Without a nationality but not stateless: the recent judgment of the Swiss Federal Supreme Court in a case concerning the nationality status of a refugee originating from Western Sahara

The facts

On 4 August 2021, the Swiss Federal Supreme Court (FSC) issued a final decision concerning the nationality status of a man originating from Western Sahara, who has resided in Switzerland as a recognised refugee since 1999 (case 1C_44/2021). In 2019, the applicant and his two children, one of whom is a minor, received a letter from the Cantonal Population and Migration Office, summoning them for the collection of their biometric data. In this letter their nationality was indicated as ‘Moroccan’, although their settlement permits indicated Western Sahara as their country of nationality. The man brought the issue to the attention of the Swiss Secretariat for Migration (SEM), the authority in charge of asylum and statelessness determination and responsible for recording third-country nationals and stateless persons’ personal data, and asked for this perceived mistake to be corrected. The SEM explained that, while his and his children’s Sahrawi origins were not disputed, as of 2018 all persons originating from Western Sahara were registered as being Moroccan, because Switzerland does not recognise the Sahrawi Democratic Republic (SADR). Since Switzerland also does not recognise Morocco’s sovereignty over Western Sahara, later the SEM decided that all persons of Sahrawi origin would be recorded as having ‘no nationality’, and informed the applicant accordingly. The applicant insisted on having his and his children’s nationality registered as Sahrawi, but the SEM refused.

In November 2019, the applicant submitted an appeal to the Federal Administrative Court (FAC), claiming that, by imposing on him the ‘no nationality’ label, the authorities had violated his right to be heard, his right to private and family life, his freedom of movement, as well as the principle of good faith. The FAC recognised that the SEM had violated the applicant’s right to be heard by changing his nationality status into ‘Moroccan’ without informing him, but found that the violation had been counteracted by the applicant’s ability to appeal this decision. The Court also dismissed the applicant’s other claims.

In January 2021, the applicant appealed this decision before the FSC , restating his claims. The Court rejected the appeal and reaffirmed the legitimacy of registering individuals from Western Sahara as having ‘no nationality’. In particular, the Court argued that the approach adopted by the SEM was in line with the Federal Law on the Protection of Personal Data, as well as the Federal Directive on the Collection and Amendment of Personal Data in SYMIC (acronym for the French Système d’Information Central sur la Migration), and therefore not arbitrary. Moreover, the Court maintained that the practice of registering individuals originating from Western Sahara as having ‘no nationality’ is justified by the fact that Switzerland does not recognise either the SADR or Morocco’s sovereignty over Western Sahara, and pursues Switzerland’s public interest by contributing to Switzerland’s independence, neutrality and prosperity. The Court recognised that the applicant may experience some difficulties in his professional and private life due to the label ‘no nationality’, but concluded that those are proportionate to the objective pursued. Paradoxically, the Court also argued that the use of the label ‘no nationality’ does not lead to a situation of statelessness, since Switzerland does not have the competence and authority to withdraw the applicant’s Sahrawi nationality.

A problematic use of the label ‘no nationality’

The FSC ’s judgement reflects important deficiencies in law and practice that compromise the identification and protection of stateless persons in Switzerland. A first point of concern is the way in which the label ‘no nationality’, as distinguished from ‘stateless’, is used. The Federal Directive on the Collection and Amendment of Personal Data in SYMIC, to which the Supreme Court referred in its decision, provides that the label ‘no nationality’ should be used in two cases:

1) when, based on the available information, it appears that the person does not hold the nationality of either their country of origin or any other country in the world;

2) when the person originates from a state that Switzerland does not recognise, as in the case under discussion. Virtually all persons falling under these two categories meet the international legal definition of a stateless person contained in Article 1(1) of the 1954 Convention relating to the Status of Stateless Persons, which Switzerland ratified. However, the label ‘stateless’ can only be used when the person has been officially recognised as such by the SEM (para 3.3).

While in principle it is reasonable to use the label ‘stateless’ only after a formal determination has been carried out, those temporarily registered as having ‘no nationality’ in the context of asylum or other procedures should promptly and systematically be referred to the statelessness determination procedure to clarify their nationality status. This is not happening because the statelessness determination procedure is virtually never initiated ex officio, although the Federal Act on Administrative Procedure—which governs the statelessness determination procedure in the absence of a specific legal framework—provides for this possibility. To start the procedure, an application by the person concerned is needed, but stateless persons are often unaware of the possibility of applying for stateless person status or have difficulties understanding and navigating the procedure. As a result, some stateless persons remain registered as having ‘no nationality’, potentially for the rest of their lives. This is problematic, considering that those who are registered as having ‘no nationality’ are usually granted a provisional admission (admission provisoire) , whereas recognised stateless persons obtain a residence permit (permit B), which brings about more rights and after 10 years can be converted into a settlement permit (permit C). For these reasons, in 2018 UNHCR recommended Switzerland avoid using the label ‘no nationality’.

Without nationality, but not stateless?

This case also reveals some confusion around the notion of statelessness among judicial authorities in Switzerland. While the words ‘stateless’ and ‘statelessness’ are mentioned nowhere in the decision of the FAC, the FSC  maintained with puzzling logic that registering the applicant as having ‘no nationality’ does not render him stateless. It is certainly true that Switzerland does not have the competence and the authority to withdraw the nationality of any other country, as argued by the FSC, since the conferral and withdrawal of nationality are matters of purely domestic jurisdiction under international law. It is also true that the international legal definition of a stateless person requires the assessment as to whether a person possesses the nationality of a certain state to be based on the laws and practice of that state. Indeed, Article 1(1) of the 1954 Convention defines a stateless person as someone who is ‘not considered as a national by any State under the operation of its law’. Nevertheless, for Switzerland and most countries in the world, the SADR is not a state. Western Sahara is recognised by less than 50 states and is categorised by the United Nations as a ‘non-self-governing territory’. Accordingly, the prevailing view among states and scholars is that Sahrawis who are habitually resident in the SADR-administered territory or live in another country and have not made any claim to Moroccan protection nor obtained any other nationality must be considered stateless. Conversely, those voluntarily remaining or returning to the part of Western Sahara administered by Morocco and availing themselves of the protection of this country are generally regarded as Moroccan nationals.  Although the decisions of the FAC and FSC do not specify in what part of Western Sahara the applicant was residing, this is not relevant in this case, because Switzerland does not recognise the sovereignty of Morocco over Western Sahara either. Since the applicant does not seem to have relevant links with any other state, it can be concluded that he is not considered as a national by any state in the world, i.e. he is stateless, contrary to what the FSC argued.

Obstacles to the recognition of the statelessness of refugees

In the case under discussion, the label ‘no nationality’ has a relatively limited impact on the applicant’s current rights in Switzerland, because he has been recognised as a refugee and has been granted asylum, and on these grounds, he initially obtained a residence permit and was subsequently granted a settlement permit. Nevertheless, it is important that both refugee status and stateless person status be explicitly recognised, if relevant, as recommended by UNHCR . This way, in case refugee status ceases, the individual can still enjoy protection by virtue of their stateless person status. Until a few years ago, in Switzerland the statelessness determination procedure was automatically suspended if the applicant had also applied for asylum. Thankfully, following a decision of the FAC in 2015, this is no longer the case. Although this is certainly a positive development, there are still obstacles in law and practice to the recognition of the statelessness of refugees. First, applicants for stateless person status must demonstrate that their application is motivated by an interest that deserves protection. In other words, they must establish that being recognised as stateless would have some practical utility for them. Generally, if the applicant has been recognised as a refugee and granted asylum, which is the highest form of protection available to asylum-seekers in Switzerland, the SEM considers that the recognition of their possible statelessness would not improve their situation, and therefore dismisses their application as inadmissible. Although in the case under consideration the applicant did not raise a statelessness claim, this would have presumably been deemed inadmissible by the authorities, since he was recognised as a refugee and granted asylum. A further obstacle to the recognition of the statelessness of refugees lies in the fact that asylum authorities often have little knowledge of statelessness and do not systematically inform asylum-seekers of the possibility of applying for stateless person status, as critiqued by UNHCR. In the case under discussion, it is unclear whether the SEM informed the applicant of the existence of a statelessness determination procedure, what it involves, and what protection the status of stateless person entails.

The impact on the prevention and reduction of statelessness

The case under consideration also demonstrates that the failure to identify stateless persons impairs the prevention and reduction of statelessness. Ideally, the applicant’s children should have already been granted Swiss nationality, being otherwise stateless, as provided for by the 1961 Convention on the Reduction of Statelessness. Although Switzerland did not ratify the Convention, article 7 of the Convention on the Rights of the Child, to which Switzerland is party, requires states to guarantee the child’s right to a nationality. Nevertheless, in Switzerland there is no safeguard in place for otherwise stateless children born on the territory. Despite this major gap, being recognised as stateless, even later in life, would still have some advantages for the applicant’s children. If he was recognised as stateless, the applicant’s minor child could at least benefit from the facilitated naturalisation procedure, that in Switzerland is only available to stateless persons below the age of 18 who have been legally residing in the country for at least five years. However in its decision, the FSC  did not assess the best interest of the applicant’s child, and hastily dismissed the applicant’s claim that his child’s right to preserve his identity had been violated. As far as adult stateless persons are concerned, if they have been officially recognised as stateless, they can apply for naturalisation via the general route. In contrast, persons who are registered as having ‘no nationality’ are usually issued a ‘temporary permit’ (Permis F pour étranger-ère ou admission provisoire), with which they cannot apply for naturalisation. In the case under consideration, the applicant and his children are only eligible for naturalisation because they hold a permanent residence permit based on their refugee status (Autorisation d’établissement ou Permit C Réfugié).

As this case shows, significant barriers persist to the identification and protection of stateless persons in Switzerland. Gaps and deficiencies in law, coupled with the authorities’ limited knowledge of statelessness, leave many stateless persons unidentified and unprotected. The recommendations that UNHCR addressed to Switzerland in 2018 remain valid and in urgent need of implementation.