#StatelessnessINDEX shows opportunities to protect stateless people in Europe, but we must act now

Patrícia Cabral, Legal Policy Coordinator, ENS
/ 10 mins read

This week we launched an update of our Statelessness Index, a comparative tool to assess how 30 European countries protect stateless people and the steps they are taking to end statelessness. Analysing the changes from the last two years, this update shows that, while there is willingness to address statelessness in many countries, implementation in practice has not significantly improved and Europe is still failing to live up to its international commitments.

European flags

In 2018 we launched the Statelessness Index to give stakeholders an easy way to compare differences in law and policy, and identify good practices and areas that need to be improved in countries across Europe. Five years on, the Index holds up-to-date comparative data and analysis for 30 countries, including Montenegro, Romania, and Sweden that were launched last year. With over 43,700 users, the Index has become an important tool to raise awareness of statelessness, and to provide an evidence basis for much needed advocacy and litigation to end statelessness and improve the protection of stateless people.

Intended to be used as an instrument for impactful change, the Statelessness Index also allows us to support governments and key stakeholders in identifying the gaps that urgently need to be addressed, as well as informing them about best practice examples from across Europe. We are incredibly grateful to our country partners, who play an essential role in providing accurate and up-to-date information that allows the Statelessness Index to remain a live tool for monitoring progress.

Watch the recording of the webinar where we talked about what has changed recently, and how to move forwards.

High hopes, slow progress

Reflecting on the changes that we have seen over the last two years, the picture is rather mixed and tangible progress has been limited. There is cause for optimism, especially with ongoing discussions to introduce legislative amendments that could better protect stateless people in Albania, Belgium, Ireland, Germany, Malta, the Netherlands, Portugal, and Switzerland. These welcome reform processes provide an opportunity for governments to live up to their commitments, hear the voices of stateless people, and find solutions that respect and fulfil their human rights.

Either through accession to core statelessness conventions or through international human rights treaties, all European countries have obligations to protect stateless people, uphold children’s right to a nationality, and implement nationality laws in a non-arbitrary and non-discriminatory manner. But full implementation of these commitments is yet to be seen, and not enough governments are taking action in a sufficiently dynamic way to end statelessness in Europe. Some countries have initiated new reforms to address statelessness, but then fall short of international standards when it comes to the details, which means that the real impact is not what we hoped for. Other countries have either not taken any steps in recent years, or only made minimal changes that do not significantly improve the situation of stateless people.

In fact, in recent times we have seen that much reform has been driven by the courts instead of political will. In 2021 and 2022, there were several court judgments in Spain, Czech Republic, Bulgaria, Hungary, and Switzerland that set important precedents to uphold the rights of stateless people. The European Court of Justice has also set ground-breaking standards for children of rainbow families and in the context of acquisition of nationality. These judgments should prompt governments to rethink inadequate laws and practices, as has been the case in Austria following the landmark judgment on JY.

Our analysis shows that urgent action is needed in four key areas:

  1. Introducing statelessness determination procedures that are fair, accessible, and lead to dedicated protection
  2. Strengthening safeguards to prevent childhood statelessness
  3. Addressing discrimination as a route cause of statelessness
  4. Improving identification of statelessness in data collection systems, mapping studies, and in the context of asylum and detention

Each of these four areas warrants further examination in turn.

1. Protection of stateless people is patchy across the region

In the last decade, seven European countries have introduced procedures to determine who is stateless on their territory and grant them the rights and protection they are due under the 1954 Convention (SDPs). However, fundamental protection gaps still remain, as only 11 of the 30 Index countries have SDPs in place, some with significant shortcomings.

Albania introduced a statelessness determination procedure in 2021, but we are still awaiting a government instruction to operationalise the procedure. In the Netherlands, the long-discussed legal reforms on statelessness were adopted by the House of Representatives in 2022 and are currently before the Senate. Positively, this reform would establish a judicial procedure to determine statelessness which is much needed in the Netherlands, but the current proposal does not lead to residence rights. Belgium has a judicial procedure to determine statelessness, but recognition does not lead to any protection or rights. Although the Belgian government has now proposed to introduce a residence permit for stateless people, the proposal has serious shortcomings which cast doubts on whether it will actually improve the situation of stateless people in Belgium. Switzerland has an administrative procedure to determine statelessness, but it is still not a formalised procedure established in law, although this may be changing soon.

Other countries have only limited ways of identifying who is stateless, if any. This leaves thousands of people in limbo facing immense hurdles to accessing basic rights that we all take for granted. There are good examples from across the globe which demonstrate how introducing SDPs is beneficial both for the individuals concerned and the State.

Acknowledging that many stateless people impacted by the war in Ukraine may have fallen through the gaps, this year the Index presents a new analysis on temporary protection for stateless people, including good practice in Spain and Switzerland.

2. More children are growing up stateless in Europe

Starting on a positive note, Spain has led the way in providing examples of good practice in the prevention of childhood statelessness in 2022. A ground-breaking judgment recognised for the first time the Spanish nationality of a child born in transit to Spain, in order to prevent statelessness. Another court ordered the authorities to register the birth of a child also born outside of Spain, as the birth certificate was essential for the child’s legal identity and to acquire a nationality.

However, almost half of European countries still lack full safeguards to prevent children being born stateless on their territory. ENS, civil society and the UN have raised the alarm about the impact of growing up without a nationality. The negative impact of inadequate safeguards can be seen in Austria. Until recently, statelessness in Austria mainly occurred in a migratory context, but over 70% of people currently registered as stateless or with undetermined/unknown nationality were born in Austria, a sharp increase over the past five years.

The Index shows that even where States do have safeguards in place to allow children born stateless in their territory to acquire nationality, these are not always implemented as intended. In Belgium, Italy, Portugal, and Serbia, safeguards that should be automatic require children to prove their statelessness. Several countries only have partial safeguards, impose a residence requirement, or are dependent on the residence status of the parents. In Croatia and Malta, existing safeguards appear not to be applied, while Switzerland, Romania, and Cyprus have no safeguards at all.

There are also numerous barriers to birth registration in the majority of Index countries, along with a systemic lack of mechanisms to determine a child’s nationality status, which further prevents children from acquiring a nationality as soon as possible after birth. New Index data also confirms that children of LGBTIQ+ families from across Europe are facing challenges in having their births registered with the names of both parents, which may impact their ability to acquire identity documents and access nationality.

3. Ending statelessness within our generation

To end statelessness within our generation, safeguards to prevent statelessness in the future are not enough and governments must implement targeted reduction measures. The only way to ultimately resolve a person’s statelessness is for them to acquire a nationality, which is why having facilitated routes to naturalisation as per the 1954 Convention is essential. Positively, in Ukraine the residence period required for a stateless person to apply for naturalisation was reduced from five to three years, but the Index shows that the general trend is the opposite. Not all countries have favourable provisions for stateless people to acquire nationality, even in countries where there may be facilitated naturalisation for refugees. Even when it is facilitated, there are other significant barriers to naturalisation in many countries, ranging from lengthy or complex residence requirements in Croatia, Cyprus, Hungary and Spain, prohibitively high fees in Austria and the UK, to inflexible documentation requirements in the Netherlands, and criteria related with ‘good character’ or ‘national interest’ in many countries. Nationality is not scarce and granting nationality to one person does not take it away from another, but it could instead mean that a person finally has a sense of belonging to a country and that statelessness is not passed on to the next generation.

Another crucial aspect of ending statelessness is assessing how States’ progress towards the reduction of their in situ stateless populations, by implementing measures to identify and eliminate discriminatory laws, policies, and practices that perpetuate intergenerational (risk of) statelessness. Minoritized and marginalised populations are especially impacted by this, and as follow-up from the 2019 Poznan Declaration, several Western Balkan countries committed to ensuring universal civil registration and ending Roma statelessness and have taken some steps in that direction. We see, however, that the progress is still slow and not addressing discrimination as a route cause is resulting in poor implementation. In 2020, North Macedonia introduced a new law enabling people at risk of statelessness without personal documentation to apply for a ‘special registration’, but several gaps in its accessibility and implementation have been reported in practice, which will hopefully be resolved as there are ongoing consultations with the government, as well as litigation on this. It is essential that States tackle discrimination as a root cause of statelessness and continue working towards the introduction and adequate implementation of targeted measures to reduce statelessness.

4. Stateless people are invisible in the data

Finally, but with an important impact on reform efforts, population data is one of the most problematic areas in the Index. Collecting accurate, disaggregated data on statelessness and its risks is crucial to implement and review policies, prevent discrimination, and find sustainable solutions to either resolve the nationality status of in situ stateless populations or grant adequate protection to those who cannot otherwise return to their countries of origin or habitual residence.

However, quantitative and qualitative data on stateless populations is scarcely available. When data is collected, it often contains overlapping categories such as ‘Palestinian’ or ‘nationality unknown’, or is inconsistent with other data collected by different agencies in the same country. Several Index countries held population census over the last few years, but there are sometimes concerns about the methodology used and the reliability of data. For example in Croatia, the results vary significantly from UNHCR’s estimates, and in the Czech Republic the category 'no citizenship' included in the previous census from 2001 no longer appeared in 2021. The much anticipated International Recommendations on Statelessness Statistics will help provide a framework for accurate identification, but States must still take responsibility to collect the data.

The lack of identification of statelessness also leads to an increased risk of unlawful and arbitrary detention, as evidenced by a more detailed analysis that we published in the Index this year. With well-documented concerns about increasing recourse to immigration detention in Europe and related barriers to return, statelessness is still not considered a factor increasing vulnerability and it is rarely juridically relevant in decisions to detain. Only a handful of countries require a country of removal to be identified prior to detaining someone, or an assessment of whether a reasonable prospect of removal exists (or continues to exist). Identifying statelessness, especially in the refugee context, is therefore an essential step to address it and prevent arbitrary detention.

Together we can solve statelessness

Seeing a problem is the first step towards fixing it. While much needs to be done to end statelessness in Europe, it is exciting to see that the Index is increasingly being used by practitioners, civil society, stateless changemakers, governments, academics, journalists, and others who have an interest on statelessness or come across it in their work. So although in recent years the progress has not been as impactful as we wished for, we are confident that awareness on statelessness has considerably improved, and we are hopeful that this will help drive change in the near future.

We encourage everyone to utilise and share the Index as a learning tool to empower people to take action to address statelessness. To continue a conversation on how to solve statelessness, join us at our pan-regional conference in Madrid, stay involved, or get in touch.

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