Statelessness in Austria has been a hidden issue, with stateless people and the problems they face largely invisible. In an attempt to gain a greater understanding of the situation in the context of its global mandate for the identification and protection of stateless persons, as well as the prevention and reduction of statelessness, UNHCR undertook a comprehensive research following similar studies in a number of other European countries. The findings are now available in the publication “Mapping Statelessness in Austria“.
Upon embarking on the research and information gathering for this study, we quickly realised there has not been much awareness of the matter by authorities nor civil society. As part of the research, UNHCR analysed existing statistical data, the legal framework and met with stakeholders including authorities, NGOs and lawyers. Additionally, and most importantly, we spoke to stateless persons to learn about the multiple challenges they face in their daily lives and ensure their stories are heard. By integrating individual experiences of stateless persons living in Austria the report illustrates how children, men and women can become and/or remain stateless whilst residing in Austria.
Austria is party to the 1954 UN Convention related to the Status of Stateless Persons (1954 Convention), the 1961 Convention on the Reduction of Statelessness (1961 Convention) and the European Convention on Nationality, as well as to a range of other relevant international instruments. Although Austria is a state party to the two central international agreements on statelessness, UNHCR identified gaps not only in the implementation of its international obligations with regards to the protection of the fundamental rights of stateless people, but also the prevention and reduction of statelessness.
Uncertain scale, identification and protection
The report points to difficulties in establishing all the facts around the scale of statelessness in Austria, including the difficulty of finding a reliable figure of the total number of stateless persons in the country. Statistics Austria’s demographic information for 1 January 2017 records 13,219 persons registered as “stateless”, of “unknown nationality” or “undetermined nationality”. However, this figure relies on registration practices at the municipal level, gathered in the Central Register of Residents with uncertainty about the varying interpretations in the different municipalities when registering persons under these categories. This is particularly likely due to the lack of a designated procedure to determine a person’s stateless status. Moreover, some potentially stateless persons – especially those lacking a residence permit – may not register their residence. The other available statistical data only records particular sub-groups of stateless persons (e.g. stateless persons holding residence permits or those in the asylum system). In that regard, the report outlines several recommendations to improve the gathering of data on statelessness in Austria.
UNHCR recommends the introduction of a specific, accessible and dedicated statelessness determination procedure, which would enhance both the identification of statelessness and the protection of stateless persons. The procedure should be conducted by a specialised and central authority, with expertise, required resources and an effective remedy, in accordance with the 1954 Convention and complying with the guidelines for such procedures set out in UNHCR’s Handbook on Protection of Stateless Persons.
Regarding the identification and protection of stateless persons; Austria’s accession to the 1954 Convention in 2008 is a welcome acknowledgement of the protection needs of stateless persons and Austria’s obligations towards them. However, the study found that inconsistencies and gaps in law, policy and practice significantly limit the enjoyment of the rights enshrined in the 1954 Convention by stateless persons.
A major weakness in the area of protection of stateless persons is the lack of a specific statelessness status and the possibility to grant a residence permit based on the individual’s statelessness. Currently, the status and rights of stateless persons depend largely on whether or not they qualify for a residence status because of their family status, length of stay in Austria, protection needs as a refugee or subsidiary protection holder, or their special professional qualifications. Many subjective rights are attached to such a residence permit (for example the right to work, to social support, health insurance, as well as identification and travel documents). Not being issued with any identification documents, reinforces an irregular status and puts them at risk of detention for the purpose of removal. Since their status as stateless persons does not qualify them for a residence permit, stateless people who are in an irregular situation or whose applications for international protection have been rejected often receive an administrative decision to terminate their residence, envisaging their deportation to their country of previous residence. Stateless persons are granted a so-called “tolerated stay” only once it has been established that, through no fault of their own, they cannot be returned to the country of their previous residence or any other country with which they have a link. However, this is not a residence permit and has limited rights attached to it. It can become possible for these persons to acquire a residence permit (and in this respect they are in the same situation as any other non-removable aliens) only after at least one year of “tolerated stay” in Austria. Thus, in many cases, stateless persons cannot fully enjoy their rights as set out in the 1954 Convention.
Many of the stateless individuals without residence permits interviewed for the study were particularly concerned about what they considered their destitution and enforced idleness. One respondent said: “The most difficult aspect of statelessness is the lack of a normal life. One cannot work, one does not have any income. One lives here, but cannot do anything. […] I have already been struggling with this situation since 2006. […] I survive. […] A real life – I do not have.”
UNHCR believes that identifying stateless persons and granting them basic rights would allow their full participation and contribution to Austrian society.
Prevention and reduction of statelessness
On the prevention of statelessness, Austria played a pioneering role as one of the first five States Parties to the 1961 Convention, which contains a set of international obligations in this area. The Austrian Nationality Act foresees important safeguards to prevent statelessness resulting from renunciation, deprivation or revocation of Austrian citizenship.
However, a few gaps remain and may lead to new cases of statelessness arising in Austria.
The most significant gap concerns the situation of children born stateless in Austria. The Nationality Act foresees a long waiting period (18 years) and additional requirements for their facilitated naturalization. One such requirement is the need to apply between the age of 18 and 20 – this is not in full accordance with the 1961 Convention, which requires a window of at least three years until the age of 21. Moreover, in UNHCR’s view this is also at variance with the Convention on the Rights of the Child, amongst other international human rights instruments. UNHCR thus advocates for an acquisition of nationality at birth or as soon as possible after birth, since it is unlikely to be in the best interest of the child to remain stateless.
On the reduction of statelessness, the report notes the absence of a provision in the Nationality Act that would facilitate the naturalization of stateless persons and thus their access to a durable solution. Rather, stateless persons are treated like other non-nationals in this respect, although stateless persons, unlike foreigners, cannot rely on the protection of another State and according to the 1954 Convention should receive more favourable treatment in naturalization proceedings.
Austria pledged its readiness to review the implementation of the 1954 Convention regarding procedures for the determination of statelessness on the basis of guidelines by UNHCR at a December 2011 ministerial meeting to mark the 60th anniversary of the 1951 Convention relating to the Status of Refugees and the 50th anniversary of the 1961 Convention. UNHCR hopes that the mapping study will help inform that review.
In 2014, the year of the 60th anniversary of the 1954 Convention, UNHCR launched the #IBelong Campaign to end statelessness by 2024. A key component of the Campaign is the Global Action Plan, which comprises 10 Actions that States are encouraged to take, with the support of UNHCR and other actors, to resolve major instances of statelessness, and to prevent the emergence of new cases. As the mapping study highlights, in the Austrian context there is a particular need to act on “[e]nsur[ing] that no child is born stateless”, “grant protection status to stateless migrants and facilitate their naturalization” and “improve quantitative and qualitative data on stateless populations”.
It is our aim for this report to equip practitioners and policy makers with a better understanding of the legal framework, policy and practice in the area of statelessness. Lastly and crucially, we hope the report’s findings and recommendations will positively impact on actions to improve the situation of stateless persons in Austria.