Courts are often perceived as complex and distant institutions that are inaccessible and slow to make decisions. While this is not untrue, the courts can also break through political and administrative barriers yet to be dismantled. They have historically been used to secure the universal right to vote, to freedom, to education, or to a minimum wage, and helped hold governments and institutions to account for their failure to implement those rights.
The power of litigation
Litigation is a powerful tool to address injustice and tackle laws, policies, or practices that fail to protect stateless people. Litigation gives visibility to the people affected by statelessness and the impact of life without a nationality for everyone concerned. It can validate stories that have otherwise been discredited by state actors. Successful litigation on statelessness humanises the issues that stateless people face every day and frames them as a matter of fundamental rights and freedoms, rather than politics. This allows us to secure enforceable court judgments and legal principles regardless of changes in government, which not only impact on the individual but can be used as a tool for advocacy and broader change.
This is why strategic litigation has a place in our new Strategic Plan 2024-2028, as a key component of our work to ensure that people can realise their right to a nationality and the human rights of stateless people are protected. We want to demystify the complex legal systems that are meant to protect stateless people across Europe and bridge the gap between the courts and the people they serve.
Bringing the courts closer to stateless people
Bridging the gap means bringing the courts closer to the people, and the people closer to the courts. Marginalised communities often struggle to use litigation for their causes and campaigns. Stateless activists and organisations have told us they want to better understand and use the law as a tool for change, and to consider incorporating strategic litigation into their advocacy efforts.
We recognise that we have a role in strengthening the power of stateless communities to use the law, promoting more awareness about statelessness amongst the judiciary, and building the capacity and expertise of other legal practitioners working in related areas. Together, we aim to co-design activities with those most affected by the issues and provide resources for those considering legal action, enabling them to explore strategic litigation on their own terms.
Leading legal research and analysis
Demystifying legal systems means, first of all, making the law and the work of the courts clearer and more transparent. The UN statelessness conventions entered into force over six decades ago, at a time when the human rights landscape looked very different from today. The conventions offer a strong framework to protect stateless people and prevent statelessness, but they must be interpreted in light of current guidance and legal frameworks.
In 2021, we launched the first ever Statelessness Case Law Database containing summaries of judgments on statelessness from national, European, and international courts. The database helps us make case law more accessible, harvest information about trends across Europe, and allows practitioners to see how other courts have addressed similar issues. Since the database was launched, we have drawn on it to produce valuable practical tools for litigators such as our recently updated Litigation Toolkit on Statelessness.
After hearing our members raise concerns about critical gaps in knowledge preventing statelessness from being addressed through the courts, we have published comparative legal analysis on key international legal principles to help inform and strengthen litigation at national level. A recent example is our legal briefing on the principle of non-discrimination and its impact on the prevention and reduction of statelessness among Romani communities in Europe.
Holding governments to account and celebrating successes
Litigating strategically takes time and resources, which often makes it difficult to find funding for this kind of work. The secret ingredients to continuing this fight without being discouraged are persistence, collective strength, and the ability to celebrate (even small) wins.
Just last month, the CJEU issued a landmark judgment on Palestinian refugees’ access to protection, in a case led by ENS member, Foundation for Access to Rights (FAR). While the case relates to a family who fled the Gaza strip and is seeking protection in Bulgaria, it will impact all EU countries.
Earlier this year, Russia enacted reforms to its immigration detention laws, introducing time limits and judicial oversight for the detention of stateless people. The changes come after years of advocacy by ENS member, ADC Memorial, including as part of ENS’s #LockedinLimbo campaign to end the arbitrary detention of stateless people, evidencing the value of advocacy, strategic litigation, and persistence.
Last year, a series of legal reforms in North Macedonia created solutions to address the lack of birth registration and identity documents of the population with unregulated civil status. This was made possible through dedicated advocacy and collaboration between various national and international stakeholders including through litigation, in which our members, Macedonian Young Lawyers Association and the European Roma Rights Centre played a pivotal role.
There are still plenty of opportunities for the courts to continue pushing for the change we need to see. Over the last few months, we have been actively involved in cases concerning human rights violations against stateless people. We submitted third-party interventions to the European Court of Human Rights in Ramadani v. Serbia, a case highlighting the struggle faced by many Romani children born in Serbia who are unable to register their births. We also intervened in Suji v. Greece, seeking to uphold the right to family reunification of stateless refugees – an issue that we have seen not only in Greece but across other countries in Europe.
In continuing to pursue litigation and strengthen our collective knowledge of the law to address statelessness, linking this work with our advocacy and campaigning efforts, we can promote robust legal frameworks that effectively protect stateless people and challenge governments when they fail to do so. Each victory makes a difference in the life of a stateless person, and enough victories can change the system.