Bridging the gap – can a Council of Europe initiative and intergovernmental conference next week deliver improved protection for stateless people?

Chris Nash, Director of the European Network on Statelessness
/ 7 mins read

I have lost count of the number of determined but wistful expressions I have seen on the faces of stateless people desperately seeking to end their situations of protracted limbo resulting from their lack of a nationality. Equally, I have lost count of the times I’ve joined other colleagues and community activists in calling on European governments to take the decisive action necessary to resolve this by putting in place dedicated statelessness determination procedures (SDPs) in order to meet their international obligations to identify and protect stateless migrants on their territories.

Council of Europe

Council of Europe statelessness initiative and conference on 23/24 September

The identification of statelessness and the rights and protection needs of stateless people will be addressed at a major international conference hosted by the Council of Europe and UNHCR in Strasbourg on 23/24 September. This, at least, provides some hope that calls for reform are not falling on entirely deaf hears. But it will need more than talk alone to make positive change a reality.

Back in 2014, ENS’s first ever campaign urged European States to introduce dedicated procedures to identify and protect stateless people. Over the last three years we have particularly prioritised concerted engagement with the Council of Europe’s European Committee on Legal Co-Operation (CDCJ) on an initiative to improve the identification and protection of stateless people. After I was initially invited to provide expert input to a CDCJ plenary meeting back in November 2017, we followed this up by holding a public event in the Council of Europe in October 2018 along with subsequent engagements seeking to further support and encourage this important initiative.

We were pleased when in late 2019 the CDCJ adopted a report from an ad hoc expert meeting earlier that year which paved the way for the international conference happening next week. It was also hugely welcome that the CDCJ report highlighted the potential of the ENS Statelessness Index as a tool to support monitoring and help build capacity in this area – explicitly acknowledging that not only is the Index an important tool for lawyers and NGOs but ‘…also for government officials looking for good practices when drafting new legislation … [and] for international organisations working on standard-setting, including the Council of Europe’.

New ENS Statelessness Index briefing on the determination and protection of stateless people

Conscious of this endorsement, we have been working hard to prepare our new Statelessness Index Thematic Briefing: Statelessness determination and protection in Europe: good practice, challenges, and risks in time to launch it ahead of the conference so as to help inform discussions among Member State representatives and other actors who will be present in Strasbourg or joining online.

Briefing cover
The briefing draws on Statelessness Index data from 27 European countries assessing their law, policy and practice on the determination and protection of stateless people.

Analysis and discussion on this topic could hardly be more timely given the sobering reality that currently far too many countries that acceded to the 1954 Convention many years - or even decades  - ago, have since been paying lip service to their obligations by failing to introduce effective laws and procedures to identify and protect stateless people. As set out in our new briefing, only ten countries in the Statelessness Index have dedicated SDPs in place, which lead to a statelessness status. France, Hungary, Latvia, and Moldova are among the countries we assess to have the best protection frameworks.

Bulgaria, Italy, Spain, Ukraine, and the UK also have SDPs leading to a statelessness status but are assessed less positively due to shortcomings in their procedures. For example, in Bulgaria, the protection afforded to recognised stateless people is significantly lower than the standard established by the 1954 Convention; or in the UK, some stateless people are barred from statelessness status due to exclusion criteria that go beyond those permitted by the 1954 Convention. In Italy, although there is an administrative and a judicial procedure, the parameters for determining statelessness are not clearly established in law. Hence, even where we welcome countries having in place dedicated SDPs, our briefing highlights the further work necessary to bring these into line with international norms and good practices.

Perhaps more worrying is the fact that so many countries currently lack dedicated SDPs altogether. In Belgium the family courts can determine statelessness, but procedural safeguards are lacking, and determination does not lead to a residence permit nor 1954 Convention rights, so this cannot be considered an SDP. In Albania and Serbia, there is a statelessness status in law but no procedure to determine this. Almost all other countries in the Statelessness Index only have mechanisms through which some stateless people may be able to have their statelessness identified ad hoc or access a residence permit and some rights, for example through immigration, international protection, humanitarian, or nationality related procedures. However, their purpose is not to determine statelessness, resulting in significant protection gaps that are outlined in more detail in the briefing.

Our key recommendations

ENS’s new briefing outlines four key areas where urgent action is needed by governments, legislators, and decision-makers to ensure that stateless migrants and refugees in Europe can access the rights and protection they are due under international law and resolve their statelessness.

  1. Introduce fair and accessible SDPs in line with norms and good practice: States should put in place measures to ensure equal access to SDPs regardless of residence or documentation status. There must be adequate procedural safeguards including the right to an interview, shared burden of proof, standard of proof in line with asylum procedures, access to legal aid, and a statutory right to an independent appeal. Applicants for statelessness status should also be granted a temporary right to stay as well as the right to work, healthcare, accommodation, education, basic social security, and protection from detention and expulsion while their application is being processed.
  2. Ensure that SDPs lead to a dedicated protection status for people recognised as stateless: A renewable residence permit should be granted to recognised stateless people. They should be granted a travel document and the right to work, education, family reunification, healthcare, accommodation, and social security in line with nationals, as well as the right to vote.
  3. Provide specialised training on statelessness and nationality rights and ensure cooperation between relevant public authorities: Regular training on statelessness and nationality rights should be provided to public authorities and others who may encounter stateless people, including government bodies, lawyers, and the judiciary. Cooperation should also be established between public authorities who may encounter stateless people, as well as cross-referral mechanisms between asylum, detention and return, and statelessness determination procedures.
  4. Ensure that stateless migrants and refugees have an accessible route to naturalisation to resolve their statelessness: Naturalisation procedures should be expedited for stateless people who should also be exempted from requirements such as citizenship or integration tests, language testing, application fees, or minimum income or documentation requirements, particularly those they cannot meet due to the nature of their statelessness.

What needs to happen next

The Council of Europe/UNHCR conference next week Statelessness and the right to a nationality in Europe: progress, challenges and opportunities hosts several influential and important speakers. Its stated aim is to provide an opportunity for Member States, national authorities, international organisations, and civil society representatives including stateless activists and representatives of communities affected by statelessness, to exchange views on how to successfully contribute to ending statelessness in Europe and guarantee the fundamental rights set out in relevant international and regional treaties. The conference programme declares that its expected results are to take stock of the situation of statelessness in Europe and renew Member States’ commitment to address the issue. And that it seeks to reach consensus and identify concrete actions that need to be put in place by Member States to accede to and/or work towards full implementation of the relevant Statelessness Conventions in order to effectively prevent and reduce statelessness in Europe.

Above all, it is crucial that all European countries use next week’s conference as a springboard to urgently begin the domestic policy and legislative processes necessary to establish or improve dedicated SDPs. Ukraine is the latest European country to establish an SDP, and there are also seeds of progress in some other countries, but the pace of reform remains too slow. Proposals to introduce a new procedure have been before the Dutch Parliament for several years without yet having been adopted so it’s essential that the Dutch Government now addresses this. Having finally acceded to the 1954 Convention in 2019, Malta must quickly establish an SDP in order to be able to implement its obligations towards stateless people in practice. Austria, Czech Republic, Germany, Ireland, Malta, Norway, and Portugal, among others, have also all acceded to the 1954 Convention but are yet to establish dedicated procedures to identify and determine statelessness, and ensure Convention rights are granted to stateless people in practice.

Ultimately, we need to get to a point where every country in Europe has a dedicated SDP fully in line with international norms and good practices. This is also essential if UNHCR is to achieve the objectives it has set itself under its #IBelong campaign, which seeks to eradicate statelessness by 2024. The conference in Strasbourg next week certainly has the potential to garner much-needed momentum, but it will require concerted follow-up action to make this a reality. For our part, as a civil society network, we stand ready to constructively support these efforts, including by maintaining our Statelessness Index as an important tool to help benchmark and monitor progress.

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