By adding Portugal to the Statelessness Index, we aim to provide professionals from different fields with a tool to better understand legal and practical matters surrounding statelessness in the Portuguese context and to advocate for progress in key areas.
Why is the Statelessness Index relevant in Portugal?
The Statelessness Index assesses the law, policy and practice of each country against international norms and good practice in different areas relevant to the identification and protection of stateless people and the prevention and reduction of statelessness, including: the ratification of international and regional instruments, statelessness population data, statelessness determination and status, detention, and the prevention and reduction of statelessness.
Portugal ratified the 1954 Convention Relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness in 2012. Nevertheless, the issue still exists under the radar within the national context. This may be due to various reasons, including a perception that the number of people affected in Portugal is minimal and as such, it is not a pressing issue, a general lack of awareness of the meaning and implications of statelessness, and the perception that the national framework already provides for the necessary safeguards.
Conclusive figures on the number of stateless persons and persons at risk of statelessness in the country are not available. Even if the numbersare in fact low, that does not mean that the necessary safeguards for their identification and protection do not have to be enacted. Additionally, whilst Portugal does have some important provisions in place as the Statelessness Index data demonstrates, more can still be done in different areas to prevent and address the impacts of statelessness.
While attention towards statelessness in Portugal has been increasing in recent years (see, for instance, UNHCR’s 2018 Mapping), the Index is an important asset within the national context. As well as assessing law, policy and practice, the Index covers a wide array of topics relevant to statelessness, includes concrete information that is updated every year, and allows for easy comparison between countries, promoting the identification of good practices and areas for further work.
Portugal has a relatively good record in terms of accession to international and regional human rights instruments and reservations relevant to statelessness. Among the instruments covered by the Statelessness Index (statelessness-specific instruments as well as major human rights treaties), Portugal has ratified all but two: the Council of Europe Convention on the Avoidance of Statelessness in Relation to State Succession and the International Conventionon the Protection of the Rights of All Migrant Workers and Members of their Families. Available data on stateless populations is limited and mostly fragmented, which may hamper the adoption of adequate measures to protect stateless persons and to prevent and reduce statelessness in the country.
The identification of stateless individuals stands out as one of the most significant gaps, as Portugal does not have a dedicated statelessness determination procedure. While the 1954 Convention definition of a stateless person and exclusion clauses are applicable in the domestic legal order and stateless persons may be encountered in the context of certain administrative procedures, this does not amount to formal identification. Furthermore, there is no specific protection status nor specific rights granted to persons considered to be stateless by the authorities. The lack of adequate and timely identification is a serious obstacle to the protection of stateless persons and may also hamper access to existing legal guarantees to prevent and reduce statelessness. There is also significant room for improvement with regard to immigration detention. In addition to gaps within the legal framework, the lack of awareness and adequate identification routes contribute to the risk of detention for stateless individualsand to limited protection upon release.
Good practices were identified in terms of the prevention and reduction of statelessness, particularly regarding birth registration and withdrawal of nationality. For instance, not only is immediate birth registrationmandatory regardless of the documentation or migration status of the parents, but late birth registration is also possible. Withdrawal of nationality is only possible in cases of renunciation or fraudulent acquisition and safeguards against statelessness are included in the law. However, there is room to improve the avoidance of statelessness among children born on territory who would otherwise be stateless, namely by adjusting the rules on burden and standard of proof for the application of relevant provisions.
As mentioned, the identification of stateless people is a critical step not only to providing adequate protection but also to ensuring that safeguards for prevention and reduction are appropriately applied. While stateless persons in Portugal may be able, in certain circumstances, to regularise their presence, the lack of a dedicated procedure and protection status presents cross-cutting challenges. Therefore, enacting such a procedure and status is key to ensuring Portugal’s compliance with its international obligations. There are encouraging signs in this regard, as the Portuguese Government committed “to establish mechanisms to identify, protect, prevent and reduce statelessness in Portugal” at the 2019 Global Refugee Forum.
Much has been written in recent years about the establishment of statelessness determination proceduresand the necessary features to ensure coherence and adequacy. Among those are the adoption of adequate evidentiary rules, procedural safeguards, expertise of the examiners, accessibility of the procedure and availability of information and counselling. Another crucial element for progress is raising awareness and building capacity among relevant actors. Key actors, such as government officials, officials and members of the judiciary dealing with migration and nationality, need to be aware of the characteristics and impacts of statelessness and to have adequate mechanisms for the referral of (potentially) affected individuals. It is also important to increase data on stateless populations. The perception that statelessness is a numerically small phenomenon in Portugal is sometimes grounded on publicly available statistics. The available figures are indeed comparably low. However, this should not be used as an argument to neglect the issue. Furthermore, research demonstrates that such statistics are fragmented and fail to capture the full extent of the issue. Information is needed on the main characteristics of stateless persons to allow for adequate law and policy design, given that addressing the situation of in situ stateless populations and that of stateless persons within a migratory context requires different solutions.
A final note must be made on the connections between statelessness and forced migration, particularly given the increasing number of applications for international protection in Portugal in recent years. While a refugee is not necessarily a stateless person and vice-versa, research into the relationship between the two areas is developing and shows that the issues can overlap. Adequate identification and awareness are therefore critical. In this regard, the Human Rights Committee recently expressed concern with the absence of a mechanism to identify vulnerable asylum seekers, including stateless persons, and recommended that Portugal “[e]stablish an effective mechanism for the identification of vulnerable applicants, in particular stateless persons”.
While there are good practices already in place, there is also significant work to be done in the future to ensure that effective and systematic protection is provided for stateless persons in Portugal and that statelessness is further reduced and prevented.