The time is now: upholding the rights of stateless refugees and migrants in EU asylum and migration law and policy

Nina Murray - Head of Policy & Research, European Network on Statelessness
/ 5 mins read

The EU Pact on Migration and Asylum - long-anticipated by migration and asylum actors - is a set of legislative and policy proposals laid out by the European Commission in September and promoted as ‘a fresh start on migration’. Our detailed analysis of the Pact and its impacts on the rights of stateless refugees and migrants sets out concrete legislative and policy proposals for how to achieve a more harmonised and horizontal approach to statelessness across EU asylum and migration acquis.

© UNHCR/Alfredo D'Amato
Palestinian-Syrian family in Athens; © UNHCR/Alfredo D'Amato

Today, we are launching a detailed analysis of the EU Pact on Migration and Asylum and its impact on the rights of stateless migrants and refugees. The Pact - long-anticipated by migration and asylum actors - is a set of legislative and policy proposals laid out by the European Commission in September and promoted as ‘a fresh start on migration’. The Commission’s stated aim is to ‘rebuild trust’ between EU Member States and ‘confidence’ in the EU’s ‘capacity to manage migration’. The extent to which it achieves these goals – or whether trends towards securitisation, externalisation, and deprivation of liberty nullify other motives - is hotly contested in EU policy circles. Suffice to say many of the proposals are controversial, but there are some glimmers of hope as negotiations progress. Statelessness must be part of these debates.

Invisibility of statelessness in EU asylum law and policy

We know from our work with our members that whether someone is stateless impacts on their migration journey in innumerable ways. And yet the Pact makes no mention of the rights of stateless people, nor does it provide any clarity on how to respond to the specific protection challenges faced by stateless refugees and migrants. Despite our combined efforts, the vast and complex existing body of EU law on asylum and migration (EU asylum and migration acquis) contains no reference to the rights due to stateless people under international law, so perhaps we should not have been surprised by the Pact’s blind spot in this area.

While the causes and consequences of statelessness may be complex, we know that the law and policy solutions are simple. Stateless refugees and migrants in Europe need recognition, rights, and routes to resolving their statelessness. What they face currently is invisibility and prolonged irregularity. It is now time to put the issue of statelessness firmly on the EU’s asylum and migration agenda and the Pact provides us with a key opportunity to do so.

We know that over 3% of asylum applicants to the EU are registered as stateless or ‘of unknown nationality’. The true figure is likely much higher given the lack of tools to identify and record statelessness at Europe’s borders. There is no mechanism to register statelessness on arrival so stateless refugees and migrants are often wrongly ‘assigned’ a nationality by officials based on their country of origin or the languages they speak. Many people from countries where discriminatory laws, state succession, nationality stripping, or protracted displacement mean they have lost or never acquired a nationality, are invisible in the statistics. We know of people from Syria, Lebanon, Palestine, and the former Soviet Union, among many others, who have struggled for years to have their statelessness recognised. Whether someone is stateless not only impacts on asylum decision-making, but also on the nationality rights of their children, as well as on access to related procedures like family reunification or resettlement, not to mention inclusion or the possibility of return.

The time for change is now

Over the last five years, we have worked with our members to call out the invisibility of statelessness in the EU’s response to migration and refugees. Thanks to research, campaigns, and the work of sympathetic MEPs, practitioners, and migrant and refugee communities, awareness has undoubtedly grown. Stateless people have been heard in the European Parliament, the Council has adopted Conclusions on Statelessness, the European Migration Network has established a Statelessness Platform, parliamentarians have taken a stand, and key EU agencies such as the Fundamental Rights Agency, European Asylum Support Office, and Frontex have integrated statelessness into aspects of their work. But EU law is still silent on stateless migrants and refugees, and they are still largely invisible in the debates that affect their lives. We recognise how difficult it is to change EU law and policy, but the impact of doing nothing has been laid bare by a growing movement for change. The EU’s reluctance to legislate on this issue is now untenable. Now is the time for change and we are ready to work with the EU to achieve this.

What needs to happen?

Our Comments set out concrete legislative and policy proposals for how to achieve a more harmonised and horizontal approach to statelessness across EU asylum and migration acquis. We propose simple solutions to improve identification and recording of statelessness, referral to appropriate determination procedures (including dedicated Statelessness Determination Procedures (SDPs)), access to protection, and measures to support integration and inclusion. We set out how to end harmful cycles of criminalisation, detention, and enforced destitution that many stateless people in Europe currently face. Put simply, we outline what is needed to realise the rights that stateless people, including children, are already due under international law. This includes:

  • clear reference to the 1954 Convention and the definition of a stateless person;
  • a requirement to screen for and record ‘initial indications of statelessness’ at the border and refer people to appropriate procedures (including SDPs);
  • integrating the rights of stateless people into guidance on fundamental rights monitoring;
  • reducing the length of time stateless status holders must wait for a long-term residence permit in line with holders of other forms of international protection;
  • facilitating data collection on statelessness in EU databases;
  • ensuring statelessness-related barriers to return are acknowledged and that referrals are made to SDPs from return procedures;
  • mainstreaming statelessness across the work of the EU Asylum Agency.

Our comments aim to counter residual questions about relevance or competency often mistakenly put forward as stumbling blocks on the path to progress. No-one is questioning that EU action must go hand-in-hand with a concerted effort by States to uphold their international obligations, facilitate naturalisation and ensure their nationality laws prevent new cases of statelessness arising. But the EU is lagging behind other regions of the world in global efforts to eradicate statelessness and can no longer ignore the need to harmonise its approach to stateless refugees and migrants if it is to remain credible as a bastion of the rule of law and human rights. Stateless people and affected communities must be central to all efforts and ENS and our members stand ready to facilitate, support and collaborate with all actors to make this a reality.

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