Statelessness: the ignored challenge

by María López Benito

While most of Europe’s Roma possess a nationality, the Zahirovic family remain stateless. They live in a cramped and flimsy room, with no running water, electricity or sanitation facilities in Croatia’s Vrtni Put. The family’s only source of income is from collecting scrap metal. Photo: UNHCR/Nevenka Lukin

There are currently about 680,000 people without any nationality in Europe. The refugee crisis adds more difficulties to this community. Not being holders of a valid passport leaves them in a legal limbo.

The most relevant international texts on statelessness are the 1961 Convention on the Reduction of Statelessness and the 1954 Convention relating to the Status of Stateless Persons, which defines a stateless person as “a person who is not considered as a national by any State under the operation of its law”. At present, this situation affects an average of 10 million people worldwide.

The refugee crisis in Europe is creating a generation of stateless people who leave thousands of children in a legal limbo in which no State takes care of them; they have no rights and obligations recognised by the European law, as they do not have nationality. Consequently, they do not have access to any international protection within the EU with the same guarantees as another third country national has.

Statelessness has been a constant problem in migrations, but currently in Europe, the drama is becoming even crueler, as shown in the following graphic.

Asylum applications by stateless persons in EU Member States (2012 to 2016). Source: UNHCR

Many children born in Syria are at high risk of becoming stateless. According to Syrian law, only men can transfer citizenship to their children, as in Lebanon or Jordan, so if the parents of these children have died or disappeared, they cannot obtain a Syrian passport. A UN Refugee Agency report published in 2015 estimates that 25% of Syrian refugee households are fatherless.

UNHCR reports that there are currently at least 680.000 people without citizenship in Europe, although there may be many more but it is very difficult to calculate the real number given the lack of any database.

Many states of the European Union do not guarantee citizenship just because of the birth in their territory, as it is inherited from parents to children. According to the United Nations Convention on the Rights of the Child, governments are obliged to guarantee nationality to the children born in their territory if otherwise they become stateless. Only a few EU states have adopted this principle within their legal systems, making implementation very difficult at an integrated level.

National laws of each Member State regulate statelessness and references about it are included in the framework of migration management at the European level. An example is the Directive 2011/95/EU on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection. Nevertheless, this directive conflicts with the requirements that a stateless person may meet as an asylum-seeker; it means that a stateless person cannot prove that he suffers persecution in his country of origin because he/she cannot prove it is his/her country of origin. These gaps in the legislation of the European Union, which is responsible for managing the refugee crisis through the mechanisms for identifying and studying asylum applications, leave, in practice, the concession or not of the refugee status to the discretion of each state.

In any case, and despite the fact that statelessness is a widespread and growing problem in the current migratory context, no legislative steps have been taken with regard to the status of stateless persons. It is not a purely national inconsistency; it is a lack of will, drawn by the EU, in its inability to harmonize the different sensitivities of its Member States. An example of this lack of convergence is the ratification of the 1954 Convention, to which Malta, Poland, Cyprus and Estonia have not yet subscribed.

The immigration issue has put the great stranger on the table. Many Member States have expressed – without regulatory success – their willingness to discuss the development of a future protection system for stateless persons. Up to now, the 1954 Convention – which is very similar in its guarantees of protection to the 1951 Convention on Refugees – observes the access to a comprehensive package of rights. Nevertheless, and having noticed that the European Union law does not codify its compulsory nature – as the 1951 Convention did through the Charter of Fundamental Rights of the European Union (Article 18)[1] – its fulfilment corresponds to the level of commitment that each state, individually, wants to acquire.

Although there is no mandatory and homogeneous procedure for the determination of statelessness, nor a harmonized concept in the EU to define it, some Member States have called for a common procedure based on the UNHCR Handbook on Protection of Stateless Persons.  Member States would continue to act discreetly, but certain safeguards would be ensured.

UNHCR establishes four emergencies in relation to cases of statelessness: the identification and protection of stateless persons, and the prevention and reduction of statelessness.

Stateless persons lack identity documents, travel documents, access to administrative assistance, access to work and housing. This situation of vulnerability translates into their personal insecurity. The UNHCR Handbook recognizes the importance of facilitating residence for stateless persons as a prerequisite to get any form of temporary protection in the EU, although the 1954 Convention does not make this explicit.

Statelessness means, apart from the risk to the sufferer, a common problem both nationally and internationally. There are well-established links between statelessness and mass displacement (as occurs, for example, in Syria). The formation of large groups of people fleeing across borders generates great tensions between states and causes serious problems to receiving states, whose resources are insufficient to deal with the avalanche of migrants. It also creates a security risk. An example would be the residence of a stateless community in a state for several years, without access to nationality. This situation generates a “second class” population, creating a conflict because these people have the feeling of lacking social roots and rejection, which can generate violent episodes.

Another vulnerability of stateless persons is that the Convention of 54, unlike that of 51, does not prohibit non-refoulement. This fact urges the authorities to coordinate both conventions in order to guarantee the rights of a stateless person who is also a refugee.

UNHCR, like many other non-governmental organizations, considers the identification as an essential mechanism in reducing cases of statelessness. Only eight Member States have developed procedures for the identification of stateless persons (France, Italy, Spain, Latvia, Hungary, United Kingdom, Slovakia and Belgium). Any identification mechanism should, however, take into account that there are many difficulties in determining whether a person is stateless or not, given the obstacles inherent to not having a nationality.

For all these reasons, the prevention of statelessness has vital importance. To address this point, the European Network on Statelessness has already identified the dialogue with states of origin as one of the most important points to achieve the re-documentation of stateless persons. These relations could help these persons to not only get a nationality, but also with respect to the return of people that do not require any international protection[2].

Towards the creation of a common policy in the field of statelessness, it would also be very useful to make progress in the exchange of information between Member States, in particular with regard to the prevention of statelessness and the treatment of stateless persons. Similarly, the development of a statistical database on stateless persons in the EU would allow a better legislative performance in this area.

In any case, the protection of stateless persons involves the establishment of common legislation for the determination of statelessness in the framework of migration laws. In 2012, the EU urged Member States to ratify the 1954 Convention, which is a prerequisite for establishing the basis for a new common law. In addition, all Member States should accede to the 1961 Convention to achieve the effectiveness of any EU regulatory step.

[1] Article 18, Charter of Fundamental Rights of the European Union: “The right of asylum is guaranteed in accordance with the provisions of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 on the Statute of Refugees and in accordance with the Treaty establishing the European Community “.

[2] 1954 Convention recognises this possibility but the lack of political will means the ineffectiveness of this precept.

María López Benito
Spanish Political Scientist. Master in European Studies. PhD student in Migration, Security and Human Rights. Expert on Migration and International Relations. Extensive experience of collaborating with the Socialist Party of Spain. Trainee of Socialists and Democrats working in the European Parliament's Committee on Civil Liberties, Justice and Home Affairs.

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