Identifying stateless persons has long been considered a key challenge in efforts to eradicate statelessness. In the decades following the adoption of the 1954 Convention on the Status of Stateless Persons, only a handful of States adopted mechanisms to determine whether a person is stateless (Statelessness Determination Procedures, or SDPs). In the last five years, however, the number of SDPs has more than doubled.
Identifying stateless persons has long been considered a key challenge in efforts to eradicate statelessness. In the decades following the adoption of the 1954 Convention on the Status of Stateless Persons, only a handful of States adopted mechanisms to determine whether a person is stateless (Statelessness Determination Procedures, or SDPs). In the last five years, however, the number of SDPs has more than doubled. While this trend is mostly driven by an uptake of SDPs in the Americas, some European and other governments have also taken notable steps. As part of our Good Practices Papers series, UNHCR recently issued a paper on this trend, outlining good practices to provide practical guidance to States that are considering the establishment of SDPs.
Without a dedicated mechanism to establish whether a person is stateless, stateless people may not be able to enjoy the protection afforded by the 1954 Convention. While the Convention does not explicitly oblige its State parties to establish SDPs, the obligation is implied. A parallel can be drawn with the 1951 Convention on the Status of Refugees, which also does not contain an explicit obligation to establish a refugee determination procedure, but the implicit obligation has been widely recognised. Globally, 23 States have now introduced dedicated SDPs, with 13 of those in Europe. The most recent SDP in Europe was adopted in Ukraine, which is expected to benefit an estimated 35,000 people in the country. 14 SDPs have been established since the start of UNHCR’s #IBelong Campaign in 2014.
Factors leading to the establishment of SDPs
Accession to the 1954 Convention and establishment of an SDP have in some cases gone hand-in-hand, as was the case in Georgia, Moldova, Spain and Turkey. In other States, different factors have contributed to building the necessary political will to establish an SDP.
In Europe, research into the scope of statelessness and the profile of stateless persons has propelled some States to adopt or improve statelessness identification mechanisms. In 2013, for example, the United Kingdom established a procedure following a study on statelessness and subsequent advocacy efforts. Similarly, the publication of a mapping study in 2012 on statelessness in Belgium highlighted gaps in the existing determination mechanisms and spurred the Government to take steps to improve the procedure. Research by UNHCR in the Netherlands in 2011 drew attention to issues relating to the situation of more than 80,000 individuals in the country who were registered as being of undetermined nationality. This and other developments led to the State Secretary of Security and Justice agreeing to examine how to establish an SDP in the Netherlands. However, four years since it was published by the Dutch Government in 2016, a legislative proposal for a statelessness determination procedure in the Netherlands is yet to be discussed in Parliament.
A helpful research tool supporting advocacy efforts for better protection of stateless people in Europe is ENS’s Statelessness Index - an online comparative tool that assesses European countries’ law, policy and practice on the protection of stateless people and the prevention and reduction of statelessness against international norms and good practice. This includes highlighting gaps in European countries which are yet to introduce a dedicated statelessness determination procedure, or where existing procedures can be improved in line with international norms.
While in Europe increased awareness and political will has been most visible at a national level, in the Americas progress was driven by regional momentum. In 2014, the Brazil Declaration and Plan of Action called for the establishment of SDPs and procedures for facilitated naturalisation. The Organisation of American States likewise adopted a series of resolutions encouraging States parties to introduce SDPs. These and other regional developments contributed to seven countries in the region establishing SDPs between 2016 and 2020. This regional push has also led to a higher level of harmonisation among the SDPs in the Americas, compared to those established in Europe.
Functioning of existing procedures
The fact that an increasing number of States have established dedicated SDPs is in and of itself a positive development, but it’s also important that the procedures increasingly align with the object and purpose of the 1954 Convention.
In terms of the institutional location of SDPs, increasing consideration is given to ensuring that the procedure is accessible to the population concerned, without losing sight of the need to centralise expertise to a certain extent. An example is Spain, where an application can be lodged through governmental bodies dispersed across the country. Yet, the examination and analysis of statelessness applications is concentrated within a centralised body. In Italy, where statelessness determination can take place both through an administrative and a judicial procedure, the judicial procedure was decentralised in 2017 to enhance the specialisation of judges hearing such matters.
States with newly adopted SDPs in the Americas have, for the most part, left out conditions to access the procedure that can create serious obstacles for people to do so. For example, most States in the Americas do not make an application conditional upon lawful stay nor apply time limits within which a stateless person must lodge a claim. While most European States also do not require applicants to demonstrate lawful stay or entry, or make applications subject to time limits, some exceptions exist. In Spain, applications must be submitted thirty days after entering the country, although in practice this is not applied. In Italy, applicants must hold a residence permit and a birth certificate to access the administrative procedure, but the judicial procedure does not impose such conditions.
To substantiate a statelessness claim, the law in the majority of European States is silent on the burden of proof, although in practice it is shared in most States. Given the difficulty of proving statelessness, it is recommended that both the applicant and the State share the responsibility of proving the applicant’s statelessness claim by making efforts to establish whether the applicant is considered as a national of a country. A greater measure of harmonisation can be seen in the Americas, where a shared burden of proof is consistently the approach taken by law. As to the standard of proof, most countries with an SDP have been found to apply an appropriate standard of proof, i.e., where statelessness is established “to a reasonable degree”, consistent with the objective of ensuring that stateless persons receive protection, and UNHCR’s guidance in the Handbook on Protection of Stateless Persons. However, there are exceptions, with some countries in Europe lacking guidance and others applying a standard of proof higher than recommended by UNHCR. Both the burden and standard of proof in SDPs are areas that would benefit from more clarity in law in European States.
Coordinating refugee and statelessness determination
Coordinating refugee and statelessness determination is particularly relevant in Europe where a significant part of the stateless population is in a migratory situation. A good practice in this respect can be found in France. If an individual in the country presents claims for both asylum and statelessness status, the competent authority will combine the two claims, which can result in a combined “stateless refugee” status. The stateless person will then be able to benefit from the more comprehensive protection under the 1951 Convention and will continue to enjoy stateless status in case their refugee status ceases. In a few other States in Europe, an SDP cannot be initiated if international protection has already been granted. This raises concerns if refugee status ceases and stateless status has not yet been granted.
Grant stateless status but focus on the solution
Statelessness determination mechanisms are instruments to apply the 1954 Convention’s provisions so that stateless persons can enjoy the rights enshrined by the Convention. While stateless status is a satisfactory temporary option, the only solution to statelessness is the acquisition of nationality. States are thus encouraged to facilitate the naturalisation of recognised stateless persons. This can involve easing requirements for naturalisation, including length of residence requirements, fees or income requirements, or providing legal aid. Only six European States with SDPs provide for facilitated naturalisation. Of these, a number have reduced the length of residency requirement. For example, in Bulgaria and Hungary the period has been reduced from five to three years and in Italy from ten to five years.
The road ahead
With 94 State parties to the 1954 Convention and 23 States having established dedicated SDPs, there is clearly still much progress to be made. Yet, the proliferation of SDPs in the Americas and continuing interest among European States as well as a small number of States in other regions to establish dedicated mechanisms is promising. Also encouraging is the fact that in 2019, ten States pledged to introduce SDPs by the end of UNHCR’s #IBelong Campaign in 2024, including Portugal. These steps are critical to ensuring that stateless people become more visible and are protected pending a citizenship solution to their statelessness.
