Over the years, ENS has collected numerous testimonies of stateless people from all over Europe. Their stories are very personal, but often point to similarities in their experiences of isolation and legal limbo.
In other respects, however, their stories are very different. Some stateless people only realised that they had become stateless after they fled their country of residence. Other people were left stateless when their state dissolved. Others still were born and lived their entire lives in a country, but are not able to acquire nationality, for instance because they lack the right documents. The question for those working in the field is how can we better understand these different stories of statelessness so that we can help stateless people resolve their legal predicament? After all, everyone has the right to a nationality.
Recently, a collection of essays on statelessness was published in a book titled “Understanding Statelessness”. You can read more about the book in a previous ENS blog co-written by the editors. In one of the chapters, I offer one lens for understanding different stories of statelessness and our responses thereto by examining two contexts of statelessness that are often discussed: statelessness in situ – i.e. people who are stateless in their ‘own country’ – and statelessness in the migratory context.
My examination of these different contexts in literature and international law shows that people who are stateless in situ are commonly in a non-migratory situation and remain stateless in their ‘own country’, often since birth. They are long-standing residents (or were residents at the time of state succession) with close personal and family ties to the country and a clear intention to stay. They also do not have such ties to other countries. On the other hand, stateless people in a migratory context are persons who are migrants or have a migratory background. They have no or no meaningful connections to the country they live in.
Clearly then, the point of distinguishing between these two contexts is to differentiate between stateless individuals with and without a significant attachment to a certain country. Indeed, when considering literature and international law it is confirmed that it is legitimate to make a distinction between people with more or less significant ties to a country. Such distinction can also have consequences for practical responses to statelessness. Literature and international ‘soft law’ – in the form of the UNHCR Handbook on the Protection of Stateless Persons, which provides authoritative guidance to states on the implementation of the 1954 Convention – explicitly demonstrate this. People who are stateless in a migratory context should be able to obtain protection as a stateless person (including access to facilitated naturalization) from a state through determination of statelessness. People who are stateless in situ have links with the country they live in and have no real connection to another country and should therefore be granted nationality. Practically, this could be achieved through targeted nationality campaigns for instance.
The real question remaining then is: how is this useful in practice? In order to ‘test’ my findings and develop working definitions of the two contexts of statelessness, I analysed some of the testimonies collected by ENS. One of them was the case of Sarah. Sarah tells us how she fled from Congo to the Netherlands and has been stuck there after her asylum application was rejected. As a case, her testimony makes clear that she has been in the Netherlands for considerable time now. However, she fled from Congo to the Netherlands, which makes her a migrant and also suggests that the migratory context is a logical starting point. Is it true then that she has no or no significant ties to the Netherlands (yet)? The answer appears to be ‘yes’. The case does not mention any meaningful connection to the Netherlands, for instance through family, birth or even through a job. Ties (through her parents) to Rwanda and Congo do seem to be present though. Sarah has also actually lived in the latter country, and she seems to have the strongest attachment to it. As such, Sarah is stateless in a migratory context and should be able to obtain protection as a stateless person in the Netherlands. Unfortunately, the protection of stateless people remains a problem in the Netherlands because there is still no statelessness determination procedure. You can read more about developments in this regard in this previous ENS blog.
Sarah’s case demonstrates that it is very possible to apply the contexts of statelessness in practice and that they can be helpful in identifying the right response to statelessness. Nonetheless, practice is not always – or perhaps more often not – so clear-cut. Other cases studied in the chapter show this as well. A helpful tool to apply to different contexts of statelessness proved to be a proportionality test. As was mentioned before, everyone has the right to a nationality – preferably a nationality that matches with the personal and social situation of the person concerned. Using a proportionality test that asks what ‘mechanism’ is proportional to employ to achieve this – a statelessness determination procedure or simple recognition of nationality – can help to decide on whether a person should be considered stateless in a migratory context or stateless in situ. In the case of Sarah, for instance, the appropriate response would be recognition and protection as a stateless person (as well as access to facilitated naturalization), i.e. a statelessness determination procedure, because of her migratory status and lack of ties to the Netherlands.
For the purpose of appropriately responding to statelessness, making a distinction between ‘statelessness in a migratory context’ and ‘statelessness in situ’ can thus be helpful. This also makes sense from a legal perspective, because international legal instruments support such a distinction and difference in response, and sometimes even explicitly refer to it. It must be admitted that applying the two contexts in practice remains a challenging exercise, as the facts of the case must be weighed taking the principle of proportionality into account and using the distinguishing features of the two contexts of statelessness. The book chapter contains further examples of how to do this and sheds more light on the use of the concepts in hope that we can understand statelessness better.
If you want to obtain your own copy of Understanding Statelessness, published in June 2017, it is currently available for order here. Readers of ENS can obtain a 20% discount by using the code FLR40. If you want to order a review copy of the book, please do so here.
