Austria honours its international obligations. Having recently been elected to the UN Human Rights Council, the Austrian Government now has a real opportunity to live up to its self-proclaimed human rights standards. Austria can draw on good practices from other European states, such as those highlighted in the Statelessness Index and, through legal reform, improve the lives of stateless people in Austria.
As a first step, Austria should introduce a definition of a stateless person, in line with the definition of the 1954 Convention relating to the Status of Stateless Persons, into domestic law and establish a fair and accessible statelessness determination procedure. For people who have been identified as stateless, a residence permit should be established, and trainings on the rights of stateless people and on the reduction of statelessness should be provided to decision makers within authorities and courts.
To prevent future cases of statelessness in Austria, children born on Austrian territory who would otherwise be stateless should automatically be granted Austrian nationality or, at a minimum, the Government should bring the Act on Nationality in line with the 1961 Convention on the Reduction of Statelessness to extend the period during which stateless persons may apply for nationality from two years to three years. Simplifying the procedure for acquiring Austrian nationality by children born out of wedlock to Austrian fathers and ensuring that such children acquire Austrian nationality retroactively upon establishment of fatherhood, will further help prevent children growing up without a nationality. These changes are essential to ensuring that people like Hassan, Dmitri and Fatima no longer have to live with the detrimental and long-lasting consequences of statelessness.
*All names have been changed to maintain confidentiality.
Photo: Filip Maljković (flickr - Creative Commons)