This week, in the case of Sudita Keita v. Hungary, the European Court of Human Rights found a violation of Article 8 of the European Convention on Human Rights (‘ECHR’), which protects the right to private and family life. The case concerned Mr Sudita Keita, a stateless person whose legal status in Hungary was uncertain for a period of almost 15 years, without access to healthcare, employment or the enjoyment of his private life. Hungary failed to provide an effective and accessible procedure that would allow him to regularise his stay in the country and end this uncertainty (you can read a detailed case note here).
The repercussions of an uncertain residence status
Mr Sudita Keita arrived in Hungary in 2002 without any valid travel documents. He is of Somali and Nigerian descent, but the Hungarian authorities were unable to return him to Somalia during the civil war, and the Nigerian embassy in Budapest had refused to recognise him as a national. Between 2002 and 2017, his attempts to regularise his residence status were unsuccessful.
The main obstacle was that the law required persons applying for stateless status to be “lawfully” staying in the country. After lengthy proceedings, in 2015 the Hungarian Constitutional Court declared that the “lawful stay” requirement was unconstitutional and contrary to the 1954 Convention relating to the Status of Stateless Persons (‘1954 Convention’). The requirement was removed, and Mr Sudita Keita was ultimately granted stateless status in October 2017. However, this followed a period of 15 years of uncertainty about his status with significant repercussions on his access to healthcare, employment and his ability to marry and pursue a family life.
In this week’s judgment, the European Court of Human Rights (‘the Court’) reiterated the principles outlined in its earlier ground-breaking ruling in Hoti v. Croatia. Article 8 protects the right to develop relationships, and the social ties between a person and the community in which they live are important aspects of a person’s private life and social identity. Although the ECHR cannot be interpreted as guaranteeing a right to reside or a particular type of residence permit, the authorities must offer some solution for stateless people to be able to enjoy their right to private and family life.
States’ obligations to provide effective and accessible procedures
The rights protected under the ECHR are not theoretical, they must be practical and effective. Although Hungary had an established statelessness determination procedure, until 2015 it was only accessible to those lawfully staying in the country and thus prevented vulnerable stateless people from effectively accessing the protection to which they were entitled.
Applicants for stateless status must not have requirements imposed on them that they are unable to fulfil by virtue of their statelessness. The Court recognised that the requirements imposed by Hungarian law on Mr Sudita Keita made it practically impossible for him to be recognised as stateless and perpetuated a situation of uncertainty, which is contrary to the principles of the 1954 Convention and to the fundamental rights protected by the ECHR. This is particularly relevant in the lives of stateless people, who typically face obstacles in accessing documentation, providing evidence and demonstrating ties to a country, as most of them have been living on the margins of a society that refuses to acknowledge their identity.
For this reason, the Court reinforced that Article 8 imposes a positive obligation on States to provide an effective and accessible procedure, or a combination of procedures, enabling the applicants to have the issues of their further stay and status in the country determined with due regard to their private-life interests. Hungary failed to comply with this obligation, in violation of Article 8.
An integrated approach to statelessness
The Court has been progressively developing its caselaw on the protection of stateless people. Although early judgments considered statelessness as an added vulnerability in the context of other issues, the Court has increasingly been embracing the international legal framework for the protection of stateless people and analysing new cases through the lenses of a stateless person. Beyond addressing related issues, such as the right to a nationality (see Genovese v. Malta) and the unlawful detention of stateless persons (see Kim v. Russia), in recent cases the Court considered that the applicants’ statelessness was an “important element in the case” (§35 Sudita Keita v. Hungary and §128 Hoti v. Croatia).
The Court explicitly stated that it is contrary to the principles of the 1954 Convention to impose on stateless individuals, requirements that they are unable to fulfil. These requirements result in long periods of legal limbo and uncertainty in the absence of effective routes to regularisation for stateless people. The Court has shown that States’ obligations towards stateless persons flow from an integrated approach to international law and human rights, with due consideration to the EHCR and international legal instruments (such as UN Conventions and guidelines).
As the ECHR has been ratified by all Council of Europe member states, the Court’s arguments further promote and underscore the compelling need for all European countries to adopt statelessness determination procedures leading to the identification and protection of stateless persons. More information on national developments in this area is available in our Statelessness Index, and a discussion of avenues to litigate for statelessness determination procedures can be found in our Discussion Paper 09/14.
Statelessness is an issue that is too often marginalised, but the seeds of joint advocacy efforts with our members and partners have recently been blossoming across different areas of our work. We are witnessing greater awareness of statelessness in Europe and progressive engagement by the European Court of Human Rights as well as other national, regional and international bodies. These decisions are highly influential on national law and practice.
Almost 10 years after one of the first ground-breaking judgments on statelessness, Kurić and Others v. Slovenia, it is exciting to see that the protection of stateless persons is advancing in the judicial arena and to be a part of this change. Having recently joined ENS as Legal Policy Officer, I will have the opportunity to closely follow the impact of recent jurisprudence from the European courts in the lives of stateless persons. With our enhanced capacity, we will closely monitor judicial developments in Europe and focus on supporting our members in the implementation of national law and practice with full respect for human rights.
Photo: Zairon (Wikipedia - Creative Commons)