statelessness in europe and good practice regarding statelessness determination and the protection...
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Statelessness in Europe and good practice Statelessness in Europe and good practice regarding sregarding statelessness determinationtatelessness determination and and
the protection of stateless personsthe protection of stateless persons Statelessness in Ireland
Dublin, 21 October 2014
Chris NashDirector, European Network on Statelessness
European Network on Statelessness
The European Network on Statelessness (ENS) is a network of non-governmental organizations, academic initiatives, and individual experts committed to address statelessness in Europe.
We believe that all human beings have a right to a nationality and that those who lack nationality altogether – stateless persons – are entitled to adequate protection.
We are dedicated to strengthening the often unheard voice of stateless persons in Europe, and to advocate for full respect of their human rights. We aim to reach our goals by conducting and supporting legal and policy development, awareness-raising and capacity building activities.
European Network on Statelessness 2
Outline of this session
Why is statelessness determination necessary? What are the main building blocks of a
statelessness determination procedure? What legal status and benefits for stateless persons
in a migratory context? What are the relevant standards? What good practice exists?
A. International standards
B.Good practices
C.Issues to consider
- STRUCTURE
- ACCESS
- PROCEDURE
- ASSESSMENT
- APPEAL
- STATUS
Determination procedures for non-refugee stateless persons
UNHCR Guidelines No.2 and No.3
1954 Convention does not explicitly prescribe how statelessness should be determined
But … it does establish standards of treatment which can only be applied by States if they can establish who are the recipients
Two outcomes – 1) Finding that a person is stateless = protection, or 2) Confirmation that person is a national = prevention
Migratory vs in situ context
Two different contexts:
• countries that host stateless persons who are predominantly of a migrant background
• Countries that have in situ stateless populations
Recognition as a stateless person is not a substitute for acquisition of nationality but an interim measure until a nationality can be acquired (e.g. through naturalisation)
Some examples
Warda: Stateless Palestinian, born and raised in Kuwait Moved to Spain 5 years ago as a student, when her
residence permit expired she “overstayed” As a stateless person, cannot return to Kuwait with
long-expired documentsMarco: Born in Italy 10 years ago, his parents are stateless
Roma migrants from Serbia Under Italian law he should have acquired Italian
nationality at birth (to avoid statelessness), but his birth was never properly registered, so he remained stateless
3 g
ener
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nat
ion
al
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tect
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reg
imes
FRANCE
ITALYSPAIN
HUNGARY
LATVIA
MEXICO
GEORGIA MOLDOVA
SLOVAKIA PHILIPPINES
TURKEY UK
Existing state practiceAs of May 2014: 12 states’ legislation defines statelessness as a protection ground per se
Specific rules in law, clear or relatively clear procedural framework: Spain (2001), Latvia (2004), Hungary (2007), Moldova, Georgia and the Philippines (2012), UK (2013)
Clear protection ground in law, but no detailed procedural rules: France (1953), Italy (since the 70s), Mexico (2007)
Clear protection ground in law, but just basic (yet incomplete) framework: Slovakia (2012), Turkey (2013)
No single “best practice”, all models have important achievements and challenges
Several other states are working towards the establishment of such a system
Building blocks – Structure
Which authority should be in charge? No general rule, state practice varies If limited caseload → Centralised and
specialised authority is preferable Key considerations:
• Ensuring access to both RSD and statelessness procedure
• Prioritise asylum claim (suspend enquiries)
• Proper training and development of expertise
Building blocks – Access
Conditions for submitting a claimNo lawful stay requirement No time limitsFlexible framework: language,
reasonable formal requirements, physical and geographical access
Rights during procedure
Building blocks – Procedure
Realistic time limit (6+6 months)
Free-of-charge interpretation and translation
Access to state-funded legal aid or other forms of professional legal assistance
Mandatory personal interview
Access to and supervisory role of UNHCR
Building blocks – Assessment Shared burden of proof (cooperation) Lower standard of proof (“establish to a
reasonable degree”, “substantiate”) Limited assessment only where applicant
has a relevant nationality connection Contacting foreign authorities Examination of the practice as well as the
law in relation to nationality in the relevant state (access to accurate and up to date info)
Building blocks – AppealEffective remedy against refusal
National structures and practices may vary, but: Automatic right to appeal Both on facts and law Appeal and judicial review with independent,
preferably centralised and properly trained bodies
Possibility to grant protection Same procedural safeguards as at first
instance (interpretation, legal aid, hearing, etc.)
Status of stateless persons – RightsIssuance of a residence permit is crucial (with some exceptions) and should attach as a minimum these rights:
Right to work, unrestricted access to the labour market
Right to education, unrestricted access to primary, secondary and higher education
Access to health care and social assistance
Family reunification
Facilitated access to naturalisation
The UK experience
2011 UNHCR/Asylum Aid mapping studyClose dialogue and access to dataThe UK government’s responseInitial feedback on the new procedure
European Network on Statelessness 16
Campaign to protect stateless persons
European Network on Statelessness 17
ENS petition and animation
European Network on Statelessness 18
THANK YOU!THANK YOU!
Chris NashEuropean Network on
Statelessness