Protecting Stateless Persons : The Implementation of the Convention Relating to the Status of Stateless Persons Across EU States [1 ed.] 9789004362901, 9789004362895

Citation preview

Protecting Stateless Persons

International Refugee Law Series Editor-in-Chief David James Cantor Editorial Board Deborah Anker Bhupinder Chimni Geoff Gilbert Guy S. Goodwin-Gill Liliana Jubilut Susan Kneebone Hélène Lambert Bonaventure Rutinwa Volker Türk

volume 11

The titles published in this series are listed at brill.com/irls

Protecting Stateless Persons The Implementation of the Convention Relating to the Status of Stateless Persons across eu States

By

Katia Bianchini

leiden | boston

Library of Congress Cataloging-in-Publication Data Names: Bianchini, Katia, author. Title: Protecting stateless persons : the implementation of the convention relating to the status of stateless persons across EU states / by Katia Bianchini. Description: Leiden ; Boston : Brill Nijhoff, 2018. | Series: International refugee law series ; volume 11 | Includes bibliographical references and index. Identifiers: LCCN 2018008385 (print) | LCCN 2018009558 (ebook) | ISBN 9789004362901 (e-book) | ISBN 9789004362895 (hardback : alk. paper) Subjects: LCSH: Stateless persons--Legal status, laws, etc. | Statelessness. | Refugees--Legal status, laws, etc.--European Union countries. | Refugees--Protection--International cooperation. | United Nations Conference on the Status of Stateless Persons (1954 : New York, N.Y.) Classification: LCC K7128.S7 (ebook) | LCC K7128.S7 B53 2018 (print) | DDC 341.4/86094--dc23 LC record available at https://lccn.loc.gov/2018008385

Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-typeface. issn 2213-3836 isbn 978-90-04-36289-5 (hardback) isbn 978-90-04-36290-1 (e-book) Copyright 2018 by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill nv incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi, Brill Sense and Hotei Publishing. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill nv provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, ma 01923, usa. Fees are subject to change. This book is printed on acid-free paper and produced in a sustainable manner.

Contents Acknowledgements vii List of Tables viii List of Abbreviations ix Introduction 1

Part 1 Background and Framework for Understanding Statelessness and the 1954 Convention 1 The Scope of the Book 9 2 The Problem of Statelessness and the International Response 39 3 Protecting Stateless Persons: Strengths and Weaknesses of the 1954 Convention 74

Part 2 National Implementation of the 1954 Convention Compared 4 Building a Cross-National Comparison of Incorporation of the 1954 Convention in National Legal Systems 117 5 Procedures to Determine Statelessness in States under Category One 134 6 General Standards to Determine Statelessness in States under Category Two 160 7 Procedures and Practice in States with No Provisions to Identify Stateless Persons – States under Category Three 177 8 The Implementation of the Definition of ‘Stateless Person’ 207 9 Grant of Status and Rights 238

vi

Contents

Part 3 Conclusions and Recommendations 10 Summary and Comparative Analysis of the Implementation of the 1954 Convention 271 11 Beyond the 1954 Convention: Reflections on the Wider Issue of Implementation of Human Rights Treaties 293 12 Recommendations towards Best Practices 302 Annex: Meaning of the Terms ‘Deportation’, ‘Removal’ and ‘Expulsion’ 311 Table of Cases 314 Table of Legislation 320 United Nations Materials 331 List of National Informants 335 References 339 Index 371

Acknowledgements This book was inspired by my experience as an immigration solicitor in a legal aid firm in Oxford. Until May 2014, the United Kingdom did not have a specific framework for the protection of stateless persons. What had caught my attention was that in most cases, stateless persons could not be protected as long as they were not identified as such. For instance, I represented a client who was born in Iran from Afghan refugees and came to Europe as a minor. Fifteen years later, he was still undocumented, and as neither the Afghan nor Iranian embassy replied to requests of assistance, he was treated as a person with ‘unclear nationality’. The authorities removed him to Austria, the first European State that had contact with him. Previously, Austria had already rejected his asylum claim and left him undocumented. I could not prevent his removal and had no legal grounds to apply for legal status on his behalf. As with many other stateless persons, he was unable to enjoy basic rights, such as having a legal residence, travelling, working in the formal economy, attending school, accessing health services, seeking redress through the courts, purchasing or owning property, voting and enjoying the protection and security of a State. This first-hand experience with statelessness led me to ask what the treatment of stateless persons who claim protection in different European Union States that have committed to implement the 1954 Convention Relating to the Status of Stateless Persons is. This has become the main research question of this study. First of all, I would like to thank all of the experts that helped me to gather the data and access the information to understand their national legal systems and provisions relevant to the protection of stateless persons and without whom this work would not have been possible. I would also like to thank my former PhD supervisors, Martin Jones and Simon Halliday, who advised me during my academic work, as well as Susan Akram and Judit Carter for their valuable feedback on the first drafts of some chapters. I would like to express my gratitude to my research assistants, Helena-Ulrike Marambio and Larissa Kersten, for their work in particular regarding access to the sources on Germany and doing the tedious tasks of editing the citations and bibliography. Lastly, I am very grateful to my family and especially to my husband, Andrea, for their support. Katia Bianchini

List of Tables 1 2 3 4 5

Essential procedural guarantees in States under category one 159 Essential procedural guarantees in States under category two 176 Essential procedural guarantees in States under category three 206 Overview of the implementation of the definition of ‘stateless person’ 236 Main characteristics of residence permits and facilitated naturalisation 266

List of Abbreviations Acta Jur Hung Acta Juridica Hungarica admin administrative agps Australian Government Publishing Service aida Asylum Information Database aim Association for Integration and Migration ajcl American Journal of Comparative Law ajil American Journal of International Law App Corte d’appello [Court of Appeal] AuAS Schnelldienst Ausländer- und Asylrecht [Rapid Service Aliens and Asylum Law] AufenthG Aufenthaltsgesetz [Residence Act] AufenthG-VwV Allgemeine Verwaltungsvorschrift zum Aufenthaltsgesetz [General Administrative Regulation for the Residence Act] AufenthV Aufenthaltsverordnung [Ordinance Governing Residence] AsylG Asylgesetz [Asylum Act] AsylLG Asylbewerberleistungsgesetz [Asylum Seekers’ Benefits Act] Bafög Bundesausbildungsförderungsgesetz [Federal Training Assistance Act] BerHG Beratungshilfegesetz [Legal Advice Act] BeschV Beschäftigungsverordnung [Employment Regulation] BGBl Bundesgesetzblatt [Federal Law Gazette] BerkeleyJMEIL Berkeley Journal of Middle Eastern & Islamic Law boe Boletín Oficial del Estado [Official Bulletin of the State] BrookJInt’lL Brooklyn Journal of International Law BT-Drs Bundestagsdrucksache [Bundestag Printed Matter] BuffLR Buffalo Law Review BVerwG Bundesverwaltungsgericht [Federal Administrative Court] BVerwGE Entscheidungen des Bundesverwaltungsgerichts [Federal Administrative Courts’ Decisions] caa Cour administrative d’appel [Administrative Court of Appeal] ce Conseil d’Etat [Council of State] cjeu Court of Justice of the European Union cj-na Council of Europe’s Committee of Experts on Nationality clr California Law Review cnda Cour nationale du droit d’asile [National Court of Asylum] Coll Collection of Laws (Sbírka zákonů)

x

List of Abbreviations

ColumJTransnat’lL Columbia Journal of Transnational Law CornellLRev Cornell Law Review Corte Cass Corte di Cassazione [Court of Cassation] Corte Cost Corte Costituzionale [Constitutional Court] crc Convention on the Rights of the Child crr Commission des Recours des Réfugiés [Refugee Appeals Board] Convention Travel Document ctd cup Cambridge University Press cz Czech Republic czk Czech Republic Koruna damp Department for Asylum and Migration Policy ddl Disegno di legge [Draft Law] Dir imm citt Diritto, Immigrazione e Cittadinanza DLgs Decreto Legislativo [Legislative Decree] dm Decreto Ministrale [Ministerial Decree] droi European Parliament’s Subcommittee on Human Rights DVBl Deutsches Verwaltungsblatt [German Administrative Law Journal] dpr Decreto del Presidente della Repubblica [Decree of the President of the Republic] ec European Council echr European Commission on Human Rights echr European Convention on Human Rights and Fundamental Freedoms ecj European Court of Justice ecr European Court Reports ECtHR European Court of Human Rights eea European Economic Area ehrr European Human Rights Reports ejcl Electronic Journal of Comparative Law ejil European Journal of International Law ejml European Journal of Migration and Law elr European Law Review emn European Migration Network errc European Roma Rights Centre ets European Treaty Series eu European Union eudo European Union Democracy Observatory EurJCriminol European Journal of Criminology

List of Abbreviations

xi

eu States European Union Member States ewca Civ Court of Appeal Civil Division excom unhcr Executive Committee ewhc High Court of Justice of England and Wales ezar  Entscheidungssammlung zum Zuwanderungs- Asyl- undFreizügigkeitsrecht [Collection of Decisions on Immigration, Asylum and Free Movement Rights] FamFG Gesetz über das Verfahren in Familiensachen und in den ­Angelegenheiten der freiwilligen Gerichtsbarkeit [Act on Proceedings on Family Matters and on Matters of Non-Contentious Jurisdiction] farr Flyktinggruppernas och asylkommittéernas riksråd [Swedish Network of Refugee Support Groups] ff folgende Seiten [following pages] fn footnote fmr Forced Migration Review fmrs Forced Migration and Refugee Studies Program FordhamLR Fordham Law Review gba Gemeentelijke Basisadministratie [Municipal Basic Administration] ger Germany gg Governmental Gazette gg Grundgesetz [Basic German Law] GeoInt’lEnvtlLRev Georgetown International Environmental Law Review GeoImmigrLJ Georgetown Immigration Law Journal gjia Georgetown Journal of International Affairs gjplp Georgetown Journal on Poverty Law & Policy gkg Gerichtskostengesetz [Court Fees Act] gre Greece gtm Grounded Theory Method gu Gazzetta Ufficiale [Official Gazette] hc House of Commons Helsiniki Monit Helsinki Monitor ho Home Office HousLR Houston Law Review hrlj Human Rights Law Journal HumRtsQ Human Rights Quarterly iccpr International Covenant on Civil and Political Rights icescr  International Covenant on Economic, Social and Cultural Rights

xii

List of Abbreviations

icj International Court of Justice iclq International and Comparative Law Quarterly id Identity Card ild Immigration Law Digest ijgls Indiana Journal of Global Legal Studies ijlpf International Journal of Law, Policy and Family ijrl International Journal of Refugee Law ijsrm International Journal of Social Research Methodology ilc International Law Commission ilo International Labour Organization ilpa Immigration Lawyer Practitioners’ Association ind Immigratie en Naturalisatie Dienst [Immigration and Naturalization Service] InfAuslR Informationsbrief Ausländerrecht [Information Letter Aliens Law] Int’lLabRev International Labour Review IntJLC International Journal of Law in Context ipu Inter-Parliamentary Union iro International Refugee Organization jianl Journal of Immigration Asylum and National Law JL&SocialPol’y Journal of Law and Social Policy jorf Journal officiel de la République française [Official Gazette of the French Republic] jrs Journal of Refugee Studies ljil Leiden Journal of International Law lnts League of Nations Treaty Series lqr Law Quarterly Review L&Soc’yRev Law & Society Review mig Migrationsöverdomstolen [Migration Court of Appeal] mj Maastricht Journal of European and Comparative Law mwN mit weiteren Nachweisen [with further references] mWv mit Wirkung von [with effect of] NebLRev Nebraska Law Review ngo Non-Governmental Organisation nilr Netherlands International Law Review nl Netherlands NordJIntlL Nordic Journal of International Law nqhr Netherlands Quarterly of Human Rights NVwZ Neue Zeitschrift für Verwaltungsrecht [New Journal for Administrative Law] oar Oficina de Asilo y Refugio [Office for Asylum and Refuge]

List of Abbreviations

xiii

oas Organization of American States oea Organización de los Estados Americanos [Organization of American States] oecd Organization for Economic Cooperation and Development ofpra Office Français de Protection des Réfugiés et Apatrides [French Office for Protection of Refugees and Stateless Persons] ohchr Office of the High Commissioner for Human Rights oin Office of Immigration and Nationality (Bevándorlási és Állampolgársági Hivatal) oj Official Journal of the European Communities opu Organizace pro pomoc uprchlíkům [Mission of Organization for Aid to Refugees] osce Organization for Security and Co-operation in Europe oup Oxford University Press ovg Oberverwaltungsgericht [Higher Administrative Court] OxMo Oxford Monitor of Forced Migration PaceInt’lLRev Pace International Law Review pasil Proceedings of the American Society of International Law pcij Permanent Court of International Justice qb Queen’s Bench Division (England and Wales) qmlj Queen Mary Law Journal rbdi Revue Belge de Droit International [Belgian Review of International Law] rfda Revue Française de Droit Administratif [French Review of Administrative Law] Rn Randnummer [recital] rsq Refugee Survey Quarterly rwn Rijkswet op het Nederlanderschap [Netherlands Nationality Act] san Sentencia Audiencia Nacional [Judgment National Court] SDLRev South Dakota Law Review sfs Svensk författningssamling [Swedish Code of Statutes] sgb iii Drittes Buch Sozialgesetzbuch [Social Code – Book iii – Employment Promotion] sgb xii Zwölftes Buch Sozialgesetzbuch [Social Code – Book xii – Social Assistance] sma Swedish Migration Agency spru Social Policy Research Unit StAG Staatsangehörigkeitsgesetz [Nationality Act] sts Sentencia Tribunal Supremo [Judgment Supreme Court] sw Sweden ta Tribunal administrative [Administrative Tribunal]

xiv

List of Abbreviations

tfeu Treaty on the Function of the European Union tlr Tilburg Law Review Trib Tribunale [Tribunal] udhr Universal Declaration of Human Rights uk United Kingdom of Great Britain and Northern Ireland ukba United Kingdom Boarder Agency ukiat United Kingdom Immigration Appeal Tribunal uksc United Kingdom Supreme Court ukut United Kingdom Upper Tribunal un United Nations unccp United Nations Conciliation Commission unesc United Nations Economic and Social Council unga United Nations General Assembly unhcr United Nations High Commissioner for Refugees unicef United Nations International Children’s Emergency Fund unpo Unrepresented Nations & People’s Organization unriaa United Nations Reports of International Arbitral Awards unrwa United Nations Relief and Works Agency for Palestinian Refugees in the Near East untc United Nations Treaty Collection unts United Nations Treaty Series UPaLRev University of Pennsylvania Law Review usd United States Dollar v versus v vom [of] vbibw Verwaltungsblätter für Baden-Württemberg [Administrative Gazette for Baden-Württemberg] vclt Vienna Convention on the Law of Treaties vg Verwaltungsgericht [Administrative Court] vgh Verwaltungsgerichtshof [Higher Administrative Court] VwGO Verwaltungsgerichtsordnung [Code of Administrative Court Procedure] wto World Trade Organization ylj Yale Law Journal zpo Zivilprozessordnung [Civil Procedure Code]

Introduction Stateless persons are among the most vulnerable in the world. They are usually treated as foreigners by every State, including those in which they were born, in which they live and into which they may be expelled. Stateless persons face extreme forms of exclusion that impact their access to many basic rights, which most of us take for granted. For instance, they may have problems having legal residence, travelling, working in the formal economy, seeking redress through the courts, purchasing or owning property, voting and receiving the protection and security of a State. Frequently, stateless persons do not hold documents, and as a consequence, they remain outside the social systems of protection and are subject to increased chances of detention. From the human perspective, statelessness frequently leads to hardship and affects one’s dignity and identity. Statelessness is also a concern for the States, as it can affect the integration of people in society, contribute to discrimination and produce community tensions.1 Furthermore, stateless persons do not fit within the conventional international legal order, where nationality, constituting the common link between the individual and international law, establishes which State is responsible for protection.2 According to estimates by the United Nations High Commissioner for Refugees (unhcr), there are at least 10 million stateless people globally.3 However, the real number is almost certainly higher, as it is extremely difficult to collect comprehensive data. In several States, population figures are from registration systems, whereas in others, they are from censuses or surveys. Some of the data from registration systems can be particularly unreliable, partially due to the lack of mechanisms in place to identify stateless persons or because the criteria used for registration do not comply with the international definition of a stateless person.4 Since the beginning of this century, statelessness has attracted more attention at the international level. The unhcr’s mandate in relation to s­ tatelessness 1 Caia Vlieks, ‘A European Human Rights Obligation for the Statelessness Determination?’ (Master’s Thesis, Tilburg University 2013) 1–4. 2 Paul Weis, ‘The United Nations Convention on the Reduction of Statelessness’ (1962) 11(4) iclq 1073. 3 United Nations High Commissioner for Refugees (unhcr), ‘Global Trends. Forced Displacement in 2015’ accessed 10 June 2017. 4 Mark Manly, ‘unhcr’s Mandate and Activities’ in Alice Edward and Laura van Waas, Nationality and Statelessness under International Law (cup 2014) 88, 102. © koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004362901_002

2

Introduction

has evolved, and its work to address the problem has now clearly become part of its function.5 Nevertheless, even the recent increased levels of activity and attention leave many issues concerning statelessness inadequately dealt with. In the European Union, many Member States (eu States) have adopted measures to ensure that persons born either in their territory or abroad are not rendered stateless under their nationality laws.6 The situation of being stateless is mostly linked to migration, and several problems persist, especially regarding aliens without a nationality or the ability to prove one. In the last ten years, there has been an increase in the efforts to resolve the problem of identification of statelessness. Nevertheless, it is often argued that the developments made by eu States in adopting mechanisms for the protection of stateless persons remain a challenge7 and a lower priority when compared to those concerning refugees. In many States, the absence of specific provisions for stateless persons still makes refugee protection the only option. In some situations, there can be an overlap between stateless persons and refugees. However, in many cases, stateless persons are not refugees, and most refugees are not stateless. Indeed, the key question to obtain refugee status is whether applicants face persecution and whether they can obtain State protection, including whether they have effective nationality and the ability to enjoy human rights. By contrast, statelessness is not always connected to persecution, and it can only concern the right to nationality itself.8 The developments made by eu States regarding the treatment of ­non-refugee stateless persons who claim protection have not been systematically addressed in the literature, nor has the issue of whether there is a need to harmonise the procedures determining statelessness. Given these problems, it is important to give closer consideration to how international law addresses statelessness and the efforts that have been undertaken to implement the relevant treaties into national systems. The most important instrument dealing with the protection of stateless persons is the 1954 Convention Relating to the Status of Stateless Persons (the ‘1954 Convention’).9 The process of identifying who meets the definition of a 5 Ibid 114. 6 Carol A Batchelor, ‘The 1954 Convention Relating to the Status of Stateless Persons: Implementation within the European Union Member States and Recommendations for Harmonization’ (2004) 22 Refuge 32, 37. 7 Gábor Gyulai, ‘Remember the Forgotten, Protect the Unprotected’ (2009) 31 fmr 48. 8 Hélène Lambert, ‘Comparative Perspectives on Arbitrary Deprivation of Nationality and Refugee Status’, (2015) 64(1) iclq 1–3. 9 The 1954 Convention is the main international legal instrument regulating the status of stateless persons and granting them fundamental rights and freedoms. Convention ­Relating to

Introduction

3

stateless person as defined in this treaty varies significantly from State to State. Where no laws or specific procedures exist to implement the identification of statelessness, States have addressed the issue on a case-to-case basis.10 Even where specific laws or procedures have been adopted, it is questionable as to whether they have contributed to significant changes.11 The debate continues on the requirements for qualification as a stateless person and the means for identification.12 The absence of comprehensive information and cross-national research on the operation of the systems in place to determine stateless status and the protections given is a weakness at a time when a number of eu States are acceding or changing their policies regarding the 1954 Convention.13 It is also problematic, inasmuch as there is a serious lack of transparency of law and practice in this area in a number of States. Shedding light on the current practices and determining procedures and status for stateless persons is central to identifying ‘good practice’ or areas to improve within existing systems. In turn, 10 11 12

13

the Status of Stateless Persons (adopted 28 September 1954, entered into force 6 June 1960) 360 unts 117 (Statelessness Convention) (hereafter the ‘1954 Convention’). Carol A Batchelor, ‘The 1954 Convention Relating to the Status of Stateless Persons’ (n 6) 49–51. Gábor Gyulai, ‘Forgotten Without Reason’ (Hungarian Helsinki Committee 2007) 36. For instance, some States, such as Germany and the Czech Republic, argue that there is no need to introduce dedicated statelessness determination procedures and that the framework that they have in place is already in compliance with international obligations. On the other hand, some writers and the unhcr insist on the need to adopt statelessness determination procedures to be able to identify stateless persons. Telephone interview with Alexandra Dubova, Immigration Lawyer, Organizace pro pomoc uprchlíkům, o.s. (Prague, Czech Republic, 2 January 2014); email from Roland Bank, Head of unhcr Berlin Protection Unit, to author (4 April 2014); Carol A Batchelor, ‘The 1954 Convention Relating to the Status of Stateless Persons’ (n 6) 31; Laura van Waas, Nationality Matters: Statelessness under International Law (Intersentia 2008) 25; unhcr ‘Handbook on Protection of Stateless Persons under the 1954 Convention relating to the Status of Stateless Persons’ (2014) paras 8–10; Gábor Gyulai, ‘The Determination of Statelessness and the Establishment of Statelessness-Specific Protection Regime’ in Alice Edwards and Laura van Waas (eds), Nationality and Statelessness Under International Law (cup 2014) 120–23; Katia Bianchini, ‘A Comparative Analysis of Statelessness Determination Procedures in 10 eu States’ (2017) (29)1 ijrl 42, 79. unhcr, ‘Ending Statelessness within Ten Years’ (2014) accessed 16 February 2018. unhcr ‘Pledges 2011. Ministerial Intergovernmental Event on Refugees and Stateless Persons’ (7–8 D ­ ecember 2011); Volker Türk, ‘The Status of Statelessness 60 Years On’ 46 fmr (May 2014) 2.

4

Introduction

this will also be helpful for the process of integrating ‘statelessness within the mainstream of the international human rights agenda’14 and developing policy responses at the European and international levels. This book compares how ten European Union States have implemented the 1954 Convention. These States are the Czech Republic, France, Germany, Greece, Hungary, Italy, the Netherlands, Spain, Sweden and the United Kingdom. The book finds that although the purpose of the 1954 Convention is universal, in practice, the States’ responses vary greatly. The cross-national differences are illustrated by a direct comparison of a spectrum of issues related to the implementation of the 1954 Convention: determination of statelessness on first-instance proceedings, from basic aspects of structure and access to the assessment of statelessness; right of appeal against rejected applications; status granted and grant of a basic set of rights upon the grant of protection, including the right to travel documents and access to naturalisation. The book analyses the treatment of stateless persons not only in States that have adopted specific legislation to implement the 1954 Convention but also in States that have not or are about to do so, uncovering relevant frameworks that are little known. To explain the variations, the book refers to theories of international law and administrative law, and in doing so, from a more general perspective, it contributes to the debates on the implementation of human rights treaties. The problems addressed include the transformation of international human rights norms into national law and which domestic arrangements best ensure their effectiveness. In particular, it discusses whether the adoption of specific implementing legislation is desirable to improve human rights standards towards stateless persons. This is important, because it is left to State Parties to international treaties to implement them according to their needs. Moreover, a significant proportion of the scholarship on human rights treaties is focused on the ‘global’ level (looking at the process of adoption of international treaties, international treaty bodies and international institutions). Thus, it fails to explore whether and how treaties are eventually applied on the ground. This book tries to elucidate these issues. The book is divided in three main parts. The first part provides the background on the subject. In particular, it explains the research questions and the methodology used and reviews the relevant literature, pointing out the main debates to which this work contributes (Chapter 1). Then, it puts the issues which are discussed into context. As statelessness connotes a lack of nationality, it briefly explores the meaning and substance of nationality, how a person 14

Gábor Gyulai, ‘Statelessness. Determination and the Protection Status of Stateless Persons’ (European Network on Statelessness 2013) 4.

Introduction

5

can acquire and lose it and the limits that States encounter in these matters under international law. It also looks at why being stateless is a matter that deserves contemporary attention and the international community’s response to statelessness (Chapter 2). Moreover, it describes the 1954 Convention’s history, scope and content and often refers to the preparatory works to understand the meaning of its core provisions. It uncovers gaps and imprecise or contentious norms that create ongoing issues at the implementation stage. These matters are important to explore how States implement the 1954 Convention within their legal systems, as well as assess the relationship between international law and national law and the resulting necessity of adopting incorporating legislation to effectively ensure protection (Chapter 3). The second part of the book investigates the national legal frameworks and practices relevant for protecting stateless persons at the State level (Chapters 4 to 7). To facilitate the analysis, it identifies three categories of the different approaches to the implementation of the 1954 Convention and assesses whether they guarantee essential principles of justice15 using indicators that I found in the unhcr Handbook on the Protection of Stateless Persons16 and the refugee law literature17 (Chapter 4). On the basis of the findings, it concludes that States with specific statelessness determination procedures tend to ensure more protection than other States (Chapters 5 to 7). Then, it considers how the States under review have incorporated, interpreted and applied the definition of ‘stateless person’ in Article 1 of the 1954 Convention. It examines the experience of claimants for protection in the different States and finds that they are often excluded from official registration as stateless persons, especially where no specific implementing measures of the 1954 Convention exist. However, the data show that problems also exist in States that have adopted specific statelessness determination procedures, as outcomes of decisions are often unsatisfactory (Chapter 8). The lack of recognition and registration as a stateless person becomes a critical issue, as applicants do not become eligible for many of the rights and benefits of the 1954 Convention. It demonstrates that only a clear legal status granted to stateless persons as such can be linked to all of the rights and benefits arising from the international provisions and bring them to a durable solution (Chapter 9). The third part of this book consolidates and summarises the analysis of the evidence and draws attention to the main features in the different States, in 15 16 17

Regarding the meaning of ‘basic principles of justice’; see Ch 4, s 2. unhcr Handbook (n 12); see Ch 4, s 2 and 3. See Ch 4, ss 2 and 3.

6

Introduction

light of theories on the incorporation of human rights treaties into domestic legal systems and administrative law. It focuses on the importance of statelessness determination as a precursor to access protection and discusses some of the main challenges that States have to address in this context. It notes that even in States that have adopted specific legislation, the common trend is either to implement the 1954 Convention by restrictive measures or for decision-makers to deviate from the black letter law and be influenced by political interests and work pressures. What emerges is that although stateless persons are persons in need of international protection and as such are exceptions to the general rules of immigration law, many States treat them as other ordinary migrants and are affected by exclusionary political agendas. This means that the special status that is accorded to them under the 1954 Convention is not respected (Chapter 10). The findings also demonstrate the interconnectedness of international and national law and show that national law has an important role in implementing international law. The method and extent of the incorporation of international law into the domestic legal system impact how rights will be respected. Moreover, it exposes the challenges that national legal systems pose to the international framework, including to the unhcr’s policy responses to end statelessness. The importance of understanding such challenges lies in the fact that if States bypass the international system of protection, this has consequences for the development of solutions at the international level (Chapter 11).18 Finally, the book recommends basic components that should be part of any model aiming to identify and protect stateless persons (Chapter 12). 18

Susan Kneebone makes a similar argument in the context of the Refugee Convention. Susan Kneebone (ed), Refugees, Asylum Seekers and the Rule of Law (cup 2009) 30.

Part 1 Background and Framework for Understanding Statelessness and the 1954 Convention

∵

Chapter 1

The Scope of the Book 1 Introduction This study seeks to examine how and to what extent the 1954 Convention relating to the status of stateless persons has been implemented in ten European Union Member States (‘eu States’). To answer the central research question, I posed the following questions: What happens to individuals when they make an application claiming to be stateless in eu States that have ratified the 1954 Convention? What legislation has been incorporated into national law to implement the international obligations? Are the procedures fair and accessible? How is the definition of ‘stateless person’ applied and interpreted? What status and rights are granted to stateless persons? What are the factors which impact the effectiveness of the 1954 Convention? What are the implications of this study for human rights treaties in general? This chapter introduces the theoretical framework that is employed to answer these questions and that is further developed in Chapter 4. This framework is informed by a disparate collection of writings in the areas of ­international law, statelessness, refugee law and administrative and public law. Moreover, this chapter explains the choice of using legal and empirical data and the challenges encountered during the study and defines important concepts that recur in the book. Finally, it discusses some academic perspectives that p ­ rovide points of departure for this work and that help to analyse the data and points out research gaps to which it makes new contributions. 2

Enquiry and Aims of the Book

The primary question in this book compares how the 1954 Convention is implemented in ten eu Member States that have ratified it. To answer the ­research question, I have developed a framework of analysis that addresses four key aspects of the national systems: (1) the procedures to determine statelessness or the grant of alternative forms of protection, (2) the application and interpretation of the definition of ‘stateless person’, including the scope of the ­exclusion clause concerning Palestinians protected by the United Nations ­Relief and Works Agency for Palestine Refugees in the Near East (unrwa),

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004362901_003

10

Chapter 1

(3) the grant of status, if any and (4) the main rights attached to the status granted, with particular focus on the right to travel documents and access to facilitated naturalisation.1 The choice of analysing the procedures to identify statelessness and the grant of legal status is based on the consideration that the 1954 Convention is silent on how to determine who is stateless and which status should be granted upon recognition. It is debated whether dedicated statelessness determination mechanisms and the grant of lawful status as stateless persons are indispensable in order for a State to comply with its obligations under the treaty.2 This problem is strictly connected to issues that are pertinent to fulfilling essential principles of justice and raises the question of which components provide fair, efficient, effective and independent systems to assess claims of protection by stateless persons. It is also linked to the existence of barriers to the procedures, and so, drawing from the literature on access to justice for vulnerable claimants, I consider whether the actual needs of stateless persons are taken into consideration in different States.3 Accordingly, I explore: (a) the cost, delays and complexity of the procedures (b) the availability of legal advice and representation (c) the availability of interpreters 1 Carol A Batchelor, ‘The 1954 Convention Relating to the Status of Stateless Persons: Implementation within the European Union Member States and Recommendations for Harmonization’ (2004) 22(2) Refuge 31, 50. 2 unhcr ‘Expert Meeting. Statelessness Determination Procedures and the Status of Stateless Persons (“Geneva Conclusions”)’ (December 2010) para 1; unhcr ‘Handbook on Protection of Stateless Persons under the 1954 Convention Relating to the Status of Stateless Persons’ (2014) paras 8–12. 3 Mauro Cappelletti and Bryant Garth, ‘Access to Justice: The Newest Wave in the Worldwide Movement to Make Rights Effective’ (1978) 27(2) BuffLR 189; Ellen H Greiper, ‘Stateless Persons and their Lack of Access to Judicial Forums’ (1985) 11 BrookJInt’lL 439; Stephen H Legomsky, ‘An Asylum-Seeker’s Bill of Rights in a Non-Utopian World’ (2000) 14 GeoImmigrLJ 619; Ab Currie, A National Survey of the Civil Justice Problems of Low and Moderate Income Canadians: Incidence and Patterns (Department of Justice, Canada, 2005); Roderick A Macdonald, ‘Access to Justice in Canada Today: Scope, Scale, and Ambitions’ in Julia Bass and others (eds), Access to Justice for a New Century: the Way Forward (Law Society of Upper Canada 2005); Christine Coumarelos, Zhigang Wei and Albert Z Zhou, Justice Made to Measure: nsw Legal Needs Survey in Disadvantaged Areas, Access to Justice and Legal Needs (Law and Justice Foundation of New South Wales 2006); Jeremy McBride, Access to Justice for Migrants and Asylum Seekers in Europe (Council of Europe 2009) 7; Sheona York, ‘The End of Legal Aid in Immigration – A Barrier to Access to Justice for Migrants and a Decline in the Rule of Law’ (2013) 27(2) jianl 106.

The Scope of the Book

11

(d) the effective opportunity to appeal (e) additional problems in accessing the procedures, such as lack of relevant information available to stateless persons, especially for those in immigration detention As far as the question of definition is concerned, a persistent challenge remains even as to who is stateless, and it appears that the same case may come to different outcomes, depending on where it is lodged; so, I have included this in the book.4 I have identified the other areas that are the object of the study as the most fundamental ones in terms of protection needs and from a practical point of view, based on the preparatory works of the 1954 Convention and the relevant literature. In trying to understand the national responses and cross-national variations, I analyse both the existence of incorporating legislation of the 1954 Convention into the domestic legal order and practices. I take into consideration studies on the implementation of the Refugee Convention, given that it shares a common drafting history and presents several common issues with the 1954 Convention, as further explained in Chapter 4, Section 2. I also refer to the administrative law field, which includes important discussions about international law taking the form of bureaucratic decision-making.5 Finally, to explain the factors that impact the implementation of the 1954 Convention, I rely on theories of international law, because as explained in Section 8, they are the most relevant to exploring the formal incorporation of a human rights treaty and the interconnection of international and national law. The aim is to contribute to the debate on the protection of stateless persons by providing a greater understanding of how and to what extent the 1954 Convention is implemented in selected eu States and what the main factors impacting its effectiveness are. This book is helpful for identifying ‘good practices’, areas to improve within existing systems and key challenges in light of the applicants’ special vulnerability. It may also guide future practical developments for the protection of stateless persons. This book is not intended to undertake a theoretical study of the incorporation of human rights into national 4 See s 7 of this chapter. 5 Denis J Galligan and Deborah Sandler, ‘Implementing Human Rights’ in Simon Halliday and Patrick Schmidt (eds), Human Rights Brought Home: Socio-legal Perspectives on Human Rights in the National Context (Hart Publishing 2004) 23; Denis J Galligan, Due Process and Fair Procedures. A Study of Administrative Procedures (2nd edn, oup 2004); Galligan, Law in Modern Society (oup 2007).

12

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law. However, the investigation elucidates under which conditions human rights treaties have an impact in individual cases. In particular, it addresses the factors that help to achieve the coherency between national and international law and posits that the method and extent of incorporation of human rights (in this case, the 1954 Convention) into the domestic legal system can eventually make a difference in people’s lives on the ground.6 Therefore, the book may be of interest to governments, civil society, legal practice and the international community, as well as scholars and students. 3

Parameters of the Research

Three important limitations of this research should be noted. First of all, it focuses on the initial stage of the statelessness determination process, because this is where most of the decisions are taken. Thus, I mention the right of appeal and the judicial bodies involved only insofar as they relate to the initial decision-making process and provide an accessible and effective remedy.7 Secondly, it does not provide a detailed analysis of the full range of highly specialised human rights treaties that could be applicable to stateless persons. Some stateless persons could benefit from the International Covenant on Civil and Political Rights (iccpr),8 the International Covenant on Economic, Social and Cultural Rights (icescr)9 and the Convention on the Rights of the Child (crc)10 and a number of other regional human rights instruments, such as the European Convention of Human Rights (echr)11 and its related

6

7

8 9 10 11

Virginia Leary engaged in a similar study on the incorporation of international labour law conventions. However, she limited the work to States with systems of automatic incorporation. Virginia Leary, International Labor Conventions and National Law (Springer 1982). Stephen H Legomsky argues that the prospect of review encourages decision-makers to be more careful when making their decisions than they otherwise would. Legomsky (n 3) 640–41. International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 unts 171. International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976) 993 unts 3. Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 unts 3 (Child Convention). European Convention for the Protection of Human Rights and Fundamental Freedoms (amended) [1950] ets 5 (echr).

The Scope of the Book

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­jurisprudence.12 In particular, regarding the echr, it is essential to stress that Article 3, providing for protection against torture or degrading treatment or punishment, has already been recognised as an ultimate remedy for persons who are being removed from one country to another without any country t­aking measures to regularise their situation. In the case of Harabi v The N ­ etherlands, the European Commission on Human Rights determined that the ­repeated expulsion of an individual whose identity could not be established to a State where his admission is not guaranteed breaches Article 3 of the echr.13 In addition, Laura van Waas notes that Article 8 of the echr, which specifies that interference with family or private life must be justified on a number of grounds, is the only human rights norm, together with Article 31 of the 1954 Convention, requiring that expulsion must be substantively justified.14 Article 8(2) states that there shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. The decision not to engage the full range of human rights treaties in this book does not mean that they are not important.15 However, they do not deal with stateless-specific concerns as the 1954 Convention does and do not provide for all of the basic civil rights needed to address them.16 In this regard, even 12

13 14 15

16

Stateless persons can also rely on the enforcement procedures and mechanisms in place under universal and regional human rights instruments. Laura van Waas, Nationality Matters: Statelessness under International Law (Intersentia 2008) 406. Harabi v The Netherlands (1986) 46 dr 112. By contrast, the other relevant human rights provisions are procedural. van Waas (n 12) 257. For instance, the iccpr is a critical source for stateless persons, as it provides for rights not mentioned in the 1954 Convention, such as the rights to life (iccpr art 6) and family (iccpr art 17), freedoms of opinion and expression (iccpr art 19) and protection from torture, inhumane or degrading treatment (iccpr art 7) and slavery (iccpr art 8). It also expands the right of internal freedom of movement to aliens lawfully in the State of residence by requiring treatment equal to nationals (iccpr art 12) (the 1954 Convention requires treatment on par with non-nationals). van Waas (n 12) 243–45. James C Hathaway, The Rights of Refugees under International Law (cup 2005) 121–22.

14

Chapter 1

if the iccpr is relevant to stateless persons, it often provides for rights on the basis of inappropriate assumptions. For example, it sets guarantees of fairness in judicial proceedings but is silent on the right to access the legal system, thus failing to consider that aliens may not always invoke judicial remedies.17 ­Furthermore, in situations of public emergencies, governments are authorised to withdraw most of the rights provided for in the iccpr, even if this would amount to impermissible discrimination.18 The 1954 Convention’s unique value consists of being the only treaty to formally and comprehensively address aspects of the problem of statelessness in the international legal framework.19 As explained in Chapter 3, besides setting forth a definition of statelessness, it establishes the international status of a stateless person, which attracts the application of a basic set of rights.20 Additionally, it provides for specific measures, especially documentation, for stateless persons as stateless persons.21 The value of the 1954 Convention is also apparent in the context of socioeconomic rights. The icescr authorises developing countries to decide the 17

18

19

20 21

Ibid 121. On this point, however, van Waas argues that the right of access to courts is ‘­intrinsic to the concepts of a fair hearing and equality before the courts’. van Waas (n 12) 272. iccpr (n 8) arts 2, 4. The rights that cannot be withdrawn are the rights to life; freedom from torture; freedom from slavery; freedom from imprisonment for contractual breach; freedom from ex post facto criminal law; recognition as a person and freedom of thought, conscience and religion. Hathaway (n 16) 121. Mark Manly, ‘unhcr’s Mandate and Activities’ in Alice Edward and Laura van Waas, Nationality and Statelessness under International Law (cup 2014) 88, 93. It should be noted that the first international attempts to regulate the issue of statelessness occurred at the end of the First World War. These resulted in the adoption of the 1930 Convention on Certain Questions Relating to the Conflict of Nationality Laws (adopted 12 April 1930, entered into force 1 July 1937) 179 lnts 89 (No 4137) (Hague Convention), the Protocol Relating to Military Obligations in Certain Cases of Double Nationality (adopted 12 April 1935, entered into force 25 May 1937) 178 lnts 227 (No 4117), the Protocol Relating to a Certain Case of Statelessness (adopted 12 April 1930, entered into force 1 July 1937) 179 lnts 115 (No 4138) (dealing with the nationality of a minor whose father is stateless or of unknown nationality) and the Special Protocol Concerning Statelessness (adopted 12 April 1930, not entered into force) C.27.M.16.1931.V. These agreements cannot be considered an adequate and complete framework to regulate issues of nationality and its absence. They represent a first significant step towards the recognition that the attribution of nationality is a matter that not only concerns States but also the international community. Paolo Farci, Apolidia (Giuffré 2012) 99–122. van Waas (n 12) 393–94. Ibid 394.

The Scope of the Book

15

extent to which they will guarantee economic rights to non-nationals.22 Moreover, it formulates socioeconomic rights in such a way as to require their progressive implementation. States have therefore a wide margin of discretion in differentiating between national and non-nationals. For example, with regard to the right to work, it provides that State Parties will take appropriate steps to safeguard the right to work.23 In the field of education, besides requiring equal enjoyment of free and compulsory primary education, it adds that access to secondary and higher education must be made available and accessible to all. However, poorer States may rely on the general duty of progressive implementation in the case of insufficient secondary education opportunities.24 The 1954 Convention, on the other hand, does not provide for the possibility to avoid the application of socioeconomic rights because of scarce resources within the host State.25 Additionally, as with the iccpr, the wording of the socioeconomic rights in the icescr is not specific enough to guarantee the most critical interests of stateless persons. For instance, its Article 6 provides for State Parties to ‘recognise’ the right of everyone to social security, including social insurance. The term ‘recognise’ leaves States free to determine to what extent they should implement this provision. Finally, the icescr application to non-nationals – in particular, as far as their access to a social security scheme that provides a minimum essential level of benefits is concerned – has not been clarified.26 Stateless refugees protected under the Refugee Convention27 and the eu asylum acquis28 are also outside the scope of this work, as they are a distinct group of people with different protection needs and a different legal regime applicable to them. In cases where the same person falls under both the Refugee Convention and the 1954 Convention, the more favourable 22 23 24 25 26 27

28

icescr (n 9) art 2(3). Ibid art 6. Ibid art 13. Hathaway (n 16) 122–23; van Waas (n 12) 327–32. van Waas (n 12) 330–31. A refugee is an individual outside his country of nationality or habitual residence and unable or unwilling to return there or to avail himself of its protection, on account of a ­well-founded fear of persecution for reasons of race, religion, nationality, membership  of  a particular group or political opinion. Convention relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 unts 150 (Refugee ­Convention) art 1. Nehemiah Robinson, ‘Convention Relating to the Status of Stateless Persons. Its History and Interpretation. A Commentary’ (1997) World Jewish Congress 1955, Institute of Jewish Affairs, reprinted by the Division of International Protection of unhcr, 5.

16

Chapter 1

­ rovisions of the Refugee Convention apply. This follows from the purpose of p the  1954  ­Convention to  cover those persons who fall outside the protection of the ­Refugee Convention. Finally, this book does not provide a detailed description of the administrative decision-makers and courts that are involved in the determination of cases, nor of their staffing, caseload, resources and so on. Whereas I consider these matters to be important, they are not central to the analytical and conceptual focus of this study. I adopt a macro-level approach and consider them relevant only inasmuch as they affect essential principles of justice that should be guaranteed in all statelessness determination procedures.29 So, I limit myself to exploring the basic features of administrative decision-makers, especially their dependence on the executive, and I link this aspect to that of fair procedures. 4

Why Compare the Selected States?

The States chosen for inclusion in the study are the United Kingdom, Germany, Italy, Spain, France, Hungary, Sweden, Greece, the Netherlands and the Czech Republic. I base my choice on some theoretical and practical considerations. The first reason is that these are all eu States which have reached similar standards in the development of their administrative and judicial systems, and so, by holding many domestic factors reasonably constant, a cross-­national comparison enables one to isolate the factors that may lead to divergent outcomes. Secondly, they also belong to the region of the world with the highest number of statelessness determination procedures.30 Thirdly, in these States, as in most of the European Union, statelessness is not a massive phenomenon, unlike in other areas of the world, and migration is the most frequent cause of statelessness. An exception is that of Latvia and Estonia, as hundreds of thousands of Russian speakers lack a nationality, have strong ties to these countries and are usually considered an in situ stateless population. In situ stateless populations usually require naturalisation or ­recognition of a nationality as a solution.31 29 30

31

See Ch 4, s 3. unhcr, ‘States which Pledged to Establish or to Take Steps to Establish Statelessness Determination Procedures (as of 1 October 2012)’ accessed 15 June 2017; unhcr, ‘Establishing Statelessness Determination Procedures to Protect Stateless Persons’ – Good Practices Paper. Action 6 (2016). Gábor Gyulai, ‘Statelessness in the eu Framework for International Protection’ (2012) 14 ejml 280.

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Fourthly, I wanted to analyse States which, from an initial study of the literature, appear to have adopted different approaches to the implementation of the 1954 Convention and those whose systems of protection are especially little known (Sweden, Germany, Greece, the Czech Republic). The fifth reason is that these are States geographically situated in different parts of the Continent, and I wanted to include Southern and Northern European States, as well States from the Eastern block. Finally, I select these States on the basis of having different methods of incorporation of international law into the national legal systems.32 While I recognise that it is simplistic to classify States under the automatic and legislative method of incorporation, a detailed consideration of the legal systems in each State is beyond the scope of this study, and I group them under (1) States that have adopted the method of legislative incorporation (the uk, Hungary33 and the Scandinavian States34) and (2) States that have adopted the method of automatic incorporation (the other States) of international law.35 In practice, States have adopted solutions that are less clear-cut. Moreover, I acknowledge that this feature is complicated by the hierarchy of international law in the national legal system.36 In some States, treaty provisions and national law are considered to be of equal rank, and therefore, if a statutory provision of a treaty origin conflicts with another statute, whichever is later in time prevails, according to general principles of statutory construction (Sweden,37 Greece,38 uk,39 Germany40). In other States, the Constitution provides that 32 33

34 35 36

37 38 39 40

See s 8.1 in this chapter. Nóra Chronowski, Tímea Drinóczi and Ildikó Ernszt, ‘Hungary’ in Dinah Shelton, International Law and Domestic Legal Systems: Incorporation, Transformation and Persuasion (oup 2012) 284. unhcr, ‘Mapping Statelessness in Sweden’ (2016) 44. Leary (n 6) 151. Fisnik Korenica and Dren Doli, ‘The Relationship Between International Treaties and Domestic Law: A View from Albanian Constitutional Law and Practice’ (2012) 24(1) PaceInt’lLRev 92–93. unhcr, ‘Mapping Statelessness in Sweden’ (2016) 44. Angelos Yokaris, ‘Greece’ in Dinah Shelton, International Law and Domestic Legal Systems: Incorporation, Transformation and Persuasion (oup 2012) 251. Stephen C Neff, ‘United Kingdom’ in Dinah Shelton, International Law and Domestic Legal Systems: Incorporation, Transformation and Persuasion (oup 2011) 629. §59 Abs 2 Grundgesetz (gg) für die Bundesrepublik Deutschland vom 23.05.1949 (BGBl 1949 i, 1), zuletzt geändert durch Artikel 1 des Gesetzes vom 13.07.2017 (BGBl 2017 i, 2347) [Basic German Law]; Hans-Peter Folz, ‘Germany’ in Dinah Shelton, International Law and Domestic Legal Systems: Incorporation, Transformation and Persuasion (oup 2012) 245.

18

Chapter 1

treaties are of higher rank than national legislation (France,41 Hungary,42 the Czech Republic43 and Italy but only for some matters, such as the legal status of foreigners).44 Spain even gives human rights treaties constitutional status,45 and the Netherlands has adopted a unique method inasmuch as in some cases, treaties are superior even to the Constitution.46 The next chapters will mention this latter aspect only inasmuch as specifically relevant to the cases under study. From this selection, I expect to be able to show the range of variation in the treatment of claims of protection of stateless persons and key challenges in States that are all relatively homogeneous. In addition, while focusing on ten States, I hope to address the concerns of other States that are faced with the issue of protecting stateless persons. What is found in the States under review, in arguments and in practice, may have wider resonance. By using these examples, I aim to provide useful insights and perspectives that may ­assist in the development of key minimum procedural and substantive rights for the i­mplementation of the 1954 Convention. This is even more important, now that ­discussions are being held at the European level, as far as adopting a ­Directive on statelessness determination procedures is concerned.47 Although I conduct the analysis at a high level of generality, which may cause frustration to those with detailed knowledge of their national legal 41

Constitution de la République française du 4 octobre 1958 – jorf 05 octobre 1958 art 55 [Constitution of the French Republic of 5 October 1958 – jorf 05 October 1958 art 55]; Emmanuel Decaux, ‘France’ in Dinah Shelton, International Law and Domestic Legal Systems: Incorporation, Transformation and Persuasion (oup 2011) 207–09. 42 Chronowski, Drinóczi, Ernszt (n 33) 266; 7/2005 (III. 31) ab határozat [Constitutional Court decision], parallel opinion of Attila Harmathy. 43 Ústavní zákon č 1/1993, čl 10 [Constitution of the Czech Republic, Law No 1/1993 Coll., art 10]; Alexander J Bělohlávek, ‘Czech Republic’ in Dinah Shelton, International Law and Domestic Legal Systems: Incorporation, Transformation and Persuasion (oup 2012) 202–03. 44 Costituzione (22 Dicembre 1947) art 10(2) [Constitution (22 December 1947) art 10(2)]; Giuseppe Cataldi, ‘Italy’ in Dinah Shelton, International Law and Domestic Legal Systems: Incorporation, Transformation and Persuasion (oup 2011) 329. 45 Constitución Española (BOE-A-1978-31229) art 10(2) [Spanish Constitution (BOEA-1978-31229) art 10(2)]; Thomas Buergenthal, ‘Modern Constitutions and Human Rights Treaties’ (1997) 36 ColumJTransnat’lL 211, 217. 46 Grondwet voor het Koninkrijk der Nederlanden (Grondwet) artikelen 63, 65–66 [Constitution of the Kingdom of the Netherlands (Constitution) arts 63, 65–66]; Leary (n 6) 40, 48–49. 47 Meijers Committee, ‘Proposal for an eu Directive on the Identification of Statelessness and the Protection of Stateless Persons’ (October 2014) ­accessed 5 April 2017.

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s­ ystems, I had to make choices about how much detail and which details to include. I argue that the comparison is worthwhile, because it sharpens the understanding of the issue of protection of stateless persons and provides a new perspective of its operation. 5

Data and Methods

To build a systematic comparison, I prepared a list of standard questions for each State, collected the data in a structured and uniform manner and compared specific issues across the different systems.48 First, I carried out document analysis of legislation, judicial decisions and doctrinal views. As a complementary source, I took into consideration the work of the United Nations High Commissioner for Refugees (unhcr) and non-governmental organisations (ngos). When gaps were left, I filled them with information obtained from national informants.49 By adopting this mixed empirical-legal method to answer the research question, I acknowledge that my study is not an orthodox comparative law project.50 However, I consider it the most appropriate, given the limited access to the data (the literature in some States is underdeveloped and accessible only to local experts) and the aim to understand both legislative frameworks and practices.51 The technique of using national informants was successfully chosen in several prior empirical studies and has a number of advantages.52 It enables 48 49

50

51 52

Vernon Valentine Palmer (ed), Mixed Jurisdictions Worldwide. The Third Legal Family (2nd edn, cup 2012) 17. Expert interviews can be done after the main data collection. Uwe Flick, An Introduction to Qualitative Research (4th edn, Sage 2002) 168; Robert K Yin, Case Study Research. Design and Methods (4th edn, Sage 2008) 98–101. It should be noted that it is difficult to find a widely accepted definition of qualitative ­research. Nevertheless, there is agreement that ‘it is socially concerned, examines phenomena in their social settings (if field work is being undertaken) and considers those phenomena in context. Lisa Webley, ‘Qualitative Approaches to Empirical Legal Research’ in Peter Cane and Herbert M Kritzer (eds), The Oxford Handbook of Empirical Legal R ­ esearch (oup 2010) 927, 929. Ibid 932–35, 948. This method has been used in both legal and social policy studies. See e.g., Anita Böcker and Elspeth Guild, Implementation of the Europe Agreements in France, Germany, the Netherlands and the uk: Movement of Persons (Platinium Publishing Limited 2002) 5; Vernon Valentine Palmer, ‘From Lerotholi to Lando: some Examples of Comparative Law Methodology’ (2005) 53 ajcl 261; Barry J Rodger, ‘Art 234 and Competition Law: A Comparative Analysis’ (2008) 15(2) mj 149. See also Tony Eardley and others, ‘Social Assistance in oecd Countries: Synthesis Report’ (1996) Department of Social Security Research Report No 46

20

Chapter 1

comparisons within a defined group of jurisdictions on particular questions of law, as ‘each informant is an expert in the field of enquiry in their own country, easing the task of collection and validation of data and helping with interpretation of cultural context.53 Moreover, national informants can provide fine technical details as far as the application of rules is concerned.54 Alexander Bogner and Wolfgang Menz discuss that experts have ‘technical processoriented and interpretive knowledge referring to their specific professional sphere of activity’.55 Thus, expert knowledge consists of systematised and accessible specialist knowledge, as well as practical knowledge.56 For my research, I identified the national informants through the literature, specialised networks on statelessness and professional contacts. I ensured that all of the informants were legal professionals and established experts on statelessness in their own country.57 Each national informant provided material on his own country through an interview or a questionnaire,58 depending on his preference. The ­questions

53

54 55

56 57 58

(University of York); Patricia Thornton and Neil Lunt, ‘Employment Policies for Disabled People in Eighteen Countries: A Review’ (spru 1997); Patricia Thornton, International Research Project on Job Retention and Return to Work Strategies for Disabled Workers: Key Issues (1998); Anne Corden, ‘Comparing Child Maintenance Systems: Conceptual and Methodological Issues’ (2001) 4(4) ijsrm 291; Christine Skinner and Jacqueline Davidson, ‘Recent Trends in Child Maintenance Schemes in 14 Countries’ (2009) 23(1) ijlpf 25. Corden (n 52) 291; Alexander Bogner and Wolfgang Menz, ‘Introduction: Expert Interviews. An Introduction to a New Methodological Debate’ in Alexander Bogner, Wolfgang Menz, Beate Littig (eds), Interviewing Experts (Palgrave Macmillan 2009) 2. Corden (n 52) 291. Alexander Bogner and Wolfgang Menz, ‘The Theory-Generating Expert Interview: Epistemological Interest, Forms of Knowledge, Interaction’ in Alexander Bogner, Wolfgang Menz, Beate Littig (eds), Interviewing Experts (Palgrave Macmillan 2009) 54. By ‘technical knowledge’, I mean knowledge that is more systematic and specific in its content (e.g., gained through educational qualifications), in contrast to everyday knowledge (e.g., ­information about operations and events governed by rules that are specific to a field, bureaucratic competences, etc). By ‘process knowledge’, I do not mean specialised knowledge in the narrow sense. It is knowledge gained through practical experience of the ­individual’s context of action (e.g., inspection of and acquisition of information about s­ equences of actions, interaction routines, organisational constellations and past or ­current events, etc). By ‘interpretative knowledge’, I mean knowledge that represents the individual’s subjective orientations, rules, points of view and interpretations. It demonstrates that expert knowledge is heterogeneous. ibid 52–53. Ibid 52–54. The national informants are listed in the bibliography. The main difference between an interview and a questionnaire is that in the former, it is the interviewer who asks the questions and records the respondent’s answers according

The Scope of the Book

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included semi-structured and open-ended questions that left space for discursive responses.59 The questionnaires included two fictitious vignettes (short stories about the circumstances of stateless persons who were seeking stateless status), and the national informants were asked to answer them and explain how their system would deal with a stateless person who seeks protection, in light of certain variables, and what outcome they considered would be likely. ‘The vignette technique presents real-life situations in meaningful social circumstances, and the respondents offer observations and interpretation from within their natural context.60 Several scholars discuss the use of vignettes in cross-national social research.61 In general, this approach is recognised as providing useful insight into studies of issues in different States. However, one of its limitations is that ‘assumptions have to be made by the informant where real determinations would involve discretionary decisions’.62 Also, the vignettes include a limited number of variables, compared to complex situations in real life.63 Following an initial analysis of the questionnaires and interview records, if necessary to clarify any issue, I followed up with short focused interviews or additional written questions. When national informants found matters o­ utside to an interview schedule, whereas in the latter, the replies are recorded by the respondents themselves. This distinction is important for the strengths and weaknesses of the two methods. In the case of questionnaires, one advantage is that they save time, but one of the disadvantages is that the opportunity to clarify issues is lacking. So, it is important that questions are clear, as there is no one to explain their meaning, and that they are developed in an interactive style. Ranjit Kumar, Research Methodology (2nd edn, Sage 2005) 126. As far as the advantages of interviews are concerned, they are considered more appropriate for complex situations; collection of in-depth information (it is possible to obtain more information by probing) and supplementiation of information and explaining questions. ibid 131. On the other hand, interviews are time-consuming; the quality of the data depends on the quality of the interaction between the interviewer and interviewee; the quality of the data depends on the quality of the interviewer (it can be affected by the experiences, skills and commitment of the interviewer) and researchers may introduce their bias in framing questions. ibid 132. 59 Skinner and Davidson (n 52) 27. 60 Corden (n 52) 291. 61 See e.g., Haluk Soydan, ‘Using the Vignette Method in Cross-Cultural Comparisons’ in Linda Hantrais and Steen Mangen (eds), Cross-National Research Methods in the Social Sciences (Pinter 1996) 120–28; Susan Tester, ‘Comparative Approaches to Long-Term Care for Adults’ in Jochen Clasen (ed), Comparative Social Policy: Concepts, Theories And Methods (Wiley-Blackwell 1999) 136–58. 62 Corden (n 52) 31. 63 Ibid.

22

Chapter 1

of their own expertise, they referred me to a colleague of their choice to provide full material. If these national experts were contacted for a very limited number of questions, communication with them was in the form of e-mails or telephone conversations. The primary research was conducted between November 2013 and September 2014. I then updated the data with questionnaires, follow-up interviews and personal communications in 2016 and 2017. I further supplemented the material through a number of conversations with experts at conferences or training. When possible, I corroborated the same data with multiple sources according to the triangulation method.64 During the overall data collection, I encountered major problems in relation to systems that do not have specific statelessness determination procedures and do not recognise statelessness as grounds for protection. The main research challenges that came to light concerned: (1) the low levels of general awareness or knowledge of statelessness (especially in Sweden and Greece), (2) political sensitivities surrounding some stateless populations (in particular, regarding Palestinians), (3) the absence of basic data in some States (i.e., in Greece and Sweden),65 (4) the tendency to include statelessness issues within refugee law and, in some States, the rare and episodic case law (France),66 (5) confidentiality issues relating to ongoing cases, which constrains the publication of data, (6) a persistent challenge even on the question of defining who is stateless and (7) as far as Germany is concernced, the wide variation in how administrations and courts deal with claims of stateless persons, which required more effort to collect the data than elsewhere. Therefore, for some States with no statelessness determination procedures, I was able to obtain more comprehensive and detailed information (Germany, the Netherlands, Sweden) than for others (Greece and the Czech Republic). 6

A Brief Note on Terminology

In this book, the term ‘implementation’ refers to the measures that States adopt to make international treaties effective in their national legal frameworks: the passage of primary and secondary legislation, the adoption of 64 65 66

Yin (n 49) 116–18. Manly and van Waas, ‘The State of Statelessness Research. A Human Rights Imperative’ (2014) 19(1–2) tlr 6. Catherine-Amélie Chassin, ‘Panorama du Droit Français de l’Apatride’ (2003) 19(2) rfda 326.

The Scope of the Book

23

r­egulatory ­provisions and administrative guidelines, the creation of specific ­statelessness determination procedures, the removal of obstacles that limit ­access to ­procedures and rights and other policy measures, including securing access to legal aid.67 The words ‘national’ and ‘citizen’ are used interchangeably, although some literature has specified that they may have different meanings.68 The terms ‘deportation’, ‘removal’ and ‘expulsion’ have different meanings in the States under review, and sometimes, the literature uses them in a confusing manner, switching from one to another.69 When these terms are used in the book, they have the same connotation as in the national legal systems. To guide the reader but not to include lengthy definitions in this chapter, I explain them in the Annex. 7

Issues in Statelessness Research

The study of statelessness has not yet established itself as a field in its own right, unlike, for instance, refugee law or international human rights law.70 Yet, statelessness raises several fundamental questions, including international relations between States, the limitations of the human rights framework and its effectiveness, the incorporation of international law into national legal ­systems and access to justice for vulnerable claimants. The study of statelessness initially emerged as the study of nationality laws and led over time to the exploration of international standards and domestic norms relevant to statelessness. Now, a body of literature explores and analyses the international standards relevant to statelessness71 and seeks to better understand the international obligations with regard to the avoidance of statelessness and the protection of the rights of stateless persons as enshrined in the 1961 Convention on the reduction of statelessness and the 1954 Convention relating to the status of stateless persons.72 Scholars have also tried to elucidate 67

68 69 70 71 72

Kal Raustiala and Anne-Marie Slaughter, ‘International Law, International Relations and Compliance’ in Walter Carlsnaes and others (eds), Handbook of International Relations (Sage Publications 2006) 538–58; Galligan, Law in Modern Society (n 5) 294. See Ch 2, s 2. This is a very complex area of law, and I can only briefly refer to it here. Alice Edwards and Laura van Waas (eds), Nationality and Statelessness Under International Law (cup 2014) 1. Manly and van Waas (n 65) 3. Eg Paul Weis, Nationality and Statelessness in International Law (Kluwer Academic Publishers Group 1979); Johannes M M Chan, ‘The Right to a Nationality as a Human Rights

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the causes of existing situations of statelessness and gaps in nationality laws that may be creating this condition and identify stateless populations and the treatment that they receive.73 Over the past ten years, the language of statelessness studies has shifted towards rights-based themes, and the unhcr, other un bodies, ngos and scholars have stressed that statelessness is a human rights problem. Some recent research is starting to explore the implementation of the relevant international obligations and contribute towards effective solutions, including strategic litigation, as well as effective use of un human rights mechanisms.74 Major gaps in knowledge remain regarding the implementation at the national level of the international obligations concerning statelessness, e­ specially of the meaning of ‘stateless person’, the national procedures for the identification of statelessness and the decisions on status determination.75 This is so, despite the key to a true appreciation and understanding of the plight of stateless persons and the extent of their current rights lying at the national level, as it is national law and practice that determine the treatment of an individual’s claim for protection. The few studies that discuss statelessness and legal protections in individual eu States are in the format of journal articles and NGO reports,76 which

73

74 75

76

– The Current Trend Towards Recognition’ (1991) 12(12) hrlj 1; Carol Batchelor ‘Stateless Persons: Some Gaps in International Protection’ (1995) 7 ijrl 232; Jaap E Doek, ‘The crc and the Right to Acquire and to Preserve a Nationality’ (2006) 25(3) rsq 26; van Waas (n 12); Edwards and van Waas (n 70). Eg Kees Groenendijk, ‘Nationality, Minorities and Statelessness. The Case of the Baltic States’ (1993) 4(3) Helsinki Monit 13; Carol A Batchelor, ‘Transforming International Legal Principles into National Law: The Right to a Nationality and the Avoidance of Statelessness’ (2006) rsq 25; David Weissbrodt and Clay Collins, ‘The Human Rights of Stateless Persons’ (2006) 28 HumRtsQ 245; and numerous articles in a special edition of the fmr on statelessness in 2009 (issue 32). Laura van Waas and Melanie J Khanna (eds), Solving Statelessness (Wolf Legal Publishers 2017). Batchelor, ‘The 1954 Convention Relating to the Status of Stateless Persons’ (n 1) 31–58; Edwards and van Waas (n 70); Gerard­René De Groot, Katja Swider, Olivier Vonk, ‘Practices and Approaches in eu Member States to Prevent and End Statelessness’ (Policy Department Citizens’ Rights and Constitutional Affairs, European Parliament 2015) 24. Holger Hoffmann, ‘Welche Rechte Haben Staatenlose?’ (2004) 10 Asylmagazin 5; Alessandro Marazzi, L’ Apolidia e il suo Accertamento Giudiziario (G Giappichelli 1958); Roberto Panozzo, ‘Cenni Sulla Condizione dell’ Apolide nel Diritto Internazionale e nell’Ordinamento Giuridico Italiano’ (2004) 3 Lo Stato Civile Italiano 174; Stefano Emauele Pizzorno, ‘Il Riconoscimento dello Status di Apolidia’ (2003) Nuova giur civ comm 312; unhcr and Asylum Aid, ‘Mapping Statelessness in the uk’ (2010); Gábor Gyulai,

The Scope of the Book

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do not engage in an in-depth analysis or theoretical considerations. Furthermore, the research exploring and interpreting international standards and domestic norms relevant to statelessness mainly deals with States that have adopted some implementing legislation.77 Very little is known of the treatment of stateless persons in States with no specific statelessness determination procedures.78 The issue of the identification of statelessness has been recognised as an issue requiring separate attention from that of its definition, and research is progressing. Previous comparative research on statelessness determination procedures shows a number of different models and types of legal status granted and a variety of administrative or judicial decision-makers involved, but it is more descriptive than analytical.79 Gábor Gyulai, in line with the unhcr,80 argues that specific statelessness determination frameworks facilitate access to the recognition of stateless status, as they have (or should have) an ­ umber of provisions specifically designed for the needs of the stateless and raise awareness of the problem of statelessness.81 Gyulai discusses that some States with ­non-statelessness-specific protection statuses may in practice offer some p ­ rotection to stateless persons – for instance, by granting ‘tolerated’ or ‘­humanitarian’ status.82 However, such statuses are usually based on the impossibility of leaving the country and offer less favourable conditions with

77

78

79 80 81 82

‘Statelessness in Hungary. The Protection of Stateless Persons and the Prevention and ­Reduction of Statelessness’ (Hungarian Helsinki Committee 2010); unhcr ‘Mapping Statelessness in the Netherlands’ (2011). Batchelor, ‘Stateless Persons: Some Gaps in International Protection’ (n 72) 232; Batchelor, ‘unhcr and Issues Related to Nationality’ (1995) 14(3) rsq 91; Batchelor, ‘Statelessness and the Problem of Resolving Nationality Status’ (1998) 10(1–2) ijrl 156; Batchelor, ‘The 1954 Convention Relating to the Status of Stateless Persons’ (n 1) 31; Batchelor, ‘Transforming International Legal Principles into International Law: The Right to a Nationality and the Avoidance of Statelessness’ (n 73) 8; Manly and van Waas (n 65) 3, 5. Batchelor, ‘The 1954 Convention Relating to the Status of Stateless Persons’ (n 1) 31; Gyulai, ‘Statelessness in the eu Framework for International Protection’ (n 31); Gyulai, ‘The Determination of Statelessness and the Establishment of Statelessness-Specific Protection Regime’ in Alice Edwards and Laura van Waas (eds), Nationality and Statelessness Under International Law (cup 2014) 116–43. Batchelor, ‘The 1954 Convention Relating to the Status of Stateless Persons’ (n 1) 31; Gyulai, ‘Statelessness in the eu Framework for International Protection’ (n 31) 279–80. unhcr Handbook (n 2) paras 8–10. Gyulai, ‘The Determination of Statelessness and the Establishment of Statelessness-­ Specific Protection Regime’ (n 78) 120–23. Gyulai, ‘Statelessness in the eu Framework for International Protection’ (n 31) 289.

26

Chapter 1

regard to residence status and social and economic rights and in providing a long-term solution than stateless status.83 The identification of statelessness raises such questions as what type of procedure should be followed, what its constituent elements would be, what facts should be taken into consideration and what evidence is required and acceptable to establish nationality or its absence. Whereas some States have adopted statelessness determination procedures, others have deficient or non­existent identification norms.84 Despite statelessness being a legal fact, towards which States have corresponding legal obligations, some States often compare stateless persons to refugees or to irregular migrants, ignoring the specific needs of this population.85 Some States argue that specific statelessness determination procedures are not necessary, as stateless persons may qualify for legal status under other residence permits.86 One reason why States do not share views on identification systems is that the 1954 Convention does not expressly require any determination mechanism or procedure, which is entrusted to the laws and discretion of each State.87 It is therefore appropriate that this volume focuses on the implementation of the protection of stateless persons at the national level and contributes to an area that is important to the resolution of statelessness. In seeking to achieve the aim of the book, I also rely on other areas of the literature: international law, refugee law, administrative and public law and access to justice. In particular, I focus on the refugee law and international law perspectives more than others to explain the factors that play an important role in securing the implementation of the 1954 Convention and the enjoyment of rights for the stateless.

83 Ibid. 84 Katja Swider, ‘Protection and Identification of Stateless Persons through eu Law’ (July 2014) Amsterdam Centre for European Law and Governance Working Paper Series 2014– 05, 7. 85 Catherine-Amélie Chassin, ‘Panorama du Droit Français de l’Apatride’ (2003) 19(2) rfda 324. It should be noted that during the preparatory works of the 1954 Convention, there were several debates on the difference between stateless persons and refugees. 86 For example, this is the position of the Czech and German governments. Telephone interview with Alexandra Dubova, Immigration Lawyer, Organizace pro pomoc uprchlíkům, o.s. (Prague, Czech Republic, 2 January 2014); Osamu Arakaki, ‘Statelessness Conventions and Japanese Laws. Convergence and Divergence’ (unchr 2015) 38; Katia Bianchini, ‘On the Protection of Stateless Persons in Germany’ (2014) 19(1–2) tlr 35. 87 Arakaki (n 86) 38.

The Scope of the Book

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27

The Insights of International Law

The implementation of the 1954 Convention at the national level involves essential questions that are common to other human rights treaties,88 especially about the effectiveness of legal responses to change internal practices following their ratification,89 the disjuncture between the abstract level of norms and how they are practically translated to the national level90 and the State’s responsibility to protect individuals who are not nationals in compliance with international obligations. The implementation of treaties also exposes the challenge of assessing whether a State can be said to have effectively implemented an international legal obligation.91 According to several scholars, this 88

89

90

91

Studies on the public international law of money, trade and intellectual property agreements generally rely on compliance mechanisms (ie, market forces, costs of retaliatory non-compliance) that do not exist in human rights law, and therefore, I exclude them from the relevant literature. Oona Hathaway, ‘Do Human Rights Treaties Make a Difference?’ (2002) 111(8) ylj 1935, 1938; Lucas Eduardo F A Spadano, ‘Cross-Agreement Retaliation in the wto Dispute Settlement System: an Important Enforcement Mechanism for Developing Countries?’ (2008) 7(3) World Trade Review 511. Christof H Heyns and Frans Viljoen, ‘The Impact of the United Nations Human Rights Treaties on the Domestic Level’ (2001) 23(3) HumRtsQ 483; see also Sheldon Leader, ‘Deriving Concrete Entitlements from Abstract Rights’ in Geoff Gilbert, Francoise Hampson and Clara Sandoval (eds), The Delivery of Human Rights: Essays in Honour of Professor Sir Nigel Rodley (Routledge 2011) 1–12. Alexander Betts and Phil Orchard (eds), Implementation and World Politics. How International Norms Change Practice (oup 2014) 1–2. Very few empirical studies have been carried out regarding national practices following ratification of human rights treaties. Galligan and Sandler (n 5) 25. This area of scholarship tends to examine the impact of human rights norms on the practices of developing countries. Margaret E Keck and Kathryn Sikkink, Activists Beyond Borders: Advocacy Networks in International Politics (Cornell University 1998); Thomas Risse, Stephen C Ropp and Kathryn Sikkink (eds), The Power of Human Rights: International Norms and Domestic Change (cup 1999); Guglielmo Verdirame and Barbara Harrell-Bond, Rights in Exile. Janus-Faced Humanitarianism (Berghahn Books 2005). It also tends to look at international environmental treaties in developed countries. See e.g., Edith Brown Weiss and Harold K Jacobson, ‘A Framework for Analysis’ in Edith Brown Weiss and Harold K Jacobson (eds), Engaging Countries: Strengthening Compliance with International Environmental Accords (mit Press 1998); Oran R Young, The Effectiveness of International Environmental Regimes. Causal Connections and Behavioral Mechanisms (mit Press 1999); David Victor, Kal Raustiala and Eugene Skolnikoff (eds), The Implementation and Effectiveness of International Environmental Commitments: ­Theory and Practice (mit Press 1998). Brown Weiss and Jacobson (n 90) 4–5; Victor, Raustiala, Skolnikoff (n 90); Brian Gorlick, ‘Human Rights and Refugees: Enhancing Protection through International Human Rights

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challenge is due to the imprecision of the terminology used in standard-setting conventions; the variety of legal frameworks and practices of States, including the legal value of human rights treaties in domestic legal systems;92 the role of discretion in the State’s choice of means to enact treaty obligations and the possibility that the State may be entitled to avoid responsibility by providing an ‘equivalent alternative’ to the required result.93 In the context of the Refugee Convention, many scholars, such as Guy Goodwin-Gill and Jane McAdam, point to the nature of the legal obligation and the State’s approach to the incorporation of international law into the domestic legal framework as the main factors to consider when assessing the implementation of the international provisions. They maintain that the nature of the obligation involves considering whether it is self-executing – that is, whether it can be relied upon by any interested individual and directly applied by decision-makers.94 As for the State’s approach to the incorporation of international law, they recognise that States may choose to formalise international obligations through enacting legislation, adopting national mechanisms that deal with specific human rights claims or otherwise ensuring that State agents are obliged to respect certain norms. However, they argue that the principle of pacta sunt servanda, a fundamental tenet of international law, requires performing treaty obligations in good faith95 and limits the discretion of a State Party in selecting a system for implementation.96 ‘The test for good faith is an objective one, as it looks to the practical effect of State action, not its intent or motivations’.97

92

93

94 95

96 97

Law’ (2000) 69(2) NordJIntlL 117, 129–30; Oona Hathaway (n 88) 1935; Guy Goodwin-Gill and Jane McAdam, The Refugee in International Law (3rd edn oup 2007) 528–30. André Nollkaemper, ‘The Effects of Treaties in Domestic Law’ in Christian J Tams, Antonios Tzanakopoulos, Andreas Zimmermann (eds) The Handbook on the Law of Treaties (Edward Edgar Publishing 2014) 130. Brown Weiss and Jacobson (n 90) 4–5; Gorlick (n 91) 117; Bradnee W Chambers, ‘Towards an Improved Understanding of Legal Effectiveness of International Environmental Law’ (2003–2004) 16 GeoInt’lEnvtlLRev 501; Goodwin-Gill and McAdam (n 91) 528–29. Benedetto Conforti, International Law and the Role of Domestic Legal Systems (Martinus Nijhoff Publishers 1993) 25–26; Leary (n 6) 14. The principle of pacta sunt servanda is expressed as follows in art 26 of the Vienna Convention on the Law of Treaties: ‘Every treaty in force is binding upon the parties to it and must be performed by them in good faith’. Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 unts 331. Goodwin-Gill and McAdam (n 91) 387; Abdul Ghafur Hamid and Khin Maung Sein, Public International Law. A Practical Approach (3rd edn, Sweet and Maxwell Asia 2011). Goodwin-Gill and McAdam (n 91) 387.

The Scope of the Book

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Goodwin-Gill adds that the test to apply should be ‘whether, in light of domestic law and practice, including the exercise of administrative discretion, the state has attained the international standard of reasonable efficacy and efficient implementation of the treaty provisions concerned’. What is meant by reasonable efficacy and efficient implementation depends on the results in fact.98 A State lacks good faith not only when it does not follow the black letter law of the treaty but also when it avoids or diverts obligations which it accepted or when it does indirectly what it cannot do directly.99 Measures that have the effect of barring access to procedures may breach not only international human rights and refugee law but also the principle of good faith.100 While there are no provisions in the Refugee Convention that oblige States to process asylum seekers’ claims within their borders, providing access to courts and grant status to recognised refugees reinforces the object and purpose of the treaty by assuring the ‘widest possible exercise of (…) fundamental rights and freedoms’.101 Goodwin-Gill does not give more guidance on what effective implementation is but stresses that it involves procedures to identify the beneficiaries of protection and some measures of protection against laws of general applicability that affect refugees, such as requirements of lawful residence to make an application.102 Several other scholars argue that the way in which human rights are incorporated into national law is one of the most important factors determining whether they are really brought home and seen as part of the domestic legal framework.103 From an international law perspective, this requires an examination of the doctrine of incorporation of international law into the domestic legal framework, which is discussed in more detail in the next section.104 I therefore take these studies into consideration to analyse the i­ mplementation 98

99 100 101 102 103

104

Guy Goodwin-Gill, ‘The Process and Rights of Asylum Seekers’ in Karen Musalo, Jennifer Moore, Richard A Boswell (eds), Refugee Law and Policy. A Comparative and International Approach (4th edn, Carolina Academic Press 2011) 922. See also Ian Brownlie, Principles of Public International Law (6th edn, oup 2003) 425–30. Goodwin-Gill and McAdam (n 91) 387. Ibid 388. Ibid 389; Refugee Convention (n 27) Preamble. Goodwin-Gill (n 98) 922. See e.g., Goodwin-Gill (n 98) 528–29; Henry J Steiner, Philip Alston, Ryan Goodman (eds), International Human Rights in Context. Law, Politics, Moral (3rd edn, oup 2007) 1087–124; Susan Kneebone (ed), Refugees, Asylum Seekers and the Rule of Law. Comparative Perspectives (cup 2009) 1. Evert A Alkema, ‘International Law in Domestic Systems’ (2010) 14(3) ejcl 257.

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Chapter 1

of the 1954 Convention, its incorporation into the national legal frameworks and the gaps between laws and practice. The Incorporation of International Law into the Domestic Legal Framework The doctrine of incorporation of international law into the domestic legal framework is, in principle, relevant to all sources of binding international law.105 Nevertheless, it has been developed primarily with regard to international treaties, with the theories of dualism and monism traditionally used to identify and systematise the main ways domestic law receives international law.106 Both were developed after World War i, when theories of jurisdiction and non-intervention, which were employed to separate international law and national law into two clearly different spheres, were considered inadequate.107 Generally, the dualist theory contends that the rules of international and national law exist separately and that one cannot overrule the other. This is due to the distinct nature of inter-state and intra-state relations and the varying legal structures of the State and between the States: they have different sources and subjects; both are supreme within their own sphere.108 The two systems are not in conflict, because they are completely separate. International law only forms part of domestic law if it has been adopted by a formal legislative act of Parliament.109 The incorporation of international law involves creating a national framework for the enjoyment of the rights in question and procedures that can be used in cases of rights violations.110 In contrast to this view, the monist theory maintains that there is a unitary system of law, with international law being an element within it, alongside other branches of domestic law. The two systems are not totally separate, and in order to avoid conflicts, priority must be given to one over the other. Most scholars argue that 8.1

105 Ibid. 106 Ibid. 107 Leary (n 6) 121–24; Philip Sales and Joanne Clement, ‘International Law in Domestic Courts: the Developing Framework’ (2008) 128 lqr 388. 108 Leary (n 6) 165. 109 Ibid. 110 Andrew Clapham, ‘The European Convention on Human Rights in the British Courts: Problems Associated with the Incorporation of International Human Rights’ in Philip Alston, Promoting Human Rights Through Bills of Rights: Comparative Perspectives (oup 1999) 95, 157.

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international law should be given priority.111 Ratified Conventions are part of domestic law without requiring additional legislation.112 Depending on the influence of the dualist or monist theory,113 some States have adopted the method of legislative incorporation (the uk, Hungary114 and the Scandinavian States115) or of automatic incorporation (preferred by most European States) of international law.116 Legislative incorporation e­ ntails that treaties become national law only if enacted as legislation according to the normal procedure. The legislative act transforming the norms as d­ omestic is distinct from the act of ratification.117 The legislative body may refuse to ­enact implementing legislation, and the treaty does not become national law. In ­systems of automatic incorporation, treaties become national law once they are ratified. In some of these States, proclamation or publication of the treaty may be additionally required to have legal effects. Even in these States, it is important to note that some treaty provisions are so vague as to require ­implementation of legislation before they could be applied. Such provisions are called ‘nonself-executing’.118 The criteria to establish whether a norm is self-­executing or not differ from State to State, and therefore, each national ­system and situation must be examined individually.119 Some States, such as Germany and Italy, have adopted a system of legislative i­ ncorporation but e­ mploy a method which in practice functions similarly to that of a­ utomatic ­incorporation.120 In these States, the Parliament’s act of approval of ­ratification has the effect of incorporating the treaty provisions. This ­technique is ­sometimes called ‘­quasi-automatic incorporation’.121 111 Leary (n 6) 165; Malcolm N Shaw, International Law (5th edn, cup 2002); Sales and Clement (n 107) 388. 112 Shaw (n 111); Sales and Clement (n 107) 388. 113 Leary (n 6) 151. See also Kaye Holloway, Modern trends in Treaty Law (Stevens and Sons 1967) 238. 114 Chronowski, Drinóczi, Ernszt (n 33) 284. 115 unhcr ‘Mapping Statelessness in Sweden’ (2016) 44. 116 Following World War ii, most States leaned more towards the adoption of automatic incorporation of international law in national constitutions. This found its basis in the lesson learned from the Nazi regime and the idea that automatic incorporation would be more effective in ensuring the application of international treaties than that of legislative incorporation. Leary (n 6) 151. 117 Ibid 36. 118 Ibid 35–36. 119 Ibid 41. 120 Ibid 36. 121 Ibid 37.

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The debate on which technique is better to incorporate human rights t­reaties into national law has been extensive, and I can only briefly refer to it here. The system of legislative incorporation is preferred, for example, by Henry Reiff, because it provides certainty as to whether or not treaty norms are incorporated into national law. According to the scholar, the main problem in systems of automatic incorporation is to determine whether treaty provisions are self-executing or not. If such an aspect of a treaty provision is being disputed, Congress should adopt a comprehensive enforcing statute.122 In turn, others, like Quincy Wright, favour automatic incorporation due to its opportunity to delegate the power for the application of international treaties to the courts, rather than partisan debates in the Congress or State legislatures.123 Wright underlines that the judicial use of treaties tends to emphasise the objectivity of international law and takes them away from the political aspects of ­international relations.124 Is Formal Legislative Codification of Human Rights Needed to Effectively Implement Treaties? The scholarship identifies as an issue whether, in systems of automatic i­ ncorporation, formal legislative codification of human rights ‘is a necessary component of a legal infrastructure of a rights-respecting legal culture’.125 ­International human rights institutions and advocates, as well as a number of scholars, stress the need to adopt national legislation to effectively implement universal standards.126 The argument for the domestic implementation of human rights is based on the view that this creates a legal environment in which they are more likely to be complied with, by making specific outcomes legal imperatives rather than discretionary choices left to decision-makers.127 ­David Kinley points out that legislative implementation of human rights treaties is

8.2

122 Henry Reiff, ‘The Enforcement of Multipartite Administrative Treaties in the United States’ (1940) 34 ajil 661, 669, 678. 123 Lawrence Preuss, ‘The Executing of Treaty Obligations Through Internal Law’ (1951) pasil 101; Leary (n 6) 158–59. 124 Quincy Wright, ‘National Courts and Human Rights. The Fuji Case’ (1951) 45 ajil 62, ­82–89; Leary (n 6) 159. A similar position has been taken by other scholars. See e.g., Pierre Pescatore, ‘Rapport Luxembourgeois’ in ‘Deuxième Colloque International de Droit Européen (La Haye 24–26 October 1963)’ (nv Uitgeversmaatschappij wej Tjeenk Willink 1966) 137, 143. 125 Luke McNamara, Human Rights Controversies. The Impact of Legal Form (RoutledgeCavendish 2007) 2. 126 Ibid. 127 Ibid.

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always necessary, because the greatest responsibility for the protection of human rights and civil liberties should lie with elected representatives rather than the judiciary.128 The Parliament also has a preventive influence over the executive, and the passage of human rights laws is a means to ensure that they are taken seriously.129 Implementing legislation may force a review of other relevant provisions and provide a standard of critique of new policies and laws.130 By contrast, one of the views against the codification of rights is that it is not necessarily grounded in practical experience.131 The enactment of laws per se may not address causes of human rights violations.132 In this sense, Roy ­Bhasker stresses that human rights depend upon the transformation of ­structures and institutions rather than just the adoption of laws.133 According to another perspective, shared by some governments, detailed implementation of human rights may not be necessary if current practice already matches the objectives of the treaties in question.134 Along this line, Pierre Cornil criticises the i­nsistence on the adoption of implementing legislation when the ­national legal system clearly sets forth that international treaties prevail over national law in cases of conflict. He argues that such a position would undermine the monist theory.135 It would question the good faith of States who a­ ccept jurisprudence in their Constitution and practice the supremacy of the rule of international law. States may cease to believe in it themselves and ­embrace again the thesis of absolute national sovereignty. Governments are 128 David Kinley, ‘Parliamentary Scrutiny of Human Rights: a Duty Neglected?’ in Philip Alston, Promoting Human Rights Through Bills of Rights: Comparative Perspectives (oup 1999) 158. 129 ibid 158, 184. 130 Leary (n 6) 137, 157; Andrew Byrnes, ‘And Some Have Bills of Rights Thrust upon Them: Hong Kong’s Bill of Rights Experience’ in Philip Alston, Promoting Human Rights Through Bills of Rights: Comparative Perspectives (oup 1999) 318, 390. 131 McNamara (n 125) 3. 132 Christine Chinkin, ‘International Law and Human Rights?’ in Tony Evans (ed), Human Rights Fifty Years On: a Reappraisal (Manchester University Press 1998) 105–06; Christopher Cviic and Katarina Tomaševski, Development Aid and Human Rights Revisited (St Martin’s Press 1993). 133 Roy Bhasker, Philosophy and the Idea of Freedom (Blackwell 1991) 76. 134 Leary (n 6) 4, 138–48; Tony Evans, ‘International Human Rights Law as Power/Knowledge’ (2005) 27(3) HumRtsQ 1046–68; Katja Swider, ‘Statelessness Determination in the Netherlands’ (May 2014) Amsterdam Centre for European Law and Governance Working Paper Series 2014–33. 135 Pierre Cornil, ‘Le Rôle de la Commission d’Experts de l’OIT dans le Contrôle de l’Application des Conventions Internationales du Travail’ (1970) 1 rbdi 265, 270–73.

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easily ready to believe that ratified treaties do not prevail over national law.136 The fate of international law depends on the attitude of these States. Such attitude is outlined in their constitutions, and it is therefore important that these constitutional provisions are applied with scrupulous attention.137 The Role of Law and Legal Actors for the Incorporation of International Law Several contemporary scholars, such as Virginia Leary, Henry J. Steiner, Denis Galligan and Deborah Sandler, criticise the monist and dualist theories as being outdated and focusing too much on rules.138 After World War ii, with the adoption of the United Nations (un) and a number of human rights treaties, including the Refugee Convention and the 1954 Convention, international law did start dealing with areas formerly only within the jurisdiction of States. With time, the boundaries between international and national law have become even less clear-cut, and in this sense, the dualist theory overlooks that today, the two systems regulate the same subjects, interact and sometimes clash.139 For instance, international law may not be part of domestic law (in the sense that it does not give rise to a right or obligation which can be enforced in court), but it may assist in the interpretation of national law and thus be of legal relevance.140 On the other hand, the monist theory overestimates the degree of unity that exists between the two systems. International law does not always reach directly into national legal systems. Leary’s work, for example, clearly shows that the effective application of treaties in national law needs further action, even in systems of automatic incorporation.141 Systems of automatic incorporation require that States address problems arising from the often lack of publicity given to the treaty provisions and the uncertainty resulting from conflicts between laws and treaty provisions, even when the legal system provides that treaty provisions prevail.142 International law scholars have thus expanded the theoretical discussion, which now includes whether international law is incorporated through ‘rules’ or ‘process’. Broadly, recent research on the incorporation of human rights has

8.3

136 Ibid. 137 Ibid 265; Leary (n 6) 139–41. 138 See e.g., Leary (n 6) 164–65; Galligan and Sandler (n 90); Steiner, Alston, Goodman (n 103) 1109. 139 Leary (n 6) 150–51. 140 Steiner, Alston, Goodman (n 103) 1109. 141 Leary (n 6) 165. 142 Ibid 137.

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been focusing on the interaction of several national and international actors, decision-making processes and their impact on national legal systems.143 For instance, Nergis Canefe considers the incorporation of international law ‘a complex deliberative process’,144 in which several interests, conflict and actors, including the State, encounter.145 Rosalyn Higgins argues that international law is not only made of a body of rules.146 Rules are important, but the application of international law is a process which involves practices and decisionmaking. She assumes that decision-makers are not simply finding the rule and applying it but also making choices between different arguments.147 Similarly, Galligan claims that the implementation of human rights depends on the adoption of clear legislation and their reception by officials (i.e., administrators and judges).148 Galligan specifies that ‘[i]t is useful to distinguish between primary institutions that make day-to-day decisions having human rights aspects and other institutions dedicated to their supervision’,149 such as the courts.150 On the other hand, however, emphasis on rules is still placed by legal positivists, who conceive law ‘as commands emanating from a sovereign’.151 Among

143 Myres S McDougal, ‘The Impact of International Law upon National Law: a Policy-­ Oriented Perspective’ (1959) 26(4) SDLRev 25; Leary (n 6) 166; Geoff Gilbert, ‘Law and Human Rights rather than International Human Rights Law’ in Geoff Gilbert, Francoise Hampton and Clara Sandoval (eds), Strategic Visions for Human Rights. Essays in Honour of Professor Kevin Boyle (Routledge 2012) 19–34. 144 Nergis Canefe, ‘The Fragmented Nature of the International Refugee Regime and its Consequences: a Comparative Analysis of the Applications of the 1951 Convention’ in James C Simeon (ed), Critical Issues in International Refugee Law: Strategies Toward Interpretative Harmony (cup 2010) 200. 145 Ibid. 146 Rosalyn Higgins, Problems and Process. International Law and How We Use it (Clarendon Press 1994) 2. 147 Ibid 2–3. 148 Galligan and Sandler (n 5) 23, 51–54. 149 Ibid 23, 53. 150 Ibid. 151 Higgins also cites John Austin’s statement that: “Every positive law (or every law simply and strictly so-called) is set, directly or circuitously, by a sovereign individual or body, to a member or members of the independent political society wherein its author is supreme. In other words, it is set, directly or indirectly, by a monarch or sovereign member, to a person or persons in a state of subjection to its author.” John Austin, Lectures on Jurisprudence or the Philosophy of Positive Law (Jersey City, FD Linn & Company 1875) 203, in Higgins (n 146) 7–8. See also Hans Kelsen, General Theory of Law and State (Harvard University Press 1949).

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them, Tom Campbell discussed that the success of human rights treaties depends on their general statements being transformed into practical expressions, using specific terms.152 The meaning and purpose of each right have to be clarified, and so do any duties and exceptions and limitations.153 Furthermore, new rules have to be placed into the framework of existing legislation.154 This means that they ‘must be cast in a form which can generate both effective executive action and a basis for legal argument concerning their violations. Beyond this, many rights require state commitment to, and finance for, definable policy objectives (…)’.155 On the other hand, Campbell recognises that the risk in positivising human rights often means limiting them, for instance, by introducing limitations to their scope and restrictive definitions of their terms. Nevertheless, this is necessary for human rights to have effect. Jack Donnelly maintains that national law is critical to assure that the State is the protector rather than the violator of human rights. He stresses the ‘heavy reliance on law’ and that ‘law ought to be central to the struggle for human rights’.156 He believes that the appeal of law is in its definitions of standards, its normative functions and its enforcement mechanisms.157 Moreover, law presents advocates with potent and authoritative legal norms with which to base claims.158 In the field of refugee law, such scholars as Stephen Legomsky and Susan Kneebone go beyond the traditional positivist approach and argue that besides the level of incorporation of the Refugee Convention in the national legal framework, the provision of neutral hearings at the administrative level is the other most important factor to respect the international obligations.159 These scholars have in common the desire to anchor the issue of the independence of decision-makers to notions of fair treatment and look at differences in the nature and structure of decision-making at the administrative level.160

152 Tom Campbell, ‘Introduction: Realizing Human Rights’ in Tom Campbell and others (eds), Human Rights: From Rhetoric to Reality (Blackwell Publishers 1986). 153 Ibid 3. 154 Ibid 5. 155 Ibid. 156 Jack Donnelly, ‘The Virtues of Legalization’ in Saladin Meckled-García and Başak Çali (eds), The Legalization of Human Rights. Multi-Disciplinary Perspectives on Human Rights and Human Rights Law (Routledge 2006) 67. 157 Ibid 67–78. 158 Ibid. 159 Legomsky (n 3) 619; Kneebone (n 103) 32–33. 160 Kneebone (n 103) xi–xii.

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Today, a number of other refugee law studies have looked at the role of decision-makers in affecting the outcomes of claims. Most of these studies adopt a micro-level approach by looking at the characteristics of decision– makers, such as sex and age, and address the issue of independence of immigration officials as one of bias rather than recognising that they depend on an administrative and political context.161 A few others take on a more institutional approach and explain the variations in terms of separation of powers from the executive branch of government.162 Whereas I acknowledge that application outcomes can depend heavily on the traits of the decisionmaker, in this work, I go beyond the individual-level variation and consider only the systematic national differences as relevant to notions of due process and an essential component of fair procedures. My analysis helps to gain a more sophisticated understanding of the implementation of the 1954 Convention and human rights standards and their interaction with domestic systems. This hopefully may, with time, push the international community, States and scholars to address the problem of the need for better standards of administrative independence and management.163 9 Conclusion This chapter has explained that recent studies have focused on the protection of stateless persons and the 1954 Convention, but they have neither thoroughly explored how its standards have been implemented at the national level nor adopted international law perspectives to explain the factors impacting its ­effectiveness. Moreover, the lack of uniformity and clarity with regard to the qualification and determination of statelessness emerges as among the most problematic aspects of the current approach to statelessness in law and ­policy.164 This book aims to fill these gaps and focuses on the procedural 161 Previous studies have focused on trying to explain the variation in asylum application outcomes within national contexts. See e.g. Jaya Ramji-Nogales, Andrea I Shoenholtz and Philip G Schrag, Refugee Roulette. Disparities in Asylum Adjudication and Proposals for R ­ eform (New York University Press 2009). 162 Rebecca Hamlin looked at cross-national differences in asylum adjudication in Canada, the United States and Australia. Rebecca Hamlin, Let Me Be A Refugee. Administrative ­Justice and the Politics of Asylum in the United States, Canada and Australia (oup 2014). 163 Galligan reaches a similar conclusion in the area of administrative decision-making in general. Galligan, Due Process and Fair Procedures (n 5) 447. 164 See e.g., Batchelor, ‘Statelessness and the Problem of Resolving Nationality Status’ (n 77) 156; Panozzo (n 76) 174; Léon Evers and Gerard-René de Groot, ‘Staatloos of van

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­frameworks pertaining to the protection of stateless persons, how the definition of stateless person is applied and what legal status and rights are attached to a grant of legal status. As further clarified in Chapter 4, the book analyses States that have adopted specific legislation to determine statelessness and implement the 1954 Convention, those that have only few scattered provisions and those that have none to identify the variations in terms of the protection afforded. Finally, it contributes to the debates discussing the relevance of adopting specific implementing legislation in States that have different systems of incorporation of international law into the domestic legal framework and explores to what extent it matters for practice. It also provides insights into studies on the role of decision-makers in the process of the application of international law. Unlike many international law studies, the discussion is based on legal and empirical data to investigate how the law works in practice and goes beyond legislation to determine how States are implementing the 1954 Convention165 in order to ‘achieve a fruitful study of legal norms tested on the ground’.166 ­Onbekende Nationaliteit of Nationaliteit in Onderzoek?’ (2011, on file with unhcr) in unhcr ‘Mapping Statelessness in the Netherlands’ (2011) 19; De Groot, Swider, Vonk (n 75) 24. 165 Linda Camp-Keith, ‘Human Rights Instruments’ in Peter Cane and Herbert M Kritzer (eds), The Oxford Handbook of Empirical Legal Research (oup 2010) 371; Tom Ginsburg and Gregory Shaffer, ‘How Does International Law Work?’ in Peter Cane and Herbert M Kritzer (eds), The Oxford Handbook of Empirical Legal Research (oup 2010) 781; Roger Blanpain, Comparative Labour Law and Industrial Relations in Industrialized Market E­ conomies (11th edn, Kluwer Law International 2014) Ch 1, ss 5, 8. 166 Hathaway adopts the same method to study refugee law. Hathaway (n 16) xiii.

Chapter 2

The Problem of Statelessness and the International Response 1 Introduction Statelessness, or the lack of recognition as a national of any State, is closely linked to the questions of content and regulation of nationality. The study of statelessness therefore requires an exploration of the meaning of nationality, including the procedural and substantive aspects of the right to a nationality and the minimum set of rights associated with it under international law. It also entails a consideration of how nationality is determined and what the limits on a State’s discretion in conferring and removing it are.1 This chapter presents an overview of such matters, which are crucial to trace the causes of statelessness and to establish whether a person is in fact stateless and thus in need of international protection.2 In particular, reflecting on these questions is important to understand the challenges arising in practical contexts and is addressed in the other chapters of this volume: What is the substantive content of nationality? What happens if some rights are not provided? Does this mean that the persons are stateless or only that their rights have been violated? The answers are debated and not yet settled.3 Additionally, this chapter briefly looks at the magnitude of statelessness worldwide and in Europe and the international community’s efforts towards the elimination of statelessness and the protection of stateless persons. It shows that statelessness is a concern not only for the individual but also for the States and the international community, as it impacts the enjoyment of several human rights and aspects of life and prevents the integration of people into society. It devotes special attention to the role and activities of the main institution of the un framework for addressing statelessness, the unhcr. It mentions the responses in Europe and shows that whereas the Council of E ­ urope standards have advanced, the European Union’s codification of nationality rules remains very limited. Finally, it introduces the 1954 Convention as the main 1 Alice Edwards and Laura van Waas (eds), Nationality and Statelessness under International Law (cup 2014) 2. 2 Ibid 31. 3 Ibid 6–7.

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004362901_004

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treaty dealing with the marginalization of stateless persons by granting them a basic set of rights and recognising the status of ‘stateless person’. 2

The Definition of Nationality

Paul Weis emphasised two meanings of the word ‘nationality’: a politico-legal meaning denoting membership of a State and a historic-biological term referring to membership of a nation.4 In the latter sense, ‘nationality’ means the subjective sentiment of unity of persons of a particular race or nation and is a conception of non-legal nature which belongs to the fields of sociology and ethnography and is not the subject of this work, as it was not in Weis’ work. In legal doctrine, nationality denotes different concepts according to whether it is being used in the context of municipal or international law.5 Several scholars maintain that, for the purpose of municipal law, nationality implies a specific relationship between the national and the State of nationality, conferring mutual rights and duties on both. Such rights and duties are often spelled out in a State’s constitution and tend to include civil freedoms and entitlements.6 In the Nottebohm case, the International Court of Justice (icj) held that ‘[N]ationality is a legal bond having at its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties’.7 4 Paul Weis, Nationality and Statelessness in International Law (Sijthoff and Noordhoff 1979). 5 The subject of nationality has been thoroughly treated by writers, and therefore I only briefly review it. See e.g., Weis (n 4); Carol A Batchelor, ‘Statelessness and the Problem of Resolving Nationality Status’ (1998) 10(1–2) ijrl 156; Laura van Waas, Nationality Matters: Statelessness under International Law (Intersentia 2008); Eric Fripp, Nationality and Statelessness in the International Law of Refugee Status (Hart Publishing 2016); Gerard­René De Groot and Olivier Willem Vonk, International Standards on Nationality Law. Texts, Cases and Materials (Wolf Legal Publishers 2016). 6 Weis (n 4) 59. The duties of loyalty to the State and military service are among the possible duties that nationals have to fulfil. Tomas Hammar, Democracy and the Nation State (Avebury 1990) 30; van Waas (n 5 2008) 217–20; Alice Edwards, ‘The Meaning of Nationality in International Law: Substantive and Procedural Aspects’ in Alice Edwards and Laura van Waas (eds), Nationality and Statelessness under International Law (cup 2014) 11–14. 7 Nottebohm Case (Liechtenstein v Guatemala) (Second Phase) [1955] icj Rep 4. The icj ruling concerned primarily the question of a State’s duty to afford diplomatic protection. This case was brought by Liechtenstein against Guatemala, arguing that the latter State was treating one of its nationals contrary to international law. It was dismissed by the icj inter alia on the basis of Mr Nottebohm lacking a genuine link with the State of Liechtenstein, as claimed by

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The term ‘nationality’ in international law goes beyond the individual relationship between the national and the State of nationality. The bond of nationality creates duties upon States vis-à-vis other States. It is possible that some persons may be considered nationals under international law but not nationals under municipal law. This was the case of the Cayuga Indians in Canada who were not British subjects.8 On the other hand, others may not be looked at as nationals of a State under international law, while they may be deemed nationals under municipal law. For instance, the German Jews during the German National-Socialist regime were regarded as German nationals but not as citizens: they neither enjoyed protection nor the right of sojourn.9 The term ‘citizenship’ is frequently used synonymously with nationality. The terms, however, emphasise two different aspects of State membership: citizenship stresses the national, whereas nationality stresses the international aspect. Under the laws of most States, citizenship implies full membership of the State, including possession of political rights. Some States distinguish between different classes of members (nationals and subjects), and thus, while every citizen is a national, not every national is necessarily a citizen. For instance, in English, the term ‘subject’ is used as a synonym for national.10 Unless otherwise indicated, the terms ‘national’ and ‘citizen’ are used synonymously in this book.11 3

The Substance of Nationality

It is debated whether there is a minimum substantive content of nationality under international law, and the answer has been related to the assessment of whether a person is stateless.12 According to the unhcr, for the purposes of international law, what rights and obligations are inherent to the status of nationality and distinctions made by municipal law between classes of nationals 8 9 10 11 12

Guatemala. The Court upheld the principle of ‘effective nationality’, providing this frequently cited passage. Weis (n 4) 60; Edwards, ‘The Meaning of Nationality in International Law’ (n 6) 13. Weis (n 4) 60. Ibid 4–6; Hammar (n 6) 34–35, 37; for a more recent discussion on the two terms, see De Groot and Vonk (n 5) 3–4; Fripp (n 5) 93–95. This is the view adopted by many international human rights law scholars. Edwards, ‘The Meaning of Nationality in International Law’ (n 6) 11, 14. Edwards, ‘The Meaning of Nationality in International Law’ (n 6) 11, 30. This issue was debated during the unhcr’s consultations on the status of stateless persons. unhcr ‘The Concept of Stateless Persons under International Law (“Prato Conclusions”)’ (May 2010).

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is immaterial. The issue of diminished rights for some groups of nationals concerns violations of other human rights obligations but does not change one’s nationality status.13 The only exception is when provisions of municipal law deny the essential functions of nationality in international law: the right to return to and reside in the State’s territory14 and the right to receive international protection.15 The right to return to and reside in the State’s territory becomes relevant under international law when a national is expelled to another State which has not consented to admit him or when a State is prevented from returning a foreigner to his State of nationality. In these cases, the foreign State may require the State of nationality not to carry out the expulsion or to admit their national on the basis of the duty of the State to grant the right to reside to its nationals. Thus, this duty of admission towards nationals becomes a duty towards other States and an obligation under international law.16 Whether denying a national readmission to his State of nationality would consequently lead to the person being stateless under international law will depend on each specific case and must be considered in light of all relevant facts.17

13 14

15 16 17

unhcr ‘Handbook on Protection of Stateless Persons under the 1954 Convention relating to the Status of Stateless Persons’ (2014) para 53. This right is recognised by the Universal Declaration of Human Rights (adopted 10 December 1948, entered into force 23 March 1976) 999 unts 302 art 13(2); International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 unts 171 art 12(4); International Convention on the Elimination of All Forms of Racial Discrimination (adopted 21 December 1965, entered into force 4 January 1969) 660 unts 195 arts 5(d)(i)–(ii); Protocol No. 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms, securing certain rights and freedoms other than those already included in the Convention and in the first Protocol thereto as amended by Protocol No. 11 [1963] ets No 155 art 3. In its General Comment 27 of 1999, the un Human Rights Committee (the body responsible for supervising the application of the International Covenant on Civil and Political Rights) stated that: “The right of a person to enter his or her own country recognises the special relationship of a person to that country. The right has various facets. It implies the right to remain in one’s own country. It includes not only the right to return after having left one’s own country; it may also entitle a person to come to the country for the first time if he or she was born outside the country (for example, if that country is the person’s State of nationality) (…).” Human Rights Committee ‘General Comment 27. Freedom of Movement (Art.12)’ (18 October 1999) 67th session un Doc CCPR/C/21/Rev.1/Add.9 para 19. Weis (n 4) 6. Ibid 46. Edwards, ‘The Meaning of Nationality in International Law’ (n 6) 11, 36.

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International protection is generally defined as ‘the right of the state to intervene on behalf of its own nationals if their rights are violated by another state for the purpose of obtaining redress’.18 This protection is also called ‘diplomatic’ protection, and according to Weis, it is different from the internal, legal protection which every national may claim from his State of nationality under its municipal law, i.e., the right of the individual to receive protection of his person, rights and interests from the State. International diplomatic protection is a right of the State, accorded to it by customary international law, to intervene on behalf of its own nationals, if their rights are violated by another State, in order to obtain redress.19 A State may deny international protection without withdrawing nationality status. Such denial is rarely explicit, and it can be deduced by the State’s inactions.20 Often, refusal of international protection coincides with that of internal legal protection – i.e., refugees and stateless persons.21 While, in line with Paul Weis and Alice Edwards, I only focus on these two main elements of nationality under international law, it should be noted that other authors have claimed that there are additional components. For instance, Ivan Shearer also includes the State’s responsibility for nationals, allegiance, right to refuse extradition, determination of enemy status in wartime and exercise of jurisdiction.22 As far as the content of nationality under municipal law is concernced, Weis and Edwards point out that it can vary from State to State23 and that, from the perspective of the citizen/national, it normally involves entitlements to rights, services and social benefits. Therefore, not being a national of any State means encountering a number of practical obstacles. Typically, stateless persons cannot participate in the affairs of the State through the right to vote, to be elected and to work in public service. However, the extent to which political rights are exercised by nationals has varied over time and from State to State. For example, besides British citizens, Commonwealth citizens and citizens of the Irish

18 Weis (n 4) 31. 19 Ibid 33. 20 Ibid 44. 21 Ibid. 22 Ivan A Shearer (ed), Starke’s International Law (22th edn, Butterworths 1994) 309. 23 Weis (n 4) 6; Edwards, ‘The Meaning of Nationality in International Law’ (n 6) 11, 30.

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Republic who reside in the uk are also entitled to vote at uk Parliamentary.24 Stateless persons also have difficulties in obtaining documents, accessing the courts, finding lawful employment, receiving health care, entering into contracts and owning property. Moreover, they often experience prolonged and unwarranted imprisonment due to their frequent irregular immigration status.25 They may serve time in criminal detention in States that criminalise immigration offences. They may also spend long periods in immigration detention while State authorities try to resolve the question of their expulsion.26 Cycles of detention may occur when, after release from detention upon reaching the maximum time limit of detention allowed by law, a person is detained again the next time he comes into contact with the immigration authorities – for instance, if he is arrested while engaging in unauthorised work.27 On the other hand, some commentators, such as Eric Fripp, Gerard­René De Groot and Olivier Willem Vonk, claim that at both the municipal and international level, nationality should be considered an empty notion, implying no inherent rights or duties.28 De Groot and Willem Vonk argue that voting rights, military service, access to public functions, right to live in a country and diplomatic protection are not always dependent on nationality, and sometimes, they may be dependent on another criterion, such as residence.29 However, I disagree with this position. I acknowledge that these rights may be made dependent on other criteria other than nationality, but in line with Weis, Edwards and the unhcr, I take the view that nationality does confer certain mimimum rights and duties and that it is not just a formal concept. I find the argument that these rights and duties are ‘consequences’ that do not follow from the ‘nature of nationality but follow from the decision to attach these consequences to nationality and not, for example, place of residence’30 – a rhetorical exercise. Similarly, Fripp makes a self-contradictory statement on the missing m ­ inimum

24 25 26 27

28 29 30

van Waas (n 5) 219; uk Parliament, The Electoral Commission, ‘Can I Vote?’ (2017) accessed 4 January 2017. David Weissbrodt and Clay Collins, ‘The Human Rights of Stateless Persons’ (2006) 28(1) HumRtsQ 268. Ibid 267–69; Katia Bianchini, ‘Protecting Stateless Persons from Arbitrary Detention in the United Kingdom’ (European Network on Statelessness 2016). Equal Rights Trust, Unravelling Anomaly. Detention, Discrimination, and the Protection Needs of Stateless Persons (2010) 138–40; Bianchini, ‘Protecting Stateless Persons from Arbitrary Detention in the uk’ (n 26). Fripp (n 5); De Groot and Vonk (n 5) 35–37. De Groot and Vonk (n 5) 36. Ibid 37.

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content of nationality,31 while he, however, simultaneously refers to diplomatic protection and the right to enter a State as ‘incidents’ to nationality.32 4

The Limits on States’ Power on Nationality Matters

4.1 The Right to Nationality under International Law A few provisions of international law deal with the individual’s right to a nationality: Article 15 of the 1948 Universal Declaration of Human Rights (udhr) defines it as a goal without imposing an obligation by saying that ‘everyone has the right to a nationality’ and ‘no one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality’. Article 5 of the 1965 Convention on the Elimination of All Forms of Racial Discrimination provides that States have to guarantee without distinctions the right to a nationality.33 Article 20 of the 1969 American Convention on Human Rights not only sets forth that every person has the right to a nationality but also attempts to make a concrete step forward from the previous instruments by adding that ‘every person has the right to the nationality of the state in whose territory he was born if he does not have the right to any other nationality’.34 In addition, Article 24 of the 1966 International Covenant on Civil and Political Rights and Article 7 of the 1989 Convention on the Rights of the Child spell out the right for every child to acquire a nationality, but it is different from the right to a nationality, as it requires evidence of attachment to a State.35 Kay Hailbronner, Hans-Georg Maaßen and Günter Renner note that even if the wording of these provisions could refer to a personal right of the individual, the related statements are still very cautious and refer above all to the ­inter-State aspect and duty to avoid statelessness.36 Thus, the International Law Commission regarding the effects on nationality of State succession states:

31 32 33 34

35 36

Fripp (n 5) 51. Ibid 93. International Convention on the Elimination of All Forms of Racial Discrimination (n 14) art 5. American Convention on Human Rights (entered into force 18 July 1978) oas Treaty Series No 36 (1967) reprinted in Basic Documents Pertaining to Human Rights in the InterAmerican System, OEA/Ser L V/II.82 Doc 6 Rev 1 at 25 (1992). iccpr (n 14) art 171; Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 unts 3 (Child Convention). Kay Hailbronner, Hans Georg Maaßen, Günter Renner, Staatsangehörigkeitsrecht (5th edn, CH Beck 2010) I.G.I.6.

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While the concept of the right to a nationality and its usefulness in situations of State succession was generally accepted, it would nevertheless be unwise to draw any substantive conclusions therefrom, having in mind the very preliminary stage of the discussion on this issue (…). It would nonetheless be difficult to object to the view that the right to a nationality embodied in Article 15 of the Universal Declaration of Human Rights must be understood to provide at least a moral guidance for the legislation on citizenship when new States are created or old ones resume their sovereignty.37 The Explanatory Report to the European Convention on Nationality interprets the right to nationality as a positive formulation of the duty to avoid statelessness: The principle of a right to a nationality is included in the Convention because it provides the inspiration for the substantive provisions of the Convention which follow, in particular, those concerning the avoidance of statelessness. This right can be seen as a positive formulation of the duty to avoid statelessness (…).38 Gerard­René De Groot and Olivier Willem Vonk seem therefore correct in writing that at present, the right to nationality remains ‘an ideal that States should aspire to’.39 A right to nationality is also not part of the catalogue the European Convention for the Protection of Human Rights and Fundamental Freedoms (echr). An attempt to add a Protocol to the echr on the right to nationality failed in 1998, because it included the possibility to enforce it with the European Court for Human Rights.40 Against this backdrop, in a few cases, the European Court for Human Rights pointed out that an arbitrary refusal of nationality might raise issues under Article 8 of the European Convention on Human Rights if it impacts an individual’s private life, Article 14 (prohibition of discrimination) and Article 13 (right to an effective remedy), although it does not guarantee the 37

Vaclav Mikulka ‘Second Report on State Succession and its Impact on the Nationality of Natural and Legal Persons’ (17 April 1996) Special Rapporteur Extract from the Yearbook of the International Law Commission: (1996) vol II(1) un Doc A/CN.4/474 para 19. 38 Council of Europe, European Convention on Nationality. Explanatory Report [1997] ets No 166 para 32. 39 De Groot and Vonk (n 5) 41. 40 Ibid.

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right to a nationality as such.41 For instance, in Karassev v Finnland, the European Court on Human Rights found that the refusal to recognise the claimant as a Finnish national was not arbitrary and could not be considered sufficiently serious to raise an issue under Article 8, because the claimant and his family were no longer threatened with expulsion, his family obtained residence permits and alien passports and similar documents could be obtained for him.42 In the case of Kuric and others v Slovenia, the European Court on Human Rights found that the Slovenian authorities’ treatment of the so-called ‘erased’ was in violation of Article 8, as well as Article 14 (prohibition of discrimination) and Article 13 (right to an effective remedy). After the dissolution of Yugoslavia, the applicants were left stateless and had their records removed from the civil registry. The refusal to resolve the applicants’ residence status was an interference with their right to private and/or family life, and they had been discriminated against, because they were in a disadvantaged situation compared to other foreigners in Slovenia).43 Finally, in the case of Genovese v Malta, the European Court on Human Rights found that access to the nationality of the father affects the social identity of the person which is part of that person’s private life under Article 8.44 However, it can be concluded that these cases hint at a growing role of the European Court for Human Rights on nationality law.45 4.2 Procedural Guarantees to the Right to Nationality International law has no comprehensive and binding rules on the acquisition and loss of nationality. It has been recognised that questions of nationality are prima facie within the reserved domain of domestic jurisdiction.46 This rule is codified in the 1930 Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws, which states that ‘it is for each State to determine under its law who are its nationals’.47 However, it adds a limit by specifying that ‘this law shall be recognised by other States in so far as it is consistent with international conventions, international custom and the principles of law generally recognised with regard to nationality’. For example, States cannot 41 42 43 44 45 46 47

Ibid 600–01. Karassev v Finnland echr 1999-II 31414/96. Kuric and others v Slovenia echr 2012-IV 26828/06. Genovese v Malta [2011] echr 1590, (2014) 58 ehrr 25. De Groot and Vonk (n 5) 600. Nationality Decrees Issued in Tunis and Morocco (Great Britain v France) [1923] pcij Series B No 4. Convention on Certain Questions Relating to the Conflict of Nationality Law (adopted 12 April 1930, entered into force 1 July 1937) 179 lnts 89 (No 4137) (Hague Convention) art 1.

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­denationalise their nationals in order to expel them as ‘non-citizens’. Nevertheless, if the effects of such denationalisation are internal, ‘only’ international law has little to say.48 In this area, while largely acknowledging that the application of nationality law was a matter of domestic jurisdiction, the Permanent Court of International Justice in Nationality Decrees Issued in Tunis and Morocco (Great Britain v France) pointed out that the limits on States’ discretion are set by international law.49 In the last 50 years, the development of human rights obligations has further constrained the view that nationality falls within the exclusive jurisdiction of individual States.50 Today, the most widely accepted position regarding the attribution and deprivation of nationality favours human rights over claims to State sovereignty.51 Some scholars even claim that ‘being human is the right to have human rights’, regardless of nationality.52 They argue that several human rights principles derived from treaties or general principles of customary international law purposefully diminish the importance of nationality to prevent statelessness or status as a non-citizen from being used as a basis for discrimination and breach of fundamental human rights. For instance, these principles include: (i) the prohibition of the arbitrary deprivation of nationality53 (generally involving the withdrawal of a person’s nationality for a non-legitimate purpose and not in compliance with the principle 48 49

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51 52 53

Guy Goodwin-Gill and Jane McAdam, The Refugee in International Law (3rd edn, oup 2007) 459. Nationality Decrees Issued in Tunis and Morocco (n 46). The dispute was between Great Britain and France as to whether the Nationality Decrees issued in Tunis and Morocco (French Zone) on 8 November 1923 and their application to British nationals was, by international law, only a matter of domestic jurisdiction. The Court held that the dispute was not, by international law, solely a matter of domestic jurisdiction, because although questions of nationality are within the reserved domain of States, the right of a State to use its discretion is nevertheless restricted by obligations which it may have taken towards other States. Proposed Amendments of the Naturalization Provisions of the Constitution of Costa Rica, Advisory Opinion OC-4/84, Inter-American Court of Human Rights Series A No 4 (19 January 1984) para 32; van Waas (n 5) 39. unhcr and ipu ‘Nationality and Statelessness: a Handbook for Parliamentarians’, Handbook for Parliamentarians No 11 (2005) 9; van Waas (n 5) 39; Fripp (n 5) 11–21. Weissbrodt and Collins (n 25) 248. udhr (n 14) art 15. Other relevant provisions include the American Convention on Human Rights (n 34) art 20; Arab Charter on Human Rights (entered into force 15 May 2008) reprinted in 12 International Human Rights Reports 893 (2005) art 29.

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of proportionality),54 (ii) non-discrimination in nationality matters55 and (iii) the duty to avoid statelessness.56 On the other hand, some scholars point out that the human rights system did not intend to entirely eliminate the need of a nationality.57 Indeed, certain rights can be exercised only in relation to the State of citizenship. For example, international law guarantees political rights only to nationals.58 Moreover, diplomatic protection still remains strictly linked to nationality, and international tribunals have dismissed claims where the bond of nationality was not present or insufficiently proven. For instance, in the case of Dickson, the international arbitration panel held that a stateless person could not be the beneficiary of diplomatic protection and even stated that ‘A State […] does not commit an international delinquency in inflicting an injury upon an individual lacking nationality, and consequently, no State is empowered to intervene or complain on his behalf either before or after the injury’.59 In conclusion, the right to nationality under international law is framed mainly as a procedural right, with provisions relating to the grounds for the acquisition of nationality and its deprivation or loss.60 The next sections address some of these grounds.

54

Edwards, ‘The Meaning of Nationality in International Law: Substantive and Procedural Aspects’ (n 6) 26. 55 For instance, this is stated in Article 9 of the 1961 Convention on the Reduction of Statelessness (it prohibits the deprivation of nationality on racial, ethnic, religious or political grounds). Convention on the Reduction of Statelessness (adopted 30 August 1961, entered into force 13 December 1975) 989 unts 175. It is also stated in Article 5(d)(iii) of the 1965 Convention on the Elimination of Racial Discrimination (it prohibits the deprivation of nationality on the basis of race, colour, descent or national or ethnic origin). Moreover, it has been recognised to be a jus cogens norm of international law. Edwards, ‘The Meaning of Nationality in International Law’ (n 6) 26. 56 This is stated in several agreements, which include: the Convention on Certain Questions Relating to the Conflict of Nationality Law (adopted 12 April 1930, entered into force 1 July 1937) 179 lnts 89 (No 4137) (Hague Convention) (arts 8, 13) and the Convention on the Reduction of Statelessness (n 55). Edwards, ‘The Meaning of Nationality in International Law’ (n 6) 28. 57 van Waas (n 5) 222–25. 58 See e.g., iccpr (n 14) art 25. 59 See Dickson Car Wheel Co. (usa) v United Mexican States [1951] unriaa vol. iv (Sales No 1951.V.1.) 669, 678; van Waas (n 5) 381; Fripp (n 5) 46–47. 60 Edwards, ‘The Meaning of Nationality in International Law’ (n 6) 11, 16.

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Grounds for the Attribution of Nationality

The attribution of nationality reflects factors which indicate an established link between the individual and the State. The most commonly used criteria to attribute nationality under municipal law are place of birth, descent, residence, family ties, language and ethnicity. While many combinations of such factors are possible, most States tend to emphasise place of birth (jus soli), descent ( jus sanguinis) or residence ( jus domicili).61 According to the jus soli principle, nationality is acquired at birth by virtue of being born in the territory of the State.62 On the other hand, the jus sanguinis principle confers nationality to a child at birth if one or both of his parents are nationals of that State themselves.63 The jus soli principle has been adopted by immigration States of the New World, because it was seen as a way of solidifying the bond between new arrivals and settlement in the place chosen by the parents.64 The jus sanguinis principle is the preferred doctrine of many emigration States (mainly European, Asian and Arab States) as a way to retain allegiance of populations that move abroad.65 Then again, jus domicili recognises the bond that a person develops with a state following a period of habitual or permanent residence, which is the most common grounds for naturalisation.66 However, jus domicili alone is not the only basis to qualify for naturalisation. States have adopted a number of additional rules aiming at testing allegiance in new ways (i.e., via language tests and/or financial means).67 A person can also create a bond with a State through marriage with or adoption by a national and qualify for a citizenship application on this basis.68 These modes of nationality acquisition are subject to some exceptions, which are considered legitimate exercise of a State’s discretion, as long as they do not breach the international law principles that I discussed in the previous section. Compared to the jus sanguinis and jus soli rules, the provisions to qualify for naturalisation remain more untouched by international law and remain more within the discretion of States.69 61

62 63 64 65 66 67 68 69

William Samore, ‘Statelessness as a Consequence of the Conflict of Nationality Laws’ (1951) 45(3) ajil 476; Carol A Batchelor, ‘Statelessness and the Problem of Resolving Nationality Status’ (n 5) 157; Fripp (n 5) 25–29. Edwards, ‘The Meaning of Nationality in International Law’ (n 6) 16. van Waas (n 5) 32–33. Ibid 16. van Waas (n 5) 32–33. Ibid 33–34. Edwards, ‘The Meaning of Nationality in International Law’ (n 6) 19. van Waas (n 5 2008) 34. Edwards, ‘The Meaning of Nationality in International Law’ (n 6) 18.

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The criteria for the attribution of nationality are usually outlined in the State’s legal instruments that make provisions for nationality. Those that do not receive nationality under the operation of any State’s law are stateless persons.70 6

Common Causes of Statelessness

As a consequence of the autonomy of States to adopt their own nationality regulations, statelessness may be the intentional effect of conflict between domestic legislation of two or more States. For instance, a child born to parents who are nationals of a State that grants nationality jus soli in the territory of a State that grants nationality jus sanguinis fails to acquire any nationality at birth. Statelessness may also be the direct result of a State’s policy.71 For example, statelessness can be the effect of gender-based discrimination when citizenship laws are based exclusively on patrilineal descent and a child is born out of wedlock or the mother is married to a non-national who cannot transmit his nationality.72 This is the case of children born to Jordanian mothers and noncitizen Palestinian fathers.73 It is also the case of Syrian nationality laws, which provide that a child born abroad will be Syrian only if the father is Syrian.74 Furthermore, nationality can be lost, forfeited or renounced, but sometimes, it may be difficult to draw a clear line differentiating between these situations.75 One common cause of loss of nationality is the prolonged residence of an individual in a foreign State, seen as allowing the connection with the State to lapse and forfeiting the legal bond. Some States consider such a situation a form of voluntary renunciation of nationality rather than the withdrawal of citizenship. In some instances, this loss of nationality can be prevented by registering the intention to remain a national at the local embassy. However, individuals are not always informed of this procedural protection.76 As the ­revocation of 70 71 72

73 74

75 76

Carol A Batchelor, ‘Statelessness and the Problem of Resolving Nationality Status’ (n 5) 156, 171. Fripp (n 5) 30–39. Alice Edwards, ‘Displacement, Statelessness and Questions of Gender Equality under the Convention on the Elimination of All Forms of Discrimination against Women’ (August 2009) unhcr, Legal and Protection Policy Series, POLAS/2009/02, 36–40. Brad K Blitz, ‘Statelessness, Protection and Equality’ (September 2009) Forced Migration Policy Briefing 3, Oxford Refugee Studies Centre 14. Zahra Albarazi and Laura van Waas, ‘Understanding Statelessness in the Syria Refugee Context’ (Institute on Statelessness and Inclusion and Norwegian Refugee Council 2016) 17. van Waas (n 5) 78–81. Ibid 404.

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nationality for those taking up residence abroad does not coincide with taking up a new nationality, statelessness may be a consequence. Closely related to the loss of nationality is the deprivation of nationality,77 which occurs as a punitive measure for engaging in acts that are considered disloyal to the State (for instance, serving in the military forces of a foreign State, committing acts which are in contravention with vital interests of the State, a prison sentence within a certain period after naturalisation). Deprivation of nationality can also occur through denaturalisation, when nationality was acquired by fraud. It may be difficult to draw the line between loss and deprivation of nationality, as the terms are sometimes used interchangeably. One possible means of differentiation is to refer to loss of nationality in cases of automatic withdrawal of nationality ex lege and to deprivation of nationality when it occurs at the initiative of the State party according to the law.78 Moreover, a person can be deprived of citizenship through mass denationalisation by decree, usually connected to discriminatory policies targeted towards a particular group. The Nuremberg Laws, which stripped Jews in Germany and Austria of their citizenship, are among the most famous. Another example is the 1962 Syrian decree that withdrew citizenship to Syrian Kurds.79 State succession, which entails the transfer of territory or sovereignty,80 is the most frequent and serious source of statelessness when the issue is not properly and comprehensively addressed, the policies of the States concerned are not harmonised or the exclusion of particular population groups from the grant of nationality is due to discriminatory regulations. For example, in the early 1990s, the dissolution of the Soviet Union and the Yugoslav Federation left hundreds of thousands stateless.81 Deficient civil registration systems, in particular with regard to the registration of births and marriages, may also cause statelessness. A child may be born with the right to a nationality but may be unable to prove it, because he was not registered or issued a birth certificate. The causes for non-registration may be due to parental inaction or governmental practices. Usually, the importance of birth registration is underestimated in the face of problems that are 77 Ibid 34. 78 Ibid. 79 As of January 2006, it was estimated that as many as 300,000 Kurds had been rendered stateless. Ibid 99; Fripp (n 5) 30–39. 80 State succession has been defined as ‘the replacement of one State by another in the responsibility for the international relations of territory’. Vienna Convention on Succession of States in Respect of Treaties (adopted 23 August 1978, entered into force 6 November 1996) 1946 unts 3 art 2; Council of Europe Convention on the Avoidance of Statelessness in Relation to State Succession [2006] ets No 200 art 1. 81 van Waas (n 5) 121–30.

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more immediate and tangible. For instance, this is the case of societies facing severe economic difficulties and States at war. Birth registration may be seen as a mere legal formality, with little relevance for the development of the child, including access to health care and education services. The registration procedure itself may be too complex and bureaucratic, or the legislative framework may be inadequate or even non-existent. In many States, it may be too costly for parents, as they may have to pay for registration and/or the issuance of a certificate. Parents may also have to travel to the nearest registration office from a remote area. Birth registration of persons belonging to national minorities, indigenous groups, migrants or displaced communities is the most troublesome.82 It is estimated that globally, the births of about 230 million children under five years of age have never been recorded. The most affected regions are Asia, where more than a half of all births are unregistered, and sub-Saharan Africa, with 37 percent.83 A family bond newly created through marriage may have an impact on both the spouse’s and children’s nationality, and the non-registration or lack of marriage certificate may be a source of statelessness.84 Modern migration patterns, which bring about a large intermingling of persons across borders, exacerbate the causes of statelessness above.85 Migrants that are particularly vulnerable to statelessness are irregular migrants, victims of trafficking,86 refugees and displaced persons.87 These groups of migrants 82 83

84 85 86

87

unicef ‘Birth Registration: Right from the Start’ (vol 9, March 2002); van Waas (n 5) 154. unicef, ‘Every Child’s Birth Right. Inequities and Trends in Birth Registration’ (2013) accessed 8 December 2016. Edwards (n 72) 41. van Waas (n 5) 36. Article 3(a) of the Anti-Trafficking Protocol defines Trafficking in Persons as: “the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.” Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (adopted 15 November 2000, entered into force 25 December 2003) 2237 unts 319 (Anti-Trafficking Protocol). According to paragraph 2 of the Introduction of Guiding Principles on Internal Displacement, internally displaced persons are “persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in

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have in common that they are often in breach of immigration laws and are generally unwanted. They raise policy questions on migration management and control. They also raise questions on the attribution of nationality and coordination of citizenship laws. For instance, they challenge the view that citizenship should be linked to ties with a State for having lived most of the time in its territory and for sharing a common national identity.88 7

Irregular Migration as a Cause of Statelessness

The status of irregular migrants, including refugees, victims of trafficking and displaced persons, can have a detrimental impact on the enjoyment of a nationality.89 For example, as explained in the former section, migrants may lose their citizenship through revocation of nationality due to long-term residence abroad or for failure to comply with some formal requirements to acquire a new nationality after State succession that took place during their absence. The typical situation that irregular migrants experience is lack of access to an alternative nationality, as almost all States require a person to have had a minimum period of lawful residence in their territory as a prerequisite.90 The children of irregular migrants may also be ineligible for jus soli citizenship when one of the additional conditions is that their parents have lawful immigration status, as is the case in the United Kingdom, where permanent residence is

88 89

90

­ articular as a result of or in order to avoid the effects of armed conflict, situations of p generalised violence, violations of human rights or natural or human-made disasters, and who have not crossed an internationally recognized State border.” unesc ‘Guiding Principles on Internal Displacement’ (11 February 1998) un Doc E/CN.4/1998/53/Add.2 para 2. van Waas (n 5) 163–64. Ibid 167–71; Sophie Nonnenmacher and Ryszard Cholewinski, ‘The Nexus Between Statelessness and Migration’ in Alice Edwards and Laura van Waas (eds), Nationality and Statelessness under International Law (cup 2014) 247. van Waas (n 5) 167–71. An exception to the general rule that requires lawful residency in the territory of a State before applying for an alternative nationality is the Israeli Law of Return (1950). This law grants every Jew, wherever he may be, the right to go to Israel as an oleh (a Jew immigrating to Israel) and become an Israeli citizen. Israeli citizenship becomes effective on the day of arrival in the State or of receipt of an oleh’s certificate, whichever is later. The State of Israel, ‘The Law of Return’ (1950) 5710.

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required.91 These children may inherit their parents’ immigration status and rely only on the State of their parents’ nationality to obtain jus sanguinis nationality, which may leave them stateless when there are legal limitations on the transmission of nationality.92 Irregular immigration status may also have an effect on registering a child’s birth or obtaining a birth certificate. On one side, parents may be scared about exposing themselves to the authorities of the State of residence. For example, in Germany, the registry offices have to forward relevant data on foreign residents to the immigration authorities.93 On the other side, the State of residence may not even allow the birth registration, either by specifically prohibiting it or by requesting formalities that are too burdensome.94 In States with no asylum law or other specific protection provisions, victims of trafficking and refugees are treated as irregular migrants. In particular, this occurs in numerous Asian and Middle Eastern States that are not parties to the 1951 Convention Relating to the Status of Refugees.95 In others, their presence may be tolerated for humanitarian reasons, but no legal status is granted. Some States, such as Syria, Pakistan and Jordan, which have not signed the 1951 91

92 93

94 95

ukba, ‘Types of British Nationality’ (23 September 2016) accessed 8 December 2016; Maarten P Vink and ­Gerard-René de Groot, ‘Birthright Citizenship: Trends and Regulations in Europe’ (eudo Citizenship Observatory 2010). Other States, such as the United States, grant jus soli citizenship regardless of the parents’ immigration status. u.s. Citizenship and Immigration Services, ‘u.s. Citizenship’ accessed 4 January 2017. Laura van Waas, ‘The Children of Irregular Migrants: A Stateless Generation?’ (2007) 25(3) nqhr 447–50, see also Sebastian Kohn, ‘Statelessness in Sweden – Changes Ahead?’ (12 September 2012) ­accessed 26 January 2017; Bridget Wooding, ‘What should the European Union Do About the Mass and Arbitrary Deprivation of Nationality in the Dominican Republic?’ (9 May 2014) accessed 26 January 2017; Alice Sironi, ‘The Double Plight of Stateless Migrants’ (13 May 2016) accessed 26 January 2017. van Waas (n 5) 170; Blitz (n 73) 14. §71–72 Aufenthaltsverordnung (AufenthV) vom 25.11.2004 (BGBl 2004 i, 2945), zuletzt geändert durch Artikel 1 der Verordnung vom 1.08.2017 (BGBl 2017 i, 3066) [Ordinance Governing Residence]. van Waas (n 5) 153–57. unhcr, ‘State Parties to the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol’ (April 2015) accessed 8 December 2016.

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Convention Relating to the Status of Refugees, temporarily tolerate refugees as long as the international community provides humanitarian assistance.96 Even in States with asylum laws, for victims of trafficking, there is less certainty to obtain protection than for refugees, as very few States have in place systems to this end. When these vulnerable migrants obtain lawful stay, the status acquired may not lead to eligibility to apply for the nationality of the host State. Today, there is a preference to grant refugees and victims of trafficking temporary protection, which does not provide a path to citizenship.97 For instance, the European Union’s minimum requirements for Member States in this area provide that they must offer refugees a three-year period of temporary protection, which can be extended.98 Children of refugees and the internally displaced are particularly likely to encounter problems with birth registration, as host States are often unwilling to facilitate birth registration and even more reluctant to grant nationality to refugee children born on their soil. For example, children born in Iran to the millions of Afghans who fled their country during Soviet occupation have not been registered in their host State. The subsequent civil war in Afghanistan has exacerbated this situation.99 Being undocumented does not mean being stateless. Yet, the lack of personal documents may create situations of statelessness. For instance, it may be impossible to claim nationality jus sanguinis when the parents are unable to prove their nationality.100 Displaced persons, refugees and victims of trafficking are particularly subject to not possessing their personal documentation. Some of them may not have had time to take their documents prior to flight or may have destroyed them in the hope of not being sent back to the State of origin. Smugglers may take their documents.101 In the event of massive refugee flows, documents and civil records may be destroyed, making it impossible to obtain proof of nationality. For example, since 2011, the Syrian civil war has caused millions of people to flee the country, and several Syrian children born abroad are at risk of statelessness because of barriers to access 96 See unhcr, ‘Country Operations Plans’ accessed 10 June 2017. 97 Matthew E Price, Rethinking Asylum. History, Purpose, and Limits (cup 2009) 165–69. 98 Council Directive (ec) 2004/83 of 29 April 2004 on minimum standards for the qualification and status of third-country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted [2004] oj L304/12 (Qualification Directive) art 24. 99 unicef ‘Birth Registration: Right from the Start’ (n 82) 11. 100 van Waas (n 5) 178–81. 101 Weissbrodt and Collins (n 25) 263–64.

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registration, such as prerequisites of parents’ documentation, which may be unavailable, and/or the application of the jus sanguinis principle to acquire nationality in the host State.102 In these cases, it may become extremely difficult to obtain documents from abroad or secondary proof of nationality, especially after having left the State of birth or last residence for many years.103 It should be noted that in some cases, when stateless persons leave their usual place of residence to find protection, displacement may not be the cause but the consequence of statelessness.104 The discrimination and limited enjoyment of rights in their State of origin may push stateless persons to seek a better life somewhere else.105 As stateless persons generally lack documentation to travel and do not have the right to enter any State, they are forced to move irregularly and become even more vulnerable to human rights abuses. States may not be willing to admit them, as there is no guarantee that they could be removed because of the lack of a State of nationality obliged to admit them.106 In the absence of proper legislative provisions, stateless persons may remain ‘stuck’ in the State of transit or destination without obtaining any lawful status.107 So, the nexus between statelessness and migration should be of utmost concern. Whereas statelessness can be a cause or consequence of migration, there is a major overlap between them.108 8

Magnitude of Statelessness Worldwide

Statistics on statelessness are incomplete and unreliable, because this population is often out of reach. The unhcr estimates that there exist at least ten million stateless people worldwide (in comparison to 21.3 million refugees). However, as the institution emphasises, official ‘data recorded by governments and communicated to the unhcr were limited to 3.7 million stateless individuals in 78 countries’.109 Thus, solid data on stateless people remain lacking.110 102 103 104 105 106 107 108 109 110

Albarazi and van Waas (n 74) 17. van Waas (n 5) 180–81. Ibid 247. Nonnenmacher and Cholewinski (n 89) 249. Ibid 251. Ibid 253. Ibid 260. unhcr, ‘Global Trends. Forced Displacement in 2015’ (2016) 2. Carol Sawyer and Brad K Blitz (eds), Statelessness in the European Union. Displaced, Undocumented, Unwanted (cup 2011) 141; see also Katia Bianchini, ‘The “Stateless Person”

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There is also a lack of a consensus on whom to include when counting s­ tateless persons. While the debate on the definition of statelessness will be further discussed in Chapter 8, I should mention here that it is generally accepted that those who are not considered nationals by any state under its laws (de jure stateless) should be counted. However, there is disagreement on whether many millions of people who have not been formally denied a nationality but who are unable to prove it, or despite documentation do not effectively enjoy many human rights that other citizens enjoy (de facto stateless), should be included.111 Counting de facto stateless is even more difficult than counting de jure stateless.112 According to the unhcr, de jure statelessness affects approximately 10 million people worldwide.113 Moreover, a recent report found that ‘there are also at least 1.5 million stateless refugees and around 3.5 million stateless refugees from Palestine. When this is all tallied up, there are therefore likely to be more than 15 million stateless persons worldwide today’.114 Of those stateless, 50 percent are women. However, informal statistics indicate that in those States that operate under discriminatory nationality laws, women make up between 51 to 78 percent of the stateless population.115 Statelessness is particularly acute in Southeast Asia, Central Asia, Eastern Europe, the Middle East and various States in Africa. Latin America has the lowest incidence of people with no nationality, because most of the States of that region grant citizenship according to the jus soli principle. The States with the greatest numbers of stateless people, for which estimates are known, are Côte d’Ivoire, Myanmar, Latvia, Thailand and Zimbabwe.116

111

112 113 114 115 116

Definition in Selected eu States: Variations of Interpretation and Application’ (2017) 36(3) rsq 81. The definition of statelessness is considered in depth in Chapters 3 and 8. For commentators that have addressed the issue, see e.g., Carol A Batchelor, ‘Stateless Persons: Some Gaps in International Protection’ (1995) 7(2) ijrl 232–33; van Waas (n 5) 19–27; Sawyer and Blitz (n 110) 281–83. The distinction between de facto and de jure statelessness will be discussed in Chapters 3 and 8. unhcr, ‘Figures at a Glance. Global Trends 2015’ accessed 30 November 2016. Laura van Waas, Amal de Chickera, Zahra Albaraz, ‘The World’s Stateless’ (Wolf Legal Publishers 2014) 11, 125. Edwards (n 72) 39. unhcr, ‘Global Trends. Forced Displacement in 2015’ (2016) Annex Table 1 accessed 8 December 2016.

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Magnitude and Causes of Statelessness in Europe

In Europe, statelessness affects as many as 670,828 persons.117 About 85 percent of them are found in just four States: Latvia, the Russian Federation, Estonia and Ukraine. In these cases, the dissolution of the Soviet Union was the cause of statelessness. While most cases of statelessness have been resolved in these regions, tens of thousands of people still remain without a nationality or are at risk of becoming stateless.118 Large numbers of residents, including children, remain non-citizens in Latvia and Estonia.119 In Slovenia, several thousand persons, among them many Roma, became victims of the 1992 erasure of non-Slovene residents from the Register of Permanent Residents.120 Many of them had moved from other parts of Yugoslavia before the dissolution of the Federation and had permanent residency in Slovenia. They had missed the prescribed six-month period to apply for Slovenian citizenship for various reasons and remained stateless. For example, those born in Slovenia did not know that they had to apply, as they thought that they were already Slovenian citizens. Others applied for citizenship, but they were rejected on security grounds.121 Although the Slovenian parliament passed a law that gave permanent resident status to thousands of the ‘erased’ in 2010, many are still in the process of becoming nationals.122 Croatia and ‘the former Yugoslav Republic of Macedonia’ also adopted restrictive laws, which made access to nationality very difficult. This hit Roma people hard in particular. The Kosovo conflict led to a large displacement of Roma people, primarily to Serbia, Bosnia and Herzegovina, Montenegro and ‘the former ­Yugoslav 117 van Waas, de Chickera, Albaraz (n 114) 95. 118 unhcr, ‘unhcr Launches Campaign to Combat Statelessness’ (25 August 2011) accessed 10 June 2017. 119 Yevgeny Kryshkin, ‘Latvia and Estonia Discriminate Against Non-Citizens’ The Voice of Russia (26 February 2010) accessed 10 June 2017. 120 Council of Europe, Commissioner for Human Rights, ‘Many Roma in Europe are Stateless and Live Outside Social Protection’ (6 July 2009) accessed 10 June 2017. 121 European Roma Centre, ‘The Erasure: Administrative Ethnic Cleansing in Slovenia’ (29 October 2003) accessed 10 June 2017. 122 Open Society Foundations, ‘Building Open Society in the Balkans (1991–2011)’ (2011) accessed 22 February 2018.

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Republic of Macedonia’ but also to other States outside the region. One consequence was that those who had migrated to other parts of Europe have remained in limbo: they have not been accorded a nationality either by their new State of residence123 or by the new States that had emerged in the areas where they had previously lived. The de-federation and division of Czechoslovakia in 1992 also left thousands of Roma in a precarious situation, as their citizenship was challenged and questioned by both successor states (the intention was that Roma should move to Slovakia).124 The discriminatory law that was adopted, however, was amended after interventions from the Council of Europe and the international community in 1999. Thereby, the main part, though not all, of the problem was finally resolved.125

123 Council of Europe, Commissioner for Human Rights, ‘Stateless Roma: No Documents – No Rights’ (17 August 2010) accessed 4 January 2017; Commissioner for Human Rights, ‘Stateless But Not Rightless: Improving the Protection of Stateless Persons in Europe. Keynote Speech by Nils Muižnieks, Council of Europe Commissioner for Human Rights’ (Conference organised by unhcr and the European Network on Statelessness, Strasbourg, France, 8 April 2014) CommDH/ Speech(2014)6 (8 April 2014) accessed 4 January 2017; Commissioner for Human Rights, ‘Human Rights of Roma and Travellers in Europe’ (2012) 183–92. See also Ayşe Çağlar and Sebastian Mehling, ‘Sites and the Scales of the Law: Third-Country Nationals and eu Roma Citizens’ in Engin F Isin and Michael Saward (eds), Enacting European Citizenship (cup 2013) 155–77; Maylis de Verneuil, ‘Romani Migration Resulting in Statelessness: the Case of Bosnia and Herzegovina’ (errc 1 October 2014) accessed 4 January 2017; Council of Europe, Commissioner for Human Rights, ‘Serbia: Impunity for War Crimes, Discrimination and Lack of Media Freedom Hamper Human Rights Progress’ (8 July 2015) accessed 4 January 2017; Commissioner for Human Rights, ‘Croatia Should Eliminate Shortcomings in Transitional Justice, Immigration and Media Freedom’ (5 October 2016) accessed 4 January 2017. 124 Blitz (n 73) 13. 125 Council of Europe, Commissioner for Human Rights, Hammerberg, T, ‘Many Roma in Europe are Stateless and Live Outside Social Protection’ (6 July 2009) accessed 10 June 2017.

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The exact causes of statelessness in other European States are more difficult to identify, but more likely, they are the result of the immigration of stateless persons from other States, migrants that have become stateless after their arrival in the host State and conflicts of nationality laws. Of these States, those with the highest numbers of stateless persons are Sweden (20,450), Germany (11,709) and Poland (10,825).126 Besides that of the Roma, Palestinians are estimated to be one of the largest groups of stateless persons in Europe, with around 186,000 individuals.127 Many eu States are now increasingly required to make determinations on nationality – or statelessness – of persons in their territory, often within the context of asylum cases and expulsions.128 Only a minority of States have legislated formal procedures to this end, including integrating the determination of statelessness into existing administrative procedures. A single case may thus reach different outcomes, depending on where the claim for statelessness is lodged, but not much is known on such variations, especially in States that have not adopted specific laws. 10

The International Community’s Response to Statelessness

After the creation of the United Nations in 1945, the most important efforts in the area of statelessness have been the adoption of the 1954 Convention Relating to the Status of Stateless Persons (the ‘1954 Convention’)129 and the 1961 Convention on the Reduction of Statelessness (the ‘1961 Convention’). The first ensures stateless persons’ fundamental rights and will be discussed in detail in Chapter 3. The second focuses on decreasing statelessness and was drafted with the aim of allowing persons who would otherwise be stateless to acquire a nationality.130 In particular, the 1961 Convention provides norms to resolve statelessness when it is created at birth by conflicts of laws.131 Additionally, it 126 van Waas, de Chickera, Albaraz (n 114) 95. 127 Michael Baer, ‘The Palestinian People’ in Rhoda E. Howard-Hassmann, Margaret WaltonRoberts (eds), The Human Right to Citizenship. A Slippery Concept (University of Pennsylvania Press 2015) 45, 52. 128 unhcr ‘Statelessness Determination Procedures and the Status of Stateless Persons (“­Geneva Conclusions”)’ (December 2010). 129 Convention Relating to the Status of Stateless Persons (adopted 28 September 1954, entered into force 6 June 1960) 360 unts 117 (Statelessness Convention) art 1(1). 130 Weissbrodt and Collins (n 25) 247. 131 Convention on the Reduction of Statelessness (n 55) arts 1–4; Batchelor, ‘Stateless P ­ ersons: Some Gaps in International Protection’ (n 111) 257.

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provides that contracting States must adopt provisions to ensure that a person cannot lose his citizenship without gaining another.132 In the first half-century following their adoption, the Statelessness Conventions were ratified by a small number of States, as priority was given to issues of refugee flows over statelessness.133 In part, this was due to nationality still being largely regarded as a sovereign matter and statelessness as an internal rather than international problem, blocking discussion at any level.134 It was not until the early 1990s that the Statelessness Conventions saw a resurgence of interest. One factor was the disintegration of the former Soviet Union and Republic of Yugoslavia, which created new grave situations of statelessness in Europe and frictions between the States concerned. Another factor was the 2004 enlargement of the eu, when Baltic States with a considerable number of stateless became Members of the Union.135 Finally, new nationality disputes emerged in the context of a growing number of elections held in African States.136 Despite an increased rate of accessions, the Statelessness Conventions’ actual implementation still remains limited.137 As of 30 October 2016, 89 States were parties to the 1954 Convention,138 and 68 were parties to the 1961 Convention.139 Moreover, half of the States’ parties to the 1954 Convention have exercised their right to submit either a declaration

132 Convention on the Reduction of Statelessness (n 55) arts 5–8; Weissbrodt and Collins (n 25) 247. 133 By 1980, the Refugee Convention had 76 signatory States, whereas the 1954 Convention had 31 and the 1961 Convention only 9. van Waas (n 5) 17. 134 van Waas (n 5) 15–19. 135 Tamás Molnár, ‘Stateless Persons under International Law and eu Law: a Comparative Analysis Concerning their Legal Status, with Particular Attention to the Added Value of the eu Legal Order’ (2010) 51(4) Acta Jur Hung 293. 136 136 van Waas (n 5) 15–19. 137 Ibid 19; Chris Nash, ‘Networking for Change. The Development of the European Network on Statelessness and Perspectives on Developing Other Regional and Global Statelessness Coalitions’ (2014) 19(1–2) tlr 212–13; unhcr ‘Preventing and Reducing Statelessness: the 1961 Convention on the Reduction of Statelessness’ (2014). 138 UNTC, ‘Convention on the Reduction of Statelessness’ accessed 22 February 2018. 139 UNTC, ‘Convention on the Reduction of Statelessness’ accessed 22 February 2018.

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or reservations to its text upon ratification.140 Within Europe, Poland, Malta, Estonia and Cyprus are not parties to the 1954 Convention. 11 The unhcr’s Role and Activities Concerning Statelessness The United Nations Commissioner for Refugees (unhcr) is the United Nations (un) agency that has been mandated for stateless persons. In 1974, in readiness for entry into force of the 1961 Convention in 1975, the un General Assembly requested the unhcr to temporarily assume the responsibilities stated in Article 11 of the 1961 Convention, of a body to which ‘a person claiming the benefit of the Convention may apply for the examination of his claim and for assistance in presenting it to the appropriate authority’.141 During the preparatory works, States expressed concerns regarding Article 11, as the specific functions of the agency were not defined. However, it was undisputed that the agency had to engage with State Parties to ensure that their domestic legislation would comply with the 1961 Convention. In addition, the agency could assist individuals that had been wrongfully denied a nationality.142 In 1976, such a role was extended indefinitely.143 The unhcr’s responsibility for stateless persons, however, was overlooked for a long time, as refugee and internal displacement issues received most of the attention.144 Progressively, though, the unhcr’s implementation of its mandate on statelessness has expanded. In 1995, the unhcr’s Executive Committee requested the unhcr to promote accession to the 1954 and 1961 Conventions and to provide technical and advisory services regarding the implementation of nationality legislation to interested 140 However, reservations are not permitted to art 1 (definition), art 3 (non-discrimination), art 4 (religion), art 16(1) (access to courts) and arts 33–42 (final clauses). 1954 Convention (n 129). 141 unga Res 3274(XXIX) Question of the establishment, in accordance with the Convention of Reduction of Statelessness, of a body to which persons claiming the benefit of the Convention may apply (10 December 1974) un Doc A/RES/3274(XXIX). 142 Batchelor, ‘Stateless Persons: Some Gaps in International Protection’ (n 111) 257–58. 143 unga Res 31/36 Question of the establishment, in accordance with the Convention of Reduction of Statelessness, of a body to which persons claiming the benefit of the Convention may apply (30 November 1976) un Doc A/31/342; Carol A Batchelor, ‘The 1954 Convention Relating to the Status of Stateless Persons: Implementation within the European Union Member States and Recommendations for Harmonization’ (2004) 22(2) Refuge 35. 144 Mark Manly, ‘unhcr’s Mandate and Activities’ in Alice Edward and Laura van Waas (eds), Nationality and Statelessness under International Law (cup 2014) 88, 92.

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States.145 This was based on the consideration that several key provisions of the two Conventions are worded in a particularly complex manner and had been interpreted differently.146 In the last two decades, the unhcr’s policy and activities in the field of statelessness have expanded to the point where it stands in the unhcr’s Executive Committee’s Conclusion No. 106 of 2006 on ‘Identification, Prevention and Reduction of Statelessness and Protection of Stateless Persons’.147 This was a turning point, as the Conclusion provided details on how the unhcr had to carry out its mandate. Most of the Conclusion is focused on operational responses to statelessness, which include studies in regions where there are information gaps, support to States to raise awareness of citizenship campaigns and establishment of programs to protect stateless persons.148 More recently, the last two unhcr’s Executive Committee’s Conclusions, one on international cooperation and one on youth, have included language addressing statelessness. In the Conclusion on international cooperation from a protection and solutions perspective, the unhcr’s Executive Committee stresses that ‘international cooperation is important for States with internally displaced persons, stateless populations, as well as other people of concern to unhcr’.149 It also points to ‘the value of international cooperation to prevent and reduce statelessness and find solutions for stateless people, including through unhcr’s Global Campaign to End Statelessness, and encourages continued efforts in this regard’.150 In the Conclusion on youth, the unhcr’s Executive Committee notes that ‘refugee, internally displaced and stateless youth have particular 145 unhcr ‘Prevention and Reduction of Statelessness and Protection of Stateless Persons’ (20 October 2005) excom Conclusions un Doc No 78 (xlvi) – 1995; see also unga Res 50/152 (9 February 1996) 50th session un Doc A/RES/50/152; van Waas (n 5) 418–19; Manly (n 144) 88. 146 Manly (n 144) 95. 147 unhcr ‘Conclusion on Identification, Prevention and Reduction of Statelessness and Protection of Stateless Persons’ (6 October 2006) un Doc No. 106 (lvii) – 2006. 148 Manly (n 144) 90; unhcr ‘Action to Address Statelessness. A Strategy Note’ (March 2010) 15–16. See also unhcr ‘Conclusion on the Return of Persons Found not to be in Need of International Protection’ (10 October 2003) excom Conclusions un Doc No. 95 (LIV)2003, para (v); unhcr ‘Report on the Annual Consultations with Non-Governmental Organizations’ (Geneva 2012); Executive Committee of the High Commissioner’s Programme, ‘Update on Statelessness’ (3 June 2015) Standing Committee 63rd Meeting un Doc EC/66/SC/CRP.11 accessed on 3 November 2017. 149 unhcr, ‘Conclusion of the Executive Committee on International Cooperation from a Protection and Solutions Perspective No. 112(LXVII) 2016’ un Doc No. 112(LXVII) – 2016. 150 Ibid para 16.

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vulnerabilities and are often negatively affected, and can be at heightened risk due to their situation’.151 Then, in Paragraph 8 of the Conclusion, it highlights ‘the urgent need to take further measures to prevent childhood statelessness and engage with and find solutions for stateless youth, including as reflected in unhcr’s “Global Campaign to End Statelessness” and the 2015 “I Am Here, I Belong” report, and encourages the continuation of efforts to promote adherence to the Conventions on Statelessness, where applicable, and the taking of measures at the global, regional and national level’.152 In this regard, in the case of Côte d’Ivoire, for example, the unhcr will seek to ‘build the capacity of the civil registry system to improve the implementation of the existing legislation to prevent statelessness’ and will be conducting training for ‘legal service providers to ensure that stateless people and those at risk can access legal aid when applying for nationality or documents confirming nationality’.153 Or, the unhcr will support the Consulate of South Sudan ‘to process nationality documentation applications and to expand documentation activities to areas where there are high concentrations of South Sudanese individuals’ in order to provide documentation to 7,000 individuals.154 In the last six years, statelessness has become one of the unhcr’s core budget activities.155 The unhcr is improving awareness and interest in statelessness, cooperating with an increased number of actors and prioritizing the improvement of statelessness procedures.156 Importantly, in 2012, the ­u nhcr published Guidelines concerning the definition of a stateless person,157 151 unhcr, ‘Conclusion of the Executive Committee on Youth No. 113(LXVII) 2016’ un Doc No. 113(LXVII) – 2016. 152 Ibid para 8. 153 unhcr, ‘#I Belong Campaign to End Statelessness. Special Appeal’ (2016) 9. 154 Ibid 20. 155 While the budget has fluctuated between 2012 and 2017, the expenditures remain more stable. It should be noted that the information provided in the 2016 budget is of November 2016, pending presentation to the ExCom’s Standing Committee. The revised 2017 budget was approved in October 2016 by the Executive Committee. Budget for 2012: 62,113,459 usd; 2013: 79,128,104 usd; 2014: 68,269,187 usd; 2015: 75,693,017 usd; 2016: 57,690,806 usd; 2017: 53,007,802 usd. In turn, expenditures are as follows: 2012: 34,666,813 usd; 2013: 36,111,815 usd; 2014: 35,962,682 usd; 2015: 32,102,411 usd. unhcr, ‘Global Focus. unhcr Operations Worldwide. Financials’ accessed 5 January 2017. 156 unga ‘Note on International Protection: Addendum, Note on Statelessness’ (28 June 2011) un Doc A/AC/96/1098/Add.1. 157 unhcr ‘Guidelines on Statelessness No. 1: The Definition of “Stateless Person” in Article 1(1) of the 1954 Convention Relating to the Status of Stateless Persons’ (20 February 2012) un Doc HCR/GS/12/01.

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­ rocedures for determination of statelessness158 and the status of stateless p persons under national law.159 These Guidelines were the result of a number of expert meetings which were attended by the most well-known jurists in the field. Their completeness made them the first comprehensive work in which several issues related to statelessness were coordinated and dealt with. They propose reasonable solutions aimed at protecting stateless persons, but at the same time, they take into consideration States’ interests.160 In 2014, the unhcr adopted the Handbook on the Protection of Stateless Persons, which replaced the Guidelines, which will be discussed in more detail in Chapters 3 and 4.161 The text of the Handbook replicates the Guidelines’ content with only minimal changes, principally to address minor gaps that have been identified since publication of the Guidelines and to update references to other unhcr publications. In November 2014, the unhcr also launched a campaign to end statelessness within the next 10 years.162 The plan, developed with States, civil society and international organisations, sets out a guiding framework made up of 10 Actions, which include solving existing situations of statelessness, preventing new cases of statelessness from emerging and identifying and protecting stateless persons better. In summary, the unhcr’s mandate and activities in the area of statelessness have continued to evolve and have now become a central part of what it does. Particularly significant has been the publication of the Guidelines and the Handbook, as far as the development of the 1954 Convention’s standards is concerned. 12

Institutional Responses to Statelessness in Europe

For several decades, the Council of Europe has played an active role in addressing statelessness. The Council of Europe adopted two treaties to approach problems that followed State dissolutions and successions: the 1997 C ­ onvention on 158 unhcr ‘Guidelines on Statelessness No. 2: Procedures for Determining whether an Individual is a Stateless Person’ (5 April 2012) un Doc HCR/GS/12/02. 159 unhcr ‘Guidelines on Statelessness No. 3: The Status of Stateless Persons at the National Level’ (17 July 2012) un Doc HCR/GS/12/03. 160 Giulia Perin, ‘Lacune Normative ad Alto Costo Umano: l’Apolidia in Italia’ (2012) 3 Dir imm citt 70, 83–84. 161 unhcr Handbook (n 13). 162 unhcr, ‘Statelessness 2014–2024’ accessed 30 November 2016.

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Nationality163 and the 2006 Convention on the Avoidance of Statelessness in Relation to State Succession.164 Both treaties contain general principles, rules and procedures for the effective enjoyment of a nationality in Europe. So far, only 21 Council of Europe Member States have ratified the 1997 Convention on Nationality. Moreover, only six States have ratified the 2006 Convention on the Avoidance of Statelessness in Relation to State Succession.165 In the Council of Europe’s Committee of Ministers’ recommendation on the ‘Avoidance and Reduction of Statelessness’, the concept of facilitated naturalisation for the stateless should be highlighted. In this recommendation, the cost and complexity of procedures, the required period of lawful residence and knowledge of the official language are addressed. However, all of these provisions require stateless persons to acquire lawful residency, which is guaranteed neither under the 1954 Convention nor under other human rights instruments.166 In the area of consular and diplomatic protection, the 1967 Council of Europe Convention on Consular Functions represents a positive development. Its Article 46(1) extends to a consular officer of the State where a stateless person has his habitual residence the possibility to provide protection. This Convention entered into force on 11 June 2011, after the minimum number of five ratifications was reached.167

163 European Convention on Nationality [1997] ets No 166. 164 Convention on the Avoidance of Statelessness (n 80). 165 Council of Europe, Treaty Office, ‘Chart of Signatures and Ratifications of Treaty 166. European Convention on Nationality’ accessed 22 February 2018. Of the European Economic Area States, Austria, Bulgaria, Denmark, Germany, Hungary, the Netherlands, Norway and Finland are bound by the Convention on the Avoidance of Statelessness in Relation to State Succession. Council of Europe, Treaty Office, ‘Chart of Signatures and Ratifications of Treaty 200. Council of Europe Convention on the Avoidance of Statelessness in Relation to State Succession’ accessed 4 January 2017; Gerard­René De Groot, Katja Swider, Olivier Vonk, ‘Practices and Approaches in eu Member States to Prevent and End Statelessness’ (Policy Department Citizens’ Rights and Constitutional Affairs, European Parliament 2015) 24. 166 Council of Europe, Committee of Ministers, Recommendation No. R (99) 18 of the Committee of Ministers to Member States on the Avoidance and Reduction of Statelessness [1999] No R (99) 18, s iib; van Waas (n 5) 370. 167 The Convention has been ratified by Georgia, Greece, Norway, Portugal and Sweden. Council of Europe, Treaty Office, ‘Chart of Signatures and Ratifications of Treaty 061. European Convention on Consular Functions’ accessed 4 January 2017; Molnár (n 135) 296–97.

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In 2009, the Council of Europe adopted Recommendation cm/Rec (2009)13 on the nationality of children.168 The recommendation contains measures to reduce statelessness of children, including provisions for children born in the territory of a State to foreign parents and registration at birth, even if their parents are irregular migrants. The Council of Europe has also made a number of public statements to raise awareness on statelessness in Europe.169 As far as the European Union is concerned, nationality matters remain within the jurisdiction of the Member States,170 and some commentators argue that there is no legal basis in the founding Treaties for adopting specific legislation focusing specifically on the protection of the stateless.171 On the 168 Council of Europe, Committee of Ministers, Recommendation cm/Rec(2009)13 of the Committee of Ministers to Member States on the Nationality of Children [2009] cm/ Rec(2009)13. 169 Council of Europe, Commissioner for Human Rights, ‘Stateless Roma: no Documents – no Rights’ (n 123); Council of Europe, ‘The Rights of Stateless Persons must be Protected. Statement by Thomas Hammarberg, Commissioner for Human Rights of the Council of Europe’ (4th Council of Europe Conference on Nationality ‘Concepts of Nationality in the Globalised World’, Strasbourg, 17 December 2010) CommDH/Speech(2010)13 (17 December 2010) accessed 4 January 2017; Commissioner for Human Rights, ‘Several Hundred Thousand People in Europe Are Stateless – They Need Extra Protection’ (2 August 2011) accessed 4 January 2017; Commissioner for Human Rights, ‘Governments Should Act in Best Interest of Stateless Children’ (15 January 2013) accessed 4 January 2017; Commissioner for Human Rights, ‘Stateless but Not Rightless’ (n 123); Commissioner for Human Rights, ‘Keynote Address by Nils Muižnieks, Council of Europe Commissioner for Human Rights’ (Global Forum on Statelessness, The Hague, 15–17 September 2014) CommDH/Speech(2014)8 (16 September 2014) accessed 4 January 2017. 170 Article 20 of the Treaty on the Function of the European Union (tfeu) provides that ‘every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship’. The competence to regulate nationality matters has remained within the power of the Member States, which is also explicitly expressed in Declaration No. 2 annexed to the Treaty of Maastricht on nationality of a Member State [1992] oj C191/1; Theodore Konstadinides, ‘La Fraternité Européenne? The Extent of National Competence to Condition the Acquisition and Loss of Nationality from the Perspective of eu Citizenship’ (2010) 35(3) elr 401, 413–14. 171 Molnár, ‘Stateless Persons under International Law and eu Law’ (n 135) 304; Molnár, ‘Moving Statelessness Forward on the International Agenda’ (2014) 19 (1–2) tlr 198; Gábor

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other hand, others argue that Title v Chapter 2 of the Treaty on the Functioning of the European Union (tfeu), which equates stateless individuals with third-country nationals and on which the eu has legislated extensively, provides the basis to establish a common legal framework for the protection of stateless persons in eu Member States.172 In any case, so far, the Community legislator has addressed statelessness only in an indirect manner, mainly with the emerging acquis communautaire in the field of asylum173 and immigration law or in connection to fundamental freedoms.174 Some legal instruments treat stateless persons as third-country nationals (e.g., the eu readmission agreements aiming to facilitate the forcible return of non-nationals with no legal status to the State they originated from or transited through),175 and some grant them rights similar to eu citizens (e.g., the eu social security legislation).176

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Gyulai ‘Statelessness in the eu Framework for International Protection’ (2012) 14 ejml 284. Katja Swider, ‘Protection and Identification of Stateless Persons Through eu Law’ (July 2014) Amsterdam Centre for European Law and Governance Working Paper Series 2014–05, 12; De Groot, Swider, Vonk (n 165) 54. Council Regulation (ec) 2725/2000 of 11 December 2000 concerning the establishment of ‘Eurodac’ for the comparison of fingerprints for the effective application of the Dublin Convention [2000] oj L 316/1; Council Directive (ec) 2004/83 of 29 April 2004 (n 98); Council Directive (ec) 2005/85 of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status [2005] oj L 326/13; Council Regulation (ec) 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national [2003] oj L 50/1. Molnár, ‘Stateless Persons under International Law and eu Law’ (n 135) 300. Readmission agreements set forth procedures for the identification and return of persons. Goodwin-Gill and McAdam (n 48) 407–08. Some readmission agreements treat stateless persons as third-country nationals. In this context, ‘third-country national’ means any person who holds a nationality other than that of the State party to the readmission agreement or one of the Member States. For instance, this is the case of the readmission agreement between the eu and Pakistan. Council Decision (eu) 2010/649 of 7 October 2010 on the conclusion of the Agreement between the European Community and the Islamic Republic of Pakistan on the readmission of persons residing without authorisation [2010] oj L 287/50. The unhcr field offices may be involved in the readmission of stateless persons. According to the unhcr, readmission agreements must ensure: respect for human rights during and upon return; issuance of travel documents, identity documents and inclusion in civil registries; recognition of a right to lawful residence. unhcr ‘Action to Address Statelessness. A Strategy Note’ (March 2010) 16. Molnár, ‘Stateless Persons under International Law and eu Law’ (n 135) 293, 304.

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Regarding the definition of statelessness, eu law adopts the internationally accepted definition of Article 1 of the 1954 Convention.177 The identification of statelessness and the implementation of the 1954 Convention remain a highly uncoordinated area of immigration law and policy,178 leaving a stateless person subject to different treatments across the eu. Developments of eu law that should be mentioned, as they have enriched the rights of stateless persons, concern the areas of social security and the right to travel within the territories of the Member States. In particular, Regulation (ec) 883/2004, implementing Article 24(1)–(3) of the 1954 Convention, lays down equal treatment for stateless persons with residence within one Member State and nationals of the Member States in social security matters, including maternity and sickness benefits, invalidity benefits, old age benefits and unemployment benefits.179 As far as the right to travel within the eu is concerned, Regulation no. 1932/2006/EC180 introduces a compulsory visa exemption for stateless persons recognized by other eu Member States when they want to travel to other Member States for short-term stay.181 Concerning the European Parliament’s activities in the area of statelessness, it has recently been raising awareness, commissioning studies and putting the issue on its political agenda.182 In 2009, it adopted a non-legislative resolution on the situation of fundamental rights in the eu, which included a recommendation on member States to ratify the 1954 and 1961 Conventions.183 In 2015, the European Parliament Subcommittee on Human Rights (droi) commissioned a report on statelessness due to the lacking ‘visibility both in the eu’s internal and external action, despite interacting with multiple eu human rights 177 See e.g., Regulation (ec) 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems [2004] oj L 166/1, art 1(h); Molnár, ‘Stateless Persons under International Law and eu Law’ (n 135) 300. The definition of stateless person will be further discussed in Ch 3 ss 3–6. 178 Batchelor, ‘The 1954 Convention Relating to the Status of Stateless Persons’ (n 143) 35; van Waas (n 5) 404. 179 Regulation (ec) 883/2004 (n 177); Molnár (n 135) 300. 180 Council Regulation (ec) 1932/2006 amending Regulation (ec) 539/2001 listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement [2006] oj L 405/23. 181 Ibid art 1(1)(b). The innovative element of these rules is that they cover all recognised stateless persons and not only those under the 1954 Convention. 182 Molnár, ‘Stateless Persons under International Law and eu Law’ (n 135) 300; De Groot, Swider, Vonk (n 165). 183 European Parliament resolution 14 January 2009 on the situation of fundamental rights in the European Union 2004–2008 (2007/2145(INI)) [2009] P6_TA(2009)0019 art 50.

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­ riorities, including minority protection […] and economic, social and cultural p rights’.184 It recommended ‘how the eu can intensify its internal and external action in the fight against statelessness, through inter alia bilateral and multilateral action, as well as comprehensive institutional arrangements’.185 Moreover, in 2015, the European Council and the Council of the European Union adopted conclusions on statelessness which invite the Commission and Member States to exchange good practices on stateless persons, as well as the procedures to determine statelessness.186 In its current ‘Action Plan on Human Rights and Democracy’, the European Council stated that it ‘[c]ontinues to address the issue of statelessness in relations with priority countries; [and it] focus[es] [on] efforts on preventing the emergence of stateless populations as a result of conflict, displacement and the break-up of states’.187 Overall, more efforts need to be made at the European level to improve the situation of stateless persons. Although there are some promising political signs, which focus on undertaking the relevant international obligations by all Member States, they show no urgency in setting up an eu-level framework.188 Taking into consideration that political will does not exist yet in this regard, possible actions for the European Union could involve increasing the visibility of stateless persons in statistics and studies, mainstreaming statelessness in different policies (i.e., non-discrimination, human rights, gender discrimination, asylum, external relations) and raising awareness on different policy levels.189

184 unpo, ‘European Parliament Subcommittee on Human Rights: Statelessness Should Have a More Central Role in eu Human Rights Policy’ (22 January 2015) accessed 5 January 2017. 185 Ibid. For the report, see Laura van Waas, Addressing the Human Rights Impact of Statelessness in the eu’s External Action (Directorate-General for External Policies of the Union. Policy Department, EXPO/B/2014/2014/07, November 2014). 186 European Council, ‘Council Adopts Conclusions on Statelessness’ (4 December 2015) accessed 15 December 2015. 187 Council of the European Union, ‘Council Conclusions on the Action Plan on Human Rights and Democracy 2015–2019’ (20 July 2015) 23 accessed 15 June 2017. 188 Tamás Molnár, ‘What Role for the eu in Protecting Stateless People and Avoiding Statelessness? Stocktaking of Current eu Migration Law and New Tendencies’, Presentation at Migration Policy Conference (The Hague, The Netherlands, 10 December 2013). 189 Ibid.

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13 Conclusion This chapter has shown that there is no agreed substantive minimum content of nationality under international law, in part because it is mainly dependent on the domestic conditions and legislations.190 Generally, problems with the enjoyment of human rights in the State of nationality do not mean that a person is stateless under municipal or international law. I adopt the view that each State of nationality has (i) a duty to admit its nationals from abroad and allow them to reside within its territory and (ii) a discretionary right to provide diplomatic protection to its own nationals.191 When one of these two rights is violated, a person can arguably be found to be stateless. This chapter has established that nationality matters by and large remain within the exclusive jurisdiction of States and that international law provides some limited guidance regarding the attribution and deprivation of nationality. In particular, the right to a nationality is largely framed as a procedural right, and international law establishes that States (i) cannot arbitrarily deprive an individual of nationality, (ii) may not discriminate in matters regarding conferral or deprivation of nationality and (iii) have a general duty to prevent statelessness. Overall, the State’s discretion remains wide as far as the adoption of legislation on nationality acquisition is concernced, especially by way of naturalisation. Furthermore, this chapter has demonstrated that with at least 10 million stateless people in the world, there is a need to pay closer attention to international law on statelessness and the efforts undertaken to apply it. Being stateless means not enjoying many civil, economic, political and social rights and living at the margins of society. For the States, it means having to deal with political, security and diplomatic issues. For these reasons, although the regulation of nationality remains mainly within the exclusive competence of States, statelessness has been addressed at the international level since the United Nations was founded.192 However, statelessness has always been considered a less pressing issue than that of refugees. Today, questions of nationality and statelessness are increasingly important. For instance, the break-up of the Soviet Union and the former Yugoslavia in the 1990s raised issues about nationality in the context of State succession, ethnic and gender discrimination are the causes of many governments’ actions to deny nationality to many individuals, irregular migration may create problems for persons with ‘no effective 190 Edwards, ‘The Meaning of Nationality in International Law’ (n 6) 42. 191 Weis (n 4); Edwards, ‘The Meaning of Nationality in International Law’ (n 6) 42. 192 Edwards and van Waas (n 1) 2.

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nationality’ or who cannot prove it and their failed deportations raise issues on the meaning and content of nationality.193 The link between statelessness and migration is evident in connection with Europe’s refugee crisis regarding the current situation of children born in States that do not automatically grant jus soli and whose mothers, under Syrian law, cannot pass on their nationality. Whereas this is not a new problem, its magnitude is, and it challenges eu States’ rules on the acquisition of nationality. Yet, several issues related to statelessness are not adequately addressed, including at the European level. eu law only provides sporadic rules for the protection of stateless persons. The 1954 Convention remains the main treaty dealing with the protection of stateless persons. The next chapter will analyse the origin, scope and content of this Convention. It will explore how it plays an important role in enhancing respect for the human rights of stateless persons.194 Importantly, it will explain the legal definition of a ‘stateless person’. At the same time, it will highlight the Convention’s weaknesses and focus on issues that were discussed during the preparatory works and still emerge as problematic at the implementation stage. 193 Ibid 4–5. 194 unhcr Handbook (n 13) 9.

Chapter 3

Protecting Stateless Persons: Strengths and Weaknesses of the 1954 Convention 1 Introduction The question of the implementation of the 1954 Convention is complex and requires an exploration of its scope, key provisions and weaknesses. This chapter starts by providing an overview of the 1954 Convention’s background and its interrelated drafting history with that of the Refugee Convention, as they can be helpful to understand the political compromises that led to the adoption of norms that affect its value to date. Given its importance, the first critical issue that is then addressed, even before considering the rights and freedoms included in the 1954 Convention, is the definition of statelessness in its Article 1(1) and its constituent elements. The 1954 Convention is the only international instrument that provides the definition of ‘stateless person’, and as such, it has become universally adopted as a reference in other treaties and national legislations. It is also considered to have obtained the status of customary international law, meaning that it should be adhered to by all States when dealing with statelessness, regardless of whether they are signatories of the 1954 Convention or not.1 The chapter also engages with the current debates about whether the definition of ‘stateless person’ is adequate to provide protection and which cases fall under it and which do not. It shows that the ongoing discussion on the meaning of statelessness may affect the implementation of the 1954 Convention and distract from the issue of identification of statelessness. Moreover, the related matter of interpretation and application of the clause in Article 1(2)(i), which is a critical provision concerning the treatment of stateless Palestinians and which causes many problems at the practical level, is analysed. The other main issues highlighted are the lack of guidance on how to identify and prove statelessness and the lack of enforcement mechanisms to ensure compliance with the 1954 Convention. It is explained that the unhcr has recently taken a leading role in helping deal with the uncertainty around State Parties’ international obligations and the way that the determination of statelessness should be conducted. 1 Laura van Waas, ‘The un Statelessness Conventions’ in Alice Edwards and Laura van Waas (eds), Nationality and Statelessness Under International Law (cup 2014) 72. © koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004362901_005

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Finally, the benefits that constitute a minimum standard of treatment to be enjoyed by recognised stateless persons according to their degree of attachment to the State, including protection from expulsion, the right to travel document and facilitated naturalisation, are discussed. The chapter concludes by summarising the strengths and weaknesses of the 1954 Convention. 2

History of the 1954 Convention Relating to the Status of Stateless Persons

After World War ii, millions of people had become displaced or were living in a territory of a different State from that of birth. Some of them had lost their nationality as a consequence of denationalisation decrees or State succession. The international community was faced with the issue of what rights these persons had, who was responsible for them and on whom they could rely for protection.2 As a consequence, in 1948, the Economic and Social Council (­u nesc) of the newly formed United Nations commissioned a study on the situation of stateless persons and what measures might be taken to accord them protection.3 This resulted in A Study on Statelessness, which included displaced persons, stateless persons and refugees and divided the analysis between issues of status and reduction of the number of stateless persons.4 Based on this study, the unesc established the Ad Hoc Committee on Statelessness and Related Problems to determine whether a new international instrument was needed to ensure protection of refugees and stateless persons and, if so, to prepare the draft of a convention.5 The Ad Hoc Committee proposed the text of a draft Refugee Convention and a protocol on stateless persons. This protocol would have extended the application of a number of provisions of the Refugee Convention, mutatis mutandis, to stateless persons who were not refugees.6 The unesc revised the draft convention and returned it to the Ad Hoc 2 Statelessness is not a recent phenomenon, but this book focuses on the answers of the international community since the Post-War Period. See e.g., William E Conklin, Statelessness. The Enigma of the International Community (Hart Publishing 2014) 5–6. 3 unesc Res 116 (vi) (D) (1–2 March 1948) un Doc E/777. 4 unesc ‘A Study of Statelessness’ (1 August 1949) un Doc E/1112, E/1112/Add.1, 7–8; Carol A Batchelor, ‘Stateless Persons: Some Gaps in International Protection’ (1995) 7(2) ijrl 232, 241–42. 5 unesc Res 248 (ix) B (8 August 1949) un Doc E/OR(IX)/Suppl. No. 1. 6 unesc, un Ad Hoc Committee on Refugees and Stateless Persons ‘Report of the Ad Hoc Committee on Refugees and Stateless Persons, Second Session, Geneva, 14 August to 25 ­August 1950’ (25 August 1950) un Doc E/AC.32/8; E/1850.

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Committee for further review before sending it to the General Assembly of the United Nations (unga).7 In December 1950, the General Assembly of the United Nations decided to convene a Conference of Plenipotentiaries to complete the draft convention relating to the status of refugees and the draft protocol on stateless persons.8 In 1951, such a conference adopted only the Refugee Convention and referred the draft protocol on statelessness back to the appropriate organs of the United Nations for more detailed study. In 1952, the General Assembly asked the Secretary-General to circulate the draft protocol to States for comments on which provisions of the 1951 Refugee Convention they would be prepared to apply to stateless persons. The General Assembly requested the Economic and Social Council to study the comments that were received and prepare a text that might be opened for signature following the entry into force of the Refugee Convention.9 Consideration of the draft protocol was delayed due to time pressure as a consequence of the imminent liquidation of the International Refugee Organisation (iro)10 and the need to set up an agency dealing specifically with refugees (i.e., the unhcr).11 Moreover, it became obvious that the rights granted to refugees under the Refugee Convention could not be identical to those envisaged for stateless persons, as their legal situations were different 7

8 9

10

11

unesc Res 319 B iii (xi) (11 August 1950) 11th Session un Doc E/1818; Manley O Hudson ‘­Report on Nationality, Including Statelessness’ (21 February 1952) Special Rapporteur Extract from the Yearbook of the International Law Commission: (1952) vol ii un Doc A/CN.4/50; Hugh Massey, ‘unhcr and de Facto Statelessness’, Legal and Protection Policy Research Series, LPPR/2010/01 (unchr April 2010) 9–11. unga Res 429 (v) Draft Convention Relating to the Status of Refugees (14 December 1950) 325th Plenary Meeting un Doc A/RES/429(V). Final Act of the United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons (25 July 1951) 189 unts 137; unga Res 629 (vii) Draft Protocol Relating to the Status of Stateless Persons (6 November 1952) un Doc A/RES/629(VII). The International Refugee Organisation was a temporary specialised agency of the United Nations that, between its formal establishment in 1946 and its termination on 15 February 1952, assisted refugees and displaced persons in many States of Europe and Asia who either could not return to their States of origin or were unwilling to return for political reasons. Constitution of the International Refugee Organisation (adopted 15 December 1946, entry into force 20 August 1948) 18 unts 3; unesc ‘A Study of Statelessness’ (1 August 1949) un Doc E/1112; E/1112/Add.1, 31–32. United Nations General Assemby (unga) Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons, ‘Summary Record of the Thirty-first Meeting’ (29 ­November 1951) un Doc A/CONF.2/SR.31; Carol A Batchelor, ‘Stateless Persons: Some Gaps in International Protection’ (n 4) 242–49; Laura van Waas, Nationality Matters: Statelessness under International Law (Intersentia 2008) 225–27.

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and a protocol could not easily reflect such differences.12 In this regard, the Belgian delegate argued that whereas refugees deserved special benefits, ‘stateless persons as a class, although there were deserving cases among them, could not be said to merit privileged treatment’ compared to that reserved for other aliens.13 For example, an individual who had been deprived of his nationality as a result of having committed treason should not necessarily be entitled to the special benefits of refugee status. He felt that ‘by granting stateless persons the travel document issued to refugees, which was acquiring increased standing and prestige, the value of that document, and thus the interests of refugees themselves, would be jeopardised’.14 The position of some other Governments (i.e., the Danish, Swedish and Norwegian Governments) was similar to that of the Belgian Government, and an agreement on the draft protocol could not be reached at that time.15 A Second Conference of Plenipotentiaries on the Status of Stateless Persons, which took place 13–23 September 1954 (‘the conference’),16 decided that it was more appropriate to adopt an independent convention dealing with stateless persons. It appeared that the parties to the document on stateless persons might be different from those that signed the Refugee Convention and that this would create the awkward situation of forcing them to refer to a document which they had not adopted.17 Another consideration was that while 12

The deliberations of the full Conference appear in unga ‘Conference of Plenipotentiaries on the Status of Stateless Persons’ (13–23 September 1954) Summary Records un Doc E/CONF.17/SR. 1–15 (hereafter ‘SR. 1–15). Various delegations submitted proposals and amendments, which appear as documents E/CONF.17/L.1 to L.10; L.12 to L.14; L.16 to L.21; L.25 to L.28. un Doc E/CONF.17/L.1 to L.10; L.12 to L.14; L.16 to L.21; L.25 to L.28 (13–23 ­September 1954). 13 unga, Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons, ‘Summary Record of the Thirty-first Meeting’ (n 11) para 2. 14 Ibid. 15 Ibid para 13. 16 See Nehemiah Robinson, ‘Convention Relating to the Status of Stateless Persons. Its History and Interpretation. A Commentary’ (1997) World Jewish Congress 1955, Institute of Jewish Affairs, reprinted by the Division of International Protection of unhcr, 3. 17 Robinson (n 16) 3. It should be noted that the situation of referring to a document which some States had not adopted occurs with the 1967 Refugee Protocol. The Protocol is not an amendment to the Refugee Convention but an independent instrument. The Protocol incorporates the Refugee Convention’s provisions by reference, and States can ratify or accede the Protocol without becoming a party to the Convention. Protocol Relating to the Status of Refugees (adopted 31 January 1967 entry into force 4 October 1967) 606 unts 267, art i(1). The Protocol extends the Refugee Convention to all refugees by eliminating the Convention’s temporal and geographical limitations (the scope of the Convention is

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the ­expression mutatis mutandis was common in practice, it left too much discretion to States in applying the Refugee Convention to stateless persons, and therefore, there would be no uniformity in its application.18 Finally, the Protocol, as an independent document, was incomplete, as it was missing the clauses regarding its coming into force.19 The Conference adopted the Convention Relating to the Status of Stateless Persons on 28 September 1954.20 For practical reasons, the final version of the Refugee Convention remained the starting point in deciding which rights were to be granted to stateless persons. Nevertheless, in many instances, articles were modified, added or omitted, with the result that the treatment of stateless persons partially differed from that of refugees.21 In light of the 1954 Convention’s history, its understanding is therefore dependent on the analysis of the relevant articles of the Refugee Convention and of the reasons for the changes.22 3

The Definition of ‘stateless person’ under Article 1(1) of the 1954 Convention

The definition of ‘stateless person’ was widely debated during the preparatory works, and all suggestions were worded in general terms and only required lack of nationality.23 For instance, the British representative stated that ‘when the members of the conference had discussed the definition of a stateless person, they had shown a liberal spirit and had been prepared to extend the benefits of the proposed instrument to as many persons as possible’.24

18 19 20 21 22 23 24

limited to persons who became refugees as a result of events occurring before 1 January 1951. Moreover, States were allowed to introduce a declaration according to which the words ‘events occurring before 1 January 1951’ meant ‘events occurring in Europe’ prior to that date). Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 unts 150 (‘Refugee Convention’) art 1(B)(1). James Hathaway, The Rights of Refugees under International Law (cup 2005) 110–11. See e.g., the World Jewish Congress Submission un Doc E/CONF./17/NGO/1; Robinson (n 16) 3. Robinson (n 16) 4. Final Act of the United Nations Conference on the Status of Stateless Persons (28 September 1954) 360 unts 117. Robinson (n 16) 1, 4; van Waas, Nationality Matters (n 12) 227. Robinson (n 16) 1. Ibid 10; unhcr ‘Handbook on Protection of Stateless Persons under the 1954 Convention relating to the Status of Stateless Persons’ (2014) para 52. unga, Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons (n 12) sr. 7, 3.

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Ultimately, the final definition of ‘stateless person’ in Article 1(1) of the 1954 Convention encompasses ‘a person who is not considered as a national by any state under the operation of its law’.25 This definition has been labelled de jure statelessness, because it has to be assessed with reference to the operation of a State’s law.26 Whether only stateless persons de jure or also stateless persons de facto (referring to the idea that the quality and content of nationality must be considered) should fall under the 1954 Convention was among the most highly contested questions of the drafting process.27 In the end, it was decided that the 1954 Convention be applied only to de jure stateless persons. The drafters wanted a clear definition of statelessness to avoid confusion.28 Moreover, the drafters were concerned that if the de facto definition was included, the number of signatories might decrease and reservations might be made, leading to a variety of legal positions in the application of the Convention.29 Reference to de facto stateless persons appears only in the Final Act, which recommends granting de facto stateless persons, referred to as persons who renounced the protection of the State of which they were nationals and whose reasons for doing so are considered valid, ‘the treatment which the Convention accords to de jure stateless persons’.30 The inclusion of this recommendation was largely due to the concern that some States may become party to the 1954 Convention but not to the Refugee Convention, and therefore, the 1954 Convention could provide the protection of de facto stateless refugees.31 This recommendation, however, is of little relevance today, as it is difficult to find a category of persons who have valid reasons for renouncing the protection of the State of 25

26 27

28 29 30

31

Convention relating to the Status of Stateless Persons (adopted 28 September 1954, entered into force 6 June 1960) 360 unts 117 (Statelessness Convention) (hereafter the ‘1954 Convention’). As each State decides which persons are its nationals, the assessment of nationality requires applying the law of the State concerned. Eg, see un Doc E/CONF.17/L.6 in Robinson (n 16) 3; unga, ‘Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons’ (n 12) SR.2; SR.10, pages 11–15; SR. 11, pages 5–8; SR.13, pages 5–16; SR.14; Robinson (n 16) 7. David Weissbrodt and Clay Collins, ‘The Human Rights of Stateless Persons’ (2006) 28(1) HumRtsQ 245, 253. Batchelor, ‘Stateless Persons: Some Gaps in International Protection’ (n 4) 248. un Doc E/CONF. 17/L.35 (n 12); Final Act of the United Nations Conference on the Status of Stateless Persons (6 June 1960) 360–9 unts 118, 122; unga, ‘Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons’ (n 12) SR.10, pages 9–15; Robinson (n 16) 12. Belgian proposal in un Doc E/CONF.17/L.3, in Robinson (n 16) 8; unga, ‘Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons’ (n 12) SR. 14, page 6.

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their nationality that would justify protecting them as stateless. For example, according to Hugh Massey, the renunciation of nationality to avoid military service, to repudiate the State of nationality due to disagreement with government policies or to sever ties with the State of nationality to try a new life in another State are not reasons that would be considered valid for implementing the recommendation in the Final Act.32 Indeed, the only reason that the Conference considered as valid was if the individual in question was a refugee – i.e., a person outside his State of nationality and unwilling to avail himself of the protection of that State owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. It should be noted that the definition of Article 1A(2) of the Refugee Convention also includes persons unable to avail themselves of such protection. This category is not covered by the recommendation in the Final Act of the 1954 Convention, since only unwillingness to accept protection can be associated with renunciation.33 Finally, most States have been more reluctant to accede to the 1954 Convention than the Refugee Convention, and therefore, stateless refugees will more likely be protected under the latter instrument.34 In conclusion, the recommendation in the Final Act of the 1954 Convention is the only grey area remaining ‘where the notion of “de facto statelessness” lingers, namely with respect to a person who is outside their country of nationality’35 and is unwilling to invoke its diplomatic or consular ­protection.36 In spite of the foregoing observations, the debate on the meaning and adequacy 32 33

Massey (n 7) 21. Massey (n 7) 19; Refugee Convention (n 17) art 1A(2). However, van Waas seems to be confusing these categories, and she states that the recommendation in the Final Act of the 1954 Convention covers persons that cannot invoke diplomatic or consular protection. van Waas, ‘The un Statelessness Conventions’ (n 1) 64, 81. 34 Massey (n 7) 20–21. As of 27 January 2017, the number of State Parties to the Refugee Convention was 145, and that to the 1967 Protocol was 146. untc, ‘Convention Relating to the Status of Refugees’ accessed 25 September 2017; untc, ‘Protocol Relating to the Status of Refugees’ accessed 25  September 2017. In turn, the number of State Parties to the 1954 Convention was 89, and to the 1961 Convention 68. untc, ‘Convention Relating to the Status of Stateless Persons’ 25 September 2017. 35 van Waas, ‘The un Statelessness Conventions’ (n 1) 81. 36 Ibid.

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of the definition of ‘stateless person’ continues as scholars and practitioners struggle with the application of the definition in practice. 4

Changing the Concept of de facto Statelessness

With the creation of many cases of statelessness following the dissolution of the Soviet Union and the Republic of Yugoslavia in the 1990s, scholars like Carol A. Batchelor gradually raised criticisms about the narrow and limiting scope of the 1954 Convention’s definition of statelessness, which omits people with practically useless citizenship.37 In particular, David Weissbrodt and Clay Collins referred to the challenges related to the de jure definition of statelessness, which ‘excludes those individuals who might technically have a nationality and yet are not able to obtain or enjoy the concomitant benefits and protections’.38 According to these scholars, some people may face several administrative and legal obstacles as far as the enjoyment of their rights is concerned and should therefore be considered de facto stateless. Similarly, Carol A. Batchelor, Caroline Sawyer and Brad K. Blitz stress that those who cannot exercise the right to return to the State of origin because they do not receive assistance or documents from the consular authorities lack an ‘effective nationality’.39 They argue that a person who faces administrative obstacles to return should be considered de facto stateless.40 Others, such as Lindsey N. Kingston, even include under de facto stateless people those inside the country of their nationality. Thus, these scholars conclude that a new international definition of statelessness is needed.41 By contrast, van Waas criticises this view based upon two arguments. Firstly, under human rights law, the right to a nationality is distinct from the rights attached to nationality, and the violation of one does not entail the violation of the other. For instance, a State could violate 37

38 39

40 41

Carol A Batchelor, ‘Statelessness and the Problem of Resolving Nationality Status’ (1998) 10(1–2) ijrl 156, 173–74; Weissbrodt and Collins (n 28) 16–55; Alison Harvey, ‘Statelessness: the “de Facto” Statelessness Debate’ (2010) 24(3) jianl 257–64. Weissbrodt and Collins (n 28) 251. Batchelor, ‘Statelessness and the Problem of Resolving Nationality Status’ (n 37) 172–74; Caroline Sawyer and Brad K Blitz, ‘Statelessness in the European Union’ in Caroline Sawyer and Brad K Blitz (eds), Statelessness in the European Union. Displaced, Undocumented, Unwanted (cup 2011) 4–7. Batchelor, ‘Statelessness and the Problem of Resolving Nationality Status’ (n 37) 172–74. Lindsey N Kingston argues that a person has an effective nationality only if he enjoys the full range of human rights. Lindsey N Kingston, ‘Statelessness as a Lack of Functioning Citizenship’ (2014) 19(1–2) tlr 127.

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the rights that must be granted to nationals without actually violating the right to nationality.42 The non-enjoyment of rights attached to nationality does not constitute de facto statelessness but a violation of other human rights.43 If this argument is not accepted, then the following questions would arise and would need to be clarified: (1) the rights attached to nationality that are relevant for determining de facto statelessness (whether only the rights specifically provided for under international human rights law or additional rights provided for under municipal law should be considered)44 and (2) to what extent such rights have to be violated.45 Secondly, the situation of a person whose nationality is disputed by one or more States and that of a person unable to prove his nationality are matters of identification of statelessness.46 Van Waas argues that identification matters do not require a new definition of statelessness or a new protection framework.47 She contends that new arguments on de facto statelessness not only do not serve any useful purpose but may even create confusion.48 According to the scholar, It would be more fruitful to concentrate efforts on the implementation of the existing definition of statelessness – on the identification of ­statelessness – as well as on measures to ensure that states honour their human rights commitments to their nationals so as to preclude the problem of ineffective nationality.49 In this discussion, Massey stresses that the only exception to the understanding that non-enjoyment of rights attached to nationality does not constitute

42

43 44 45 46 47 48

49

This is the case of dictatorships, where all nationals, except for an ethnic group, are denied the right to a passport, the right to vote and the right to take part in civil and political life. Massey (n 7) 37–38. See Ch 2, s 3. For a discussion on the content of Nationality, see Paul Weis, Nationality and Statelessness in International Law (Sijthoff and Noordhoff 1979) and Ch 2, s 3. Massey (n 7) 37–40; van Waas, Nationality Matters (n 12) 24. Massey (n 7) 40–45: van Waas, Nationality Matters (n 12) 25. Ibid (n 12) 25. Ibid 26–27; Massey (n 7) 27–28, 36–40; Harvey (n 37) 257; Guy Goodwin-Gill, Lecture at Short Course on Statelessness, Refugee Studies Centre (Oxford University, uk, April 2010); Jason Tucker, ‘Questioning de Facto Statelessness by Looking at de Facto Citizenship’ (2014) 19(1–2) tlr 276. van Waas, Nationality Matters (n 12) 27.

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de facto statelessness is when a person lacks diplomatic protection and consular assistance of the State of nationality in relation to other States.50 As for the unhcr, its position is that the terms de jure and de facto statelessness appear nowhere in the 1954 Convention, and therefore, they should not be used.51 The characteristics and substance of a particular person’s nationality are irrelevant. Although the unhcr acknowledges that there may be a fine line between being recognised as a national but not being treated as such and not being recognised as a national at all, it points out that the former situation is connected with the rights attached to nationality, whereas the latter is connected with the right to nationality itself.52 According to the unhcr, the definition of stateless person incorporates a concept of national which reflects a formal link, of a political and legal character, between the individual and a particular State. As such, the treaty’s concept of national is consistent with the traditional understanding of this term under international law; that is, persons over whom a State considers it has jurisdiction on the basis of nationality, including the right to bring claims against other States for their ill-treatment.53 5

Interpretation of Terms in Article 1(1) of the 1954 Convention

The definition of stateless person in Article 1(1) remains subject to debate and can be analysed by breaking it down into the following elements: When is a person ‘not considered as a national’ of a State ‘under the operation of its law’? What is a ‘State’ for purposes of determining when an individual is a national? Which States need to be examined? When should the temporal assessment of statelessness be carried out? When a Person is ‘not considered as a national’ of a State ‘under the operation of its law’ The 1954 Convention does not specify what ‘nationality’ means, and as discussed in the two previous sections and Chapter 2, the question is linked to the

5.1

50 51 52 53

Massey (n 7) 40. unhcr Handbook (n 23) para 7. unhcr ‘The Concept of Stateless Persons under International Law (“Prato Conclusions”)’ (May 2010) 2; unhcr Handbook (n 23) para 53. See Ch 2, s 3. Ibid 2; unhcr Handbook (n 23) para 52.

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debate on de facto statelessness. Although there is no agreement on the content of ‘nationality’, the unhcr has recently clarified that it should be interpreted as a ‘formal link of political and legal character between the individual and the State’, consistent with its traditional understanding under international law.54 Therefore, nationality shall ‘be associated with the right of entry, re-entry and residence in the State’s territory’55 and the State’s right to bring claims against other States for its nationals’ ill-treatment (i.e., diplomatic protection).56 Furthermore, the unhcr explains: The fact that different categories of nationality within a State have different rights associated with them does not prevent their holders from being treated as a ‘national’ for the purposes of Article 1(1). Nor does the fact that in some countries the rights associated with nationality are fewer than those enjoyed by nationals of other States or indeed fall short of those required in terms of international human rights obligations. Although the issue of diminished rights may raise issues regarding the effectiveness of the nationality and violations of international human rights obligations, this is not pertinent to the application of the stateless person definition in the 1954 Convention.57 The unhcr’s view is that assessing whether an individual is not considered a national ‘under the operation of its law’ requires a thorough analysis of how a State applies its nationality laws in an individual’s case ‘and any review/appeal decisions that may have had an impact on the individual’s status’.58 The reference to ‘law’ means not just legislation but also decrees, regulations, judicial decisions and customary practice.59 Therefore, assessing whether a person is a national under the ‘operation’ of a State’s law demands going beyond a formalistic approach and considering implementation in practice.60 Notwithstanding the unhcr’s interpretation, it appears that there is still no consensus on what the content of nationality is and what is meant by ‘operation of a State’s law’; Chapter 8 will explore State practices in this regard.

54 unhcr Handbook (n 23) para 52; see Ch 2, s 3. 55 unhcr Handbook (n 23) para 53. 56 Ibid. 57 unhcr ‘Prato Conclusions’ (n 52) 2; unhcr Handbook (n 23) para 53. 58 unhcr ‘Prato Conclusions’ (n 52) 2; unhcr Handbook (n 23) para 23. 59 unhcr Handbook (n 23) para 22. 60 Ibid para 23.

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5.2 The Meaning of ‘State’ The unhcr recommends that the meaning of ‘State’ in Article 1(1) should be based on the criteria generally deemed necessary for a State to exist in international law, as set out in the Montevideo Convention on Rights and Duties of States (‘Montevideo Convention’).61 The Montevideo Convention provides that ‘the state as a person of international law should possess the following qualifications: (a) a permanent population, (b) a defined territory, (c) a government and (d) the capacity to enter into relations with the other States’.62 Moreover, it states that whether or not an entity is considered a State by other States is indicative, but not determinative, of whether it has achieved statehood.63 Other factors of statehood that have emerged in the debates include the effectiveness of the entity in question, the right of self-determination and the prohibition of the use of force.64 Different opinions may arise within the international community regarding whether a particular entity has achieved statehood. Even when an entity appears to satisfy all or most of the Montevideo criteria, some States may not recognise it as a State for political reasons. In some cases, a State may be recognised as a matter of international relations; yet, the territory that it occupies may not be considered a part of its legitimate territory. Accordingly, assessing whether a State exists under international law for purposes of Article 1(1) of the 1954 Convention is complex. The unhcr observes that a decision-maker may be inclined to follow his State’s official stance on an entity’s legal personality and make decisions influenced by politics.65 5.3 Which State Needs to be Examined? Regarding which States need to be examined when assessing whether a person is stateless, the unhcr specifies that the enquiry must be limited to the States

61 62

63 64

65

Convention on Rights and Duties of States (adopted 26 December 1933, entry into force 26 December 1934) 165 lnts 19 (Montevideo Convention). Ibid art 1; see Cedric Ryngaert and Sven Sobrie, ‘Recognition of States: International Law or Realpolitik? The Practice of Recognition in the Wake of Kosovo, South Ossetia, and Abkhazia’ (2011) 24(2) ljil 470–74. Montevideo Convention (n 61) art 3; unhcr ‘Prato Conclusions’ (n 52) 4–5; unhcr Handbook (n 23) para 20. unhcr Handbook (n 23) para 19. Doctrine and jurisprudence have addressed these matters in detail, and for the purposes of this book, I only briefly mention the Montevideo criteria. Ibid para 20.

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with which a person enjoys a relevant link, in particular by birth, descent, marriage or habitual residence.66 In situations where a State does not exist under international law, the ­u nhcr takes the position that a person’s relationship with that entity is moot, and therefore, he is ipso facto stateless.67 5.4 Temporal Assessment of Statelessness One issue that often arises in practice is whether a person must be considered a national at the time the case is examined.68 In particular, there may be situations in which a stateless person may be eligible to obtain a nationality, and the issue becomes whether he should be required to make good faith attempts towards its acquisition. According to the unhcr, an individual’s nationality is to be assessed at the time of determination of eligibility under the 1954 Convention. The question to be answered is whether, at the point of making an ­Article 1(1) determination, an individual is a national of the country or countries in question. Therefore, if an individual is partway through a process for acquiring nationality but those procedures are yet to be completed, he or she cannot be considered as a national (…).69 In conclusion, the application and interpretation of Article 1(1) of the 1954 Convention is problematic, because it is linked to the vagueness of the terms used in the treaty, the fact that applicants often have no documents to prove their cases and many real-life situations are not clear-cut. 6

Exclusion of Stateless Palestinians from Article 1 of the 1954 Convention

A person found to meet the definition of Article 1(1) of the 1954 Convention can be excluded from protection if he falls under one of its exclusions clauses. Specifically, Article 1(2) provides that the 1954 Convention shall not apply to those who are considered to either not need or not deserve protection.70 66 67 68 69 70

Ibid para 18. unhcr ‘Prato Conclusions’ (n 52) 4–5; unhcr Handbook (n 23) para 17. See Ch 8, s 3. unhcr Handbook (n 23) para 50. For a discussion on these exclusion grounds, including when there are serious reasons for considering that a person has committed a crime against peace or a serious non-political

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To keep this book within reasonable boundaries, only its clause (i) is analysed. Clause (i) is of particular concern to stateless Palestinians and keeps raising the problems of interpretation and application at the individual case level when they seek protection, in part due to the uncertainty of the political situation and the ­international standing of Gaza and the West Bank.71 Clause (i) excludes from its scope ‘persons who are already receiving protection or assistance from another agency of the United Nations other than the United ­Nations Commissioner for Refugees so long as they are receiving such protection or assistance’. The Refugee Convention contains a similar clause in Article 1D, which sets forth that This Convention shall not apply to persons who are at present receiving from organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees protection or assistance. When such protection or assistance has ceased for any reason, without the position of such persons being definitively settled in accordance with the relevant resolutions adopted by the General Assembly of the United Nations, these persons shall ipso facto be entitled to the benefits of this Convention. Although the wording of Article 1(2)(i) of the 1954 Convention is different from that of Article 1D of the Refugee Convention, it is considered to have the same meaning; so, by analogy, decision-makers consider Article 1D’s interpretation highly persuasive.72 In particular, Article 1(2)(i) of the 1954 Convention is considered to include, in one single paragraph, the exclusion and inclusion clauses present in Article 1D of the Refugee Convention: It excludes persons who are receiving protection and assistance from un agencies other than unhcr but only ‘as long as they are receiving such protection or assistance’, which can be understood as having the same meaning as the second paragraph of Article 1D, which entitles those

71 72

crime, see Geoff Gilbert, ‘Exclusion and Evidentiary Assessment’ in Gregor Noll, Proof, Evidentiary Assessment and Credibility in Asylum Procedures (Martinus Nijhoff Publishers 2005) 161–77. Guy Goodwin-Gill and Jane McAdam, The Refugee in International Law (3rd edn, oup 2007) 161. ilpa and University of Liverpool Law Clinic, ‘Statelessness and Applications for Leave to Remain: a Best Practice Guide’ (2016) 25.

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­ ersons to the benefits of the convention ‘[w]hen such protection or asp sistance has ceased for any reason’.73 Reference to Article 1D, however, is ambiguous, as a number of key questions remain debated and unresolved and prevent Palestinian refugees from receiving protection. The main issues that must be resolved are: (a) Who are the ‘persons’ referred to who are excluded by the first sentence and included by the second? (b) What is meant by the term ‘at present receiving’? (c) Which are the ‘organs or agencies of the United Nations’ referred to in the first sentence? (d) What is the meaning of the terms ‘protection’ and ‘assistance’ in both sentences? (e) What is the meaning of the terms in the second sentence: ‘ceased for any reason’, ‘position…being definitively settled in accordance with relevant unga resolutions’, ‘ipso facto’ and ‘the benefits of this Convention’? Guidance on how to correctly interpret Article 1D can be found in the Vienna Convention on the Law of Treaties (vclt).74 Article 31 of the vclt provides: 1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose… 4. A special meaning shall be given to a term if it is established that the parties so intended….75 In addition, Article 32 of the vclt sets forth: Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application 73

74

75

badil, Resource Center for Palestinian Residency and Refugee Rights, Closing Protection Gaps: Handbook on Protection of Stateless Palestinian Refugees in States Signatories to the 1951 Convention (2nd edn, 2015) 23, ft 134. Most of the following discussion on Article 1D of the Refugee Convention is based on the view of Susan Akram in Susan M Akram, Boston University International Human Rights Clinic, Amicus Brief in the case of A-A (2017), on file with the author. Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 unts 331, art 31.

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of Article 31, or to determine the meaning when the interpretation according to Article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable.76 Therefore, in light of the vclt, in the following sections I attempt to clarify the ambiguities, as well as the ‘special meaning’ of the terms used in Article 1D considering the historical and prior legal documents that interpret those terms. The Meaning of Article 1D of the Refugee Convention under Treaty Interpretative Rules in Light of the Drafting History a) Who are the ‘persons’ Referred to Who are Excluded by the First Sentence and Included by the Second? The reference to ‘persons’ rather than ‘refugees’ indicates that the refugee definition in Article 1A was not the criterion to be applied to determine the status of Palestinian refugees. The balance of the Refugee Convention refers to ‘refugees’, meaning those defined as such under Article 1A.77 The drafting history, Lex Takkenberg and the unhcr indicate that two groups of Palestinian refugees are the ‘persons’ falling under Article 1D:78

6.1

(1) ‘Palestinian refugees’ who were displaced from the part of Palestine that became Israel and who have been unable to return there as set forth in General Assembly Resolution (unga) 194 (iii) of 11 December 1948 and subsequent unga Resolutions79 and also (2) Palestinians who are ‘displaced persons’80 and who have been unable to return to the Palestinian territories occupied by Israel in 1967.81 76 77 78

79 80

81

Ibid art v32. Akram (n 74) para 64. Lex Takkenberg, The Status of Palestinian Refugees in International Law (oup 1998) 60–62, 90; unhcr ‘Note on unhcr’s Interpretation of Article 1D of the 1951 Convention Relating to the Status of Refugees and Article 12(1)(a) of the eu Qualification Directive in the Context of Palestinian Refugees Seeking International Protection’ (May 2013). unga Res 194 (iii) Palestine – Progress Report of the United Nations Mediator (11 December 1948) un Doc A/RES/194. Essentially, two groups of Palestinian ‘displaced persons’ have been displaced from the Palestinian territory occupied by Israel since 1967: (i) Palestinians originating from that territory and (ii) ‘Palestine refugees’ who had taken refuge in that territory prior to 1967. The territory concerned comprises the West Bank, including East Jerusalem and the Gaza Strip. unga Res 2252 (es-v) Humanitarian assistance (4 July 1967) un Doc A/RES/2252 (es-v). Goodwin-Gill and McAdam (n 71) 159. unhcr ‘Note on unhcr’s Interpretation of ­Article  1D of the 1951 Convention Relating to the Status of Refugees and Article 12(1)

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Included in these two groups are also the descendants of the persons that were displaced.82 b)

What is Meant by the Term ‘at present receiving’ from ‘organs or agencies of the United Nations other than the unhcr’? The term ‘at present’ refers to the time of application of the provision to a particular refugee. The preparatory works, the drafting papers of unga Resolution 194 and its un Legal Counsel opinions and the un Secretariat interpretive papers show that the rationale of establishing the United Nations Conciliation Commission (unccp), the United Nations Relief and Works Agency for Palestine (unrwa) and the ‘special’ regime for Palestinian refugees was to guarantee that Palestinians could receive protection and assistance at all times.83 Thus, as long as they were receiving both aspects of international consideration from the un, they were not covered by the Refugee Convention. The only organs or agencies ‘other than the unhcr’ referenced in the preparatory works with regard to this provision were the unccp and unrwa. The aim of establishing the unccp and unrwa was to ensure that Palestinians would receive international protection and humanitarian assistance through these two agencies with complementary but different competencies regarding the Palestinians.84

c)

What is the Meaning of the Terms ‘protection’ and ‘assistance’ in Both Sentences? Although the terms ‘protection’ and ‘assistance’ are often used interchangeably, it is clear from the preparatory works that the unccp was given a mandate of international protection and of carrying out a specified durable solution as set forth in its founding unga Resolution 194.85 In contrast, the unrwa was given a mandate of humanitarian assistance to deliver to a group of Palestinians defined as being ‘in need’ in unga Resolution 194.86 Initially, the unrwa was

82 83 84 85 86

(a) of the eu Qualification Directive’ (n 78) 2–3; unga Res 2452 (xxiii) A Report of the ­Commissioner-General of the United Nations Relief and Works Agency for Palestine Refugees in the Near East (19 December 1968) un Doc A/RES/2452(XXIII)(A-C). unhcr ‘Note on unhcr’s Interpretation of Article 1D of the 1951 Convention Relating to the Status of Refugees and Article 12(1)(a) of the eu Qualification Directive’ (n 78) 4–5. Takkenberg (n 78) 64–65. badil (n 73) 28–38. unga Res 194 (iii) (n 79) para 11. unga Res 302 (iv) Assistance to Palestinian Refugees (8 December 1949) Un Doc A/RES/302(IV).

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given a three-year mandate, expecting that the unccp would realise the task of helping the refugees return home in the short term.87 Hence, by ‘protection’, the drafters meant what the unccp was providing, while by ‘assistance’, they referred to what the unrwa was responsible for. Both agencies and tasks were considered necessary to provide for the legal and daily needs of the refugees and formed the ‘special’ regime mentioned in the preparatory works. ‘The disjunctive “or” in this clause is more ambiguous in light of the clear purpose set out’88 in the preparatory works. ‘The “or” in the first sentence (‘at present receiving…protection or assistance’) is inconsistent with the disjunctive “or” in the first clause of the second sentence (‘when such protection or assistance has ceased’), but the inconsistency is explained by a drafting error occurring because of the two sentences being proposed as amendments at different times during the drafting process’.89 Although the inconsistency was noticed, it was not corrected in time for the vote on the adoption of the Refugee Convention.90 The literal meaning of the disjunctive in the first sentence would indicate that Palestinian refugees are excluded from the Refugee Convention ‘as long as they are receiving either protection or assistance, while the second sentence would mean they are to be re-included under the Convention if either protection or assistance has failed’.91 However, such a reading would lead to an absurd result, as the two sentences would be mutually exclusive. Palestinian refugees cannot be both excluded if they receive either protection or assistance and included if they receive either protection or assistance. The only way to make sense of these two sentences, considering Article 1D’s object and purpose, is by appreciating what the ‘special’ regime for Palestinian refugees meant. The special regime set up with two un agencies was intended to provide both international legal protection and humanitarian assistance until the specified durable solution in Paragraph 11 of unga Resolution 194 was attained.92 ‘Thus, the second sentence as a whole is best understood as a contingent inclusion clause – Palestinian refugees were to be re-included in the Refugee Convention regime if either prong of this special regime were to fail’.93 87 88 89 90 91 92 93

Ibid para 6. Akram (n 74) para 70. Ibid; Takkenberg (n 78) 63–67. Takkenberg (n 78) 67. Akram (n 74) para 71. United Nations Secretariat ‘unccp Memorandum on Relations Between unrwa and unccp’ (30 March 1950) un Doc A/AC.25/W/42. Akram (n 74) para 73.

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Interpreting the ‘protection or assistance’ words in drafting context reveals that Palestinians were to be automatically re-included under the Refugee Convention if the legal protection provided by the ‘unccp or the humanitarian assistance provided by unrwa were to fail for any reason whatsoever AND the required durable solution set down by the un had not been achieved for them’.94 In other words, such persons shall continue to be considered ‘Palestinian refugees’ ‘if either protection or assistance ceased for whatever reason, and their status as an entire group was unresolved’,95 as set forth by Paragraph 11 of unga Resolution 194. Therefore, it can be concluded that in light of the object and purpose and the interpretive rules of the vclt, the drafters meant ‘“This Convention shall not apply to persons at present receiving…protection and assistance” in the first sentence and “When such protection or assistance has ceased…” in the second sentence’.96 d)

What is the Meaning of the Terms in the Second Sentence ‘ceased for any reason’, ‘position…being definitively settled in accordance with relevant unga resolutions’, ‘ipso facto’ and ‘the benefits of this convention’? These words reinforce the argument presented above that Palestinian refugees were to be re-included under the Refugee Convention if either assistance or protection had ceased from either one of the two agencies without achieving the required durable solution for them. This condition was actually met in the mid-1950s with the ending of the unccp’s activities due to difficulties in carrying out its mandate: (1) reaching the durable solution for the refugees (implement return, restitution and compensation) and (2) resolving the issues between the parties involved in the Arab-Israeli conflict.97 The preparatory works clearly indicate that the frame of reference to interpret the terms ‘without the position of such persons being definitively settled in accordance with the relevant resolutions adopted by the General Assembly of the United Nations’ was the definition of a Palestinian/Palestine refugee,

94 Ibid para 74. 95 Ibid. 96 Ibid para 75. 97 badil (n 73) 28–33; Akram (n 74) paras 76–77. In light of the unccp’s inability to achieve its main purpose, the unga passed a number of measures to reduce its funding. unccp is now limited to a un office in New York, comprising three un State Parties (Turkey, France and the United States), which issues yearly progress reports that show the inability to achieve its mission. badil (n 73) 31.

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the agencies making up the ‘special’ regime for them and the durable solution established under Resolutions 194 and 302(iv), which were adopted in 1948 and 1949 respectively.98 In particular, ‘definitive settlement’ means ‘return, restitution and compensation’, as described in Paragraph 11 of unga Resolution 194 and clarified in the delegates’ remarks when they discussed Article 1D.99 The final ipso facto clause further supports the interpretation that Palestinian refugees, as defined by unga Resolution 194 and in respect of ‘whom either protection or assistance has ceased for any reason whatsoever and whose durable solution of return, restitution and compensation has not been achieved’,100 fall automatically under the Refugee Convention. As ipso facto means ‘by that fact alone’, it would be illogical if Palestinians who satisfy the pre-conditions for inclusion in the Refugee Convention as a group would then only qualify to have their status assessed under the individual criteria of Article 1A(2).101 6.2 The European Court of Justice’s Interpretations of Article 1D In two recent cases, the ecj has interpreted Article 12 of Directive 2004/83, which incorporates Article 1D of the Refugee Convention into binding eu law.102 Specifically, in 2010, in Bolbol v Bevandorlasi es Allampolgarsagi Hivatal (Bolbol i), the ecj clarified that ‘a person receives protection or assistance from an agency of the United Nations other than the unhcr, when that person has actually availed himself of that protection or assistance’. It concluded that the applicant, a Palestinian from Gaza, was not registered with the unrwa, and therefore, she had not ‘availed herself of the protection or assistance from unrwa’.103 In 2012, in the case of El Kott v Bevándorlási és Állampolgársági Hivatal, the ecj dealt with two questions left open in Bolbol: (1) when ‘protection or assistance’ is considered to have ceased and (2) what is meant by the ‘benefits of the Convention’ under the second sentence of Article 1D. As far as the first question is concerned, the court ruled that 98 Takkenberg (n 78) 64–65; Akram (n 74) paras 80–81. 99 See unga Res 194 (iii); Akram (n 74) para 81. 100 Akram (n 74) para 82. 101 badil (n 73) 44; Akram (n 74) paras 82–83. 102 Council Directive (ec) 2004/83 of 29 April 2004 on minimum standards for the qualification and status of third-country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted [2004] oj L304/12, art 12(1)(a). 103 C-31/09 Bolbol v Bevándorlási és Állampolgársági Hivatal [2010] ecr I-5539, para 55; Akram (n 74) para 93.

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[C]essation of protection or assistance from organs or agencies of the United Nations other than the High Commission for Refugees (hcr) ‘for any reason’ includes the situation in which a person who, after actually availing himself of such protection or assistance, ceases to receive it for a reason beyond his control and independent of his volition. It is for the competent national authorities of the Member State responsible for examining the asylum application made by such a person to ascertain, by carrying out an assessment of the application on an individual basis, whether that person was forced to leave the area of operations of such an organ or agency, which will be the case where that person’s personal safety was at serious risk and it was impossible for that organ or agency to guarantee that his living conditions in that area would be commensurate with the mission entrusted to that organ or agency.104 Consequently, if the applicant left the unrwa’s area of operation voluntarily, he shall not automatically be recognised as a refugee. However, the El Kott case did not identify any objective criteria to define what is meant by reasons beyond one’s control and independent of one’s volition. Regarding the second issue, the court clarified that the words ‘the benefits of the Convention’ must be interpreted as meaning refugee status.105 The fact that someone is ‘ipso facto’ entitled to the benefits of the Convention means that the person must automatically be granted refugee status.106 In the case in question, the ecj found that the unrwa was unable to provide protection to the Palestinian applicants in Lebanon and that they deserved refugee status.107 The ecj in both cases found that actual unrwa registration or eligibility for registration was definitive proof of ‘Palestinian refugee’ status. According to Akram, the ecj’s interpretations are ‘inconsistent with the plain language, drafting history and object and purpose of Article 1D’ for three reasons.108 First of all, Akram notes that these cases mix up ‘protection’ with ‘assistance’ and fail to differentiate between the mandates of the unccp and unrwa. The decisions mention the unccp, but they do not acknowledge that it was the only un Agency in charge with protecting the ­Palestinians 104 105 106 107 108

Case C-341/11 El Kott and Others v Hungary [2012] oj C46/8, para 65. Ibid para 67. Bolbol (n 103) at para 55; Akram (n 74) paras 70–71. El Kott (n 104) para 82. Akram (n 74) para 99.

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and ­reaching a durable solution for them.109 The ecj fails to address the ­importance of the ‘cessation’ of protection by the unccp and focuses only on whether unrwa’s assistance has ceased.110 By contrast, an accurate interpretation requires consideration of the cessation of unccp’s protection to activate the re-inclusion of Palestinians in the ‘benefits of the Convention’ under the second sentence of Article 1D.111 Second, the ecj has changed the phrase ‘when protection or assistance has ceased for any reason’ to ‘when protection or assistance has ceased for a reason beyond his control and independent of his volition’.112 Instead, a correct approach requires ‘for any reason’ to include all kind of reasons, ‘including, but not limited to, reasons beyond the individual’s control or independent of his volition’.113 Third, in both cases, the ecj has failed to appreciate the aim and mechanism of the ‘special’ regime set up for Palestinian refugees114 and the void that has occurred from the collapse of the unccp. Accordingly, the ecj has fallen short in recognising that all Palestinians defined as refugees under unga Resolution 194 should be entitled to claim automatic refugee status under Article 1D if they are outside of unrwa territories.115 6.3 unhcr’s Interpretation of Article 1D The unhcr has provided some guidelines to clarify aspects of the position of Palestinian refugees under international refugee law.116 In the first of these documents, the ‘Note on the Applicability of Article 1D of the 1951 Convention relating to the Status of Refugees’ of October 2002, the unhcr stressed that ­Article 1D contains both an exclusion (first paragraph) and inclusion clause (second paragraph). The inclusion clause attributes certain Palestinians the

109 Ibid para 100. 110 Ibid para 103. 111 Ibid. 112 Ibid para 104. 113 Ibid para 106. 114 Ibid. 115 Ibid paras 109–112; unhcr ‘Revised Note on the Applicability of Article 1D of the 1951 Convention relating to the Status of Refugees to Palestinian Refugees’ (October 2009) 2. 116 unhcr, ‘Note on the Applicability of Article 1D of the 1951 Convention Relating to the Status of Refugees’ (October 2002); unhcr, ‘Note on unhcr’s Interpretation of Article 1D of the 1951 Convention and Article 12(1)(a) of the eu Qualification Directive’ (n 78). The unhcr’s 2013 Note replaced the 2002 Note.

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benefits of the Refugee Convention when ‘protection and assistance from unrwa has ceased for any reason’.117 In its 2013 ‘Note on unhcr’s Interpretation of Article 1D of the 1951 Convention’, the unhcr explained that the words ‘ceased for any reason’ should not be construed restrictively. ‘Any reason’ would include the following: ‘(i) the termination of unrwa as an agency, (ii) the discontinuation of the unrwa’s activities or (iii) any objective reason outside the control of the person concerned such that the person is unable to (re-)avail himself of the protection or assistance of the unrwa. Both protection-related as well as practical, legal or safety barriers to return are relevant to this assessment’.118 ‘Objective reasons’ for inability to return encompass practical, legal and safety barriers to return. The ‘safety’ barriers seem to refer to the well-founded fear of persecution criteria in Article 1A(2) of the Refugee Convention and only slightly expand them. As far the ‘legal barriers’ are concerned, the unhcr indicates that they should be interpreted as meaning the ‘absence of documentation to travel to, or transit, or to re-enter and reside, or where the authorities in the receiving country refuse his or her re-admission or the renewal of his or her travel documents’.119 These ‘objective reasons’ do not include those of a social, economic and cultural nature.120 Thus, the unhcr’s interpretation fails to cover Palestinians who are forced into secondary movement due to harsh socio-economic and cultural dispossession in the country of residence.121 Moreover, Goodwin-Gill and Akram bring attention to the issue that the unhcr’s position, by requiring an assessment of the reasons for the inability to return, makes ineffective the ipso facto words and is therefore incorrect.122 Lastly, the unhcr’s interpretation of Article 1D totally ignores the cessation of the unccp’s protection mandate, as discussed above, and its effects on Palestinian refugees. Therefore, the unhcr’s interpretation of Article 1D limits the protection of Palestinian refugees and should be revised.

117 unhcr, ‘Note on unhcr’s Interpretation of Article 1D of the 1951 Convention and Article 12(1)(a) of the eu Qualification Directive’ (n 78) para 2. 118 Ibid 4. 119 Ibid 5. 120 badil (n 73) 350. 121 Ibid. 122 Guy S Goodwin-Gill and Susan M Akram, ‘Amicus Curiae Brief on the Status of Palestinian Refugees under International Refugee Law, in Camille Mansour (ed), The Palestine Yearbook of International Law Vol 11 (Brill 2000–2001) 221; Maja Zarkovic, ‘Palestinian Refugees and the (Mis-)interpretation of Article 1D of the 1951 Refugee Convention’ (llm Paper, Queen Mary University of London April 2015) 23–24.

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Overview of the Content of the 1954 Convention Relating to the Status of Stateless Persons

On acquisition of stateless status, the 1954 Convention provides for the application of a basic set of civil and socio-economic rights, including religious freedom, access to courts, property, education, employment, freedom of speech, social security, housing and freedom of movement.123 Some of the rights can be classified as ‘special measures’ for the stateless which are ‘necessitated by their very status’.124 The special measures for the stateless are grouped in Chapter 5 under the title ‘Administrative Measures’ and encompass Article 25 on administrative assistance, Article 26 on freedom of movement, Article 27 on identity cards, Article 28 on travel documents, Article 31 on protection from expulsion and Article 32 on naturalisation. The rights in the 1954 Convention are granted on a gradual scale, depending on the degree of attachment between the stateless person and the State, similar to the provisions of the Refugee Convention.125 There are ‘five levels of attachment’, which, starting from the weakest, are: being subject to the State’s jurisdiction, physical presence, lawful presence, lawful stay and durable residence. The meaning of some of these terms is debated. ‘Being subject to the State’s jurisdiction’ means being under the control and authority of a State without being physically present. For instance, this would be the case of a State that exercises de facto control and authority in a territory without having lawful jurisdiction. Rights, such as access to courts (Article 16) and education (Article 22), are guaranteed to those who fall under this category. ‘Physical presence’ is understood as being within the territory of a State, regardless of lawful status. For instance, a stateless person falling under this category is entitled to identity papers (Article 16) and freedom of religion (Article 22).126 According to the unhcr, for stateless persons to be ‘lawfully present’ in a State, their presence must be authorised by the authorities. This includes situations where the presence is known and not prohibited. Applicants for s­ tateless 123 For a detailed discussion of these rights, see van Waas, Nationality Matters: Statelessness under International Law (n 12) 235–388; Paolo Farci, Apolidia (Giuffre 2012) 137–79. 124 van Waas, Nationality Matters (n 12) 359. In the context of the Refugee Convention, these special measures have been described as ‘standards applicable to refugees as refugees’. Goodwin-Gill and McAdam (n 71) 510–24. 125 van Waas, Nationality Matters (n 12) 229–30. 126 1954 Convention (n 25) arts 16, 22.

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status who enter into a determination procedure should be considered to be ‘lawfully in’ the territory of the State.127 The level of attachment of ‘lawful presence’ should allow, for example, freedom of movement within the State (Article 26). The ‘lawfully staying’ requirement implies a longer presence in a territory than the ‘lawfully present’ one. Short authorised periods of stay may suffice, as long as they are not transient visits.128 For example, ‘lawful stay’ is required for enjoying wage-earning employment (Article 17) and travel documents (Article 28). Rights accorded to stateless persons who are ‘habitually resident’ or ‘residing’ include artistic and industrial rights (Article 14) and matters pertaining to access to the courts (Article 16(2)). Commentators have interpreted ‘habitual residence’ and ‘lawful stay’ ­differently. With respect to the Refugee Convention, Hathaway categorises ‘habitual residence’ under ‘lawful stay’.129 Nonetheless, the term ‘habitual residence’ remains ambiguous. Neither the commentary on the 1954 Convention nor the preparatory works clarify whether ‘habitual residence’ implies lawful status. States are therefore allowed to interpret it narrowly. The phrase ‘habitual residence’ also appears in Article 1A(2) of the Refugee Convention to identify the State with respect to which a stateless person might establish his refugee status. In this context, the drafters did not give much attention to the exact meaning of the phrase. In fact, the Ad Hoc Committee simply observed that these words refer to a State in which the refugee had resided.130 However, there is agreement that habitual residence’ under ‘lawful stay’ implies less-than-­permanent residence or domicile, because the drafters felt that this concept was too far-reaching for the enjoyment of civil rights.131 According to Goodwin-Gill and McAdam, they involve ‘some degree of security, of status, 127 128 129 130

unhcr Handbook (n 23) para 135. Ibid paras 135–37. Hathaway (n 17) 186–90. unesc, Ad Hoc Committee on Refugees and Stateless Persons, ‘Report of the Ad Hoc Committee on Statelessness and Related Persons (Lake Success, New York, 16 January to 16 February 1950)’ (17 February 1950) un Doc E/1618; E/AC.32/5; Goodwin-Gill and McAdam (n 71) 526. 131 Robinson (n 16) 34, 37. The term ‘domicile’ is subject to different interpretations in common law and civil law countries, and reference must be made to the laws of the reception country. In common law countries, domicile is determined with reference to the country of birth. Domicile of birth cannot be lost unless a new domicile is acquired. This involves the acquisition of residence, in fact, in a new place and the intention to permanently live there. Goodwin-Gill and McAdam (n 71) 526, fn 110. In civil law countries, domicile is established with reference to the concept of ‘habitual residence’. During the preparatory works, no clear definition of domicile was ever agreed on. Hathaway (n 17) 216.

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of ­entitlement to remain and return…’. They specify that ‘“habitual residence” and even “­residence” alone involve an analysis of elements of facts and intention’132 and that there are different conceptions of ‘residence’ for different purposes. For instance, in municipal law, certain benefits, such as social security or protection from deportation, may require a certain period of residence, while others, such as citizenship, require evidence of greater attachment. The unhcr’s Handbook states that ‘habitual residence’ or ‘residence’ has to be understood as stable, factual residence. This is applicable to stateless persons who have been granted permanent residence and also those without a residence permit who have settled in the State for several years and who expect to continue to reside there.133 As far as the levels of protection or ‘standard of treatment’ offered are concerned, the 1954 Convention distinguishes the following three: (i) as favourable as accorded to aliens generally in the same circumstances (i.e., right to engage in wage-earning employment (Article 18), the right to housing (Article 21) or the right to choose the place of residence and to move freely within the country (Article 26)), (ii) as favourable as accorded to nationals (i.e., the right to elementary education (Article 22) and social security (Article 24)) and (iii) and absolute rights, which are not contingent upon the treatment of any other group and are specifically tailored to the situation of the stateless (i.e., right to identity papers (Article 27), access to courts (Article 16) and naturalisation (Article 32)). There is no logical correlation between the level of attachment required for the entitlement to one of the rights in the 1954 Convention and the standard of treatment offered. For example, ‘absolute rights’ are accorded to stateless persons at each level of attachment. However, ‘lawful presence’ and ‘lawful stay’ provide for entitlement for more rights.134 Only a few of the rights of the 1954 Convention can be invoked by a stateless person simply by ‘being present in the jurisdiction’. As the focus of this book is on selected issues of the implementation of the 1954 Convention, especially the determination of stateless status, I do not provide an overview of all substantive rights. In addition, whilst the general provisions are not unimportant for the protection of stateless persons, they 132 There are different conceptions of ‘residence’ for different purposes. For example, in municipal law, certain benefits, such as social security or protection from deportation, may require a certain period of residence, while others, such as citizenship, require evidence of greater attachment. Goodwin-Gill and McAdam (n 71) 527–28. 133 unhcr Handbook (n 23) paras 138–39. 134 van Waas, Nationality Matters (n 12) 229–31.

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can also be found in other international norms. I only discuss the special measures for the stateless mentioned above, as they afford protection in areas that are usually accorded only to nationals and cannot be found in other international instruments.135 The unhcr recognises that the provisions of identity papers and travel documents and administrative assistance allow the 1954 Convention to retain its significance, as they are not addressed elsewhere in international human rights law. Articles 29 and 30 on fiscal charges and transfer of assets will not be discussed, although they are grouped under ‘special measures’ for the stateless. These Articles provide for treatment on terms similar to those accorded to other aliens in the same situation, and therefore, they do not add any protection from that provided for under Article 7, which requires a contracting State to ‘accord to stateless persons the same treatment as is accorded to aliens generally’ except where the Convention contains more favourable provisions. Administrative Assistance, Documentation and Diplomatic Protection One of the special needs of the stateless addressed by the 1954 Convention is that of documentation. Stateless persons are often without identity and travel documents, and for them, this means being unable to prove their identity and their immigration status. In some States, aliens without appropriate documentation are subject to detention.136 Moreover, stateless persons do not often have the possibility of turning to their State of origin for help in obtaining documents or seeking diplomatic protection. Even when stateless persons hold some rights, they need to have proof of them, or they are of little value to them.137 The need for the stateless to hold documents and receive administrative assistance, as central to their dignity and integrity, was recognised by the drafters and reflected in Articles 25, 27 and 28 of the 1954 Convention.138 Article 25 of the 1954 Convention allows stateless persons to receive services and obtain documents by the State of residence and does not require habitual residence or lawful residence.139 Article 25 is not applicable to identity papers

7.1

135 It should be noted that van Waas does not discuss Article 29 on fiscal charges or Article 30 on transfer of assets within the ‘special measures’ for the stateless and only briefly cites them in the context of general civil and political rights. Ibid 282, 359 fn 3. 136 unhcr ‘Identity Documents for Refugees’ (20 July 1984) un Doc EC/SCP/33 paras 2–3; Katia Bianchini, ‘Protecting Stateless Persons from Arbitrary Detention in the United Kingdom’ (European Network on Statelessness 2016). 137 Hathaway (n 17) 614. 138 Goodwin-Gill and McAdam (n 71) 512. 139 Robinson (n 16) 48; van Waas, Nationality Matters (n 12) 376.

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and travel documents, since Articles 27 and 28 specifically deal with them.140 Article 27 of the 1954 Convention states that ‘[t]he Contracting States shall issue identity papers to any stateless person in their territory who does not possess a valid travel document’. Thus, it sets forth an absolute right to an identity document for stateless persons. The level of attachment required is that of physical presence. This Article attracted some discussion in the conference, as there were different opinions regarding the level of attachment needed between the stateless person and the State to qualify for such papers and what the nature of these papers was.141 The ‘identity papers’ provided for by Article 27 are only for internal use, as opposed to ‘travel documents’ for journeys abroad. ‘Identity papers’ certify the identity of a stateless person, and in States with a passport system, they are a substitute for a ‘domestic’ passport. ‘The Convention does not prescribe the nature of the identity papers. They may be temporary or final; they [do not] need …[to] be official papers in the sense used in Europe and may simply consist of a document showing the identity of the refugee’.142 Article 27 does not have any effect on the right of the contracting States to control the admission and sojourn of aliens into their territories. In other words, whereas unlawfully present stateless persons may obtain identity papers, these documents do not provide them with a right to stay in the country.143 Article 28 of the 1954 Convention states that stateless persons lawfully staying in their territory and wishing to travel outside of their territory have the right to obtain a Convention Travel Document (ctd).144 The issuance of a ctd can be refused only if there are ‘compelling reasons of national security or public order’, which therefore introduces a restriction in very serious cases.145 Moreover, Article 28 adds that States have discretion in issuing a ctd to stateless persons who are not lawfully staying in their territory.146 There was considerable opposition in the conference to the inclusion of this Article. Among the issues raised, it was pointed out that it would be confusing to issue stateless persons with travel documents similar to those issued to refugees and that Article 28 created a mandatory obligation, which States did not want.147 On the other hand, the British representative argued that Article 28 140 141 142 143 144 145 146 147

These articles will be specifically analysed in the following pages. Robinson (n 16) 49. Ibid 50. van Waas, Nationality Matters (n 12) 374. 1954 Convention (n 25) art 28. Ibid; Robinson (n 16) 50–52. 1954 Convention (n 25) art 28. Eg, see unga, ‘Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons’ (n 12) SR.11, pages 9, 13–14; SR. 9, pages 12–18; SR.11, pages 10–11; Robinson (n 16) 50–52.

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was one of the most important in the whole Convention and that its elimination would be undesirable.148 Paragraph 1 of the ‘Schedule to Article 28’ states that the ctd indicates that the holder ‘is a stateless person under the terms of the Convention’.149 So, besides facilitating international travel by requiring that contracting States recognise the validity of the travel document issued under the 1954 Convention,150 the ctd constitutes evidence of stateless status, and it should also help to obtain the privileges of such status abroad. It should be noted that the equivalent Schedule to the Refugee Convention does not specify that the ctd should indicate the possession of refugee status. However, in practice, the ctd issued to refugees has become evidence of refugee status.151 Holding a ctd does not have any effect on States’ authority to decide on their immigration laws and policies.152 In principle, the ctd entitles the holder to re-enter the territory of the State that issued it as long as it is valid and there is no specific statement to the contrary.153 Paragraph 16 of the Schedule also states that ‘[t]he issue of the document does not in any way entitle the holder to the protection of the diplomatic or consular authorities of the country of issue and does not ipso facto confer on these authorities a right of protection’.154 Thus, the 1954 Convention allows the authorities of a State to exercise diplomatic protection if they so desire and if the States in which the stateless person travels do not object thereto. The Refugee Convention contains a similar paragraph, but the Stateless Persons Conference added the words ‘ipso facto’ in the second phrase on the basis of a Belgian amendment.155 It should be noted that during the 1954 Conference, a Belgian proposal was designed to expressly grant diplomatic protection to stateless persons traveling abroad.156 This would introduce an authorisation to ensure diplomatic protection which the other parties would have to respect. Although such a proposal received some support, the majority rejected .

148 149 150 151 152 153 154 155

Robinson (n 16) 50–52. 1954 Convention (n 25) sch to art 28, para 1, s1. Ibid sch to art 28, para 7. Hathaway (n 17) 851; van Waas, Nationality Matters (n 12) 373. 1954 Convention (n 25) sch to art 28, para 14. Ibid sch to art 26, para 13; van Waas, Nationality Matters (n 12) 373, fn 70. 1954 Convention (n 25) sch to art 28, para 16. unga, ‘Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons’ (n 12) SR.11, page 18; Robinson (n 16) 57–58; van Waas, Nationality Matters (n 12) 382–83. 156 The proposal reads as follows: ‘Each Contracting State shall be entitled to ensure the protection of both the property and the person of stateless persons domiciled or resident in its territory’. un Doc E/CONF 17/L.13. (n 12).

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it ­because of ­concerns that it might lead to serious problems, particularly in connection with the protection of de facto stateless persons, and interfere with bilateral consular conventions. In particular, the Norwegian delegate pointed out the danger that the State of residence and a third State may not agree on the reason why a de facto stateless person had left the State of origin. As far as the interference with bilateral consular conventions is concerned, the French delegate argued that the Belgian proposal would amend the rules of international protection on which they were based. The Belgian delegate replied that bilateral consular conventions had been concluded with many States from which refugees were originating, which had not prevented the application of the Refugee Convention. He therefore did not see why legal difficulties which had not arisen in the case of refugees should be foreseen in the case of stateless persons.157 7.2 Expulsion and Freedom of Movement The right to enter and to reside in a State is strictly linked to the substance of nationality, as I explained in Section 3 of Chapter 2. Therefore, the stateless do not automatically enjoy such rights, and their freedom of movement is severely limited. Article 31 of the 1954 Convention, reproducing the wording of Article 32 of the Refugee Convention, makes the right to remain relatively secure once lawful status has been obtained, as it limits the circumstances in which expulsion may take place. It also adds procedural safeguards to strengthen the protection against expulsion.158 In particular, Article 31 provides that once lawful status is granted, ‘[c]ontracting States shall not expel a stateless person lawfully in the territory save on grounds of national security or public order’. At first, there was opposition in the Conference to the inclusion of such a provision in the 1954 Convention, as it limits the principle that each State is competent to expel at any moment any alien from its territory. As far as the interpretation of the word ‘lawfully’ is concerned, the commentary specifies that it should include stateless persons who had lawfully entered a State whose permission to stay had not elapsed or those who had entered the country unlawfully and had subsequently obtained permission to stay. Expulsion cannot be considered in the situation of a stateless person who was admitted to a contracting State on a temporary basis with a travel document

157 unga, ‘Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons’ (n 12) SR.11, pages 5–8. 158 van Waas, Nationality Matters (n 12) 250.

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issued by another contracting State, if refused permission to stay there beyond the authorised period.159 Regarding when a person is deemed a threat on grounds of ‘national security’, the 1954 Convention requires that his presence or actions ‘give rise to an objectively reasonable, real possibility of directly or indirectly inflicted substantial harm to the host State’s most basic interests, including the risk of an armed attacked on its territory or its citizens or the destruction of its democratic institutions’.160 While States have discretion to interpret this test, the exception to expulsion must have an objective justification. There is no requirement, though, that a person had to have been convicted or charged with a crime. In this context, of contemporary relevance, for example, is the case of expulsions based on terrorist acts or membership in terrorist organisations.161 For ‘public order’ to be grounds for expulsion, a stateless person must have committed a serious crime, caused severe offence to social norms or obstinately refused to abide by the laws.162 Whereas ‘national security’ primarily addresses threats emanating from outside the host State, ‘public order’ was understood as focusing on internal security.163 Article 31(2) ensures that procedural safeguards are in place in cases of expulsion by requiring States to reach a decision in accordance with the due process of law and allowing stateless persons the opportunity to answer, produce evidence, be represented by legal counsel and seek review of this decision. This Article does not require a court decision, and the law may provide for an administrative procedure. ‘Due process of law’ here means that a decision should be made only as provided for in the law in force in the given State.164 If expulsion does take place, according to Article 31(3), the contracting State should not act immediately after a final decision has been reached but must leave reasonable time for the stateless person to seek legal admission to another country.165 During such time, the contracting State may adopt measures as deemed necessary. This means that a stateless person may be subject to immigration detention.166 159 1954 Convention (n 25) art 31; Robinson (n 16) 60–61. 160 1954 Convention (n 25) art 31; Hathaway (n 17) 679; see also van Waas, Nationality Matters (n 12) 250. 161 Hathaway (n 17) 679. 162 Ibid 679–81; van Waas, Nationality Matters (n 12) 250–51. 163 Hathaway (n 17) 679–81. 164 1954 Convention (n 25) art 31(2). Robinson (n 16) 62. 165 Ibid art 31(3). 166 Laura van Waas, Nationality Matters (n 12) 241–51.

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As far as the right of freedom of movement within the territory of a State is concerned, stateless persons are commonly subject to travelling restrictions, which may affect the right to access courts, healthcare and birth registration. For instance, stateless people may be required to live in camps, as is the case of the stateless Bihari in Bangladesh.167 Therefore, Article 26 of the Convention was conceived with the aim to address such issues, by providing that lawful stateless persons have the right to move freely within the State territory and choose their place of residence. Specifically, Article 26 of the 1954 Convention states that ‘each contracting state shall accord to stateless persons lawfully in its territory the right to choose their place of residence and to move freely within its territory, subject to any regulations applicable to aliens generally in the same circumstances’.168 The protection guaranteed by this Article is limited by the requirement of lawful immigration status and, even in the case of lawful immigration status, by the standard of treatment, which is the same as for other non-nationals. During the Conference, this provision did not attract any particular discussion, and it was considered sufficient, because the freedom of choosing one’s place of residence and of movement was assumed to be normally granted to all aliens.169 However, certain restrictions to stateless persons’ right of freedom of movement exist in practice. For instance, stateless persons may need permission to go to restricted areas.170 The 1954 Convention does not contain the equivalent to Article 33 on nonrefoulment of the Refugee Convention. In the Final Act of the Conference which adopted the 1954 Convention, a resolution was made not to include an Article equivalent to Article 33 of the Refugee Convention, because the nonrefoulment principle was deemed to be a generally accepted principle.171 The 1954 Convention is also silent as to whether lawful stay should be granted to a person while his stateless status is being assessed and once status has been assessed.172 It therefore leaves State Parties free to treat stateless persons as any other non-national and subject them to regular domestic immigration laws. This means that an individual may remain in a clandestine situation for a significant period. It also means that an individual may be removed to the 167 Ibid 241–42. 168 1954 Convention (n 25) art 26. 169 unga, ‘Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons’ (n 12) SR. 8, page 2; Robinson (n 16) 49. 170 1954 Convention (n 25) art 32. Robinson (n 16) 49. 171 Final Act of the United Nations Conference on the Status of Stateless Persons (28 September 1954) 360 unts 117, 122, 124; van Waas, Nationality Matters (n 12) 248. 172 Batchelor, ‘The 1954 Convention Relating to the Status of Stateless Persons (n 143) 42–43.

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State of his former residence before his claim has been decided. However, the unhcr recommends that States refrain from removing a stateless applicant while awaiting a decision.173 Moreover, removal to a State of former habitual residence can be carried out as long as the individual can enjoy permanent residence and the rights ensured under the 1954 Convention there.174 Finally, there is nothing in the 1954 Convention to prevent penalties for unlawful entry or presence, as in Article 31 of the 1951 Refugee Convention.175 Lack of lawful admission, however, is not a bar to obtain stateless status under the 1954 Convention. 7.3 Naturalisation The prospect of naturalisation is an indispensable tool in addressing the special needs of the stateless, as it lifts them out of this vulnerable group by addressing their lack of nationality.176 The protections offered through the 1954 Convention were indeed envisaged as temporary measures until a nationality is obtained. So, its Article 32, which provides for a durable solution by considering access to naturalisation, is perhaps the most critical substantive provision.177 Article 32 of the 1954 Convention provides that [t]he Contracting States shall as far as possible facilitate the assimilation and naturalisation of stateless persons. They shall in particular make every effort to expedite naturalisation proceedings and to reduce as far as possible the charges and costs of such proceedings.178 Thus, the 1954 Convention does not set forth a right to acquire a nationality and only makes a recommendation to facilitate the naturalisation of stateless persons residing in their territories. Furthermore, it does not mention other ways to acquire a nationality, such as automatically by operation of law or through simple procedures of registration, declaration or option, which usually require meeting only basic conditions for eligibility compared to the more stringent ones in naturalisation procedures.179 The 1954 Convention does not give any guidance on naturalisation procedures. The expedition of such procedures 173 174 175 176 177 178 179

unhcr Handbook para 72. Ibid para 157. Refugee Convention (n 17) art 31(1). van Waas, Nationality Matters (n 12) 360. Ibid 364. This Article did not provoke any discussion in the Conference. Robinson (n 16) 64. van Waas, Nationality Matters (n 12) 365.

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and their costs are left to the discretion of States. It also does not specify which pre-conditions for eligibility for naturalisation may be reasonable.180 However, when States do not allow the possibility of acquiring citizenship without a good faith explanation, they would be in breach of Article 32.181 Importantly, this Article applies to all stateless persons and does not require lawful status. The unhcr Handbook does not say much about naturalisation of stateless persons and only recommends that States grant a residence permit valid for at least two years to recognised stateless persons. Such permits should be renewable and provide the possibility of facilitated naturalisation per Article 32.182 The unhcr ‘Global Action Plan to End Statelessness: 2014–2024’, establishing a policy framework to eradicate statelessness, only mentions facilitating naturalisation in one single sentence and does not identify it as a key matter.183 7.4 Enforcement Only two Articles indirectly refer to the enforcement of the 1954 Convention. One is Article 34, which states that disputes arising between Parties to the Convention on the interpretation or application of the 1954 Convention can be referred to the International Court of Justice for settlement. However, this Article has never been applied. The other is Article 33, which obliges State Parties to ‘communicate to the Secretary General of the United Nations the laws and regulations which they may adopt to ensure the application’ of the 1954 Convention. Nevertheless, this Article was not conceived with a supervisory mechanism in mind, and it mainly stems from the right of every State Party to a convention to be informed of its application by other parties. Unlike the Refugee Convention, there is no duty on State Parties to cooperate with the unhcr on the supervision of the application of the 1954 Convention.184 Therefore, similar to other human rights treaties, the enforcement of the 1954 Convention presents great difficulties. Stateless persons can seek a remedy only if they can access procedures and judicial review within State Parties’ jurisdictions. So, Chapters 5 to 7 show that that the incorporation of norms on the determination of statelessness into national law is crucial to ensure its effective enforcement. 180 Ibid 362–63, 366. 181 1954 Convention (n 25) art 32. van Waas, Nationality Matters (n 12) 365; Hathaway (n 17) 989. 182 unhcr Handbook para 148. 183 unhcr ‘Global Action Plan to End Statelessness: 2014–2024’ (2014). 184 van Waas, Nationality Matters (n 12) 231–32. See, by contrast, art 35 of the Refugee Convention.

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The Problem of the Identification of Statelessness and Recent Advancements

Even though meeting the definition of Article 1(1) of the 1954 Convention is key to accessing its rights and freedoms, the 1954 Convention is silent on how to identify stateless persons. The general human rights framework does not add much to it.185 This raises the questions of whether legislation on specific status determination procedures is needed and, if so, what its constituent elements should be.186 For instance, States such as the Czech Republic and Germany argue that even in the absence of specific statelessness determination procedures, their legal systems permit the direct application of international treaties in the domestic legal framework, and they have other provisions that adequately protect stateless persons in compliance with the international obligations.187 On the other hand, several scholars and the unhcr maintain that State Parties to the 1954 Convention should place stress on formal procedures for the determination of stateless status and adopt specific rules of evidence.188 van Waas argues that a harmonised approach should be taken at the national level,189 which includes a number of principles relating to establishing the burden of proof of nationality, how it should be implemented in practice190 and sources of proof to establish statelessness, which she bases in large part on Weis’ suggestions191 (i.e., content of domestic nationality law, information provided by States, passport, official data collection, witness testimony).192 185 van Waas, Nationality Matters (n 12) 403. 186 unhcr ‘Expert Meeting, Statelessness Determination Procedures and the Status of Stateless Persons (“Geneva Conclusions”)’ (Dec 2010) para 1; unhcr Handbook (n 23) paras 8–12; Telephone interview with Alexandra Dubova, Immigration Lawyer, Organizace pro pomoc uprchlíkům, o.s. (Prague, Czech Republic, 2 January 2014); email from Roland Bank, Head of unhcr Berlin Protection Unit, to author (Berlin, Germany, 4 April 2014). 187 Katia Bianchini, ‘A Comparative Analysis of Statelessness Determination Procedures in Ten eu States’ (2017) 29(1) ijrl 42. 188 unhcr Handbook (n 23); Batchelor, ‘The 1954 Convention Relating to the Status of Stateless Persons’ (n 143) 31–58; van Waas, Nationality Matters (n 12) 402–03; Gerard­René De Groot, Katja Swider, Olivier Vonk, ‘Practices and Approaches in eu Member States to Prevent and End Statelessness’ (Policy Department Citizens’ Rights and Constitutional Affairs, European Parliament 2015) 24. 189 van Waas, Nationality Matters (n 12) 402–03. 190 Ibid 431–32. 191 van Waas recognises that Weis led the way to many concrete means to prove a person’s nationality, which is thereby relevant to also prove statelessness. See Weis (n 44) Ch 7, s 4. 192 van Waas, Nationality Matters (n 12) 431–32.

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The drafters of the 1954 Convention were aware of the complexity of establishing statelessness, because it is ‘a negative concept and therefore difficult to prove and define. In simple words, a stateless person would be a person who possesses no nationality, but the lack of nationality must be provable and proven’.193 This is challenging, because stateless persons often have few or no documents at all to establish their cases. They may not understand the process or speak the language of the host State. Nevertheless, the drafters maintained the negative aspect of the definition. Furthermore, the preparatory works do not show in detail how the conference viewed the issue of proof. The Commentary to the text of the 1954 Convention suggests that given the liberal definition of statelessness in Article 1(1), ‘whenever proof is available that the person in question does not possess the nationality of any state, he is a “stateless person” within the meaning of the Convention’.194 Moreover, it adds that it certainly was not the intention of the conference to require a formal proof from states with which the person had no intimate relationship. This would reduce the proofs to the country of origin and/or former permanent residence. Once these countries have certified that the person is not a national of theirs, they would come within the definition of Article 1. If, however, no such certification could be obtained because the relevant authorities refuse to issue it or do not reply to inquiries, the State of residence is expected to accept other proofs, either documentary (for instance, papers showing that the person lived as a foreigner in the country of his origin) or reliable witnesses.195 This means that the rules on proving statelessness should not be too strict, as otherwise, they may undermine the aim of the 1954 Convention. At the same time, it is acknowledged that the system must be protected from abuses by non-genuine claimants. Making decisions on whether a person is truly stateless is challenging and requires an assessment of facts, the personal situation of the applicant, nationality legislations and practices and country of origin information. Sometimes, nationality legislation and country information may not be easily available or up to date, and other times, decision-makers face

193 Robinson (n 16) 10; unga, ‘Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons’ (n 12) SR. 4, page 4. 194 Robinson (n 16) 10. 195 Ibid 11.

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d­ ifficulties in ascertaining whether applicants are the persons that they claim to be, especially when it is not even possible to verify basic facts.196 The most significant guidance on the procedures to be adopted to identify stateless persons and issues of proof is found in the unhcr Handbook on the Protection of Stateless Persons,197 which is mentioned in Section 11 of Chapter 2 and which is further discussed in Section 3 of Chapter 4, although it is not a binding instrument. The Handbook supports the adoption of fair and expeditious procedures for determining whether an ‘individual’ is a ‘stateless person’ in migratory contexts and advises on the modalities of creating them, leaving discretion to States according to their administrative structure, resources and size of the stateless population. The Handbook recommends full access to the procedures for applicants and the opportunity for independent review of negative decisions. The Handbook recognises that some States may combine statelessness and refugee status determinations, but it stresses that confidentiality for asylum seekers must be respected, and therefore, the authorities of the former State of residence must not be contacted as long as the asylum determination has not been concluded, to ensure their safety.198 It shows a preference for centralised procedures, as they are more likely to develop decision-makers’ expertise, but does not add much more on this topic.199 It emphasises that access to the procedures must be ensured and that no time limit shall be set, although it does not specify that they must be free of cost.200 Particularly relevant is the recommendation to grant status on a prima facie basis when it is apparent that there is objective evidence that individuals belonging to some groups meet the definition of stateless persons under Article 1(1) of the 1954 Convention.201 This would avoid undertaking full individual status determinations and thus allow quick resolution of cases and help judicial economy. The Handbook distinguishes how to manage statelessness in non-migratory contexts which should be addressed with international standards (i.e., the 1961 Convention on the Reduction of Statelessness,202 the European Convention 196 Thomas raises similar issues in the context of asylum claims. Robert Thomas, Administrative Justice and Asylum Appeals: a Study of Tribunal Adjudication (Hart Publishing 2011) 39–41. 197 unhcr Handbook (n 23). 198 Ibid paras 66, 78–82. 199 Ibid para 66. 200 Ibid paras 68–70. 201 Ibid paras 108–111. 202 Convention on the Reduction of Statelessness (adopted 30 August 1961, entered into force 13 December 1975) 989 unts 175.

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on Nationality203 and the Convention on the Rights of the Child204) and State practices based on reduction of statelessness. In such cases, ‘States might be advised to undertake targeted nationality campaigns or nationality verification efforts rather than statelessness determination procedures’.205 ‘Nationality verification procedures assist individuals when they have difficulties obtaining proof of their nationality. Such procedures often involve an accessible, swift and straightforward process for documenting nationality, including the nationality of another State’.206 In summary, the Handbook is a step forward at the international level in the identification of statelessness. However, at present, it is not clear to what extent the standards recommended by the unhcr are being afforded deference by the States. In the field of refugee law, traditionally, there is a practice of giving particular weight to the unhcr Handbook on Procedures and Criteria for Determining Refugee Status,207 although it is not treated as a source of legal obligation.208 The two Handbooks comprise guidance which is practically necessary if stateless persons and asylum applicants are to be identified and accorded protection under international law. 9 Conclusion The 1954 Convention is the cornerstone of international protection for stateless persons, as it formally and specifically introduces statelessness in the international legal framework, gives a definition of statelessness and establishes the international status of stateless persons, which attracts the application of a basic set of rights.209 It provides for specific measures, especially ­documentation,

203 Explanatory Report to the European Convention on Nationality [1997] ets No 166. 204 Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 unts 3 (Child Convention). 205 unhcr Handbook (n 23) para 58. 206 Ibid para 60. 207 unhcr ‘Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees’ (reissued 2011) un Doc HCR/1P/4/ENG/Rev.3. 208 Hathaway (n 17) 118. Standards adopted by the unhcr’s Executive Committee (State Members of the agency’s governing body), while not matters of law, have strong political authority. Ibid 114–18. 209 See e.g., Batchelor, ‘The 1954 Convention Relating to the Status of Stateless Persons: Implementation within the European Union Member States and Recommendations for Harmonization’ (n 143) 34–35; van Waas, Nationality Matters (n 12) 393–94.

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for stateless persons as stateless persons.210 These rights address and respond well to the ‘special needs’ of the stateless (except for the area of diplomatic protection, which was left outside of the scope of the treaty).211 On the other side, the wording of ‘general rights’, which are offered at different ‘levels of attachment’ to the State and under different ‘standards of treatment’, is among its greatest flaws. Specifically, the 1954 Convention attributes most of the ‘general rights’ to stateless persons that are lawfully present or lawfully resident in the State’s territory. In addition, it sets forth a contingent standard of protection for most of them.212 The close analysis of the preparatory works pointed out that whereas some of these provisions did not attract too much debate regarding their application to stateless persons, others were modified or added with respect to the text of the Refugee Convention. Overall, the amendments resulted in a deterioration of the protection offered, as stateless persons were perceived to deserve less favourable treatment than refugees.213 Other issues that impact the 1954 Convention’s effectiveness include the lack of enforcement mechanisms214 and of binding provisions on the identification and determination of statelessness. Identification of statelessness on the basis of the definition in Article 1 of the 1954 Convention ‘as a precursor to setting in motion all of the guarantees that accompany that status’215 is not addressed. As a consequence, States have wide discretion regarding its implementation, and it is debated whether and what type of procedures should be adopted. This means that the task of putting into practice, clarifying and guarding the international obligations falls on State Parties. In turn, this raises the fundamental question of whether States should adopt incorporating legislation into national law, even when they automatically recognise treaties as part of domestic laws upon their ratification. As explained in Chapter 1, several scholars argue that the way and extent in which human rights are incorporated into national law are the most important factors determining whether they are really brought home and seen as part of the domestic legal framework.216 210 211 212 213 214 215 216

van Waas, Nationality Matters (n 12) 394. Ibid 380. Ibid 390–91. Ibid (n 12) 390. Ibid 421. Ibid 395. See e.g., Goodwin-Gill and McAdam (n 71) 528–29; Henry J Steiner, Philip Alston and Ryan Goodman (eds), International Human Rights in Context. Law, Politics, Moral (3rd edn, oup 2007) 1087–124; Susan Kneebone (ed), Refugees, Asylum Seekers and the Rule of Law. Comparative Perspectives (cup 2009) 1. From an international law perspective, this matter is

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In the context of the 1954 Convention, as well as of the Refugee Convention, the unhcr acknowledges this and recommends adopting specific determination procedures. Finally, there are problems concerning the meaning and scope of the definition of ‘stateless person’. In particular, Article 1 was subject to intense discussions during the preparatory works and still fosters the debate between the proponents of de jure statelessness and de facto statelessness, the latter referring to the idea that the quality or content of nationality and not just its possession is critical. In line with van Waas, I critique the utility of this debate and argue that it is not grounded in the international legal framework and causes confusion.217 The definition of statelessness encompasses having a nationality which at least ensures the enjoyment of diplomatic protection and the right to leave and re-enter a State. Whether the definition is adequate to provide protection is strictly linked to the matter of the identification of statelessness, which is not addressed in the 1954 Convention, despite it being absolutely critical.218 Chapter 8 will support this argument through empirical data and demonstrate that we do not need a new definition. Furthermore, regarding the scope of Article 1, the literature and case law show that there is uncertainty around which stateless Palestinians are excluded from the protection of the 1954 Convention because of the incorrect understanding of the international instruments. How the internal limits of the 1954 Convention affect the different treatment of claims for protection, depending on where they are lodged, is the object of Chapters 5 to 9. The next chapter develops the framework for analysing the incorporation of statelessness determination procedures into national legislation. linked to the doctrine of incorporation of international law into the domestic legal framework. Evert A Alkema, ‘International Law in Domestic Systems’ (2010) 14(3) ejcl 257. 217 van Waas, ‘The un Statelessness Conventions’ (n 1) 80. 218 van Waas, Nationality Matters (n 12) 395.

Part 2 National Implementation of the 1954 Convention Compared

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Building a Cross-National Comparison of Incorporation of the 1954 Convention in National Legal Systems 1 Introduction In light of the complexities and practical problems arising with the implementation of the 1954 Convention, in this chapter, I develop a framework to analyse the incorporation of statelessness determination procedures in national legislation and compare it cross-nationally. Accordingly, I gather the States under three main categories according to whether they have (1) specific incorporating legislation to determine statelessness and grant stateless status as grounds for protection, (2) only a few provisions to determine statelessness and grant stateless status as grounds for protection or (3) no incorporating legislation to determine statelessness. Based on the unhcr Handbook and the refugee law literature, I then code the categories. Specifically, I identify the essential elements of justice that should be guaranteed in any statelessness determination procedure and assess whether or not they are indeed present in the States under review. These indicators allow a comparison of the different legislations and how they work among the States under each category and between the categories. This approach uncovers challenges and opportunities and facilitates the drawing of conclusions on the effective implementation of the international obligations into different national systems. It further makes it possible to identify trends and what kind of barriers applicants face when claiming protection, taking into account their vulnerability. Finally, my framework of analysis elucidates debates related to the relationship between international law and national law by using empirical data and focusing on factual situations where the two systems interact. Specifically, it is helpful to assess whether and how the method and extent of the incorporation of international law into national legislation affect the implementation of the 1954 Convention and contributes to the current literature on the effectiveness

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of international human rights treaties, which instead is mainly based on theoretical discussions. 2

Developing a Framework for Comparing the Implementation of the 1954 Convention

To build a framework to analyse the implementation of the 1954 Convention, I cluster the States under three broad categories. Each ‘category’ represents a distinctive way of dealing with the incorporation of the 1954 Convention. By showing the features and functioning of these categories, I obtain an overview of the different ways in which similar problems are approached, and I identify ‘differences, similarities and trends’.1 While I acknowledge that the categorisation that I use is a caricature and simplification of the different systems, I argue that it has heuristic value. It can assist in understanding the reality by providing a framework for a comparative analysis of diverse issues.2 The categorisation that I use is not based on theoretical grounds but rather on an empirical choice, which, in Denis Galligan’s words, considers the ‘architecture of law’, or the design and details of laws.3 According to Galligan, laws can be distinguished according to whether they are in the form of ‘clear-line, standard-based or discretion-based rule’, what they specify about ‘rights and duties, powers and immunities’ and what they say about ‘parties, procedures and remedies’.4 The idea of architecture of law is a metaphor which shows how rules and discretion, outcomes and remedies, the role of third parties and general legal ­principles all combine in different ways in each 1 Roger Blanpain wrote a comparative study of labour law systems in different countries. To achieve his aim, he grouped States under ‘models’. Roger Blanpain, Comparative Labour Law and Industrial Relations in Industrialized Market Economies (11th edn, Kluwer Law International 2014) Ch i, 8. However, I ‘categorise’ States, instead of clustering them under ‘models’, because I adopt a broad, oversimplified approach for my classification. By contrast, ‘models’ are ‘tools of cognition’ that imply specific features and identify relations among different elements in a complex set. Barbara Pabjan, ‘The Use of Models in Sociology’ (2004) 336 (1–2) Physica A: Statistical Mechanics and its Applications 146. 2 Marian Damaska, ‘Evidentiary Barriers to Conviction and Two Models of Criminal Procedure: a Comparative Study’ (1972–1973) 121 UPaLRev 577–78; Clíodhna Murphy, Immigration, Integration and the Law. The Intersection of Domestic, eu and International Legal Regimes (Ashgate 2013) 14–15. 3 Denis J Galligan, Law in Modern Society (oup 2007) 135. 4 Ibid.

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l­egal setting. The metaphor helps to express the idea that legal regimes, like real buildings, have common features while allowing endless scope for variation.5 Galligan maintains that the ‘legal architecture is the first step in understanding implementation’.6 So, I classify the States under consideration depending on the degree of detailed legislative or regulatory provisions7 that they have adopted to determine statelessness under the 1954 Convention. I came to this categorisation using the qualitative Grounded Theory Method (gtm), which takes ‘a systematic, inductive and comparative approach’8 for the development of models and/ or theories. The gtm offers flexibility for the analytical process which is conceived and designed during the generation of data: The method is designed to encourage researchers’ persistent interaction with their data, while remaining constantly involved with their emerging analyses. Data collection and analysis proceed simultaneously, and each informs and streamlines the other. The gtm builds empirical checks into the analytic process and leads researchers to examine all possible theoretical explanations for their empirical findings. The iterative process of 5 Ibid 307. 6 Ibid 230. How much legal architecture matters is a variable which depends on each situation. To explain variations as a consequence of different architectures of laws, Galligan also considers the following elements: normative structures, outcomes, mechanisms to ensure compliance with the law (mainly enforcement and persuasion), remedies and procedures and constraining standards (the Constitution, the common law, general codes and those that structure the exercise of discretion, such as notions of reasonableness, relevance, proportionality). Ibid 307. However, to keep this work within boundaries, I mainly focus on the ‘legal architecture’. 7 For instance, in the uk, the current legal framework is laid out in Part 14 of the Immigration Rules. The Immigration Rules are neither primary nor secondary legislation. They are adopted by the Home Secretary and undergo a procedure whereby they are made available to Parliament but are usually not debated. So, they are more akin to policy statements than law. Some have noted that over time, the Immigration Rules have acquired a status which has become similar to that of legislation. Caroline Wilson-Brown, ‘Defining Statelessness: Rights and Wrongs in uk Immigration Law’ (2017) viii qmlj 1, 5; Gina Clayton, Textbook on Immigration and Asylum Law (6th edn, oup 2014) 31–32. 8 Kathy Charmaz, Constructing Grounded Theory. A Practical Guide through Qualitative Analysis (Sage Publications Ltd 2006); Antony Bryant and and Kathy Charmaz, ‘Introduction: Grounded Theory Research: Methods and Practices’ in Antony Bryant and Kathy Charmaz (eds), The sage Handbook of Grounded Theory (sage Publishing 2011) 2.

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moving back and forth between empirical data and emerging analysis makes the collected data progressively more focused and the analysis successively more theoretical.9 As mentioned in Chapter 1, Section 7, Gábor Gyulai provides the only other explicit categorisation of stateless determination procedures and protection mechanisms in the literature. In particular, Gyulai distinguishes between (1) stateless-specific mechanisms based on clear procedural rules (Spain and Hungary) (2) stateless-specific mechanisms without clear procedural rules but based on generally agreed practices (France) (3) stateless-specific mechanisms without clear procedural rules and without generally agreed practices (Italy) (4) non-stateless-specific mechanisms where there are grounds to obtain status for impossibility to enforce expulsion (Germany) and (5) neither stateless-specific mechanisms nor alternative forms of protection (the majority of States).10 However, I do not follow Gyulai’s classification, because he does not provide a reliable explanation, theoretical considerations or convincing empirical data for its justification. Gyulai explains that the classification is based on research into State practice but does not elaborate further on the elements that he takes into account for this categorisation. In my view, Gyulai makes an over-­classification of the existing determination procedures, and some of his ­statements are incorrect. First of all, there is no need to distinguish between systems that have provisions to stay on the grounds of the impossibility to leave the country and those without them. Provisions that allow one to stay on the grounds that it is impossible to leave are mainly concerned with immigration control and non-removability and do not constitute specific implementation of the international obligations. They may be helpful to stateless persons, as they often cannot be removed anywhere, but their protection needs are usually not taken into consideration. Moreover, from the data I collected, the only State under review which does not have provisions for impossibility to leave is Greece. Second, there is no need to distinguish, within systems that have a 9 10

Bryantet and Charmaz (n 8) 2. Gábor Gyulai, ‘The Determination of Statelessness and the Establishment of a StatelessSpecific Protection Regime’ in Alice Edwards and Laura van Waas, Nationality and Statelessness under International Law (cup 2014) 122.

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stateless protection mechanism but no clear procedural rules, those that are based on a consensus and those that are not. The data show that several issues remain unresolved in all States with no clear procedural rules for the determination of statelessness. Indeed, in France, a number of cases proceed to the appeals stage and are settled by the courts, revealing that the protection mechanisms are not generally agreed upon, contrary to Gyulai’s claim. Therefore, I use the classification that I have explained above, which identifies three approaches. Accordingly, under category one, I cluster States with specific legislative or regulatory provisions, a detailed procedural framework and the recognition of stateless status as a specific protection ground: Spain, Hungary and the uk. In these States, the incorporating legislation is characterised by presenting clear-lines (Hungary and the uk) or standard-based rules (Spain).11 Clear-lines legislation specifies what should be done and attempts to formulate rules governing all aspects of a particular matter.12 Standard-based rules do not provide for all matters, but only general guidance and decision-makers must exercise judgment in light of the context.13 General standards allow for discretion, which is ‘subject to general standards of reasonableness, non-arbitrariness, relevance and proportionality and due process’.14 Under category two, I gather States that recognise stateless status as grounds for protection but have no detailed legislative or regulatory provisions and in which there is an authority, either administrative or judicial, that has competence to determine that an individual is stateless: Italy and France.15 The legislation of these States shares the feature of providing basic dictates, which are ‘fairly clear and easy to apply’16 but at the same time ‘cannot foresee all room for implementation’.17 Under category three, I include States with no specific provisions to determine statelessness and that do not recognise stateless status as a specific protection ground: Germany, Greece, Sweden, the Czech Republic and the Netherlands. Usually, in these States with no specific recognition procedure for stateless persons, the matter of statelessness arises ‘in asylum procedures or as a subsidiary question when applications for residence permits or travel documents 11 Galligan, Law in Modern Society (n 3) 135. 12 Ibid 300. 13 Ibid. 14 Ibid 301. 15 Gábor Gyulai, ‘Statelessness. Determination and the Protection of Stateless Persons’ ­(European Network on Statelessness 2013) 6–7. 16 Galligan, Law in Modern Society (n 3) 300. 17 Ibid.

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are made’.18 It also arises when the authorities try to remove a person with unlawful status to another State but there is no place to which they can be sent. The regulation of this latter matter becomes particularly relevant for stateless persons and tends to take the form of standard-based rules. For each State, I then analyse the procedures to be followed by stateless persons from the moment that they lodge a claim until they are authorised to remain or exercise the right of appeal. I also consider the national authorities that are competent to deal with claims of statelessness, as well as issues of access to the procedures which are related to the vulnerability of stateless persons and which therefore require a particular protection-oriented framework.19 It should be noted that there are different administrative structures and judicial systems in the selected States, which make a difference to the outcomes of claims for protection. Their analysis here is somewhat schematic, but it may provide a new approach for future, more detailed studies.20 In addition, the matter of whether States are unitary or federal influences where the responsibility for decision-making is situated. This may lead to differences not only between States but also within them.21 3

Essential Principles of Justice in the Determination Procedures

International law does not say much with respect to the procedural aspects of due process.22 Therefore, my framework of analysis works along the guidance in the authoritative unhcr Handbook on the Protection of Stateless Persons (the ‘Handbook’)23 and the refugee law literature. 18

19

20 21 22

23

Carol A Batchelor, ‘The 1954 Convention Relating to the Status of Stateless Persons: I­ mplementation within the European Union Member States and Recommendations for Harmonization’ (2004) 22(2) Refuge 39. Gyulai, ‘The Determination of Statelessness and the Establishment of a Stateless-Specific Protection Regime’ (n 10) 123; part of Chapters 4 to 7 were published in Katia Bianchini, ‘A Comparative Analysis of Statelessness Determination Procedures’ in 10 eu States’ 29(1) ijrl (2017) 42. This is so, despite the States under review reaching an analogous level of development as far as their administrative and judicial systems are concerned. This is, for instance, the case of Germany. Guy Goodwin-Gill, ‘The Process and Rights of Asylum Seekers’ in Karen Musalo, Jennifer Moore, Richard A Boswell (eds), Refugee Law and Policy. A Comparative and International Approach (4th edn, Carolina Academic Press 2011) 533; Martin Jones and France Houle, ‘Building a Better Refugee Status Determination System’ (2008) 25(2) Refuge 3. unhcr ‘Handbook on Protection of Stateless Persons under the 1954 Convention relating to the Status of Stateless Persons’ (2014); Gerard­René De Groot, Katja Swider, Olivier

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The completeness of the unhcr Handbook makes it the most comprehensive work in which several issues concerning statelessness are coordinated and dealt with.24 The Handbook proposes reasonable solutions aiming at protecting stateless persons but at the same time takes into consideration States’ concerns and interests.25 Moreover, it allows States to exercise discretion in the design and operation of statelessness determination procedures in light of their domestic situations.26 Finally, despite being a soft-law instrument, it offers a quasi-authentic interpretation of the provisions of the 1954 Convention. In the context of the Refugee Convention, the comparable unhcr Handbook on Procedures and Criteria for Determining Refugee Status,27 which sets basic standards of refugee law, has acquired strong authority and is often relied on by national courts.28 The choice of considering refugee law studies is based on the fact that the protection of stateless persons shares a number of common characteristics with that of refugees.29 This field is helpful, because it closes gaps that the statelessness literature does not, brings further insights and better carves out specific issues as also recognised by both the unhcr Handbook and the ­Geneva Expert Conclusions.30 Gyulai also states …the protection of stateless persons shares a number common features with refugees, including a very similar international legal basis and joint drafting history, as well as the lack of proper protection by one’s ‘own state’ in both cases. This means that in countries where statelessness

24 25 26 27

28

29 30

Vonk, ‘Practices and Approaches in eu Member States to Prevent and End Statelessness’ (Policy Department Citizens’ Rights and Constitutional Affairs, European Parliament 2015) 44. See Ch 2, s 11 and Ch 3, s 8. Giulia Perin, ‘Lacune Normative ad Alto Costo Umano: l’Apolidia in Italia’ (2012) 3 Dir imm citt 70, 83–84. De Groot, Swider, Vonk (n 23) 10. unhcr ‘Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees’ (reissued 2011) un Doc HCR/1P/4/ENG/Rev.3. James Hathaway, The Rights of Refugees under International Law (cup 2005) 1001–02; Guy Goodwin-Gill and Jane McAdam, The Refugee in International Law (3rd edn, oup 2007) 114–15. Gyulai, ‘The Determination of Statelessness and the Establishment of a Stateless-Specific Protection Regime’ (n 10) 124. The Geneva Conclusions constitute an important body of opinion on statelessness. unhcr ‘Expert Meeting. Statelessness Determination Procedures and the Status of Stateless Persons’ (‘Geneva Conclusions’) (December 2010).

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arises primarily in a migratory context (as in most industrialised states), much can be learned from procedure and regulations.31 In particular, regarding procedural rights in the asylum context, GoodwinGill recognises that they remain within the area of ‘choice of means’ among State Parties to the Refugee Convention, but he stresses that States’ discretion, as far as the treaty’s implementation is concerned, is limited by the principle of effectiveness of obligations.32 Whereas he acknowledges that legislative incorporation may not itself be expressly required, effective implementation involves not only procedures to identify the beneficiaries of protection but also some measures of protection against laws of general applicability, such as requirements of residence, to make an application.33 It also entails facilitation of the conditions of applicants while their claims are pending, as they are closely connected to the ability to pursue their claims. For instance, these may include the prohibition of the use of immigration detention and the grant of right to work and receive benefits while a decision is pending.34 Goodwin-Gill acknowledges that it is difficult to apply an easy formula to determine whether implementation is sufficient and adequate.35 The effectiveness of the adopted measures depends both on the overall efficiency of the State’s general administrative and judicial system and on the problems with which that system is faced.36 Goodwin-Gill and McAdam argue that it is not sufficient for a State to treat refugees differently from other migrants to conclude that it provides effective protection. A refugee may be sufficiently protected where he enjoys fundamental human rights common to citizens and other foreigners, a due process of law is guaranteed and an appeal review mechanism dealing with refusals of refugee status is in place.37 31

32 33 34 35 36 37

Gyulai, ‘The Determination of Statelessness and the Establishment of a Stateless-Specific Protection Regime’ (n 10) 124; see also Gyulai, ‘Statelessness Determination and the Protection Status of Stateless Persons’ (n 15) 16, 17, 23–24, 27–28, 30, 33; Linda Janků, ‘Postavení a ochrana osob bez státní příslušnosti v České republice: zavedení řízení pro určení osob bez státní příslušnosti?’ in Dalibor Jílek and Pavel Pořízek (eds), Pobyt Cizinců: Vybrané Právní Problémy ii (Kancelář veřejného ochránce práv 2015) [‘Status and protection of stateless persons in the Czech Republic: introduction of procedures for the determination of stateless persons?’ in Dalibor Jílek and Pavel Pořízek (eds), Foreigners Stay: Selected Legal Issues ii (Office of the Ombudsman 2015) ] 256, 284. Goodwin-Gill (n 22) 922. Ibid; text to ns 94–102 in Ch 1, s 8. Ibid 921. Ibid 922. Goodwin-Gill and McAdam (n 28) 528. Ibid 529.

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According to leading refugee law scholars, some principles of justice are so essential that they should always be respected in asylum procedures.38 The idea of essential principles of justice is often associated with equality, procedural fairness and independence of the three branches of government39 and should at least include (1) an adequate opportunity for advance preparation of one’s case, (2) suitable adjudicators, (3) a fair opportunity to be heard, (4) fair rules on the burden and standard of proof, (5) written reasons for refusal, (6) adequate length of and protection during the procedures and (7) a right of review.40 As these principles have already been widely discussed both in the refugee law and administrative law literature, I just provide a short overview of each of them in the following sections.41 3.1 An Adequate Opportunity to Prepare the Case The principle of having an adequate opportunity for preparing one’s case involves receiving reasonable assistance of counsel and having the opportunity to gather the necessary evidence in support of the claim.42 On the matter of assistance of counsel for stateless applicants, the unhcr encourages States to provide counseling regarding the procedures in a language they understand.43 It also cautiously adds that where free legal assistance is available, it is to be offered to applicants without financial means.44 The literature takes a more clear-cut position on this principle and stresses that access to free-of-cost legal advice and representation is essential, given the complexity of immigration laws, the frequent and general lack of k­ nowledge of

38

39 40 41

42 43 44

Stephen H Legomsky, ‘An Asylum-Seeker’s Bill of Rights in a Non-Utopian World’ (2000) 14 GeoImmigrLJ 619; Goodwin-Gill and McAdam (n 28) 529–37; Guglielmo Verdirame and Barbara Harrell-Bond, Rights in Exile. Janus-Faced Humanitarianism (Berghahn Books 2005) 80, 92, 94–98; Karen Musalo, Jennifer Moore, Richard A Boswell (eds), Refugee Law and Policy. A Comparative and International Approach (4th edn, Carolina Academic Press 2011) 921–1095. Susan Kneebone (ed), Refugees, Asylum Seekers and the Rule of Law (cup 2009) 33; Ronald Dworkin, A Matter of Principle (Harvard University Press 1978). Legomsky (n 38) 634–41; Verdirame and Harrell-Bond (n 38) 80, 92, 94–98; Musalo, Moore, Boswell (n 38) 921–1095. Hélène Lambert, Seeking Asylum. Comparative Law and Practice in Selected European Countries (Martinus Nijhoff Publishers 1995); Legomsky (n 38) 619; Denis J Galligan, Due Process and Fair Procedures. A Study of Administrative Procedures (2nd edn, oup 2004); Goodwin-Gill and McAdam (n 28); Musalo, Moore, Boswell (n 38). Legomsky (n 38) 619, 635. unhcr Handbook para 71. Ibid para 76.

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the legal system of the host State and language and cultural barriers.45 Furthermore, in situations when the government itself is represented by a lawyer, the need for counsel for an applicant is particularly keen to avoid imbalance that would result from it.46 Some studies argue that access to legal advice and information as early as possible in the procedures benefits not only applicants but decision-makers, as well. In particular, it helps in assessing the merit of cases and attaining fair decisions. This ultimately reduces the number of appeals and their costs.47 ­Statistical research has confirmed that access to counsel impacts success rates in both administrative and court settings.48 Regarding having a reasonable possibility to present evidence and access to documents, the unhcr Handbook states that the individual is expected to fully cooperate and that his testimony and credibility are particularly important, especially where documents are not available. The relevant evidence to present in support of an application may include identity and travel documents, documents regarding the applications to acquire nationality, responses by States on enquiries regarding the applicant’s nationality, birth and marriage certificates, school certificates, and sworn testimony of neighbours or people aware of the person’s nationality.49 Information on the circumstances in the State under consideration covers evidence about nationality laws and their ­implementation and practices. It can be obtained from governmental and non-governmental sources, as well as experts.50 On this point, Stephen Legomsky discusses that the applicant needs to be given a practical and reasonable opportunity to gather the necessary 45

46 47 48

49 50

Legomsky (n 38) 635; Roderick A Macdonald, ‘Access to Justice in Canada Today: Scope, Scale, and Ambitions’ in Julia Bass and others (eds), Access to Justice for a New Century: the Way Forward (Law Society of Upper Canada 2005) 512–14. Legomsky (n 38) 637. Katia Bianchini, ‘Legal Aid for Asylum Seekers: Progress and Challenges in Italy’ (2011) 24(2) jrs 390–91. Michael Kagan, ‘Frontier Justice: Legal Aid and Refugee Status Determination in Egypt’ (2006) 19(1) jrs 45; Andrew I Schoenholtz and Johnathan Jacobs, ‘The State of Asylum Representations: Ideas for Change’ (2002) 16(4) GeoImmigrLJ 739; Dereck A Denckla, ‘Non-lawyers and the Unauthorized Practice of Law: An Overview of the Legal and Ethical Parameters’ (1999) 67 FordhamLR 2581; Mary H McNeal, ‘Having One Oar or Being Without a Boat: Reflections on the Fordham Recommendations on Limited Legal Assistance’ (1999) 67 FordhamLR 2617; William D Popkin, ‘The Effect of Representation in Nonadversary Proceedings: A Study of Three Disability Programs’ (1977) 62 CornellLRev 989. unhcr Handbook (n 23) paras 83–86, 90, 93–94. Ibid para 85.

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­documents, contact essential witnesses and arrange his appearance at interviews and hearings.51 The applicant must also be able to provide rebuttal evidence when the government presents damaging evidence.52 3.2 Suitable Adjudicators The unhcr Handbook does not say much regarding the topic of decisionmakers. It merely shows a preference for centralised procedures, as they are more likely to develop decision-makers’ expertise.53 It recognises that some States might elect to integrate statelessness determination procedures within the competence of immigration authorities, and others might do so within the body responsible for nationality issues.54 It adds that as some stateless persons may also be refugees, States may consider combining statelessness and refugee determination in the same procedure, as sometimes, it may be more efficient to do so. In cases where a person could qualify both under the Refugee Convention and the 1954 Convention, the first should be applied, as it provides more rights than the latter. Moreover, it stresses that confidentiality requirements for applications by asylum seekers and refugees must be respected.55 Concerning this matter, widely accepted assumptions in statelessness studies are that administrative decision-makers are better placed to decide ­statelessness applications, but the arguments presented do not go beyond the likelihood that these decision-makers would have special expertise and be more accessible.56 However, none of these studies has addressed the characteristics of the decision-makers and the issue of their impartiality in statelessness determination. Considering its potential serious impact on the outcome of cases, as has been proven in the asylum context, this issue should become fundamental in future research and policy work.57 51 52 53 54 55 56

57

Legomsky (n 38) 635. Ibid 640. unhcr Handbook (n 23) 63. Ibid para 65. Ibid para 66. Gyulai, ‘Statelessness Determination and the Protection Status of Stateless Persons’ (n 15) 9–10; Katja Swider and Caia Vleiks, ‘Proposal for Legislation on Statelessness in the Netherlands: A Bittersweet Victory’ (12 October 2016) accessed 6 April 2017. See e.g., Tobias G Eule, Inside Immigration law. Migration Management and Policy Application in Germany (Ashgate 2014); Rebecca Hamlin, Let Me Be a Refugee: Administrative Justice and the Politics of Asylum in the United States, Canada, and Australia (oup 2014); Livia Johannesson, In Courts We Trust. Administrative Justice in Swedish Migration Courts (PhD Thesis, University of Stockholm, March 2017).

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According to Galligan, implied in the principle of ‘suitable adjudicators’ is the need to provide designated, competent, informed, independent and freefrom-undue-bias adjudicators.58 In particular, Galligan discusses that adjudicators should make their decisions based on findings of facts, assessment of the evidence and interpretation of the law freely from undue interference. ­Adjudicators lack independence when they are unable to deal with the case ‘on its own merits and according to the relevant standards’.59 The refugee law literature underlines the importance of considering the adjudicators involved and that one major variable in the implementation of laws is the nature of the body to which they belong to: a court, an administrative agency or a regulatory body. Broadly speaking, for judges, independence is usually guaranteed in the State’s Constitution, and thus, they are insulated from political processes.60 By contrast, the independence of administrative decision-makers is often either reduced or threatened, given that they are generally part of the executive branch and are expected to rely on the opinion of another official or follow the government’s view on particular matters.61 Galligan explains that especially in large administrative organisations, decision-makers are limited by ‘internal rules, standards and conventions in the way they handle cases’.62 Similarly, Legomsky identifies problems concerning ‘departmental bias’, meaning that since a policy view or approach has been settled on, the decision-makers ‘do not approach each specific case with an independent mind’.63 At the same time, scholars recognise that the concept of lack of independence is problematic and difficult to deal with, as it is strictly connected to the practicalities of administrative institutions and processes and the difficulties in implementing policies.64 3.3 A Fair Opportunity to be Heard The unhcr Handbook states that an interview with the applicant is an important opportunity to explore any issues on the evidence presented.65 It also 58

Edwin O Abuya and George M Wachira, ‘Assessing Asylum Claims in Africa: Missing or Meeting Standards?’ (2006) 53(2) nilr 171, 190–96. 59 Galligan, Due Process and Fair Procedures (n 41) 440. 60 Legomsky (n 38) 636. 61 Ibid. 62 Galligan, Due Process and Fair Procedures (n 41) 443. Galligan adds that the ‘legal environment’ around sets of laws, which is the setting, is another important variable. Galligan, Law in Modern Society (n 3) 137. 63 Galligan, Due Process and Fair Procedures (n 41) 440. 64 Ibid 441. 65 unhcr Handbook (n 23) para 100.

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recommends that States provide assistance for translation and interpretation for written applications and interviews.66 The literature considers the right that a person ought to be heard before a decision affecting his interests is made to be the most important element of procedural justice.67 To be heard means to be involved, have the opportunity to explain the case and address any misunderstanding and cross-evidence.68 The ways a person can be heard can vary from a formal oral hearing to the possibility of presenting written forms or letters, but in the context of asylum, it is normally thought to involve an interview or hearing. The hearing principle contributes to better decisions in the sense that the facts and the law are decided on more accurately, because it gives the possibility to receive evidence and arguments from more than one person. It also allows one to investigate the situation and reach individualised decisions.69 The principle of having an opportunity to be heard entails adequate interpretation. An applicant can present the case effectively only if he understands what it is being said and has the chance to provide information that is material to the claim.70 3.4 Fair Burden and Standard of Proof The unhcr Handbook recommends introducing a shared burden of proof between the applicant and the decision-maker.71 The unhcr Handbook adds that the standard of proof should be as that for refugee status determinations – namely, to establish the case to a ‘reasonable degree’.72 The issues of who bears the burden of proof and what its standard should be are significant, given that stateless persons encounter considerable challenges in proving their cases.73 In asylum cases, according to Legomsky, the standard of proof should not be onerous and should reflect ‘a conscious comparison of the “disutility” of the various types of errors’.74 An erroneous grant of asylum may allow one to stay in the host State without a reasonable justification. Conversely, an erroneous denial of asylum can bring refugees back to their persecutors. Given the serious possible consequences, ‘the standard of 66 Ibid para 71. 67 Galligan, Due Process and Fair Procedures (n 41) 348. 68 Legomsky (n 38) 637. 69 Galligan, Due Process and Fair Procedures (n 41) 348–61. 70 Musalo, Moore, Boswell (n 38) 952–53; Legomsky (n 38) 637. 71 unhcr Handbook (n 23) para 89. 72 Ibid para 91. 73 See Ch 3, s 6. 74 Legomsky (n 38) 637.

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proof should not be set unnecessarily high’.75 In statelessness cases, although applicants would not usually face persecution if a claim is refused, they would normally encounter problems in accessing several human rights, and therefore, for them, the burden of proof should not be too high. On this matter, some scholars argue that States that use the adversarial dialectic fail to guarantee fair procedures. By contrast, in line with the unhcr’s approach, they see the inquisitorial process, in which a neutral decisionmaker interviews the claimant, investigates the facts, considers the evidence and makes an objective decision, as a benefit to both the claimant and the decision-maker.76 3.5 Written Reasons for Refusal The unhcr Handbook recommends that decision-makers issue decisions in writing and with reasons.77 Similarly, the literature takes the position that decisions should be in writing, and if negative, they should explain the justification for the outcome. This principle ensures that an applicant knows why his claim has been refused and allows him to make an application for review.78 Moreover, it makes it more difficult for a decision-maker to reach a hurried outcome and thus contributes to better results. Finally, written reasons ensure transparency and strengthen trust in the system.79 3.6 Adequate Length of and Protection during the Procedures The unhcr Handbook states that in straightforward cases, fair and efficient procedures may take only a few months to obtain a decision.80 Generally, firstinstance decisions should not be issued more than six months from the lodging of the application. However, in situations where enquiries must be made with foreign authorities, they may take up to 12 months.81 The Handbook underlines providing a minimum set of rights pending the determination of status, such as refraining from removing the individual while a claim is pending and granting appropriate status for those awaiting the determination of their statelessness, which should at least allow access to all 75 76 77 78 79 80 81

Ibid 640. Legomsky (n 38) 638. unhcr Handbook (n 23) para 71. Goodwin-Gill and McAdam (n 28) 535. Legomsky (n 38) 641. unhcr Handbook (n 23) para 74. Ibid para 75.

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rights of the 1954 Convention based on lawful presence. As the 1954 Convention’s rights are formulated similarly to those in the Refugee Convention, the unhcr also recommends that individuals awaiting a determination of statelessness receive the same treatment as asylum seekers whose claims are being considered in the same State, and statelessness determination procedures should have a suspensive effect on removal.82 Furthermore, the Handbook provides that detention should only be used if necessary, reasonable and proportionate and in a non-discriminatory manner.83 Several scholars argue that the length of time to obtain a decision and the conditions of applicants during such time are strictly connected to the ability to pursue claims.84 Adjudicators should decide the cases expeditiously but take fairness into consideration. This means that applicants must be given a reasonable opportunity to present the case without undue time pressure, and adjudicators need enough time to hear and consider the evidence.85 The time to reach a decision must not be unreasonably long. Delay in considering the claim constitutes a barrier: for represented persons, this creates worries about legal fees. For unrepresented persons, it often leads to frustration and their rights being given up.86 Moreover, while an application is pending, applicants should be protected from general laws and be allowed to obtain temporary residence and employment rights.87 Otherwise, applicants may face material barriers to access official institutions and related legal services.88 3.7 Right of Review The unhcr Handbook recommends a right of appeal against a first-instance negative decision. It adds that the appeal procedure must be done with an independent body and be possible on both points of law and facts.89 Galligan argues that anyone subject to an administrative decision should have the opportunity to have it reconsidered by an independent tribunal or 82 83 84 85 86

87 88 89

Ibid para 72. Ibid paras 112–15. Musalo, Moore, Boswell (n 38) 921. Legomsky (n 38) 637; unhcr Hanbdook (n 23) para 74. Mauro Cappelletti and Bryant G Garth, ‘Access to Justice: the Newest Wave in the Worldwide Movement to Make Rights Effective’ (1978) BuffLR 181, 189; Allan C Hutchinson, ­Access to Civil Justice (Carswell 1990). Goodwin-Gill (n 22) 922. Macdonald (n 45) 19, 24. unhcr Handbook (n 23) paras 76–77.

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tribunal-like body.90 Legomsky explains that the right of review serves the functions of correcting mistakes and boosting thoughtful deliberations in the previous stage.91 As far as the form that it should take is concerned, the test is whether the review is effective in rectifying mistakes in specific cases.92 The States under review offer a variety of appeal and review procedures which reflect national frameworks and traditions. In some States, internal review might be such a procedure, with a further appeal to a tribunal or court.93 Internal reviews have the strength of being easily accessible, but their weakness is that they do not guarantee independence from the primary decisionmaker.94 In other States, tribunals or administrative courts constitute standard appeal bodies from individualised administrative decisions.95 Tribunals or administrative courts are generally independent from the first decision-maker, have expertise in the area and an informal approach to procedures and admission of evidence and expedite in reaching a decision.96 The powers of these courts vary, but normally, they can hear appeals in the sense that they can look for errors of law and fact in the primary decision, and often in practice, this means reconsidering the merits of the case.97 These forms of recourse differ from judicial review, which can be another possibility in some States. Judicial review does not look to the merits of a decision but to its legality. The main function of judicial review is to protect against an authority’s abuse or misuse of powers. For most parties, judicial review is not an option due its complexity and cost.98 An in-depth analysis of appeal and judicial review procedures in the States under consideration is outside the scope of this book. The next chapters only explore how the right of review of one’s claim can be exercised and the decision-makers’ lack of judicial independence when this emerges as an issue from the literature.

90 Galligan, Due Process and Fair Procedures (n 41) 403; Goodwin-Gill and McAdam (n 28) 537. 91 Legomsky (n 38) 640–41; Goodwin-Gill and McAdam (n 28) 537. 92 Galligan, Due Process and Fair Procedures (n 41) 402. 93 Ibid 405. 94 Ibid 404–05. 95 Ibid 402–03. 96 Ibid 403. 97 Ibid. 98 Ibid 406.

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4 Conclusion To analyse how the States under review have implemented the 1954 Convention, I have developed a framework of analysis that gathers them in three broad categories, according to the degree of detailed legislation or regulatory provisions adopted to incorporate the procedures to identify statelessness. In Chapters 5 to 7 for each State, I assess whether the procedures to determine statelessness or alternative forms of protection guarantee essential principles of justice: (1) an adequate opportunity for advanced preparation of one’s case, (2) suitable adjudicators, (3) a fair opportunity to be heard, (4) fair rules on the burden and standard of proof, (5) written reasons for refusal, (6) adequate length of and protection during the procedures and (7) a right of review. Given the scope of this book, I do not attempt to treat any of these elements exhaustively, but I will offer a general idea of how they are applied in the context of claims for protection made by stateless persons and assess whether they are secure. This will inform which method of incorporation is better and whether legislative incorporation of treaty obligations is always required to effectively implement them.

Chapter 5

Procedures to Determine Statelessness in States under Category One 1 Introduction The aim of this chapter is to discuss legislation, case law and practices in Spain, Hungary and the United Kingdom (uk), which are States that have incorporated legislative or regulatory provisions to determine who is stateless according to Article 1 of the 1954 Convention. One of the defining features of these systems is that the authorities make decisions along a number of clear rules and that certain procedural rights are embodied in the provisions. In these States, stateless persons are able to make claims for stateless status because the rights that they assert with the administration are domestic. In Spain, Law 4/2000, as amended by Law 8/2000 (Aliens’ Law), provides that the Minister of Interior will recognise as stateless those foreigners who meet the requirements of the 1954 Convention and grant status accordingly. The procedure is regulated by Royal Decree 865/2001 of 20 July 2001.1 In Hungary, Act ii of 2007 on the Admission and Right of Residence of Third-Country Nationals (hereinafter ‘Aliens Act’) and Government Decree 114/2007 (v. 24.) on the Implementation of Act ii of 2007 on the Admission and Right of Residence of Third-Country Nationals (hereinafter ‘Government Decree 114/2007’) specifically deal with statelessness determination procedures and stateless status. In the uk, the new procedure was incorporated into the ­Immigration Rules on 6 April 2013 (hc 1039, 6 April 2013).2 In practice, the Immigration Rules must be considered together with the relevant Home Office Policy Guidance on ­statelessness (‘ho Guidance’), which is binding on the a­dministrative ­decision-makers.3 The ho Guidance is very detailed, and several of its sections 1 Real Decreto 865/2001 de 20 de julio, por el que se aprueba el Reglamento de reconocimiento del estatuto de apátrida (BOE-A-2001-14166) [Royal Decree 865/2001 of 20 July approving the Regulation for the Recognition of the Status of Stateless Persons (BOE-A-2001-14166)] (Real Decreto 865/2001). 2 Immigration Rules (hc 1039, 6 April 2013). 3 Home Office, ‘Asylum Policy Instruction. Statelessness and Applications for Leave to Remain’ (18 February 2016) V2.0. This kind of policy guidance was not approved by Parliament, being an internal administrative tool to assist decision-makers to apply the law. The 2016 policy

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follow the unhcr Handbook on Statelessness. Other general provisions relevant to the determination of statelessness are contained in the immigration and administrative laws of these States. 2

Authorities Responsible for the Determination of Statelessness

In Spain, the procedure is in two phases. During the first phase, the Office for Asylum and Refuge (Oficina de Asilo y Refugio – oar) makes a recommendation to the Ministry of Interior regarding the resolution of the case and submits an individualised decision with a rationale. The Ministry of Interior then makes the final decision, usually in accordance with oar’s.4 In the uk, statelessness determination is delegated to the Statelessness Unit in Liverpool, within the asylum authority of the Home Office (ho).5 In Hungary, the authority dealing with statelessness determination is the alien-policing branch of the Office of Immigration and Nationality (oin) ­(Bevándorlási és Állampolgársági Hivatal), which is divided into seven regional directorates. There is a Regional Directorate in Budapest and six others in the main cities (Gyor, Székesfehérvár, Debrecen, Szeged, Miskolc and Pécs). The competent office is established according to the applicant’s place of accommodation, stay or residence.6 In Hungary, the centralisation of cases occurs to some extent at the regional level, as within each directorate, a limited number of decision-makers (usually one or two) are in charge of statelessness applications. This arrangement facilitates specialisation but does not prevent divergence between certain practices.7 Similarly, the very few decision-makers in

4 5 6

7

instruction replaced the former ‘Stateless Guidance. Applications for Leave to Remain as a Stateless Person’ (1 May 2013) V1.0. Real Decreto 865/2001 (n 1) arts 2, 8–9; telephone interview with Arsenio Cores, Immigration Lawyer (Madrid, Spain, 11 December 2013). Interview with Robert Jones, Former Head of Asylum Policy Office, The Home Office ­(London, uk, 6 August 2013). Government Decree 114/2007 (v. 24.) on the Implementation of Act ii of 2007 on the Admission and Right of Residence of Third-Country Nationals, s 159(1); telephone interview with Tamás Molnár, Head of Unit, Unit for Migration, Asylum and Border Management, Department of eu Cooperation, Ministry of Interior [of Hungary] and Assistant Professor at Corvinus University of Budapest (Budapest, Hungary, 16 December 2013); Gábor Gyulai, ‘Statelessness in Hungary. The Protection of Stateless Persons and the Prevention and Reduction of Statelessness’ (Hungarian Helsinki Committee 2010) 21; Tamás Molnár, ‘Statelessness Determination Procedure in Hungary’ (2013) 4 Asiel & Migrantenrecht 271–72. Gábor Gyulai, ‘Statelessness in Hungary’ (n 6) 21.

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the statelessness team of the uk are specialised, and this provides a good opportunity to accumulate knowledge and practical experience in determining statelessness.8 In all three States, experts and the literature report problems as far as having suitable administrative decision-makers is concerned. In Spain, one national informant describes a lack of specialisation of the administration not only in statelessness but in administrative law in general.9 Moreover, the lack of independence of the oar from the government has an impact on the final outcomes, restricting access to protection.10 This view is supported by reports which uncover that in some cases, the administration has required impossible evidence in order to reject them.11 It is also upheld by the fact only after several years of the adoption of statelessness determination procedures and after the 2007 Supreme Court’s decision in favour of a Sahrawi who had applied for stateless status, the administration is finally starting to approve the first cases.12 Another national informant explains that the administration’s reluctance to grant stateless status is a complicated political issue in Spain, because it is strictly linked to the Sahrawi problem and the bilateral relations with Morocco, which may be jeopardised by acknowledging that this group of people needs protection.13 8

9 10

11 12 13

Gábor Gyulai, ‘Statelessness. Determination and the Protection Status of Stateless Persons’ (European Network on Statelessness 2013) 9–10; ilpa and University of Liverpool Law Clinic, ‘Statelessness and Applications for Leave to Remain: a Best Practice Guide’ (2016) 68–69. Telephone interview with Cores (n 4). Questionnaire reply from Arsenio Cores, Immigration Lawyer (Madrid, Spain, 3 May 2017); Defensor del Pueblo (Spanish Ombudsman), ‘A Study of Asylum in Spain. International Protection and Reception System Resources’ (2016) 36. Defensor del Pueblo (n 10) 36. Questionnaire reply from Cores (n 10). Questionnaire reply from unhcr Officer (Madrid, Spain, 27 April 2017). After the Spanish withdrawal from the occupied Western Sahara in 1975, Morocco claimed control over the territory. The situation in Western Sahara remains problematic, and the conflict is not near a solution in the near future. Spain maintains a position on the question of Western Sahara that is ambiguous. On the one hand, Spain has interests in the resources of Western Sahara, such as fishing rights, and has shown initiative in reaching an agreement between the parties involved. On the other hand, Spain has tried to maintain positive relations with Morocco due to its aspiration to control the Spanish cities of Ceuta and Melilla, situated in the Northern border of Morocco, and to protect the Spaniards who live within Morocco. Susan Humphrey, ‘The Western Sahara Conflict’ (Atlantic International ­Studies Organization) accessed 4 May 2017; Manuel Jesús López Baroni, ­‘Apátridas

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In Hungary, one national informant states that practice is problematic, as administrative decision-makers tend to be influenced by the immigration policies of the government. To some extent, this reflects the inheritance of communism, when administrative policies used to be centralised. He believes that in general, the asylum authority, instead of the policing branch of the oin, would be better placed to have competence over the determination of statelessness, as it usually adopts a more protection-oriented approach. At the same time, he notes that in the current climate, this would not change much, as the recent high influx of refugees into the country has had a detrimental impact on all migrants, and the government is taking a harsh position as far as their treatment is concerned.14 For instance, detention is used more frequently than before; irregular migrants intercepted near the Serbian-Hungarian or Croatian-Hungarian border are automatically pushed back without registering their data or allowing them to seek protection, and integration support to recognised beneficiaries of international protection is no longer available.15 In the uk, the Statelessness Unit of the ho is understaffed, and there are problems regarding the quality of the decisions. In particular, practitioners and recent research explain that some of them seem not to have engaged with the facts of the cases, whilst others have taken a strict, sometimes unreasonable approach regarding the attempts that applicants were required to make with the authorities of the country of origin in order to prove their nationality.16 More generally, the literature has drawn attention to the pressures under which immigration officials work, including political pressure and meeting the organisation’s targets. In the context of asylum, several writers have pointed out that the procedure is permeated by a ‘culture of disbelief’, as the ho has a tendency to disbelieve the accounts of applicants and, on such a basis, refuse

14 15

16

Aaharauis en España: Europa y Su Memoria’, Anuario Mexicano de Derecho Internacional, vol xiv (2014) 381. Interview with Gábor Gyulai, Refugee Programme Director, Hungarian Helsinki Committee (Budapest, Hungary, 4 May 2017). Hungarian Helsinki Committee, ‘Hungary – Overview of the Main Changes Since the Previous Report Update’ (Asylum Information Database) accessed 4 May 2017. Author’s conversations with uk practitioners at the ‘Training on Statelessness Determination Procedures’ (London, uk, 16 February 2017); Katia Bianchini, ‘Protecting Stateless Persons from Arbitrary Detention in the United Kingdom’ (European Network on Statelessness 2016) 5–7.

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them protection.17 It also appears that caseworkers receive training on how to refuse cases based on the lack of credibility of applicants.18 3

Main Features of the Procedures

In Spain, the application for stateless status and for asylum cannot be jointly made, since they are two different procedures from both a legislative and procedural aspect. It is possible to apply to both simultaneously, but it is likely that priority will be given to the asylum over the statelessness claim, as the protection offered under the Refugee Convention is stronger than that under the 1954 Convention.19 Similarly, in Hungary, it is possible to apply for both statuses, and most likely, the statelessness determination will be suspended until a final decision in the asylum case is reached. Nevertheless, one national informant reports that to his knowledge, there is no practical experience with this.20 In the United Kingdom, stateless status is intended to be a residual category,21 and although not stated in the rules, it was conceived for those persons who have not been granted asylum or permits on other grounds.22 Therefore, the

17 18

19 20 21 22

James Souter, ‘A Culture of Disbelief or Denial? Critiquing Refugee Status Determination in the United Kingdom’ (2011) 1(1) OxMo 48. Michael Kagan, ‘Believable Victims: Asylum Credibility and the Struggle for Objectivity’ (2015) 16(1) gjia 123; Helen Baillot, Sharon Cowan and Vanessa E Munro, ‘Reason to Disbelieve: Evaluating the Rape Claims of Women Seeking Asylum in the uk’ (2014) 10(1) IntJLC 105–39; James Nickerson, ‘How the System is Failing Asylum-Seekers’ The Internationalist (28 January 2015) accessed 13 April 2017; Public Servant (anonymous) ‘I Worry Asylum Caseworkers Are Failing People in their Darkest Hour’ The Guardian (8 April 2017) accessed 12 April 2017; Diane Taylor, ‘Home Office Eritrea Guidance Softened to Reduce Asylum-Seeker numbers’ The Guardian (22 January 2017) accessed 13 April 2017. Email from Valeria Cherednichenko, Associate Legal Statelessness Officer, unhcr Brussles, Belgium to author (24 December 2013). Email from Gábor Gyulai, Refugee Programme Director, Hungarian Helsinki Committee, to author (11 October 2017). Alison Harvey, ‘The uk’s New Statelessness Determination Procedure in Context’ (2013) 27(4) jianl 294, 297. Ibid; Adrian Berry, Barrister, presentation at the ‘Training on Statelessness Determination Procedures’ (London, uk, 16 February 2017).

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interrelation between the determination of refugee and stateless status should be better coordinated in all States to improve efficiency. As far as initiating the procedures is concerned, the Spanish implementing decree sets out that stateless status may be decided upon written submissions by the applicant and made to any police office, Offices for Foreigners across the country or the oar. The application must include a clear and detailed explanation of the facts and, in particular, of the place of birth, parents’ ties with other relatives that have a nationality, place of habitual residence in another State and time spent there. Identity and travel documents must be attached, and if they are not available, an explanation should be provided.23 The oar may initiate the procedure ex officio when it has knowledge of facts, data or information indicating that a person is stateless.24 However, it is reported that it is unclear whether this actually occurs.25 In the uk, the applicant starts the procedures by mailing a complicated and long application form to the ho in Liverpool.26 Similarly, in Spain, the application must include detailed information on the applicant and his alleged statelessness. Stateless persons looking for information on how to make an application for protection are more likely to find it in Hungary and the uk than in Spain.27 23 24 25 26

27

Real Decreto 865/2001 (n 1) art 3. Ibid art 2. Telephone interview with Cores (n 4). Immigration Rules (hc 1039, 6 April 2013) para 34; GOV.UK, Visas and Immigration, Stateless, ‘Apply to Stay in the uk as a Stateless Person’ accessed 15 February 2017; GOV.UK, ‘Application to Extend Stay in uk as Stateless Person: Form flr(S)’ accessed 15 February 2017; see also Home Office, ‘Asylum Policy Instruction. Statelessness and Applications for Leave to Remain’ (n 3) para 4.1. In the uk, Asylum Aid and several other ngos have information in English on statelessness on their websites (ie, freemovement.co.uk, migrantsrights.co.uk). Asylum Aid, ‘The uk’s Approach to Statelessness. Need for Fair and Timely Decisions’ (Policy Briefing, September 2016) accessed 8 July 2017; for training see e.g., Immigration Lawyer Practitioners’ Association (ilpa), ‘Training’ accessed 18 March 2017 and Asylum Aid, ‘Statelessness. How we Work on Statelessness’ accessed 18 March 2017; for campaigns, see e.g., European Network on Statelessness, ‘Campaign to Protect Stateless Persons in Europe’ accessed 18 March 2017. In Hungary, there are leaflets and brochures in immigration offices and public information desks that provide information, and information appears in English on the webpage of the Immigration and Asylum Office. In addition, ngos make statelessness a visible issue. Telephone interview with Molnár (n 6);

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In all States, it appears that statelessness remains a little known issue at the public level. Even when it is highlighted, such as in Hungary, it mainly remains a topic among professionals. In Hungary, it is easier to make the application than in the other two States, because it can be made either in writing or verbally.28 In the latter case, the authority must prepare a written record of the statement, which helps applicants overcome a number of formalities.29 If the applicant does not speak the Hungarian language, the Regional Directorate shall provide an interpreter. The secondment of an interpreter may be waived if the acting administrator speaks the language of the applicant or another understood language and the applicant agrees in writing that he does not need an interpreter.30 Moreover, the Hungarian regulation obliges the immigration authorities to provide information on the possibility of applying for stateless status and the rights that can be acquired to any person whose potential statelessness arises in any immigration-related procedure.31 Given that stateless persons are sometimes unaware or unable to comply with all of the formalities to make an application, Hungarian law is thus particularly helpful in facilitating access to protection. However, in practice, this does not always occur.32 Concerning the possibility to explain the case in person, applicants for stateless status have an automatic right to an interview in Hungary.33 In the uk, this right is more limited, as the determining authority is allowed to refuse an interview if there is already sufficient evidence of statelessness, and it is clear that the individual is not admissible to another country and is eligible for leave to remain on this basis.

see e.g., Immigration and Asylum Office, ‘Granting of Stateless Status’ (30 November 2016) accessed 18 March 2017. In Spain, the Government provides information on statelessness in Spanish on the Ministry of Interior’s website. See e.g., Gobierno de España, Ministerio del Interior, ‘Apátridas’ accessed 18 March 2017. 28 Act ii of 2007 on the Admission and Right of Residence of Third-Country Nationals, s 76(1); Government Decree 114/2007 (n 6) s 159(1). 29 Act ii of 2007 (n 28) s 76(2); Government Decree 114/2007 (n 6) s 159(2). 30 Government Decree 114/2007 (n 6) s 159(3). 31 Act ii of 2007 (n 28) s 76(2)-(3). 32 Interview with Gyulai (n 14). 33 Act ii of 2007 (n 28) s 77(1).

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An interview will not be arranged, and the application may be refused, where recent and reliable information, including the applicant’s previous evidence or findings of fact made by an immigration judge, have already established that the applicant is not stateless or is clearly admissible to another country for purposes of permanent residence and where no evidence to the contrary has been provided.34 In reality, the ho Guidance has not always been followed, and some applicants that have been refused stateless status have not been interviewed, even in cases where denial was based on legal grounds rather than facts.35 In addition, there are no arrangements for interviewing persons in immigration detention.36 In Spain, this right is not guaranteed under the regulation, which does not provide for an individual interview.37 The shortfall in such cases is that key information may be missed, as facts might best be collected directly through an individual interview with the applicant than through written submissions. On the positive side, important safeguards in all three States are the right to a free-of-charge service of an interpreter at interviews and the absence of fees to lodge the applications.38 4

Burden and Standard of Proof

As far as the opportunity to present evidence and principles of proof in the context of statelessness is concerned, Chapter 3, Section 8 discussed that these are complex matters. The applicant has to prove that he is not a national of any State and often is not in possession of the required documents.39 It is problematic that the Spanish regulation does not mention the burden of proof. Additionally, it does not give much guidance on other evidentiary issues and only stipulates that the authority is responsible to assess the claim, while the applicant is obliged to cooperate in the process. It adds that while 34 35

36 37 38 39

Home Office, ‘Asylum Policy Instruction. Statelessness and Applications for Leave to ­ emain’ (n 3) para 3.4. R Author’s conversations with practitioners and policy-makers at the First Global Forum on Statelessness (The Hague, Netherlands, 15–17 September 2014); author’s conversations with practitioners at the ‘Training on Statelessness Determination Procedures’ (n 16). Jones (n 5); Katia Bianchini, ‘Protecting Stateless Persons from Arbitrary Detention’ (European Network on Statelessness 2016) 19–20. Real Decreto 865/2001 (n 1) art 7. Jones (n 5); telephone interview with Molnár (n 6); telephone interview with Cores (n 4). See Ch 1, s 7; Ch 3, s 8.

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carrying out its investigative function, the oar may request as many reports as it deems appropriate from the central administrative bodies, as well as from any other national or international entity.40 It is reported that the oar may ask for proof that a person entered legally into the country, but the courts have established in several cases that the lack of this requirement cannot be relied upon to refuse an application.41 In the context of means of proof, two recent judgments of the administrative courts have addressed the legal bond between the applicants and Algeria and have held that the applicants met the conditions of being stateless according to Article 1(1) the 1954 Convention. The judgments emphasised that holding a passport is not, in its own, proof of nationality. The decisions stressed that ‘Algeria has never expressed, explicitly or implicitly, the recognition or concession of Algerian nationality to Sahrawi refugees residing in the camps of Tindouf’.42 They pointed out that the possession of an Algerian passport, which is only issued to Sahrawis for humanitarian reasons and which can be used to travel to Spain and apply for a visa for that purpose, does not amount to the conferral or recognition of Algerian nationality.43 These judgments are based upon a number of Supreme Court decisions made between 2007 and 2011, which addressed the same issue and show that these principles are becoming more and more accepted.44 It is also worthwhile to note that the ­Supreme Court ruled that it is not necessary for an applicant who was denied the renewal of a passport to prove that he attempted to use all of the possible remedies in the country of origin to challenge such a refusal in order to show that he has no nationality. The court found that such proof would be impossible, as the issuance of a passport is a discretionary act of the State and is not subject to any review before the courts or bodies in such a State.45 In the uk, the immigration rules state that the burden of proof rests with the applicant, who must cooperate with the caseworker to provide information to demonstrate that he is stateless.46 The burden of proof may shift ‘where 40 41 42 43 44

45 46

Real Decreto 865/2001 (n 1) art 8(3). Comisión Española de Ajuda al Refugiado, ‘Informe 2016: Las Personas Refugiadas en ­España y Europa’ (2016) 76–77. san de 7 de octubre 2013 (Rec 239/2013), para 4; san de 8 de octubre 2013 (Rec 245/2013), para 4. Ibid para 5; ibid para 5. sts de 20 noviembre 2007 (Rec 10503/2003); sts de 18 julio 2008 (Rec 555/2005); sts de 28 noviembre 2008 (Rec 2515/2005); sts de 19 diciembre 2008 (Rec 7337/2005); sts de 30 octubre 2009 (Rec 2805/2006); sts de 20 septiembre 2011 (Rec 28/2010). sts de 20 noviembre 2007 (n 44). Immigration Rules (hc 1039, 6 April 2013) para 403(d).

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credible evidence is provided’.47 It is not enough for the applicant to rely upon a simple and unsupported assertion of statelessness or to provide no explanation or evidence in support of the application.48 The ho Guidance provides that caseworkers should make reasonable efforts to assist applicants in establishing the necessary evidence, whether by research or enquiry, as some of them may be unable to submit much evidence or information because they may not have the resources or knowledge to obtain information about the laws of a State. In such circumstances the caseworker must assist the applicant ‘by interviewing them, undertaking relevant research and, if necessary, making enquiries with the relevant authorities and organisations’.49 Enquiries with the authorities of the relevant countries must be done with the written consent of the applicant. If such consent is denied without good reason, it may be inferred that the applicant is not genuinely willing to cooperate and has not discharged the burden of proof.50 ‘Valid reasons’ include cases where an asylum application was refused and it was established that the person’s claimed fear was not well founded.51 However, in practice, the shared burden of proof is almost never applied.52 According to the Upper Tribunal in Semeda, besides the ho Guidance, public law principles must be taken into account when addressing this matter. So, the question is whether the decisionmaker ‘asked himself the right question and took reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly’.53 As far as the standard of proof is concerned, the civil standard of the balance of probabilities applies (i.e., more likely than not).54 This is contrary to 47

In the case of Smith v Secretary of State for the Home Department (Liberia) [2000] ukiat 00TH02130, the Immigration Tribunal clarified that the burden of proof concerning the assessment of nationality in asylum cases is on the applicant throughout, although ‘the evidential burden may shift with the submission of credible evidence’. See also ilpa and University of Liverpool Law Clinic (n 8) 21, ft 53. 48 Home Office, ‘Asylum Policy Instruction. Statelessness and Applications for Leave to ­Remain’ (n 3) para 4.2. 49 Ibid. 50 Ibid. 51 Ibid. 52 Author’s conversations with practitioners and policy-makers at the First Global Forum on Statelessness (n 35); author’s conversations with practitioners at the ‘Training on Statelessness Determination Procedures’ (n 16); ilpa and University of Liverpool Law Clinic (n 8) 22. 53 R (Semeda) v Secretary of State for the Home Department; Secretary of State for Education and Science v Metropolitan Borough Council of Tameside [1977] ac 1014, para 18. 54 unhcr ‘Handbook on Protection of Stateless Persons under the 1954 Convention Relating to the Status of Stateless Persons’ (2014) para 91.

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the recommendation of the unhcr Handbook, which sets forth that the applicant shall establish to a reasonable degree that he is not considered a n ­ ational of any country under the operation of its law. The ho justifies their position by stating in the Guidance that ‘the factual issues to be decided justify a higher standard of proof than the reasonable likelihood required to establish a wellfounded fear of persecution in asylum claims, where the issue may be the threat to life, liberty and person’.55 On the other hand, the ho Guidance provides detailed rules on gathering and assessing evidence, including the types of proof that should be examined, such as passports, language analysis and information provided by foreign authorities.56 It also states that findings in the asylum case can be taken into account in the determination of the request for stateless status.57 Hungarian law has the best provisions of all. It sets an explicitly lower standard of proof, inspired by a similar provision in the State’s asylum legislation, by stipulating that the applicant shall prove to a reasonable degree or substantiate his claim, in particular in relation to: (a) where his place of birth is ­located, (b) where his previous permanent or habitual residence is located and (c) the nationality of his family members and parents.58 In practice, some decisions apply the lowered standard of proof, whereas others do not. It is difficult to assess the standard of proof applied in administrative or judicial decisions, as in most of them, the standard of proof is not discussed in detail.59 While in principle the primary duty to substantiate the claim is on the applicant, the determining authority, upon request, shall provide administrative assistance in the establishment of facts through Hungarian diplomatic representations.60 Furthermore, decision-makers are bound by the obligation of fully establishing the facts and circumstances of the case ex officio under general rules of administrative procedures.61 It is reported that, indeed, decision-makers often contact consular representations to prove whether or not a nationality exists.62 Hungarian law includes another important safeguard as far as proving statelessness is concerned, as it allows applicants to submit foreign language 55

Home Office, ‘Asylum Policy Instruction. Statelessness and Applications for Leave to ­ emain’ (n 3) para 4.2. R 56 Ibid para 4.3. 57 Ibid para 3.2. 58 Act ii of 2007 (n 28) s 79(1); Gyulai, ‘Statelessness in Hungary’; (n 6) 25–26. 59 Gyulai, ‘Statelessness in Hungary’ (n 6) 25. 60 Act ii of 2007 (n 28) s 79(2); Government Decree 114/2007 (n 6) s 164(2). 61 Act cxl of 2004 on the General Rules of Administrative Procedures and Services (unofficial tr), s 3(2)(b). 62 Gyulai, ‘Statelessness in Hungary’ (n 6) 24.

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d­ ocuments without an official translation and an apostille, which would normally be a standard requirement under administrative procedural law.63 Hungarian law also provides further useful guidance as to the types of evidence that can typically be considered in the process of decision-making: country of origin’s nationality laws, information provided by the unhcr, foreign authorities, Hungarian diplomatic representations abroad and evidence by the applicant.64 Finally, the unhcr may participate in any stage of the proceedings for the recognition of stateless status and: (a) may be present when the applicant is interviewed, (b) may provide administrative assistance to the applicant and (c) may gain access to the documents of the proceedings, and (d) the immigration authority shall send the administrative resolution or court decision to them.65 5

Formal Conditions to Make the Application and Further Requirements for Grant of Stateless Status

Spain and the uk have provisions or practices that restrict access to stateless status. None of these requirements is found in the 1954 Convention, and arguably, they are in breach of the international obligations.66 Spain has a formal timeline to submit the claim for statelessness: the application must be made within a month of entry into the country, except when the applicant has a limited period of leave, in which case it must be presented before its expiration. When the delay is due to causes beyond the applicant’s control, the one-month period to present the application will start from when such causes have ended. When the applicant has been in the country illegally for more than one month or when he is subject to an expulsion order, the case shall be presumed to be manifestly unfounded, and this shall be taken into consideration at the time that the decision is made.67 In practice, the onemonth time limitation is often used to refuse a case, along with other reasons for rejection.68 The national informant reports that if this were the only cause 63 Government Decree 114/2007 (n 6) s 164(2). 64 Ibid s 164. 65 Act ii of 2007 (n 28) s 81. 66 The unhcr’s Handbook states that such barriers do not find any basis in the 1954 ­Convention, and they may arbitrarily exclude people from protection. unhcr Handbook (n 54) paras 69–70. 67 Real Decreto 865/2001 (n 1) art 4. 68 Telephone interview with Cores (n 4).

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of rejection, it would probably not be applied. The national informant explains that this rule has a copy in the asylum regulations. However, whereas the delay in making an asylum application is relevant with respect to the evaluation of the applicant’s credibility, it is not in the context of statelessness. In most cases, a person remains stateless even if he makes a delayed application for protection.69 In the uk, Paragraph 403(c) of the Immigration Rules states that to be recognised as a stateless person, applicants must not be admissible to their country of former habitual residence or any other country.70 The ho Guidance indicates that ‘admissibility’ means a right to enter a State and permanent residence.71 This is in line with the unhcr Handbook, which allows readmission to another State if the person is able to acquire a nationality through a straightforward and quick procedure or enjoys permanent status.72 In this regard, the Upper Tribunal found that if a child born in the uk to a foreign national is stateless but can obtain citizenship of the parent’s State by descent through birth registration, the ho can refuse the application for leave to remain, because the child is admissible to the parent’s State, where he could be registered.73 However, in practice, caseworkers do not look at all of the rights that a person enjoys in practice in the other State. For instance, some Bidoons are being removed to Kuwait, although they cannot access civil and political rights, based on discriminatory policies.74 In addition, it should be noted that whereas in the uk there is no formal timeline to claim statelessness, in practice, a decision-maker takes into consideration the failure to disclose all relevant facts and claims in the context of previous contact with the authorities. Unless a reasonable explanation is given, such failure may count against the applicant.75 This rule is explicitly found 69 Ibid. 70 Immigration Rules (hc 1039, 6 April 2013) para 403(c). 71 Home Office, ‘Asylum Policy Instruction. Statelessness and Applications for Leave to Remain’ (n 3) paras 1.4, 3.4, 6.2. 72 unhcr Handbook (n 54) paras 155–57. 73 R (jm) v sshd (Statelessness: Part 14 of hc 395) ijr [2015] ukut 00676 (iac). 74 Interview with Nasser Al-Anezy, Director of Kuwaiti Community Association (London, uk, 2 May 2016); Berry (n 22). The Arabic term ‘bidoon jinsiya’ (‘without nationality’) refers to a group of people in Kuwait who were not granted citizenship upon the country’s independence from the British Empire in 1961. Sebastian Kohn, ‘Stateless in Kuwait: Who Are the Bidoon?’ (Open Society Foundation, 24 March 2011) accessed 15 April 2017. 75 Jones (n 5); author’s conversations with practitioners at the ‘Training on Statelessness Determination Procedures’ (n 16).

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only in the context of asylum cases, but it is adopted in practice in claims of statelessness, as well.76 In Hungary, the applicant used to have had lawful status as a condition to make an application. According to the Minister of Justice and Law Enforcement, by introducing this restriction, the lawmaker intended to prevent foreigners from submitting a mala fide claim for stateless status with the sole purpose of delaying their expulsion.77 Nevertheless, this argument failed to consider that lack of lawful status is a frequent characteristic of statelessness. Stateless persons often hold no travel documents, and for them, it is impossible to obtain a visa to travel.78 The administration strictly interpreted this requirement, and some litigation followed. On 23 February 2015, the Constitutional Court quashed the lawful status requirement as of 30 September 2015 (to allow the legislator enough time to make the necessary amendments) on the grounds that it is in breach of the State’s international obligations and as a consequence of the Fundamental Law, which calls for full harmony between Hungarian law and the undertaken treaties.79 This judgment states that the lawful stay requirement is not merely a procedural rule (as argued by the oin) but a material one that modifies the definition of a stateless person as compared to the one included in Article 1 of the 1954 Convention relating to the Status of Stateless Persons, an Article for which no reservations or modifications are allowed, and thus, it unduly narrows the personal scope of the Convention (paragraphs 23 and 27 of the judgment). In the Court’s view, this conclusion is further supported by the fact that under the Convention, certain rights are to be accorded only to lawfully staying stateless persons, while other rights to all of them, and this distinction indicates that the drafters did not see a general need for a lawful stay condition. The Court therefore agreed with the petitioner first-instance court and the third-party interveners and quashed the

76 77 78 79

See Immigration Rules (hc 251, 23 May 1994) Part 11: Asylum, para 340. Gyulai, ‘Statelessness in Hungary’ (n 6) 17. Ibid 18. Magyarország Alaptörvénye [Fundamental Law of Hungary] arts B(1), Q(2); Tamás ­Molnár, ‘The Hungarian Constitutional Court’s Decision on the Compatibility of the Hungarian Statelessness Determination Procedure with International Law’ in Marcel Szabó, Petra Lea Láncos en Réka Varga (eds), Hungarian Yearbook of International Law and E­ uropean Law (Eleven International Publishing 2016) 593.

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l­awful stay requirement as of 30 September 2015 to allow sufficient time for the legislator for making the adjustments in other legal provisions.80 Tamás Molnár also commented that it is remarkable that the majority of the Constitutional Court judges, in a very progressive manner, relied on the unhcr guidelines, which, as explained in Chapter 2, Section 11, were later replaced by the unhcr Handbook. The judges pointed out that [w]hile the [unhcr] Guidelines belong to the so-called non-binding international instruments, it is nevertheless indisputable that the unhcr is the most authentic entity to interpret international legal questions and practice related to the Statelessness Convention.81 6

Protection of Applicants during the Procedures

As discussed in Chapter 3, Section 7, one of the biggest weaknesses of the 1954 Convention is that it does not protect an applicant for stateless status while his case is being assessed.82 The provisions in Hungary and the uk do not provide for any temporary permit pending an evaluation of stateless status or the right to work or other financial support.83 In the uk, there is, however, very limited support for stateless persons who are also failed asylum seekers and who can show that they are taking all reasonable steps to return to their home country (usually meaning that they must have applied for voluntary return).84 This support involves free accommodation and non-cash support through a card which can only be used 80

81

82 83

84

Gábor Gyulai, ‘Hungarian Constitutional Court Declares that Lawful Stay Requirement in Statelessness Determination Breaches International Law’ (2 March 2015) accessed 2 March 2015; author’s conversation with Gábor Gyulai, Refugee Programme Director, Hungarian Helsinki Committee, at the First Global Forum on Statelessness (The Hague, Netherlands, 16 September 2014). 6/2015 (ii. 25.) AB határozat (ügyszám III/01664/2014) [6/2015 (ii. 25.) Constitutional Court decision (case III/01664/2014)] para 18; Tamás Molnár, ‘The Hungarian Constitutional Court’s Decision on the Compatibility of the Hungarian Statelessness Determination Procedure with International Law’ (n 79) 601. See Ch 3, s 7.3. Hungarian Helsinki Committee, European Network on Statelessness, Institute on Statelessness and Inclusion, ‘Joint Submission to the Human Rights Council at the 25th Session of the Universal Periodic Review – Hungary’ (21 September 2015) paras 26–28. The Immigration and Asylum (Provision of Accommodation to Failed Asylum Seekers) Regulations 2005.

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at some designated shops. The card has a weekly value of 57.90 Pounds per person, which is just above half the lowest level of income support provided by the government to unemployed persons.85 This support for stateless persons and for those who cannot leave the uk will be changed under the 2016 Immigration Act, but it appears that they will still be able to access it, although the details are still unknown at the time of writing.86 In Spain, a temporary residence permit shall be issued on the condition that the applicant is not under an expulsion or mandatory departure procedure.87 However, the permit is not always issued, and in any case, the protection that it grants is limited, as it only confers the right to stay but neither the right to work nor any State’s support.88 The Regulation does not say anything regarding the right to certain reception conditions during the petition procedure, and the administration arbitrarily decides to grant it or not. There have been times when people requesting statelessness have not had any support and others in which, as it happens at the present time, they do but without any rule that states it.89 Removal from the territory is not explicitly prohibited in any of the three States while the procedure is pending.90 Furthermore, there are no specific provisions protecting stateless persons from immigration detention. Undocumented migrants are likely to be detained but released in Spain and Hungary upon making an application for statelessness and pending its outcome.91 In the uk, according to some anecdotal data, the ho will try to expedite applications 85

86 87 88

89 90 91

The amount of income support depends on the person’s circumstances. In case of no income, a person will receive at least 57.90 Pounds a week. GOV.UK, ‘Benefits, Income Support. 1. Overview’ (27 February 2017) accessed 9 March 2017. Home Office, ‘Reforming Support for Migrants Without Immigration Status. The New ­System Contained in Schedules 8 and 9 to the Immigration Bill’ (January 2016) para 5. Real Decreto 865/2001 (n 1) art 5; questionnaire reply from Cores (n 10). Valeria Cherednichenko, ‘Spanish Lesson Learnt: Theory and Practice of a Functional Statelessness Determination Procedure’ (Poster Presentation, First Global Forum on Statelessness, The Hague, September 2014); questionnaire reply from unhcr Officer (n 13). Questionnaire reply from Cores (n 10). Gyulai, ‘Statelessness in Hungary’ (n 6) 23. Telephone interview with Cores (n 4); questionnaire reply from Laura van Waas, Associate Professor, Tilburg University (Tilburg, The Netherlands, 14 January 2014); questionnaire reply from Paolo Farci, Immigration Lawyer (Florence, Italy, 27 November 2013); questionnaire reply from Claire Salignat, Immigration Lawyer, Forum Réfugiés (Villeurbanne, France, 15 January 2014); Jones (n 5); telephone interview with Alexandra Dubova, Immigration Lawyer, Organizace pro pomoc uprchlíkům, o.s. (Prague, Czech Republic, 2 January 2014).

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lodged by persons in detention.92 The problem is that information on how to make an application for statelessness is unavailable, and gathering documents is difficult in immigration detention centres, given the physical barriers. There are also no provisions on how decision-makers could identify stateless persons in detention.93 Both Hungary and Spain are signatories of the Return Directive, which sets out that immigration detention cannot last longer than 18 months.94 In Spain, the national legislation even shortens the time to a maximum of 60 days.95 In the uk, which opted out of the Return Directive, there is no time limit for administrative detention set by law, and its reasonable length depends on the facts of the individual case and criteria established by the case law.96 In particular, the Secretary of State can detain someone only if there are reasonable prospects of removal. If it becomes apparent that the removal is not possible within a reasonable period, then the detention becomes unlawful.97 However, persons who have difficulties establishing their nationality may be detained for extremely lengthy times.98 92 93 94

95 96

97 98

Author’s conversations with practitioners at the ‘Training on Statelessness Determination Procedures’ (n 16). Bianchini, ‘Protecting Stateless Persons from Arbitrary Detention in the United Kingdom’ (n 16) 19. Directive (ec) 2008/115 of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals [2008] oj L 348/89 (Return Directive) art 15. The Return Directive was entered into force on 16 December 2008. All States which are bound by the R ­ eturn Directive (all eu Member States except Denmark, Ireland and the uk, as well as the associated Schengen States – Switzerland, Norway, Iceland and Liechtenstein) are obliged to adapt their national legislation in accordance with the provisions of the Directive. As of 16 February 2017, 25 eu States or associated Schengen States had notified the Commission of their national transposition of the Directive. eur-Lex, ‘Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals’ accessed 16 February 2016; Hungarian Helsinki Committee, ‘Hungary’ (Asylum Information Database, 2016) 74 accessed 27 April 2017. accem, ‘Spain’ (Asylum Information Database, 2016) 53 accessed 27 April 2017. R (on the application of Lumba) v Secretary of State for the Home Department [2011] 12 (uksc); Cathryn Costello, ‘Immigration Detention Under International Human Rights and eu Law’ (2012) ijgls 19(1) 257. R (Hardial Singh) v Governor of Durham Prison [1983] ewhc 1 (qb); R (Lumba and Mighty) v Secretary of State for the Home Department [2011] 12 uksc. Bianchini, ‘Protecting Stateless Persons from Arbitrary Detention in the United Kingdom’ (n 16) 23–26.

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The lack of legal status with the attached right to work and/or adequate social support for applicants is a major gap in all frameworks, and legislative intervention would be required to ensure protection during this phase.99 7

Length of the Procedures

Spain and Hungary have stipulated an explicit deadline for first-instance decision-making in statelessness determination. In Spain, once the procedure is started, the oar informs the applicant that his evidence must be presented within 15 days.100 Upon conclusion of the investigative phase, the oar forwards its reasoned decision through the General Directorate of Foreigners and Immigration to the Ministry of Interior.101 The Ministry of Interior may reach a decision within three months.102 In total, the process should not take longer than six months. In practice, the length depends on the country of origin of the claimant.103 Before 2007, the average timeline to obtain a decision was about one year. Since 2007, after the Supreme Court decided on a number of cases in favour of stateless persons, the administration has been taking longer to make decisions, usually between one year and one year and a half but sometimes up to as long as three years.104 In Hungary, the procedural deadline to decide on a case is 45 days.105 However, if the oin approaches a foreign authority, the statelessness determination procedure is suspended. Under Hungarian administrative procedure law, this means that the ‘clock stops’ until a response is received. So, the oin can actually push the deadline at any time.106 In the uk, according to the ngo Asylum Aid, the ho aims at making decisions within six months.107 However, given the low number of processed cases (754 out of 1,592 applications between April 2013 and March 2016) and delays

99 100 101 102 103 104

Gyulai, ‘Statelessness in Hungary’ (n 6) 23. Real Decreto 865/2001 (n 1) art 9. Ibid art 10. Ibid art 11. Telephone interview with Cores (n 4). Questionnaire reply from Cores (n 10); sts de 27 de abril de 2012 (rj 2012/6407); sts de 20 noviembre 2007 (rj 2008/6615). 105 Act ii of 2007 (n 28) s 78(3). 106 Email from Gábor Gyulai, Refugee Programme Director, Hungarian Helskinki Committee, to author (11 October 2017). 107 Asylum Aid, ‘The uk’s Approach to Statelessness. Need for Fair and Timely Decisions’ (n 27) 3.

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up to three years,108 decisions are not reached in a timely manner.109 This appears to be due to the understaffed statelessness team in the ho.110 8

Decisions and Appeals

In all three States, the applicant receives a decision with a rationale, written in the official language.111 Administrative appeals are not possible against the refusal of first-instance decisions on statelessness cases. In the uk, unsuccessful applicants can apply for an internal administrative review, which is very limited in scope, as it focuses only on casework errors112 and is carried out by a team within the ho.113 Although in a different location and management chain from the caseworkers who had made the original immigration decision, concerns have been raised over the independence of the reviewers and the effectiveness of this remedy.114 The application for administrative review is free in statelessness cases, but it is problematic that an applicant may have to pay the fee and then request a refund.115 At the time of writing, examples of administrative review of refusals of statelessness applications are unknown.116 Accordingly, judicial review of rejected claims plays an important role in all three States. Generally, in a judicial review case, the court is limited to 108 Email from immigration Statelessness Review Unit, Complex Case Directorate, Home ­Office, to author (Liverpool, uk, 21 June 2016). 109 See also Asylum Aid, ‘The uk’s Approach to Statelessness. Need for Fair and Timely ­Decisions’ (n 27) 3–4. 110 ilpa and University of Liverpool Law Clinic (n 8) 68–69. 111 Real Decreto 865/2001 (n 1) arts 8–9. 112 ‘Casework errors’ include cases where the initial decision-makers applied the Immigration Rules incorrectly, failed to apply the Secretary of State’s published policy guidance or did not request specified documents. Immigration Rules Appendix ar: administrative review (hc 667 24 November 2016) AR2.11. 113 Ibid para AR1.1; Home Office, ‘Asylum Policy Instruction. Statelessness and Applications for Leave to Remain’ (n 3) para 6.5. 114 ilpa, ‘Comments to the Inspectorate of Borders and Immigration for the Inspection into Administrative Review’ (15 August 2014) accessed 9 July 2017; The Independent Chief Inspector, ‘An Inspection of Administrative Review Processes ­Introduced Following the 2014 Act. September-December 2015’ (2016). 115 ilpa and University of Liverpool Law Clinic (n 8) 73. 116 Ibid.

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­examining whether the original decision is lawful or not in light of the evidence that was presented before the original decision-maker.117 The National High Court in Madrid and the Metropolitan Court in Budapest have exclusive jurisdiction in these cases. Because of the limited number of claims, together with the special character of statelessness determination, these centralised and specialised judicial structures are able to accumulate specific expertise and deal efficiently with these matters. Additionally, these two courts have the power to both quash an administrative decision and decide on the claim for statelessness, thus expediting the length of time to reach a final decision.118 In Spain119 and Hungary,120 an additional safeguard is that there is an automatic right of judicial review. Unlike these two States, in the uk, the case must be filed with the Upper Tribunal, which is territorially competent, and the court must give permission to proceed.121 Furthermore, the court can only declare whether or not a decision is lawful but cannot substitute it with its own and, if necessary, must resend the case back for reconsideration to the Home Office.122 It should also be noted that in the uk, an application for judicial review may be refused if administrative review has not been exhausted.123 In Hungary, the main weakness of the judicial review system is the deadline to file the application, which is only 15 days within receipt of the decision.124 On the other hand, such deadlines are more reasonable in Spain (two months after the day of notification of the decision)125 and the uk (three months from the date of the act or omission that is being challenged, although there is an obligation on the person wishing to make an application to act promptly).126 117 The Law Society, ‘Immigration Judicial Review’ (13 January 2016) accessed 9 March 2017. 118 Act ii of 2007 (n 28) s 80(3); telephone interview with Cores (n 4). 119 Real Decreto 865/2001 (n 1) art 11. 120 Act ii of 2007 (n 28) s 80. 121 It should be noted that the High Court is competent to accept challenges to statelessness if there are other grounds which the Upper Tribunal does not have jurisdiction to consider, ie, challenging a statelessness decision with an unlawful detention claim. Email from Immigration Solicitor to author (London, 12 April 2017). 122 ilpa and University of Liverpool Law Clinic (n 8) 72–74. 123 Ibid 73. 124 Act ii of 2007 (n 28) s 80(2). 125 Ley 29/1998, de 13 de julio, reguladora de la Jurisdicción Contencioso-administrativa (BOE-A-1998-16718) [Law 29/1998 of 13 July regulating the Contentious-Administrative Jurisdiction (BOE-A-1998-16718)] art 46. 126 Home Office, ‘Administrative Review’ (6 April 2017) v 8.0 90.

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On the positive side, there are no filing fees to lodge a judicial review in Hungary127 and Spain,128 and the filing fee in the uk can be waived if the person is low-income or in receipt of legal aid.129 Moreover, in all three States, those required to attend a court hearing can have an interpreter free of charge.130 In specific cases, applicants can seek further review but are limited to legal issues: in Hungary and Spain with the respective Supreme Courts and in the uk with the Court of Appeals.131 Given the use of legal terms, formalities to comply with and the need to write in the local language, in these three States, it is relatively difficult to lodge a judicial review application or appeal. Judicial review cases and appeals are complex to prepare, and it would be difficult to proceed without legal representation. As a consequence, very few cases proceed to this stage. 9

Access to Legal Assistance and Advice

In States under category one, legal aid is of limited availability for applicants for stateless status. In the uk, free legal advice and representation are available for judicial review. At the administrative stage, the applicant’s solicitor can apply to obtain ‘exceptional case funding’ from the Legal Aid Agency.132 Few solicitors make such applications, in part because of lack of awareness and in part because it is necessary to undertake a significant amount of work which can be paid only if legal aid is granted. In any case, very limited remuneration 127 Act ii of 2007 (n 28) s 80(4). 128 In July 2016, the Constitutional Court declared several court fees as unconstitutional and eliminated them. sts de 21 de julio de 2016 (Rec 973/2013); Ley 10/2012, de 20 de noviembre, por la que se regulan determinadas tasas en el ámbito de la Administración de Justicia y del Instituto Nacional de Toxicología y Ciencias Forenses (BOE-A-2012-14301) [Law 10/2012 of 20 November which regulates certain fees in the area of the Administration of Justice and the National Institute of Toxicology and Forensic Sciences (BOE-A-2012-14301)]. 129 GOV.UK, ‘Get Help Paying Court and Tribunal Fees’ (24 February 2017) accessed 17 March 2017. 130 Telephone interview with Molnár (n 6); Gyulai, ‘Statelessness. Determination and the Protection Status of Stateless Persons’ (n 8) 21; telephone interview with Cores (n 4). 131 In Hungary, in specific cases, extraordinary review can be further sought with the Supreme Court, according to Act iii of 1952 on Civil Proceedings, ss 270, 340(2), in Spain with the Supreme Court, and in the uk with the Court of Appeals. Jones (n 5); telephone interview with Cores (n 4). 132 Legal Aid, Sentencing and Punishment of Offenders Act 2012 (as amended) para 10; GOV .UK, Legal Aid Agency, ‘Legal Aid: Apply for Exceptional Case Funding’ accessed 25 February 2017; ilpa and University of Liverpool Law Clinic (n 8) 37.

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becomes available.133 Under the 2013 Civil Legal Aid (Remuneration) Regulations, a fixed fee of 234 Pounds is paid for the whole case, unless it reaches the ‘escape fee’ threshold.134 To calculate this, at the end of the case, the legal adviser must multiply the number of hours spent on the case by the mandated hourly rate of 52.65 Pounds (London rates; outside London, the rate is 48.24 Pounds).135 If the tally is three times greater than the fixed fee, the escape fees apply, and the Legal Aid Agency should pay the standard hourly rates for all hours worked. Apart from solicitors, some ngos, such as Asylum Aid in L­ ondon and the Liverpool Law Clinic, take on representation in a limited number of statelessness cases.136 In both Spain and Hungary, there are free legal services, but it is difficult to find specialised lawyers.137 In Spain, many stateless persons are not represented at the administrative stage. In court cases, they must be represented and have the right to receive State-funded legal representation.138 Hungarian law is the most protection-oriented of all, as it expressly provides that the authorities have a duty to ensure that the applicant has access to legal assistance.139 Applicants are entitled to State-funded legal aid, including at the administrative stage, based on the simple declaration that they are in need of legal support.140 However, in practice, there are also problems in Hungary: legal aid does not cover translation and interpretation costs, which may seriously limit any ­actual communication between legal aid lawyers and their clients.141 In 133 Asylum Aid, ‘The uk’s Approach to Statelessness. Need for Fair and Timely Decisions’ (n 27). 134 Civil Legal Aid (Remuneration) Regulations 2013, sch 1, pt 2, table 4(a). 135 Ibid sch 1, pt 2, table 7(a). 136 Asylum Aid, ‘Asylum Aid and Statelessness’ accessed 9 March 2017; University of Liverpool Law Clinic, ‘Statelessness’ accessed 16 February 2018. 137 Questionnaire reply from Cores (n 10); questionnaire reply from Gábor Gyulai, Refugee Programme Director, Hungarian Helsinki Committee (Budapest, Hungary, 20 January 2014). 138 Ley 1/1996 de 10 de enero, asistencia jurídica gratuita (BOE-A-1996-750) art 2(a) [Law 1/1996 of 10 January on free legal assistance (BOE-A-1996-750) art 2(a)]; Constitución ­Española (BOE-A-1978-31229) art 119 [Spanish Constitution (BOE-A-1978-31229) art 119]: ‘La justicia será gratuita cuando así lo disponga la Ley, y, en todo caso, respecto de quienes acrediten insuficiencia de recursos para litigar’ (justice will be free when the law provides for it, and, in any case, for those who do not have sufficient resources to go to court); telephone interview with Cores (n 4); questionnaire reply from unhcr Officer (n 13). 139 Act ii of 2007 (n 28) s 77(3). 140 Act lxxx of 2003 on Legal Aid (unofficial tr), s 5. 141 The vast majority of lawyers in Hungary does not speak a foreign language. Questionnaire reply from Gyulai (n 137); Hungarian Helsinki Committee, ‘Regular Procedure’ (Asylum

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addition, the fee for legal aid lawyers is extremely low, making this activity significantly underpaid and unattractive for experienced lawyers.142 Finally, it seems that there is very little awareness among applicants for stateless status about the availability of State-funded legal aid. All of these factors result in applicants for stateless status infrequently using legal aid.143 As a consequence, they often turn to ngos and especially the Hungarian Helsinki Committee for free legal advice and representation.144 10 Statistics Very few cases for stateless status have been approved in all three States. In Spain, the following applications were recorded in past years. The majority of them was presented by Sahrawi people:145 2003: 98 2004: 107 2005: 46 2006: 34 2007: 26 2008: 832 2009: 51146 2010: 177; 3 recognitions 2011: 92; 5 recognitions 2012: 478; 266 recognitions 2013: 1,143; 266 recognitions147 2014: 1,334;148 377 recognitions149 2015: 1,151, no data available regarding recognitions at the time of writing.150 Information Database) accessed 3 May 2017. 142 Questionnaire reply from Gyulai (n 137). 143 Ibid. 144 Ibid. 145 Baroni (n 13) 381–433. 146 For applications between 2003 and 2009, see Gobierno de España, Ministerio del Interior, ‘Asilo en Cifras 2015’ (2016) 60. 147 emn, ‘Ad-Hoc Query on Recognition of Stateless Persons’ (2015) 41. 148 Comisión Española de Ajuda al Refugiado, ‘Informe 2016: Las Personas Refugiadas en España y Europa’ (2016) 76. 149 Ibid 145, 228. 150 Gobierno de España, Ministerio del Interior, ‘Asilo en Cifras 2015’ (2016) 5, 60; Comisión Española de Ajuda al Refugiado (n 148) 76.

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In summary, between 2003 and 2015, 5,568 applications were received and 1,011 were approved.151 By the end of 2015, 1,184 judicial decisions dealt with statelessness. The low number of recognised stateless persons is explained by the restrictive interpretation of the definition of ‘stateless person’, which will be discussed in Chapter 8, and the lack of guidance for its identification.152 The sharp increase in the number of applications, which reached 1,151 in 2015, was due to Sahrawis who have been struggling to obtain asylum and have been attempting to seek protection under the 1954 Convention in light of recent favourable judgments that were discussed in Section 5.4. In Hungary, the low number of applications was indicative of the lawfulstatus barrier that existed. Since the entry into force of the statelessness determination procedures on 1 July 2007 through 31 March 2016, 241 applications have been received. The recognition rate was 59 percent. By 31 March 2016, 142 individuals had been granted stateless status. Most of the accepted applications were made by persons from the former Soviet Union and the former Yugoslavia.153 As far as the uk is concerned, out of 1,592 applications between 9 April 2013 and 31 March 2016, only 39 individuals were granted stateless status and 715 were refused (5.2 percent success rate).154 11 Conclusion This chapter has shown that Hungary and the uk provide detailed, complex and formal stateless status eligibility procedures, with guarantees similar to those for refugee applications.155 They take into consideration the vulnerability and special needs of the stateless on several matters – for instance, regarding the right to have an interpreter at interviews and the regulation of the means of proof. The Hungarian statelessness determination procedure, in particular, has been in the international spotlight in recent years due to its protection-­ oriented provisions and has often been referred to as one exemplary model.156 151 Gobierno de España, ‘Asilo en Cifras 2015’ (n 150) 60. 152 Cherednichenko, ‘Spanish Lesson Learnt: Theory and Practice of a Functional Statelessness Determination Procedure’ (n 88); see Ch 8. 153 unhcr, ‘Good Pracices Paper – Action 6: Establishing Statelessness Determination Procedures to Protect Stateless Persons’ (2016) 12. 154 Email from immigration officer (n 108). 155 Molnár, ‘Statelessness Determination Procedure in Hungary’ (n 6) 271. 156 Molnár, ‘The Hungarian Constitutional Court’s Decision on the Compatibility of the Hungarian Statelessness Determination Procedure with International Law’ (n 79) 602.

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Only the ‘lawfully staying’ requirement as a precondition to apply for stateless status was heavily criticised by the unhcr and ngos. This requirement was recently removed in an important decision by the Constitutional Court, and it is hoped this approach will further discourage other States from introducing unreasonable restrictions.157 The uk has comprehensive provisions but significant problems concerning the standard of proof, which is not shared between the applicant and the decision-maker and requires one to prove a case to reasonable degree, the possible exclusion from protection for those who are admissible in a State of former residence and the difficulties in accessing legal aid. Spain, despite being considered by the existing literature as a good example,158 does not appear as such in light of the information gathered: one key aspect is that the law is not precise enough to fit an individual case, and officials have high levels of discretion available in assessing a claim. In particular, the provisions on burden and standards of proof do not provide enough guidance. Moreover, the one-month timeline to make the application, although not applied in practice if it is the only grounds to refuse a case, complicates access to protection and creates uncertainty of the law.159 Weaknesses in all three States are the failure to guarantee that administrative decision-makers are truly independent from politics, the lack of protection and adequate support while the application is pending and restricted rights of appeals. 157 Ibid 600. 158 Gábor Gyulai, ‘Statelessness in the eu Framework for International Protection’ (2012) 14 ejml 287, 291–92. 159 Ibid 292.

Procedures to Determine Statelessness under Category One Table 1

159

Essential procedural guarantees in States under category one

Centralised decision-maker? Suitable decision-makers? Joint statelessness/ asylum procedures? Temporary permit granted? Specific evidence rules? Right to individual interview? Right to interpreter? Written reasons for refusal? Specific legal ­barriers to apply? Length of procedures

What kind of ­review, if any? State-funded legal assistance?

Hungary

Spain

uk

No

No

Yes

Problems in practice No

Problems in practice No

Problems in practice No

No Yes

Yes (only right to No stay) No Yes

Yes

No

Yes

Yes

Yes, if refusal is considered Yes

Yes

Yes

Yes

Yes, lawful Yes, one-month status (declared timeline after unconstitutional) entry or expiry of stay No longer than No longer than 45 days but can six months but be extended if not complied foreign authori- with in practice ties are contacted Judicial review Judicial review Yes

Yes, on appeal

Yes, must not be admissible to the State of formal habitual residence No timeline set by law

Internal review and judicial review Yes for exceptional funding cases and judicial review

Chapter 6

General Standards to Determine Statelessness in States under Category Two 1 Introduction This chapter assesses to what extent the national legislations of France and Italy guarantee the essential procedural elements of justice that I indicated in my framework of analysis. It explains that in France and Italy, some provisions setting out general standards implementing the 1954 Convention that are found in national legislation and general administrative law and procedure apply to regulate the determination of statelessness. Due to this situation, administrators are left with wide discretion as far as the assessment of statelessness is concerned. Some judgments have filled the gaps of the legislations and have addressed the issues on a case-by-case basis. The chapter discusses that whereas in both States the courts can analyse the provisions of treaties duly ratified and invoked by an applicant, even though national legislation has not been adopted, the Italian civil courts show an approach more open to considering the international obligations of the 1954 Convention as part of their national legal system than the French administrative courts.1 However, in Italy, only recently has the case law contributed to clarify the issues at stake after several years of litigation, during which the courts were divided and sometimes delivered unclear messages. 2

Authorities Responsible for the Determination of Statelessness

In France and Italy, a centralised authority, with clear competence, is in charge of statelessness determination. In France, a procedure for the recognition of stateless status exists within the French Office for the Protection of Refugees and Stateless Persons (Office Français de Protection des Réfugiés et Apatrides – ofpra), which is an agency of the Ministry of Interior.2 Generally, lawyers and 1 It should also be noted that in France, the case law specifically addressing statelessness matters is rare and difficult to access, as most of it is not published. 2 Loi n° 2015-925 du 29 juillet 2015 relative à la réforme du droit d’asile art 6 [Law no 2015-925 of 29 July 2015 concerning the reform of the right of asylum art 6] (replacing the former Loi © koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004362901_008

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ngos raise concerns about the integrity of the ofpra’s legal decisions on the grounds that they are politically biased.3 They explain that whereas pressure is not exercised at the individual case level, the Ministry of Interior issues Circulaires, which have a strong influence on decision-makers’ interpretation of the law.4 Moreover, it is reported that inside the ofpra, there is little or no training on statelessness.5 In Italy, an implementing decree to the Nationality Law gives the Department for Civil Liberties and Immigration (Dipartimento per le Libertà Civili e l’Immigrazione) within the Ministry of Interior the authority to certify stateless status through an administrative procedure.6 Complex cases (i.e., if the applicant does not have the required documentation and the matter involves an examination of foreign legislation) must be addressed by the civil courts. The majority of the case law has recognised that an applicant may choose which procedure to start. There is no provision specifically setting forth the competence of the civil court, but the justification is arguably found in Article 2697 of the Civil Code, which gives the civil court general competence on matters of status.7 This is a very important guarantee, given that the administrative procedure takes a long time, which is incompatible with the need for protection.

n° 52-893 du 25 juillet 1952 relative au droit d’asile [Law no 52-893 of 25 July 1952 concerning the right of asylum]). Article 6 gives the ofpra the mandate to provide for the juridical and administrative protection of stateless persons. Within the ofpra, there are only three immigration officers dealing with statelessness claims, one of whom is part-time. emn, ‘Ad-Hoc Query on Recognition of Stateless Persons’ (2015) 14. 3 Clémence Armand, Droit d’Asile, au non de Quoi? Témoignage d’une Officière de Protection au Cœur de l’OFPRA (Editions Toute Latitude 2006); Jean-Philippe Dequen, ‘Constructing the Refugee Figure in France: Ethnomethodology of a Decisional Process’ (2013) 25(3) ijrl 449. 4 A circulaire is an instruction from a hierarchical administrative authority to inform its officers on the interpretation of a particular legislation or regulation. It has no binding value but is highly persuasive, especially to staff with no legal background. Dequen (n 3) 467. 5 Telephone interview with Lacene Magali, Solicitor and Legal Trainer, France Terre D’Asile (Paris, France, 27 December 2013). 6 dpr 12 ottobre 1993 n 572, Regolamento di esecuzione della legge 5 febbraio 1992 n 91 recante nuove norme sulla cittadinanza art 17 [Decree of the President of the Republic 12 October 1993 no 572, Implementing regulation to the Law of 5 February 1992 no 91, introducing new provisions on citizenship art 17]; Ministero dell’ Interno, ‘Certificazione della Condizione di Apolidia’ accessed 12 June 2017. 7 See eg App Perugia, 20.4.2004; Trib Prato, 14.1.1997; Trib Alessandria, 19.6.2002; Trib Lucca, 16.12.2002; Giulia Perin, ‘Lacune Normative ad Alto Costo Umano: l’Apolidia in Italia’ (2012) 3 Dir imm citt 70, 76.

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Furthermore, it requires one to satisfy the condition of lawful residence, which a stateless person can meet in very few cases.8 The main issue highlighted regarding the suitability of the Department for Civil Liberties and Immigration as an adjudicator is that it is understaffed, and this causes inefficiencies. Otherwise, decision-makers seem to look for a middle ground and strike a balance between, on the one hand, the demand for immigration control and, on the other, employers’ need to open the borders to foreign labour, as well as the humanitarian pressure exerted by the Catholic Church.9 3

Main Features of the Procedures

In both France and Italy, a person can make both an asylum and stateless status application simultaneously.10 The applications follow different paths, and the law does not indicate any preference for either of them.11 However, to protect asylum claimants, the authorities in charge of determining stateless status do not make contact with the State of origin until the asylum case is finally determined.12 In France and Italy, the application for stateless status must be made in writing and must satisfy a number of formal requirements. The ofpra website provides some information in French on how to claim stateless status and the applicable law.13 The applicant must write to the ofpra in Paris, providing biographic information and the reasons for seeking protection. The ofpra will reply, confirming that the application has been registered and asking the applicant to fill out and return a specific form.14 This form contemplates two 8 9

Ibid 76. Giovanna Zincone, ‘The Case of Italy’ in Giovanna Zincone, Rinus Penninx and Maren Borkert (eds), Migration Policymaking in Europe. The Dynamics of Actors and Contexts in Past and Present (Amsterdam University Press 2011) 247, 249, 278. 10 Emails from Giulia Perin, Immigration Lawyer, to author (20 and 21 March 2014); Forum Réfugiés, ‘Dublin ii. National Asylum Procedure in France’ (2009) 3. 11 In practice, an applicant may prefer to make an application for asylum first, given that he would be able to obtain greater protection than if he was granted stateless status. Emails from Perin (n 10). 12 Ibid. 13 Magali (n 5). 14 Upon request, the ofpra sends a stateless person the application form, which has to be filled out in the French language. In addition, the applicant is asked to attach two recent id photographs and, in the case of possession, travel document, civil status documents

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hypotheses. One is that the applicant has neither the nationality of his parents nor that of their State of birth. The applicant must explain the reasons for the lack of nationality in such scenarios. The other is that the applicant was deprived of his nationality. The reasons for this must be explained here, as well.15 The form states that the applicant has to bear the burden of proof and must prove not to have a legal bond with any State.16 Unlike in Italy, the application for stateless status cannot be made to the administrative tribunal, and the ofpra is solely competent.17 In Italy, in the procedure before the Ministry of Interior in Rome, the applicant is requested to submit a simple application form, enclosing a birth certificate, documentation certifying lawful residence and either documentation effectively demonstrating stateless status or a declaration to this effect by the Consulate of the State of origin or former residence.18 The Ministry of Interior may require additional documentation. The law does not provide any detailed guidance on what kind of documents may be adequate to discharge the burden of proof. Although there is no fee to pay to submit this application, all of the documents must be legalised, which means that the applicant incurs considerable costs. The applicant does not attend an interview, and the administration does not engage in any activities to assist him. The administration limits itself to certifying whether or not a person is stateless and reaches a decision on the papers provided.19 If a person does not have all of the documentation requested, the application is refused. For complex cases that do not fit within the administrative procedure, the competent civil court sitting in Rome has competence. The problem is that such a court may be difficult to reach for persons that live elsewhere in the

and a copy of a still-valid residency permit. The application has to be sent to the ofpra via ‘registered post with recorded delivery’. Décret n° 2015-1166 du 21 Septembre 2015 pris pour l’application de la loi relative à la réforme de l’asile art 23 [Decree no 2015-1166 of 21 September 2015 implementing the law on the asylum reform art 23]; République Française, Ministry of Interior, General Directorate for Foreign Nationals in France, ‘Guide for Asylum Seekers in France (gAS)’ (2015) 5 accessed 15 March 2017. 15 Denis Seguin, Guide du Contentieux du Droit des Étrangers (Lexis Nexis 2013) 21. 16 Ibid. 17 ce, 1 février 1999, n° 189527 inédit. 18 Ministero dell’Interno, ‘Certificazione della Condizione di Apolidia’ accessed 15 March 2017. 19 Paolo Farci, Apolidia (Giuffrè 2012) 347.

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country, creating a barrier to access the procedures.20 The exclusive competence of the civil court in Rome is justified by the fact that according to the general rules of civil procedure, the claim must be made against the Ministry of Interior as the opposing party, whose legal residence is in Rome and which determines the territorial competence.21 The difficulties that were encountered over the years concerning which proceedings to institute were tackled by the Court of Cassation in its sentence number 7614 of 4 April 2011, confirmed by sentence number 903 of 23 January 2012.22 This jurisprudence established that in the absence of relevant legislative provisions, the proceedings for statelessness status recognition should take the form of ordinary court proceedings, with the Ministry of Interior as a counter-party. So, on this matter, explicit legislative intervention setting out the competence of the civil courts in the place of residence of the stateless applicant would be needed to facilitate the pursuit of one’s case. Some information in Italian on the administrative procedure can be found on the Ministry of Interior’s website, but there is no official dissemination of information on the judicial determination of statelessness.23 As far as the right to present evidence in person is concerned, in France, the applicant is interviewed.24 Unlike in asylum cases, the applicant is not allowed to be accomanied by a lawyer.25 In Italy, this is not a possibility during the administrative procedure. Whereas the French regulation explicitly stipulates that the applicant has a right to the free-of-charge service of an interpreter at 20

21 22 23 24

25

In the context of asylum, the Cassation Court, in its judgment of 18 June 2004 number 11441, held that the application of general provisions on territorial competence as stated in Article 25 of the civil procedure code implies that the competent court is the one of the places of the respondent – i.e., the Central Administration of the State. Hence, this makes the Civil Court in Rome the competent court. Perin, ‘Lacune Normative ad Alto Costo Umano: l’Apolidia in Italia’ (n 7) 77–78. Farci cites the following decisions: Trib Milano, 28.7.2010 and App Perugia, 12.6.2008 in Farci, Apolidia (n 19) 363–64. Corte Cass 4.4.2011 n 7614; Corte Cass 23.1.2012 n 903. Ministero dell’Interno, ‘Certificazione della Condizione di Apolidia’ (n 18). According to the law, ‘[t]he office may summon the applicant to a personal interview. The applicant shall be heard in the language of his choice, unless there is another language which he understands and in which he is able to communicate clearly. Where the maintenance of the applicant requires the assistance of an interpreter, his remuneration shall be borne by the Office. The Office may conduct an interview using audiovisual media, under the conditions laid down in Article R. 723-9’ (translation by the author). Décret n° 2015-1166 du 21 Septembre 2015 (n 14) art 23. Questionnaire reply from Raphaële Bouniol, Immigration Lawyer (Paris, France, 11 July 2017).

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interviews,26 this is not the case in Italy: in the administrative procedures, an interpreter is not needed, as the applicant does not have to give oral evidence. In judicial proceedings, there is the right to be heard in a language understood by the claimant, but the government does not provide interpreters or translators at its own expense.27 The stateless person can bring an interpreter to the hearing.28 In cases of applicants with limited ties to the country or insufficient means, this is a problem, given that it may affect the right to effectively present one’s case.29 However, there are some associations of volunteers that may assist.30 4

Burden and Standard of Proof

As far as the burden of proof in Italy is concerned,31 in a 2015 judgment, the Italian Cassation court stated that the burden of proof for the stateless applicant has to be reduced, as the matter concerns fundamental human rights.32 This implies that the judge has the power and duty to search for relevant evidence to fill gaps or complement the evidence that was presented by the applicant. The Court clarified that the judge has to ask the competent foreign or Italian authorities for information and documents concerning the nationality status of the applicant and for the national regulations and practice on nationality. The enquiry not only must look at the formal laws but also has to take into consideration the whole situation of the applicant. This decision reverses a 2007 judgment, in which the Cassation Court had instead stated that the judge, in proceedings for the recognition of stateless status, does not have the duty to investigate the case.33 Moreover, the civil court in Rome, in a 2012 decision, held that the applicant can prove his statelessness on the basis of circumstantial evidence. Other cases have followed these judgments, recognising that it is inappropriate to apply 26 27 28 29 30 31 32 33

Magali (n 5). Telephone interview with Immigration Judge (Cagliari, Italy, 21 March 2017). Questionnaire reply from Paolo Farci, Immigration Lawyer (Florence, Italy, 27 November 2013). Stephen H Legomsky, ‘An Asylum-Seeker’s Bill of Rights in a Non-Utopian World’ (2000) 14 GeoImmigrLJ 619, 637. Immigration Judge (n 27). Perin, ‘Lacune Normative ad Alto Costo Umano: l’Apolidia in Italia’ (n 7) 77. Corte Cass 3.4.2015 n 4262. Corte Cass 28.6.2007 n 14918. A number of cases followed this Cassation Court decision, among which Farci cites the following: Trib Torino 2.2.2009; Trib Torino 10.11.2008; App Firenze, 12.4.2011. Farci, Apolidia (n 19) 378–79.

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general legal principles to the situation of the stateless.34 In France, the opposite applies, as the burden of proof remains on the applicant and the standard of proof is high: statelessness is not presumed, and the evidence must be sufficiently precise and reliable.35 The claimant has to provide evidence of the lack of a nationality, either documentary or by other means that clearly indicate statelessness.36 5

Formal Conditions to Make the Application

The administrative procedure in Italy requires the applicant to have lawful residence.37 Despite the law not specifying what ‘lawful residence’ means, the administration interprets it as holding both a residence permit and a certificate of residence.38 Therefore, it provides protection to a very small proportion of stateless persons. The judicial application must satisfy several formal prerequisites, and this would be practically impossible without the assistance of a lawyer. There are also court fees to pay, costs concerning serving documents upon the parties and those for obtaining translations and legalisation of documents, unless the applicant is in receipt of legal aid. Traveling expenses to the court remain obliged by the applicant, even if he is in receipt of legal aid. The administrative procedure in France does not require an applicant to meet any other formal prerequisites, such as timelines or lawful status.39 6

Protection of Applicants during the Procedures

During the Italian administrative procedure, it is possible to make an application to the competent Police Office (Questura) to obtain a temporary r­ esidence 34

Trib Roma, 24.6.2016; telephone interview with Giulia Perin, Immigration Lawyer (Padova, Italy, 6 December 2013). 35 Magali (n 5). 36 Ibid; emn (n 2) 14. 37 dpr 12 ottobre 1993 n 572 (n 6) art 17; Perin ‘Lacune Normative ad Alto Costo Umano: l’Apolidia in Italia’ (n 7) 72. 38 Only persons who have a regular residence permit can register in the lists of residents of the local town hall. Telephone interview with Perin (n 34); see e.g., Comune di Milano, ‘Iscrizione Anagrafica per Cittadini Stranieri Extra ue’ accessed 11 September 2017. 39 emn (n 2) 14.

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permit.40 In the Italian judicial procedure, the request for a temporary residence permit may be made to the judge who is in charge of the claim. In practice, such a request is usually approved when there are delays in reaching a decision.41 These temporary permits allow the individual to work and thus are particularly important for stateless persons, given the long times required to obtain a final decision. In France, by contrast, an applicant for stateless status does not receive any temporary permit or support services.42 Although this lack of protection during the procedures was subject to litigation, the courts decided that stateless persons are not entitled to a temporary residence permit (unlike refugees).43 As far as the possibility of immigration detention for stateless persons is concerned, in France, the maximum period set by law is 45 days,44 and in Italy, it is 90 days.45 In France, stateless persons are not protected from 40

41 42 43 44

45

dpr 31 agosto 1999 n 394, Regolamento recante norme di attuazione del testo unico delle disposizioni concernenti la disciplina dell’immigrazione e norme sulla condizione dello straniero a norma dell’articolo 1 comma 6 del DLgs 25 luglio 1998 n 286, come modificato dal regolamento approvato con dpr 18 ottobre 2004 n 334 [Decree of the President of the Republic 31 August 1999 no 394, Implementing regulation of the unified text on immigration law and foreigner status according to art 1 Section 6 of the Legislative Decree of 25 July 1998 no 286 as modified by regulation adopted with Decree of the President of the Republic 10 October 2004 no 334]; Circolare del 7 dicembre 2006, Ministero dell’interno, Dipartimento della pubblica sicurezza, Direzione centrale dell’immigrazione e della polizia delle frontiere (Prot n 400/C/2006/401948/P/14.201) art 11 (1)(c) [Circular of 7 December 2006, Ministry of Interior, Department of Public Security, Headquarter of immigration and border police (Protocol number 400/C/2006/401948/P/14.201) art 11 (1)(c)]. App Milano, 15.11.2012; Trib Roma, 6.7.2012; Perin (n 7) 75–76; European Migration Network (n 2) 19. Gábor Gyulai, ‘Statelessness in the eu Framework for International Protection’ (2012) 14 ejml 279, 291. Catherine-Amélie Chassin, ‘Panorama du Droit Français de l’Apatride’ (2003) 19(2) rfda 334. Loi n° 2016-274 du 7 mars 2016 relative au droit des étrangers en France art 6 [Law no 2016-274 of 7 March 2015 concerning the right of aliens in France art 6] (replacing former Code de l’entrée et du séjour des étrangers et du droit d’asile art L552-1 [Code of entry and stay of foreigners and of the right to asylum art L552-1]) art L552-1 as amended by law no 2016-274 of 7 March 2016; Forum Réfugiés, ‘Duration of Detention – France’ accessed 12 June 2017. DLgs 25 luglio 1998 n 286 art 14(5), Testo unico delle disposizioni concernenti la disciplina dell’immigrazione e norme sulla condizione dello straniero del come modificato dalla legge 161/2014 art 3 [Legislative Decree 25 July 1998 no 286 art 14(5), Unified text on immigration law and foreigner status as modified by law 161/2014 art 3]. However, asylum

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d­ etention, which can be decided in order to implement a possible order to leave the territory.46 However, it is not practice to detain persons whose nationality or identity is unclear.47 In Italy, although the procedures do not have a suspensive effect, stateless persons are allowed to stay in the country until a decision is finally made and are not usually detained during the statelessness determination procedures.48 Without getting into details, immigration detention is subject to the close monitoring and generally to the prior authorisation of a judicial body in both States.49 One problem is that information on how to make an application for statelessness in detention is not normally available. 7

Length of the Procedures

The times to obtain a decision on a stateless claim are quite lengthy, but this is a problem of both the French and Italian administrative and justice systems in general.50 In France, the average time is half a year.51 In Italy, a decree by the Ministry of Interior sets that the administrative procedure has to be concluded within 350 days. This timeline can be extended up to 895 days if the Ministry of Interior seeks the opinion of a foreign embassy or of the Ministry of Foreign Affairs in order to establish that the person does not hold a particular nationality.52 In the past, some cases have been pending for longer than nine years.53

46 47 48 49

50 51 52

53

seekers can be detained up to 12 months. Decreto legge 142/2015 art 6(8) [Law Decree 142/2015 art 6(8)]. Questionnaire reply from Claire Salignat, Immigration Lawyer, Forum Réfugiés (Villeurbanne, France, 15 January 2014); République Française, Ministry of Interior (n 14). Email from Immigration Lawyer, Groupe d’ Information et de Soutien des Immigreés, to author (Paris, France, 11 June 2017). Questionnaire reply from Paolo Farci, Immigration Lawyer (Florence, Italy, 27 November 2013); Salignat (n 46). Immigration Lawyer (n 47); Associazione per gli Studi Giuridici sull’ Immigrazione, ‘Duration of Detention – Italy’ accessed 12 June 2017. Romuald Likibi, Le Droit de l’Apatride (Publibook 2013) 295, 303. Email from Immigration Lawyer, Groupe d’Information et de Soutien des Immigreés (n 47); Bouniol (n 25). dm dell’Interno 18 Aprile 2000 n 142 Tabella A [Ministerial Decree of the Ministry of Interior 18 April 2000 no 142 Table A] 46; Perin, ‘Lacune Normative ad Alto Costo Umano: l’Apolidia in Italia’ (n 7) 76. Perin, ‘Lacune Normative ad Alto Costo Umano: l’Apolidia in Italia’ (n 7) 76.

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At present, on average, the Ministry of Interior makes a decision within one year from the start of the proceedings. The judicial proceedings before the civil court in Rome usually last less than one year.54 8

Decisions and Appeals

In France, the applicant has the right to receive a written decision in French, which either grants status or outlines the legal and factual reasons for refusal.55 Most frequently, the ofpra merely affirms that the applicant is not registered as a national anywhere and that his nationality is unknown.56 It is possible to make an appeal against the ofpra’s negative decision to the administrative court of the place of residence (tribunal administratif) within two months. An onward appeal can then be lodged with the Administrative Appeal Court (Cour Administrative d’Appel). In this case, the appellant must argue that the decision of the administrative tribunal is not well founded and cannot present the same argument that he had made before.57 Finally, it is possible to appeal to the Council of State (Conseil d’Etat) only regarding legal issues and exact application of facts. The appeal must be made according to precise requirements set by law. For instance, if the appeal is not signed by a lawyer, it cannot be filed.58 These appeals are non-suspensive, and the Council of State has clarified that litigation on stateless status can only be made on the grounds that the administrative authority has abused its powers.59 Moreover, all administrative courts can only quash decisions but are not entitled to rectify them.60 If necessary, the courts will send the case back to the ofpra for a new assessment. By contrast, asylum cases have more favourable provisions: the National Asylum Court (Cour Nationale du Droit d’ Asile), a specialised court, is competent in dealing with judicial review, and besides quashing the administrative decision, it has the power to grant protection.61 54 55 56 57 58 59 60 61

Questionnaire reply from Giulia Perin, Immigration Lawyer (Padoa, Italy, 24 March 2017). Loi n° 2015-925 du 29 juillet 2015 (n 2) art 6. Seguin (n 15) 21. Chassin, ‘Panorama du Droit Français de l’Apatride’ (n 43) 327. Ibid 328. ce, 22 julliet 1994, n° 144859; Catherine-Amélie Chassin, ‘Guide du Contentieux du Droit des Etrangers’ (Lexis Nexis 2013) 23. Likibi (n 50) 297–99. Gyulai (n 42) 290.

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It may take several years to go through all of the procedures and obtain a final decision from the Council of State.62 Regarding the effectiveness of the French administrative courts in reviewing statelessness claims, Peter Cane raises the issue that ‘[a]dministrative adjudication is the exclusive province of a set of “public law” institutions that are unsupervised by “private law” courts’.63 These ‘adjudicative institutions are staffed by public administrators, and they are understood to be part of the executive branch of the government’.64 Concerning the Council of State in particular, John Allison underlines that it seems to have judicial independence only in the limited sense of the absence of direct interference by the administration in individual cases.65 More generally, other scholars note that French judges are reluctant to apply international law, because they consider themselves to be servants of French law and are concerned with going beyond their competence and breaching the principle of separation of powers. According to the French democratic tradition and despite the Constitutional provisions favourable to international law, national law is considered the expression of the popular will and is treated as supreme.66 As far as Italy is concerned, the applicant receives a decision with a rationale in the judicial proceedings. If the court recognises the statelessness of the applicant, it will issue a decree and notify the competent Questura. The latter, in most cases, will issue a residence permit.67 In the administrative procedures, the applicant only receives a very short decision summarising the reasons for refusal. As about two-thirds of the cases are refused on the grounds that the applicant does not have legal status, the rationale often consists of stating that the applicant does not meet this condition.68 The case law has clarified that there is no right to appeal against the negative decision of the Ministry of

62

Email from Immigration Lawyer, Groupe d’Information et de Soutien des Immigreés (n 47). 63 Peter Cane, Administrative Tribunals and Adjudication (Hart Publishing 2009) 90. 64 Ibid. See also Likibi (n 50) 297–99. 65 John Allison, A Continental Distinction in the Common Law: a Historical and Comparative Prospective of English Common Law (5th edn, oup 1996) 142. 66 Virginia Leary, International Labour Conventions and National Laws (Springer 1982) 47; Jacqueline Hodgson, ‘Human Rights and French Criminal Justice: Opening the Door to Pre-Tribal Defence Rights’ in Simon Halliday and Patrick Schmidt (eds), Human Rights Brought Home: Socio-Legal Perspectives on Human Rights in the National Context (Hart Publishing 2004) 185. 67 Telephone interview with Perin (n 34). 68 Ibid.

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­Interior.69 Consequently, in cases of a negative decision, the person can only present a new request for recognition of stateless status to the civil court in Rome. Should the civil court in Rome refuse the claim, an appeal can be made within 30 days70 to the Court of Appeal (Corte d’ Appello) in Rome, which could either confirm the decision or quash it and reach a different outcome. A further appeal is possible within 60 days to the Cassation Court (Corte di Cassazione) but only for matters relating to the correct application of the law.71 All of the courts in Italy are independent from the Government.72 Deviating from the judicial practice in France, despite the rank that international treaties have in the Italian legal system, case law and doctrine have tried to recognise their supremacy in all matters over domestic law.73 In particular, the courts have used the principle of ‘consistent interpretation’, which imposes the obligation to interpret national law in conformity with international treaty law. Therefore, when a court applies domestic law, it is bound to interpret that law, so far as possible, in light of the wording and purpose of the international treaty concerned in order to achieve the result sought by the treaty and to avoid conflict with it.74 9

Access to Legal Assistance and Advice

State-funded legal assistance is available in both States for court proceedings, subject to meeting income and lawful residence requirements.75 In particular, 69 70 71 72 73 74

75

Corte Cass, 9.12.2008 n 28873, later confirmed by subsequent decisions. Questionnaire reply from Paolo Farci, Immigration Lawyer (Florence, Italy, 27 November 2013). Codice di procedura civile, 28 ottobre 1940 n 253 (come modificato) art 325 [Code of civil procedure, 28 October 1940 n 253 (as amended) art 325]. Ibid art 325; Corte Suprema di Cassazione, ‘Le Funzioni della Corte di Cassazione’ accessed 12 June 2017. Mario Fantacchiotti, La Responsabilità Disciplinare nelle Carriere Magistratuali (Giuffrè 2010) 248–49. See Ch 1, s 4. However, this obligation is limited by the general principles of law, particularly those of legal certainty and non-retroactivity, and it cannot serve as the basis for an interpretation of national law contra legem. Giuseppe Cataldi, ‘Italy’ in Dinah Shelton, International Law and Domestic Legal Systems: Incorporation, Transformation, and Persuasion (opu 2011) 346–47. Loi n° 91-647 du 10 juillet 1991 relative à l’aide juridique (modifié par Loi n° 99-515 du 23 juin 1999 – art 5 jorf 24 juin 1999) arts 2–3 [Law no 91-647 of 10 July 1991 on legal aid (as modified by law no 99-515 of 23 June 1999 art 5 jorf 24 June 1999) arts 2–3]; Salignat

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in Italy, by law, a stateless person has the right to receive legal aid if he resides lawfully in the territory of the State.76 Nevertheless, the majority of the case law also extends this right to persons with unlawful status. In these cases, to access legal aid, the person is exempt from providing a number of documents, such as the Italian Tax Code for himself and his family. The Constitutional Court held that in these cases, it is sufficient that the person states on his application for legal aid his name, last name, place and date of birth and State in which he is normally liable to pay taxes.77 The main problems concern the availability and quality of legal aid, which vary considerably, depending on the region where an applicant resides.78 However, this is mitigated by the general principle that judges have a duty to investigate cases. Judges would normally assist a claimant to establish his case when a lawyer does not provide adequate representation.79 In addition, in many Italian cities, caritas, trade unions and other organisations attempt to fill the gap in legal assistance and help immigrants in administrative procedures. Free information is also given at the various offices that are set up to assist immigrants (uffici stranieri or sportelli immigrati), established by almost all 8,000 Italian municipalities.80 However, it is reported that many stateless persons are often not aware of the possibility to apply for stateless status.81 In France, applicants for stateless status who do not have a residence permit are excluded from legal aid for their appeal procedure, as the relevant provision only foresees this right for lawfully and habitually resident third-country nationals.82 Applicants for stateless status, unlike asylum seekers, are not mentioned among the exceptions from this rule, and most of them are therefore not eligible for the State’s free legal representation. However, if the applicant is placed in detention or wishes to challenge an expulsion order, the residence permit requirement is not applicable, and he can therefore benefit from legal

76

77 78 79 80 81 82

(n 46); Katia Bianchini, ‘Legal Aid for Asylum Seekers: Progress and Challenges in Italy’ (2011) 24(2) jrs 390. dpr 30 maggio 2002 n 115, Testo unico delle disposizioni legislative e regolamentari in materia di ‘spese di giustizia (Testo A)’ art 90 [Decree of the President of the Republic 30 May 2002 no 115, Unified text of laws and regulations in matter of ‘judicial expenses (Text A)’ art 90]. Corte Cost, 14.5.2004 n 144. Bianchini (n 75) 390. Immigration Judge (n 27). These are dedicated offices that provide advice to immigrants. Telephone interview with Perin (n 34). unhcr (n 81) 4. Loi n° 91-647 du 10 juillet 1991 (n 75) art 3.

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aid to challenge the detention or expulsion decision.83 Another exception is allowed when an applicant’s situation seems ‘worthy of special interest in view of the subject of the dispute or the probable costs of the proceedings’.84 In all French cities, there are centres that provide legal advice (points d’access au droit)85 and that may assist in writing the letter to request the application form from the ofpra, filling out the application form and referring clients to legal aid lawyers. The expertise and quality of lawyers vary from centre to centre.86 There are also a few ngos that attempt to address some unmet legal needs.87 10 Statistics In France, very few statelessness applications are submitted compared to the number of asylum applications. The approval rate of statelessness applications is approximately 30 percent.88 According to published statistics, 157 new applications were made in 2011, 163 in 2012, 227 in 2013 and 272 in 2014. A total of 51 cases were approved in 2011, 55 in 2012, 66 in 2013 and 42 in 2014.89 It appears that over the last 10 years, most of the applications were made by persons born in Europe (64.3 percent) and especially in the former Soviet Union (37.1 percent) and former Yugoslavia (18 percent). In 2014, 13.6 percent of the applicants were born in Africa, 10.3 percent in Asia and 9.6 percent in the Middle East.90 In Italy, from 1998 to 2011, 640 applications were made through the administrative procedures, of which only six were approved.91 More updated public figures are unavailable. There are no statistics on cases of statelessness decided by the Italian courts, as there is no special system for their registration. The Italian Statistical Institute recorded a total of 596 stateless persons living in Italy as of 1 January 2013. The main groups of stateless persons are Roma and their descendants, followed by persons from former Soviet Union 83

Salignat (n 46); Group d’Information et de Soutien des Immigrées, ‘Comment Bénéficier de l’Aide Jurisdictionnelle’ (2014) 6–7. 84 Loi n° 91-647 du 10 juillet 1991 (n 75) art 3; Bouniol (n 25). 85 Magali (n 5). 86 Ibid. 87 Ibid. 88 badil, Resource Center for Palestinian Residency and Refugee Rights, Closing Protection Gaps: Handbook on Protection of Stateless Palestinian Refugees in States Signatories to the 1951 Convention (2nd edn, 2015) 131. 89 emn (n 2) 15. 90 Ibid. 91 Perin, ‘Lacune Normative ad Alto Costo Umano: l’Apolidia in Italia’ (n 7) 76.

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c­ ountries, Palestine, Tibet, Eritrea and Ethiopia.92 According to other sources, there are an estimated over 15,000 stateless persons in Italy.93 11 Conclusion The existing provisions to determine statelessness in States under category two do not guarantee all essential elements of justice in the procedures. Several gaps in the national legislations remain, especially regarding the burden and means of proof, the treatment of applicants during the procedures and the difficulties in accessing legal aid. Moreover, decision-makers have high levels of discretion available in assessing a claim, which causes unpredictability and uncertainty of the law. In France, concerns have been raised regarding the ofpra’s independence from the government. The courts have addressed a few key issues regarding the determination of statelessness, but they have not always secured effective implementation of the 1954 Convention. For instance, it is significant that the administrative courts have held that applicants for stateless status do not have the right to a temporary residence permit while their cases are pending, l­ eaving them in a precarious situation during the time necessary to reach a decision. Moreover, it is reported that the administrative courts tend to be deferential to the administration and thus do not engage in an objective review of the decisions.94 More generally, judges lean towards avoiding the application of international law, despite its superior position in the hierarchy of legal sources.95 As far as Italy is concerned, some aspects of the legislation, such as the additional documentation that decision-makers may request to discharge the burden of proof, lack clarity and transparency. The suitability of decisionmakers in the administrative procedure does not emerge as a key problem, and the focus of the critiques is rather the text of the legislation, which does not set clear rules and which imposes the requirement of lawful stay to lodge 92 93

94 95

emn (n 2) 20. unhcr, ‘unhcr Recommendations on the Relevant Aspects of the Protection of Stateless Persons in Italy’ (October 2014) 1; Senato della Repubblica, xvii Legislatura, ddl n. 2148, Disposizioni concernenti la procedura per il riconoscimento dello status di apolidia in attuazione della Convenzione del 1954 sullo status delle persone apolidi (26 Novembre 2015) 4 [Senate of the Republic, xvii Legislature, Draft Law number 2148, Provisions on the procedure to identify stateless persons implementing the 1954 Convention Relating to the Status of Stateless Persons (26 November 2015) 4]. Likibi (n 50) 298. See Ch 1, s 4.

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an application. The case law has clarified that an application for recognition of stateless status can also be made, regardless of a claimant’s immigration status, to the civil court in Rome. In this case, general principles of civil procedure apply, which may not be sufficient to meet the special needs of the stateless (for instance, interpreters are not guaranteed). However, the courts have provided explicit guidance on some issues, such as those concerning the competent court in dealing with these cases and the burden of proof, and since 2012, they have shown a protection-oriented approach that follows the unhcr Handbook. In Italy, the problems connected to the existing legal framework have spurred the proposal of new legislation. On 26 November 2015, a bill was submitted to the Senate to introduce a new procedure for determining the status of stateless persons. The proposed legislation has been drafted, taking the u ­ nhcr Handbook standards into consideration, along with other recommendations presented by civil society organisations. In particular, the new bill makes the Prefectures (territorial government offices) competent to receive the applications. Anyone who is in Italy, even if he is residing irregularly, will be able to present his application and receive a residence permit pending the outcome of his case. The burden of proof is lowered, and applicants will be able to prove their case through a variety of documents, including self-certifications.96 The draft legislation is protection-oriented and tries to remove all obstacles to accessing the procedures and increase efficiency, organisation and transparency. One problem that can be identified is that applicants will not be able to access State-funded legal representation.97 Moreover, it remains to be seen if it will be approved and how it will be implemented. 96 97

Senato della Repubblica (n 93). Email from Paolo Farci, Immigration Lawyer, to author (Florence, 22 March 2017).

176 Table 2

Chapter 6 Essential procedural guarantees in States under category two

Suitable decision-makers? Joint statelessness/­ asylum procedures? Specific evidence rules for stateless persons? Right to individual interview? Right to interpreter? Formal conditions to make an application? Written reasons for refusal? Temporary permit pending the procedure? Length of procedures

Right of review? State-funded legal assistance?

France

Italy

Concerns about the lack of independence of the ofpra No detailed ­provisions. Possible in practice No

Administration is understaffed

Yes

Yes No Yes No

No detailed provisions. ­Possible in practice Yes, clarified by case law in the judicial procedures Not for the administrative procedure. Yes, right to a hearing in judicial procedure No Yes, lawful residence in the administrative procedure Yes

Yes, in the administrative procedure. Usually yes, in the case of delays in the judicial procedure Not set by law. ­Usually The administrative proce1 or 1 and 1/2 years dure must be concluded within 350 days (extendable up to 895); judicial procedures may take about 1 year Yes. Concerns about Not for administrative proeffectiveness of cedure. Yes, for the judicial ­administrative appeals procedure No, unless legally Yes, for the judicial proceresiding dure and on appeal

Chapter 7

Procedures and Practice in States with No Provisions to Identify Stateless Persons – States under Category Three 1 Introduction This chapter discusses that in the Czech Republic, Germany, Greece, the Netherlands and Sweden, there are no specific legislative or regulatory provisions to determine statelessness. In these States, which are grouped under category three, the question of statelessness often arises when a person’s asylum claim is rejected and permission to remain is sought on other grounds. The issue of statelessness may also come up, although less frequently, in the context of naturalisation, for persons who are lawful residents and travel document applications. For instance, in Greece, statelessness is considered by Article 26 of the Law on Greek Citizenship, which deals with cases of disputed nationality.1 As these States have not adopted any legislation on specific statelessness determination procedures, it also follows that there are no designated ­decision-makers specifically dealing with cases of the status of stateless ­persons.2 Possibly because there is no specific procedure for the determination of statelessness, in these States, the authorities tend not to issue a specific decision on the question of whether the individual is stateless. Immigration procedures in these States ensure some general guarantees,3 but to what extent they actually provide protection in light of the special needs of stateless persons is questionable and is analysed in the following sections. In Greece, particular concerns arise regarding access to procedures and

1 Questionnaire reply from Erika Kalatzi, Immigration Lawyer (Athens, Greece, 22 December 2013). 2 For instance, in Germany, the local Aliens Offices make determinations on residence permits and 1954 Convention Travel Documents. §1 Abs 4, §4 Abs 1 Satz 4, §5 Abs 1 Aufenthaltsverordnung (AufenthV) vom 25. November 2004 (BGBl 2004 i, 2945), zuletzt geändert durch Artikel 1 der Verordnung vom 1.08.2017 (BGBl 2017, 3066) [Residence Regulation]. 3 Carol A Batchelor, ‘The 1954 Convention Relating to the Status of Stateless Persons: Implementation within the European Union Member States and Recommendation for H ­ armonization’ (2004) 22(2) Refuge 41.

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004362901_009

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­protection for all irregular migrants, not only stateless persons.4 The situation has worsened following the mass influx of refugees into the country, and it is reported that there are problems concerning undocumented migrants in general, who face arrest and deportation rather than protection.5 2

Grounds to Obtain Lawful Status for Stateless Persons

Analysing all forms of stay for which a stateless person could potentially qualify is beyond the scope of this book. Besides the possibility of obtaining status under the Refugee Convention, stateless persons may remain on other grounds. For instance, they may be able to stay if they face serious harm, as expressed in Article 2(f) of the Qualification Directive: a third-country national or a stateless person is ‘eligible for subsidiary protection’,6 if there are substantial grounds for believing that the person concerned, if returned to the country of origin, or in the case of a stateless person, to the country of former habitual residence, would face a real risk of suffering serious harm and is unable or, owing to such risk, unwilling to seek the protection of that country.7 In other cases, they may be allowed to remain on compassionate grounds, such as age, health or family ties, which may be linked to an international protection need, such as under Article 3 or 8 of the European Convention on Human Rights.8 In addition, they may stay for practical reasons, including the inability to obtain travel documents. This book only explores provisions of residence permits that may be obtained because it is impossible to leave the 4 See e.g., Leonidas K Cheliotis, ‘Punitive Inclusion: The Political Economy of Irregular Migration in the Margins of Europe’ (2017) 14(1) EurJCriminol 81–83, 89–91. 5 Ibid 90. 6 Directive (eu) 2011/95 of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection and for the content of the protection granted (recast) [2011] oj L 337/9-337/26, art 2(g). 7 Ibid art 2(f). Complementary forms of protection have already been the subject of several studies. See e.g., Ruma Mandal, ‘Legal and Protection Policy Research Series. Protection Mechanisms Outside of the 1951 Convention (“Complementary Protection”)’ PPLA/2005/02 (unhcr 2005); Jane McAdam, ‘Complementary Protection and Beyond: How States Deal with Human Rights Protection’ (2005) Sydney Law School Research Paper No 06/18, New Issues in Refugee Research Working Paper No 118; McAdam Complementary Protection in International Refugee Law (oup 2007). 8 Mandal (n 7); McAdam, ‘Complementary Protection and Beyond’ (n 7).

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country due to practical obstacles, as stateless persons often find themselves in such a situation. These provisions do not technically constitute implementation of the 1954 Convention, since they are not based on the States’ international obligations. Their chief function is to provide a practical measure for those that cannot be removed. Applications for a residence permit on the grounds that it is impossible to leave the country can be made in the Czech Republic, Germany, the Netherlands and Sweden but not in Greece. What such applications have in common is that they require applicants to prove that they have made all possible attempts to leave and obtain their documents. Specifically, in Germany, the provisions that are relevant to stateless persons are those concerning the ‘suspension of deportation’ or ‘toleration’ certificate (Duldung)9 and the temporary residence permit for obstacles to leaving the country (Aufenthaltserlaubnis).10 Toleration is mainly issued to failed asylum seekers who are unwilling or unable to leave the country.11 Pursuant to ­Section 60a Paragraph 2 of the Residence Act, the local Aliens Office can issue a toleration certificate if the deportation of an individual is impossible on legal or factual grounds. Factual grounds include undetermined identity and/or nationality,12 statelessness,13 lack of a passport14 and lack of cooperation of the State of origin15 or of the existence of an entity as a State under international 9

10 11

12 13

14 15

§60a Abs 2 Aufenthaltsgesetz (AufenthG) vom 25.02.2008 (BGBl 2008 i, 162), zuletzt g­ eändert durch Artikel 10 Absatz 4 des Gesetzes vom 30.10.2017 (BGBl 2017 i, 3618) [Residence Act]. §7 Abs 1 ibid. §60a Abs 2 ibid; Katia Bianchini, ‘On the Protection of Stateless Persons in Germany’ (2014) 19(1–2) tlr 42; telephone interview with staff member of the Department ‘Project Q – Qualified Refugee Advice’, Non-profit Association for the Support of Asylum Seekers (Projekt Q – Qualifizierung der Flüchtlingsberatung, Gemeinnützige Gesellschaft zur Unterstützung Asylsuchender e.V.) (Münster, Germany, 14 March 2014). BVerwG, Urteil v 21.03.2000 – 1 C 23.99; olg Frankfurt am Main, Beschluss v 30.06.2000 – 1 Ws 106/00. 60a.2.1.2.5 Allgemeine Verwaltungsvorschrift zum Aufenthaltsgesetz (AufenthG-VwV) vom 26.10.2009 (GMBl 2009, 878) [General Administrative Regulation for the Residence Act]. 60a.2.1.2.2 ibid; Kay Hailbronner, Asyl- und Ausländerrecht (4th edn, W Kohlhammer 2017) Rn 1248. For instance, several stateless Palestinians from Lebanon cannot be deported or leave the country on a voluntary basis due to the missing cooperation of the Lebanese embassies, even if a readmission agreement is in place. vg Berlin, Urteil v 25.08.2011 – 35 K 202.11. There are only very few cases where stateless Palestinians have been able to obtain travel documents. ovg Berlin-Brandenburg, Urteil v 25.11.2014 – 3 B 4.12.

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law.16 Lack of cooperation on the part of the applicant to clarify his identity or nationality is not a bar from obtaining a toleration certificate, although it will likely prevent a residence permit from being issued.17 According to Section 25 of the Residence Act, a person becomes eligible to obtain a ­temporary residence permit when (1) his departure is impossible in fact or in law, (2) the obstacle to deportation is not likely to be removed in the foreseeable future,18 (3) he is not responsible for such obstacles and (4) he actively cooperates in the process of obtaining any documents necessary to leave.19 In the Netherlands, stateless persons who are unable to return to the country of origin and whose asylum application has been rejected may apply for a residence permit under the ‘no-fault’ procedure (buitenschuldbeleid) to the Immigration and Naturalisation Service (Immigratie en Naturalisatie Dienst – ind).20 These permits were introduced with the aim of legalizing stateless persons but then were also applied to other individuals who claimed not to be able to leave the country.21 However, even if statelessness is accepted, a no-fault residence permit is not automatically granted,22 as there are other burdensome requirements to satisfy, which are further discussed in Sections 4 and 5. In Sweden, the Swedish Migration Agency (sma) is the body responsible for assessing the protection needs of stateless persons, but it lacks clear instructions on how to deal with them. The sma may grant a temporary or permanent residence permit if there is the impossibility to return, according to Chapter 12, Section 18 or Section 19 of the Aliens Act.23 Section 18 provides that a residence 16

17

18 19 20 21 22 23

See BVerwG, Beschluss v 29.06.1998 – 9 B 604/98; vgh Baden-Württemberg, 30.07.1997, InfAuslR 1998, 18; vgh Baden-Württemberg, v 3.11.1995, DVBl 1996, 2996; vg Hamburg, 31.08.1995, InfAuslR 1996, 65. BVerwG, 25.09.199, BVerwGE 105, 232; BVerwG, 24.11.1998, BVerwGE 108, 21; vg Braunschweig, 3.02.1999, InfAuslR 1999, 461; a contrary position, however, was taken in vg Mainz, AuAS 1999, 244. Bianchini (n 11) 43. Hailbronner (n 14) Rn 554. §25 Abs 5 AufenthG (n 9); 25.5.4.2 AufenthG-VwV (n 13). unhcr ‘Mapping Statelessness in the Netherlands’ (2011) 43–44. Ibid 18, 42. Questionnaire reply from Laura van Waas, Assistant Professor, Tilburg University (Tilburg, The Netherlands, 14 January 2014). The Aliens Act is accompanied by an implementing regulation – the Aliens Ordinance (2006) – which does not refer specifically to stateless persons other than in relation to travel documents. (sfs 2005: 716) Utlänningslag [Aliens Act]; (sfs 2006: 97) Utlänningsförordning [Aliens Ordinance]. A person may also be granted subsidiary protection according to Chapter 2(a) of the Aliens Act, which sets forth a provision for protection in the case that there is a possibility of severe disturbances in the country of origin.

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permit may be granted, after the final decision on asylum and an expulsion order has been made and when new circumstances that entail hindrance to return to the country of origin arise. For instance, this would be the case when the State of origin is unwilling to receive the person back. Applicants must show that they did everything possible to leave the country (i.e., they went to their embassy and were not given travel documents)24 and that the impediment to removal does not depend on their lack of cooperation.25 Section 19 of the Aliens Act is less useful in the context of statelessness, as it refers to the possibility of applying for a residence permit when new circumstances for protection arise after the final decision on asylum and could not be invoked before. In the Czech Republic, visas for exceptional leave to remain (also called ‘tolerated stay’) are granted by the Department for Asylum and Migration Policy (damp), within the Ministry of Interior, to foreign nationals when obstacles beyond their control prevent them from leaving the country or when departure is impossible because they would face danger of real harm in the country of origin.26 Since 2015, the law has allowed the Asylum Act mechanisms for refugee status determination also to be used for claims under the 1954 Convention.27 There is no specific guidance as far as the procedure to follow is concerned, and only stateless persons who fear being forced to return to their last country of residence or origin, where statelessness could in some cases result in very serious difficulties for them, can request assistance. Thus, if an applicant requests stateless status, the damp tries to assess the nationality or lack of nationality, applying practices similar to those used in asylum procedures.28 To date, it remains unclear what status and rights a person would be granted upon recognition of statelessness.29 One informant stated that only a few applications have been made in 2017 and that there have been no decisions yet.30 According to the explanatory memorandum to the legislative amendment, it is assumed that such applications are very rare; thus, there is no need to create 24 farr, ‘Good Advice for Asylum Seekers in Sweden’ (2015) 39. 25 Ibid. 26 Helena Hofmannová, ‘Legal Status of Stateless Persons in the Czech Republic’ (2013) 1 The Lawyer Quarterly 66; telephone interview with Alexandra Dubova, Immigration Lawyer, Organizace pro pomoc uprchlíkům, o.s. (Prague, Czech Republic, 2 January 2014). 27 Questionnaire reply from Stanislava Sládeková, Immigration Lawyer, Organizace pro pomoc uprchlíkům, z.s (Brno, Czech Republic, 4 April 2017); emn, ‘Statelessness in the eu’ (2016). 28 unhcr ‘Czech Republic Country Sheet – Statelessness Management’ (2016) 1. 29 Ibid. 30 Questionnaire reply from unhcr (Prague, Czech Republic, 4 May 2017).

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a special procedure, and the provisions regulating asylum, together with the general provisions of the Administrative Code, apply.31 Overall, the minimalist change in the law has left many ambiguities, and decision-makers have to fill the gaps using their discretion and own interpretation, which likely will not be in compliance with the unhcr Handbook. Thus, the new provision does not ensure legal certainty for applicants or help the administration deal with statelessness cases.32 As for Greece, there are no provisions on residence permits for the impossibility to leave. There are very few norms which may be applicable to stateless persons, such as Article 84 of Law 3386/2005. According to this Article, foreigners who became stateless while residing legally in the country may exceptionally benefit from it in the context of applications or renewals of other residence permits. Specifically, when applicants are unable to produce a valid passport or other travel documents, they may nevertheless have their residence permits renewed by the General Secretary of the Region if they can specifically and demonstrably claim objective inability to provide such documents due to special circumstances or situations. The General Secretary of the Region will decide in accordance with the recommendation of the Ministry of Foreign Affairs and after having heard the opinion of a special Committee.33 Nonetheless, the authorities use Article 84 very rarely.34 Typically, it is applied when there is no embassy of the concerned country in Greece.35 31 32

33

34 35

Sládeková (n 27). Linda Janků, ‘Postavení a ochrana osob bez státní příslušnosti v České republice: zavedení řízení pro určení osob bez státní příslušnosti?’ in Dalibor Jílek and Pavel Pořízek (eds), Pobyt Cizinců: Vybrané Právní Problémy ii (Kancelář veřejného ochránce práv 2015) 256, 287 [‘Status and Protection of Stateless Persons in the Czech Republic: Introduction of Procedures for the Determination of Stateless Persons?’ in Dalibor Jílek and Pavel Pořízek (eds), Foreigners Stay: Selected Legal Issues ii (Office of the Ombudsman 2015) 256, 287]. This is special three-member Committee set up within the Ministry of Interior, Decentralization and e-Government. The Committee is composed of (a) an assessor of the State Legal Counsel in the Ministry of Interior, Decentralization and e-Government, as Chairman, (b) the Head of the competent Department within the Ministry of Interior, Decentralization and e-Government, and (c) an official from the Asylum Office. An official from the competent Department, Directorate of Migration Policy within the Ministry of Interior, Decentralization and e-Government is appointed as rapporteur. Kalatzi (n 1); emails from Erika Kalatzi, Immigration Lawyer, to author (Athens, Greece, 17 December 2015 and 22 March 2017). Author’s conversations with experts at the European Network on Statelessness ‘Training the Trainer’ event (Strasburg, France, 22 September 2015). Telephone conversation with unhcr Protection Officer (Athens, Greece, 31 May 2017).

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In addition, while facilitating the possibility of obtaining legal residence in Greece when a p ­ erson does not hold valid documents, this provision does not apply to applicants for international protection or eu citizens.36 Another norm of i­nterest relates to nationality disputes in the context of naturalisation ­applications. In ­particular, it is ­stipulated that the Minister of the ­Interior is solely competent to decide, ­following the concurring opinion of the ­Citizenship Council,37 upon m ­ atters, such as o­ bjections by applicants against the ­proposal of the Naturalisation Committee on the fulfillment of the conditions to naturalise,38 as well as any other citizenship issues. Finally, the police ­authorities who are in charge of enforcing a return decision may issue a certificate of postponement of removal when, taking into account the specific circumstances of a case, there are technical reasons that make it temporarily ­impossible, such as lack of transport capacity or of documentation.39 The certificate of postponement of removal is valid for no longer than six months and may be ­renewed based on a new assessment of the reasons for impossibility to leave.40 This is not a residence permit but only a document stating that the person has a temporary right to stay and a duty to remain at the disposal of the authorities and cooperate with them.41 The person may be required to report to the authorities on a regular basis, reside at a specified address, submit certain documents or deposit a certain financial guarantee.42

36 37

Author’s conversations with experts (n 34). The Citizenship Council is formed through a decision by the Minister of Interior, Decentralisation and E-Governance and comprises the following members: (a) an emeritus member of the Council of State as President, (b) the General Secretary of Migration Policy of the Ministry of Interior, Decentralisation and E-Governance, (c) a member of the Legal Council of the State, (d) a professor or an assistant professor of private international law, as well as a professor or an assistant professor of public international law or of constitutional law at a Greek Institution of Higher Education, (e) the head of the Citizenship Directorate of the Ministry of Interior, Decentralisation and E-Governance. Law 3284/2004 (gg A 217) Greek Citizenship Code (consolidated version 2010) (Haris Psarras tr, unofficial tr) (Greek Citizenship Code) arts 26, 28. 38 Ibid art 5A. 39 Law 3907/2011 (gg A 7) Establishment of Asylum Service and Service of First Reception (unofficial tr) art 24. 40 Ibid. 41 Ibid. 42 The amount of the financial guarantee is jointly decided by the Ministry of Finances and Citizen Protection. Law 3907/2011 (gg A 7) (n 39) arts 22(3), 23.

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Authorities Responsible for Assessing Applications

In all of the States under category three, administrative decision-makers are in charge of first-instance decisions. In particular, the damp in the Czech Republic is an organisational structure of the Ministry of Interior and thus, by its nature, is not an independent authority. Some studies have highlighted the arbitrariness of the refugee determination process and that decision-makers tend to refuse cases arguing the lack of eligibility criteria without properly investigating the merits.43 In some asylum cases, the influence of politics has been found to be very strong.44 In Germany, the local Aliens Offices are the competent authorities dealing with immigration applications, except for asylum claims. Aliens Offices are sub-departments of the 418 counties, and their organisation is dependent on the local councils.45 The literature states that Aliens Offices ‘can be site of intense attempts of political interventions from different sides, with impact both on the structure and working conditions within immigration offices, as well as the decisions made inside them’.46 Tobias Eule explains that decisions can be influenced by local politics, as decision-makers are situated within city councils and are subject to interference on both structural and substantial levels – for instance, through the allocation of funds.47 Furthermore, decisions can be steered in a certain direction by higher administrative bodies, such as ministries of the interior, that can amend decrees and memoranda and by persons and organisations linked to the media.48 The ind in the Netherlands is a division of the Dutch Ministry of Security and Justice.49 One national informant reports that problems with decision-making

43

Alice Szczepaniková, Constructing a Refugee: the State, ngos and Gendered Experiences of Asylum in the Czech Republic (PhD Thesis, University of Warwick 2008) 191, 218–19. 44 Sládeková (n 27). 45 Tobias G Eule, Inside Immigration Law. Migration Management and Policy Application in Germany (Ashgate 2014) 14. It should be noted that in Germany, the Federal Government promulgates immigration legislation, but the 16 individual Länder, or States, of Germany are responsible for its application. In each State, a department, usually within the Ministry of Interior, is in charge of interpreting the law through decrees, which are binding to all immigration offices within that State but not to the administrative courts. 46 Ibid 16. 47 Ibid. 48 Ibid. 49 Ministry of Security and Justice, Immigration and Naturalisation Service, ‘Contact’ accessed 22 October 2016.

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are partially due to the ind’s lack of independence from the g­ overnment.50 Studies show the existence of work pressure under which d­ ecision-makers have to deal with cases and, in particular, a stress on e­ fficiency, which implies insufficient time to investigate the eligibility of applicants.51 They also stress that another factor that negatively impacts decisions is the current ­anti-immigrant climate and attitude of decision-makers.52 In Sweden, the sma is the responsible administrative agency concerning residence permits, work permits, visas, the reception of asylum seekers, return, acquisition of citizenship and repatriation.53 On the other hand, the Swedish police are responsible for border control and forced return.54 Both the sma and the police report to the Ministry of Justice, and there is considerable cooperation at various levels between them and the ministry. However, these authorities are formally subordinated to the Government as a whole and not to a single ministry. Studies and experts have confirmed that no public authority or minister may determine how decision-makers decide in a particular case.55 The Government sets out the general guidelines for migration policy by proposing bills, and it is then the Parliament’s responsibility to pass, reject or amend such proposed bills. The Government can then supplement laws with ordinances and manage the sma by means of annual budget appropriation directives that specify the operational budget and objectives,56 and thus, it has substantial scope for guiding the operations of the agencies. Nevertheless, it has no powers to intervene in the agency’s decisions in specific matters relating to the application of the law or the due exercise of its authority.57 The main 50 51 52 53

54 55 56 57

Interview with Marlotte van Dael, Researcher, askv Refugee Support, Amsterdam, the Netherlands (Budapest, 5 May 2017). Peter Mascini, ‘Explaining Inequality in the Implementation of Asylum Law’ (2008) 25(2) Refuge 164, 173. Ibid 166, 174, 176. Asylum Information Database, ‘Short Overview of the Asylum Procedure. Sweden’

­accessed 13 April 2017. emn, ‘Annual Policy Report 2015 – Sweden’ (2016) 11. Ibid 10, fn 7. Ibid 10. Email from Göran Melander, Professor, Lund University, Sweden, to author (20 March 2017); telephone conversation with Bernd Parusel, Researcher, Swedish Migration Agency (Borlänge, Sweden, 29 March 2017). ‘Should the Government consider that an agency has not applied a law correctly, its only remedy is to seek to amend the relevant legislation’. Government Offices of Sweden, ‘Public Agencies and How They Are Governed’ accessed 13 April 2017.

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problems related to decision-making in Sweden appear to concern the poor assessment of evidence in support of applications and the failure to sufficiently acknowledge vulnerabilities, the adoption of an adversarial model rather than an inquisitorial one58 and the fact that the officers that assess a Chapter 12 Section 18 application are government litigators. The attitude of government litigators is to expect a case to be arguable before a judge and thus to satisfy a number of formal and strict evidentiary requirements, which normally are not demanded in administrative proceedings. Moreover, government litigators try to be faithful to the Parliament’s intent, which the 2006 legislation made clear was to prevent a case from being argued endlessly.59 In Greece, the immigration and asylum system is described as inefficient and arbitrary. The administrative authorities often engage in unlawful behaviour, which plays an important role in the management of refugees and migrants and the outcome of their cases.60 There are also doubts on the appropriateness of the police as far as enforcing immigration control is concerned, as they have been reported to use excessive force and be involved with abuses.61 Moreover, the police adopt a generalised approach to the assessment of the issuance of certificates of postponement of removal. The police use templates and standard phrasing when dealing with them and rely more on a person’s nationality rather than his personal circumstances when making a decision.62 In conclusion, what emerges is that there are problems in all States as far as guaranteeing suitable adjudicators is concerned. In particular, their lack of independence, which affects the impartiality of decisions, has been addressed only in Sweden. Moreover, decision-makers are faced with large caseloads and are underprepared or ill-qualified to cope with cases involving vulnerable applicants, such as stateless persons.

58 59 60 61

62

Karin Johansson Blight, ‘Questioning Fairness in Swedish Asylum Decisions’ (2015) 4(1) State Crime Journal 52. Telephone interview with Livia Johannesson, PhD student, Stockholm University (Stockholm, Sweden, 27 March 2017). Sigrid Walch, ‘Greece and its Refugees: Protection Problems of Afghan Refugees in Athens’ (Master’s Thesis, University of Wien 2012) 4. Human Rights Watch, ‘Unwelcome Guests’ (12 June 2013) accessed 13 August 2017; Al Jazeera, ‘Greek Policeman Suspended for “Abusing Migrant”’ 10 August 2015 accessed 13 August 2017. Telephone conversation with unhcr Protection Officer (Athens, Greece, 31 May 2017).

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187

Main Features of the Procedures

In States under category three, apart from the Czech Republic, an application for the impossibility to leave can only be lodged after an application for asylum or a regular residence permit has been rejected, thus forcing a person to go through at least two different procedures. The applicants usually start the procedures in writing. The only exception is Sweden, where there is a special safeguard, in that the sma should, on its own initiative, assess whether there are any impediments to the removal. Furthermore, anyone can inform the sma of eventual obstacles. For example, the police may notify that it is impossible to enforce the removal to a certain country, or a doctor may notify them of medical reasons that prevent it.63 An application can also be made in the native language of the person, although there is no guarantee that the sma will translate and consider it.64 However, it is reported that the sma accepts those obstacles as valid in very few cases.65 This is so, even if the police have informed that the State of origin is not willing to admit the person.66 In the Czech Republic, applicants for the impossibility to leave have to provide a number of documents set by law. Under Section 34 of the Foreign Nationals Act, the application for a visa for leave to remain in the territory for a stay over 90 days must include, among others: (a) a travel document, if it has not expired, and (b) a certified copy of a document confirming the existence of a reason preventing one from leaving. If the applicant is unable to provide the latter document for reasons independent of his will, it can be replaced by an affidavit stating the reasons why he cannot leave.67 In addition, the application must be made in person at one of the Departments for Asylum and Migration, which is a problem for stateless persons in detention, as they cannot even start the procedure.68 In the Netherlands, the application must be made by filling out a form and lodging it in person at the ind or sending it by post.69 The onerous p ­ rerequisites 63 farr (n 24) 40. 64 Email from Sanna Vestin, chair of farr, to author (17 February 2014). 65 farr (n 24) 40. 66 Ibid. 67 Act no. 326/1999 Coll. on the residence of foreigners in the Czech Republic and amending certain laws, s 34. 68 Dubova (n 27). 69 Ministry of Security and Justice, Immigration and Naturalization Service, ‘Other reasons. Unable to Leave the Netherlands Due to No Fault of Your Own’ accessed 16 February 2018. Ministry of Security and Justice,

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to apply are:70 (1) proving that independent attempts were made to leave the Netherlands,71 (2) the International Organisation for Migration indicated that it is not able to assist the applicant in leaving due to lack of travel documents, (3) mediation by the Return and Departure Service to obtain the necessary travel documents was not fruitful, (4) showing, through objective and verifiable facts and circumstances, that the applicant cannot leave through no fault of his own and (5) residing in the Netherlands without a valid title and not meeting other conditions for a residence permit.72 One national informant reports that the ind has wide discretion when deciding on cases of no-fault permits, and they almost never believe that a person has done everything possible to return or that he is stateless.73 As far as the costs involved in making the applications are concerned, there are no fees, except in the Czech Republic.74 Nevertheless, gathering all of the necessary documents can be expensive, especially if translations and authentications are required. Moreover, given the complexity of the laws, it is unlikely that applicants will be able to submit a case without proper legal assistance. Concerning the right to present the case in person, applicants are interviewed in all States,75 with the exception of the Czech Republic for tolerated visas76 and Sweden for cases falling under Chapter 12, Section 18.77 At interviews,

70 71

72 73

74 75 76 77

I­mmigration and Naturalization Service, ‘Application for the Purpose of Residence of “Non-Temporary Humanitarian” (Foreign National)’ accessed 10 May 2017. Vreemdelingencirculaire 2000 (B) [Aliens Act Implementation Guidelines] para B14/3.2. The applicant must prove that he contacted the diplomatic representation of the countries where he had a residence permit and/or which may be expected to give him permission to enter and that the request to issue travel documents has not been granted. He can prove this, for example, by declarations of the relevant authorities showing that he has applied to those diplomatic representations and that a request to issue travel documents has not been granted. Annelieke Beversluis and others, ‘Forced to Leave but Nowhere to Return To: Rights of Non-Returnable Stateless Palestinians in the Netherlands’ (Migration Law Clinic, University of Amsterdam, April 2016) 18–20. unhcr ‘Mapping Statelessness in the Netherlands’ (2011) 45. It should be noted that the ind always follows the recommendations of the Return and Departure Service, whose task is to facilitate return and which is involved in establishing that an applicant cannot leave the country. van Dael (n 50). The fee for a toleration visa is 300 czk, and for a toleration permit, it is 500 czk. Sládeková (n 27). Staff member of the Department ‘Project Q – Qualification of Refugee Advice’ (n 11). Dubova (n 26). Vestin (n 64).

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an interpreter is guaranteed in all States. The only exceptions are G ­ ermany for the administrative stage, although the applicant is allowed to take his own interpreter,78 and Greece, where there is lack of interpreters, especially in the areas outside Athens. The shortage of interpreters in Greece is not limited to administrative procedures and is extended to court proceedings and detention matters, as well.79 In all States, information on how to make an application for permits for the impossibility to leave is difficult to obtain, and it is usually limited to a few lines and mostly in the local languages on the immigration authorities’ websites. Statelessness is not mentioned, and decision-makers are little aware of it.80 5

Burden and Standard of Proof

In all States under category three, except for Germany, the burden of proof rests exclusively with the applicant, who has to do whatever he can to prove his allegations and the individual facts. The Netherlands takes a particularly strict view on this, as the applicant has to show through official documents that he is stateless and prove by all possible means his identity and that he cannot reasonably leave and that it is not his fault (i.e., contact embassies and ask for an official statement and try to acquire official identification documents, such as a passport or id card, which are often unavailable for stateless persons).81 The inability to leave can only be proven if all of the requirements are met and supported by evidence.82 The threshold to prove factual impossibility to leave is very high and comprises country of origin information, cooperation with the Return and Departure Services 78 79

80

81 82

Staff member of the Department ‘Project Q – Qualified Refugee Advice’ (n 11). Human Rights Watch, ‘Greece: Asylum Seekers Locked Up’ (14 April 2016) accessed 22 March 2017; Virginia Vigliar, ‘In Greece, Lack of Legal Aid Leaves Migrants and Refugees Guessing’ (devex 25 November 2016) accessed 22 March 2017. Questionnaire reply from Kalatzi (n 1); interview with Reinhard Marx, Immigration Lawyer (Frankfurt, Germany, 22 July 2013); Dubova (n 26); questionnaire reply from van Waas (n 22); unhcr, ‘Mapping Statelessness in Sweden’ (2016) 25–26. Vreemdelingencirculaire 2000 (n 70) para B8/4; questionnaire reply from Rombout Hijma, Immigration Lawyer (Utrecht, The Netherlands, 30 January 2014). Administrative Jurisdiction Division of the Council of State. ABRvS of 3 July 2013, ECLI:NL:RVS:2013:183, jv 2013/290, para 2.2.

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and diplomatic missions.83 The problems that arise in practice are that most ­embassies are often reluctant to provide proof of identity, orally or in writing, to undocumented persons. Furthermore, due to the politically sensitive situation in many States of origin, it is unlikely that the embassies would provide evidence of the lack of a nationality.84 Moreover, it is often disputed whether the person concerned has complied with the obligation to cooperate.85 In Sweden, the admissible evidence is broader than in the Netherlands, as there are almost no legal grounds for limiting the use of relevant proofs. However, particular emphasis is placed on proving one’s identity.86 If there is no reason to doubt the testimony or evidence given, the applicant will be given the benefit of the doubt with respect to the facts that he is unable to prove. If there is reason to doubt the applicant’s identity and his testimony is vague or contradictory, he cannot be given the benefit of the doubt.87 In addition, when an impediment to removal due to a new protection need is argued, it must be explained why this was not raised before.88 In Germany, all foreigners that enter or stay in the country have a duty to provide their passports or identity papers.89 If an alien does not possess such a document, he has the obligation to cooperate with the authorities and take all reasonable measures in order to provide substantive proof of identity and origin.90 A failure to cooperate can lead to fines.91 The Aliens Office has to assist in the process of the establishment of one’s identity while informing the applicant of all of the steps to take. The burden of proof is shared, taking into 83 84

85 86

87

88 89 90 91

Beversluis and others (n 71) 18. See also VluchtelingenWerk Nederland, ‘Als Terugkeer Niet Mogelijk Is. Over Beleid En Praktijk Van Buitenschuld’ (2013) [Refugee Work in the Netherlands, ‘If Return Is Impossible Information on Politics and Practice of Foreign Debt’ (2013)] 4, 14–15. Vreemdelingenwet 2000 [Aliens Act 2000] art 31(2)(f); VluchtelingenWerk Nederland (n 84) 5; van Dael (n 50). See ruling by the Swedish Migration Court of Appeal (Migrationsöverdomstolen) mig 2007:9. See also Migrationsverket, Rättsligt Ställningstagande Angående Sannolik Identitet i Asylärenden. rci 08/2013, 2013-05-31 [Swedish Migration Agency, Judicial Position on Establishing Identity in Asylum Cases (rci 08/2013, 31 May 2013)]. emn, ‘The Practices in Sweden Concerning the Granting of Non-eu Harmonised Protection Statuses’ (2010) 12. See ruling of the Swedish Migration Court of Appeal (Migrationsöverdomstolen) mig 2007:12. farr (n 24) 41–42. §3 Abs 1 AufenthG (n 9). §48 Abs 3 ibid; see also §56 Abs 1–3 AufenthV (n 2). §98 Abs 2 Satz 3 AufenthG (n 9).

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consideration the responsibilities and availability of means of evidence to the parties.92 Regarding the means of proof, the Federal Administrative Court held that the applicant must produce, for example, the following:93 information on the previous residence and place of birth; own name and family members’ names in a straight line up to the great-grandparents, when these are known; evidence of an attempt at naturalisation in the State of origin, unless this is unreasonable due to discrimination or danger to life and limb; proof of identity through relatives or registries and proof that he lived as a stateless person in the State of origin, as far as this is reasonable.94 The case law also indicates that the unwillingness or inaction of the authorities of the State of origin can be taken into consideration,95 and an action that is likely to be unsuccessful cannot be expected on the part of an applicant.96 Moreover, continuous requests to contact the embassy of the home country become unreasonable when the person already did so repeatedly and was unsuccessful.97 Overall, in the majority of States under category three, the tendency is to adopt an approach that does not take evidentiary difficulties into account and leaves stateless persons facing serious problems to meet all of the requirements set by law. One frequent grounds for refusal of a residence permit based on the inability to leave is the imputable failure to provide the necessary documents to prove one’s identity and nationality.98 Thus, it almost impossible for stateless persons to obtain a residence permit on this basis. For permits for the 92

§86 Abs 1–5 ibid. The general principle on the burden of proof is stated in Section 86(1) sentence 1. §86 Abs 1 Satz 1 Verwaltungsgerichtsordnung (VwGO) vom 19.03.1991 (BGBl 1991 i, 686), zuletzt geändert durch Artikel 5 Absatz 2 des Gesetzes vom 8.10.2017 (BGBl 2017 i, 3546) [Code of Administrative Court Procedure]. When some facts, such as impossibility to leave, may be difficult to establish, or some documents difficult to obtain, the burden of proof is shared between the applicant and the government. See Friedrich Schoch, in Friedrich Schoch, Jens-Peter Schneider, Wolfgang Bier, Verwaltungsgerichtsordnung – Kommentar (32. el, CH Beck 2016) §123 Rn 97; vgh Bayern, Urteil v 9.07.2012 – 20 B 12.30003; BVerwG, 16.04.1985, BVerwGE 71, 180ff; Michael Dawin, in Friedrich Schoch, Jens-Peter Schneider, Wolfgang Bier, Verwaltungsgerichtsordnung. VwGO (32. el, CH Beck 2016) §86 Rn 19ff. 93 The means of proof must not be cumulative. BVerwG, Urteil v 17.03.2004 – 1 C 1.03. 94 Ibid. 95 vg Saarland, Urteil v 18.07.2008 – 6 K 0106/06. 96 BVerwG, Beschluss v 15.06.2006 – 1 B 54.06, Buchholz 402.242 §25 AufentG Nr 4. 97 25.5.4 AufenthG-VwV (n 13). 98 van Dael (n 50).

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impossibility to leave to be meaningful, more flexible and protection-oriented rules on proving the claim would be needed. 6

Protection of Applicants during the Procedures

None of the States under category three provides for temporary status or benefits while an application is pending. Only Sweden and Germany offer limited support while the outcome is awaited. In Sweden, an applicant under Chapter 12, Section 18 may receive accommodation, usually in refugee camps, and food but no cash.99 In Germany, a person on toleration may receive benefits under the Asylum Seekers’ Benefit Act if he does not have the resources for his subsistence, especially his own income and assets.100 People on toleration are initially entitled to less support than asylum seekers or refugees, but after 15 months of uninterrupted stay, they can access similar benefits.101 In addition, a person on toleration has limited access to the labour market, depending on the length of time they have been on toleration and their professional qualifications, as further discussed in Chapter 9. Greece stands out for its systematic deficiencies regarding reception services and poor conditions in immigration detention centres.102 The lack of protection is not limited to failing to provide support, but it also involves law enforcement officers’ ill-treatment of irregular migrants and asylum seekers, which the European Court of Human Rights has found to be inhumane and degrading and in breach of Article 3 of the European Convention of Human Rights in several cases.103 99 100

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Telephone interview with Bo Johannson, Lawyer, Swedish Refugee Advice Centre (Stockholm, Sweden, 17 December 2013); farr (n 24) 43, 72. §1 Abs 3 Satz 3c, §1 Abs 4 Asylbewerberleistungsgesetz (AsylbLG) vom 5.08.1997 (BGBl 1997 i, 2022), zuletzt geändert durch Artikel 4 des Gesetzes vom 17.07.2017 (BGBl 2017 i, 2541) [Asylum Seekers’ Benefits Act]. The Act covers basic needs (clothing, food, accommodation, housekeeping products) and health care services in case of illness, pregnancy and birth. It further provides for a specific amount of money for individual needs. §3–4 ibid. §2 Abs 1 ibid; see also Zwölftes Buch Sozialgesetzbuch (sgb xii) – Sozialhilfe – Artikel 1 des Gesetzes vom 27.12.2003 (BGBl 2003 i, 3022), zuletzt geändert durch Artikel 2 des Gesetzes vom 17.08.2017 (BGBl 2017 i, 3214) [Social Code – Book xii – Social Assistance]. Theresa Papademetriou, ‘Refugee Law and Policy: Greece’ (The Library of Congress March 2016) accessed 18 August 2017. See e.g., Alsayed Allaham v Greece App no 25571/03 (ECtHR, 18 January 2007); M.S.S. v Belgium and Greece App no 30696/09 (ECtHR, 21 January 2011); Zontul v Greece App no

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In all of these States, persons who started a procedure for impossibility to leave remain liable to be removed at any time, but this is unlikely to happen for practical reasons.104 One major problem that they face is that of immigration detention. Undocumented or irregular migrants may be detained up to six months in the Czech Republic105 and up to 12 months in the Netherlands106 and Greece.107 In particular, in Greece, the issue of detention of irregular migrants who cannot be removed (i.e., Palestinians, Somalis, Afghans or those whose nationality cannot be established) is particularly serious, as it is routinely used, despite the authorities knowing that expulsion cannot be implemented.108 This practice does not comply with the purpose of detention as stated in the law – that is, to carry out expulsions. Specifically, Article 30(4) of Law 3907/2011 states that when it becomes manifest that a reasonable prospect of removal no longer exists, detention ceases to be justified, and the person concerned shall be released immediately.109 Germany, on the other hand, seems to be the State where administrative detention is the least used of all.110 Immigration detention is an exception and

104 105

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107 108

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12294/07 (ECtHR, 12 January 2012). See also Nikolaos Sitaropoulos, ‘Migrant Ill-Treatment in Greek Law Enforcement – Are the Strasbourg Court Judgments the Tip of the Iceberg?’ (2017) accessed 22 March 2017. Dubova (n 26). If the detainee obstructs his expulsion or provides false information, his detention may be extended up to 18 months. Act No. 326/1999 Coll (n 67) s 125(1), (2)(b), (3); Global Detention Project, ‘Czech Republic – Country Profile’ accessed 4 June 2017. VreemdelingenWet 2000 (n 85) arts 59(5), 59(7); this period can be extended up to 18 months if deportation is taking longer because the person does not cooperate and necessary documentation is lacking. ibid art 59(6)-(7). Law 3907/2011 (gg A 7) (n 39) art 30(6). Sharita Gruberg, ‘De Facto Statelessness Among Undocumented Migrants in Greece’ (2011) XVIII(3) gjplp 533; Micaela Ceccorulli and Nicola Labanca, The eu, Migration and the Politics of Administrative Detention (Routledge 2014) 114–15; Mary Bosworth and Andriani Fili, ‘Immigration Detention in Greece and the uk’ in Rich Furman, Douglas Epps, Greg Lamphear (eds), Detaining the Immigrant Other: Global and Transnational Issues (oup 2016) 79, 86–87. Law 3907/2011 (gg A 7) (n 39); unchr ‘Report of the Special Rapporteur on the Human Rights of Migrants, François Crépeau. Addendum. Mission to Greece’ (2013) 23rd Session un Doc A/HRC/23/46/Add.4. The numbers of people in detention pending deportation on 31 March, 31 August and 30 November between 2014 and 2016 were as follows – in 2014: 112 people were detained pending deportation in March, 15 people in August and 24 people in November. In 2015: 25 people were held in detention in March, 15 people in August and 38 people in N ­ ovember.

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undergoes judicial control within 24 hours of its start.111 Normally, immigration detention cannot last longer than six months, but if the detainee hinders his removal, it can be extended up to 18 months.112 In this regard, the national informants explain that it is unlikely for the German courts to uphold immigration detention in cases of stateless persons or persons with unclear nationality.113 However, as the responsibility for detention is at the State level rather than at the federal level, its decentralisation makes it difficult to obtain information on practices. Similarly, in Sweden, immigration detention is used sparingly, only to enforce a removal or prevent absconding.114 In Sweden, cases of detention on the grounds of unclear identity are subject to a limit of 48 hours, thus providing protection against arbitrary detention while efforts to establish a person’s nationality are made.115 Even in exceptional cases, a person may not be detained for longer than three months. If the person does not cooperate or there are delays in obtaining the necessary documentation, detention can last up to 12 months.116

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114 115 116

One year later, 38 people were detained in March, 26 in August and 42 in November. Statistisches Bundesamt, ‘Rechtspflege. Bestand der Gefangenen und Verwahrten in den deutschen Justizvollzugsanstalten nach ihrer Unterbringung auf Haftplätzen des geschlossenen und offenen Vollzugs jeweils zu den Stichtagen 31. März, 31. August und 30. November eines Jahres’ (2017) 7, 12, 17, 22, 27, 32, 37, 42, 47. Article 104(2) of the Constitution states that an independent court has to decide on the legality of the immigration detention. §104 Abs 1–2, 4 Grundgesetz (gg) für die Bundesrepublik Deutschland vom 23.05.1949 (BGBl i 1949, 1), zuletzt geändert durch Artikel 1 des Gesetzes vom 13.07. 2017 (BGBl 2017 i, 2347) [Basic German Law]; §62 Abs 1 Satz 1 AufenthG (n 9); see also Gesetz über das Verfahren in Familiensachen und in den Angelegenheiten der freiwilligen Gerichtsbarkeit (FamFG) vom 17.12.2008 (BGBl 2008 i, 2586), zuletzt geändert durch Artikel 7 des Gesetzes vom 20.07.2017 (BGBl 2017 i, 2780) [Act on Proceedings on Family Matters and on Matters of Non-contentious Jurisdiction]; interview with Heiko Habbe, Immigration Lawyer, Jesuit Refugee Services Berlin (Hamburg, Germany, 9 August 2013). §62 Abs 4 AufenthG (n 9). Habbe (n 111); §104 Abs 2 gg (n 111). The courts will generally not be satisfied, if there are issues of statelessness, that the detained person will be deported on such a timescale. Marx (n 80). unhcr, ‘Mapping Statelessness in Sweden’ (unhcr 2016) 44. farr (n 24) 36. Utlänningslag (n 23); Global Detention Project, ‘Sweden – Immigration Detention’ (March 2016) accessed 21 Septmeber 2017.

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Length of the Procedures

In the Czech Republic and Sweden, the procedures are usually quick. In the Czech Republic, the Ministry of Interior should decide on a case within 30 days, but it can take as long as three months.117 In Sweden, immigration decisions are usually made within three months.118 In the Netherlands, no-fault procedures can be lengthy and exceed the period provided for by law, which is six months.119 Often, this is due to the fact that the applicant and the Return and Departure Service may be waiting for a response from the embassies and other authorities to issue travel documents.120 In Germany, the application for a temporary residence permit for impossibility to leave shall be decided within 18 months, but it may take years.121 Generally, there is the suspicion that a person can obtain documents, and it is considered reasonable to request him to contact the relevant embassy, even if he is stateless.122 There are no easily available data regarding the application of the aforementioned provisions for Greece. 8

Decisions and Appeals

The right to receive a decision with a rationale is guaranteed in all States, although in most cases, the decisions are concise and avoid addressing statelessness.123 Both in the Netherlands and the Czech Republic, an applicant must usually exhaust administrative remedies before lodging an appeal with the courts. In the Netherlands, the administrative decision specifies whether it is possible to register an objection against a refusal. The registration of an objection must be made within four weeks of receipt of the decision. If the ind states that the 117 118 119 120 121

Dubova (n 26). Johannson (n 99). Hijma (n 81). van Dael (n 50); VluchtelingenWerk Nederland (n 84) 5. No reliable data are available on the time taken to issue a decision. Telephone interviews with staff member in charge of vulnerable refugees, Refugee Council of Lower Saxony (Flüchtlingsrat Niedersachsen) (Hildesheim, Germany, 2 May 2014 and 12 May 2014). 122 Ibid. 123 This information was provided by all national experts of States under category three.

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objections are unfounded, it is possible to appeal against its decision to the Aliens Court within four weeks.124 One national informant reports that very often, the Aliens Court tends to confirm the decision of the ind that refused the no-fault permit application.125 In the Czech Republic, the decision to refuse the visa can be reviewed by the Commission for decision-making in matters of residence of foreigners. The deadline to ask for such a review is 15 days from receipt of the decision. Within 30 days, the Commission must decide upon the review request, although in practice, it takes longer. If the Commission confirms the decision, an appeal can arguably be made within 30 days to the administrative court.126 However, according to one legal doctrine, visa decisions cannot be appealed with the administrative court, because there is no legal right for such a visa.127 In Sweden, there is no right of appeal against the refusal of an application made for the impossibility to leave due to practical impediments under Chapter 12, Section 18. Only if the sma agrees to engage in a new assessment but its decision is ultimately negative can an appeal be made to the migration court.128 If new issues of protection under Chapter 12, Paragraph 19 are raised, the most common scenario is that the sma would not consider them as new circumstances. An appeal is possible with the Migration Court if the applicant was denied a new assessment, as well as if he was granted an assessment and the case was finally refused.129 The deadline to appeal to the Migration Court is 21 days after receiving the negative decision.130 There are currently four Migration Courts, which are special divisions of the County Administrative Courts in Stockholm, Gothenburg, Luleå and Malmö and which usually consist of three lay assessors and a judge. The lay assessors are not required to have any legal training and are ordinary citizens

124 Ministry of Security and Justice, Immigration and Naturalization Service, ‘Registering an Objection or Appeal’ accessed 13 April 2017. 125 van Dael (n 50). 126 Dubova (n 26). 127 Ibid. 128 farr (n 24) 41–42. 129 Ibid 42. 130 Swedish Migration Agency, ‘If You Want To Appeal’ (6 April 2017) accessed 13 April 2017.

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c­ hosen by the political parties.131 Some criticisms have been raised concerning their ­independence, as the outcome of cases may depend on their partisan ­affiliation.132 In particular, it has been noted that it is unusual for the Migration Courts to change the outcome of cases refused for impossibility to leave.133 A decision by a migration court can be appealed to the Migration Court of Appeal, which is a section of the Administrative Court of Appeal in Stockholm, within three weeks of the day the decision was issued or three weeks of the day the appellant was served with the decision. The Migration Court of Appeal requires leave to appeal to hear the case. Leave to appeal is granted only if the case is significant to guide the application of the law or there are other exceptional grounds for hearing the appeal.134 The appeals are all based on the adversarial system.135 In Germany, the deadline to appeal to the administrative court against the refusal of a residence permit is usually 14 days after notification of the decision.136 In the States under this category, with the exception of the Czech Republic, the courts can reverse the administrative decision, in addition to quashing it.137 For the administrative review of decisions, there is no fee to pay.138 In States where court fees must be paid, there are, however, exemptions for this type of proceeding or for those with no financial means or in receipt of legal aid. In States under category three, the appeals process for these cases is considered accessible only with the help of a lawyer. 131 farr (n 24) 26. 132 Linna Martén, ‘Political Bias in Court? Lay Judges and Asylum Appeals’ (2015) Working Paper 2 Uppsala University, 2, 3, 23. 133 farr (n 24) 43. 134 emn (n 87) 12–13; farr (n 24) 26–28; farr, ‘Short Overview of the Asylum Procedure. Sweden’   accessed 13 April 2017. 135 farr, ‘Short Overview of the Asylum Procedure. Sweden’ (n 134). 136 §74 Abs 1 Asylgesetz (AsylG) vom 2.09.2008 (BGBl 2008 i, 1798), zuletzt geändert durch Artikel 2 des Gesetzes vom 20.07.2017 (BGBl 2017 i, 2780) [Asylum Act]; §58 VwGO (n 92). 137 Swedish Migration Agency, ‘If You Want to Appeal’ (6 April 2017) accessed 13 April 2017; staff member of the Department ‘Project Q – Qualified Refugee Advice’ (n 11); Association for Integration and Migration (aim), ‘International Protection Procedure’ accessed 22 March 2017. 138 This information was provided by all national experts of States under category three.

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Access to Legal Assistance and Advice

State-funded legal aid for irregular migrants at the administrative stage is available in the Netherlands, Germany and Sweden. In the Netherlands, lawyers that are affiliated with the Raad voor Rechtsbijstand (Council for Legal Aid) can request funds for the no-fault permit application procedure to the State.139 On appeals, applicants must contribute at least 196 Euros.140 Some lawyers work pro bono, and some ngos, such as Vluchtelingenwerk, assist persons in contacting the relevant embassies to obtain documents. It is doubtful, in the specific cases of stateless people, whether this system of legal services is sufficient, mainly because there is no statelessness determination procedure and therefore no dedicated route for assisting stateless people. Furthermore, it is also unclear whether these actors have sufficient knowledge of statelessness to provide specialised assistance.141 In Germany, there are no specific provisions for stateless persons to receive legal aid, but they can qualify to receive it if they meet the conditions under general laws.142 One of the prerequisites to obtain legal aid is registration in the local residents’ registries, which do not include irregular migrants.143 However, they include people on toleration. In this regard, it should be highlighted that whereas the law does not prohibit irregular migrants to apply for legal aid, it requires them to provide evidence which may not be accessible to them, such as documents related to income, address and rental agreement, or which they do not want to provide because of fear of deportation. One additional obstacle is that the courts where the application for legal aid must be made can inform

139 van Dael (n 50). 140 Raad voor Rechtsbijstand, ‘Inkomen, Vermogen en Eigen Bijdrage: Normen 2014’ ­accessed 16 February 2018. 141 Laura van Waas, Nationality Matters: Statelessness under International Law (cup 2014). 142 Gesetz über Rechtsberatung und Vertretung für Bürger mit geringem Einkommen (Beratungshilfegesetz – BerHG) vom 18.06.1980 (BGBl 1980 i, 689), zuletzt geändert durch Artikel 140 der Verordnung vom 31.08.2015 (BGBl 2015 i, 1474) [Act on legal advice and representation for citizens with low income – Legal Advice Act]; §114 Zivilprozessordnung (zpo) vom 5.12.2005 (BGBl 2005 i, 3202; 2006 i, 431; 2007 i, 1781), zuletzt geändert durch Artikel 11 Absatz 15 des Gesetzes vom 18.07.2017 (BGBl 2017 i, 2745) [Code of Civil Procedure]; BT-Drs 8/3694, 17 in Ingo Michael Groß, Beratungshilfe, Prozesskostenhilfe, Verfahrenskostenhilfe (13th edn, CF Müller 2015) 144, Rn 2. 143 In addition, a person must show himself to be financially in need of assistance. In court proceedings, he must also show that his case has sufficient prospects of success and is not frivolous. ohchr ‘Compilation Report – Universal Periodic Review: Germany’ (2012) 5.

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the Aliens’ authorities of illegally staying persons.144 State-funded legal aid is complemented by legal assistance provided by Refugee Councils,145 ProAsyl146 and other ngos. In Sweden, counsel shall be appointed, when lack of legal assistance is presumed, in proceedings concerning detention, expulsion, enforcement of an expulsion order and rejection of legal status.147 In addition, irregular migrants become entitled to State-funded legal aid if the sma agrees to review a case under Chapter 12, Section 18.148 In all other cases, there are some ngos that may assist. The problem in Sweden appears to be more with the quality of the lawyers, which is reported to range from excellent to poor, than their availability.149 There is no specialisation of lawyers on statelessness matters, partially due to the low legal aid fees, which does not give incentives for thorough preparation of cases. For instance, one of the national informants reports that many lawyers do not even understand the difference between a Palestinian refugee and a stateless Palestinian.150 In the Czech Republic, generally, it is possible to request the court to appoint an attorney free of charge to represent at the appeals stage, provided that the applicant does not have sufficient financial means.151 However, foreign nationals can obtain free legal aid only in proceedings regarding applications for international protection but not visas or residence permits.152 Additionally, very few lawyers have experience with the asylum procedure, and even fewer 144 Melanie Kößler, Tobias Mohr, Heiko Habbe, Aufenthaltsrechtliche Illegalität. Beratungshandbuch 2013 (3rd edn, Deutsches Rotes Kreuz and Caritas 2012) 65–67, 79–81; §86–87 AufenthG (n 9); telephone interview with the Executive Director of the Refugee Council North Rhine-Westphalia (Flüchtlingsrat Nordrhein-Westfalen) (Bochum, Germany, 14 March 2014). 145 Refugee Councils (Flüchtlingsräte) are independent registered societies. They receive funding from donations, memberships, the Federal and local States and the eu. They also receive support from voluntary work. ‘Die Landesflüchtlingsräte’ accessed 22 March 2017; ‘Flüchtlingsrat Schleswig-Holstein e.V.’ accessed 16 February 2018. 146 Pro Asyl, ‘Über Uns’ accessed 22 March 2017. 147 (sfs 2005:716) (sfs 2017: 123) Utlänningslag [Aliens Act] Ch 18. 148 Vestin (n 64); farr (n 24) 39. 149 Johannson (n 99). 150 Telephone interview with Birgitta Elfström, Lawyer, Former Decision-Maker of the Swedish Migration Board (Varberg, Sweden, 17 February 2014); lack of awareness about statelessness is also confirmed by the unhcr report ‘Mapping Statelessness in Sweden’ (2016) 25–26. 151 aim (n 137). 152 Dubova (n 27).

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have experience with other procedures under the Foreign Nationals Act. So, statelessness is a domain of very few of them. A few ngos provide limited legal assistance, but they cannot meet all legal needs.153 Lack of legal assistance for irregular migrants and asylum seekers is a serious problem in Greece. Under Article 44(2) of ministerial decision 4375/2016, government-funded legal assistance covers only representation before the appeals authority.154 However, even this right is not guaranteed. The few legal aid and pro bono lawyers are swamped with work and based mainly in Athens. Some structures have been set up to provide assistance – for instance, funded under unhcr or eu projects – but they cannot satisfy the demand for legal services.155 10 Statistics Statistics on stateless persons in the States under review reveal three important facts: (1) lack of clarity on who is considered stateless, (2) low number of approvals of permit for impossibility to leave and (3) a high percentage of stateless persons in Germany and Sweden. Regarding the first finding, it is unclear how statistics specifically count applications by stateless persons. One reason for the lack of clarity is that the registration systems confuse persons with an unknown nationality with those who are stateless.156 Generally, it appears that a person’s nationality is recorded as ‘unknown’ either when there is a genuine lack of knowledge and information about the person’s nationality or when the person’s credibility is in issue and no comprehensive determination of an applicant’s statelessness takes place.157 Moreover, in some States, there are no unified statistical data. For instance, in the Netherlands, population statistics of stateless persons and persons with ‘nationality unknown’ are counted together. In 2014, they counted 82,621 153 Ibid; aim (n 137). 154 The conditions for the provision of free legal assistance are set out in Ministerial Decision 12205/2016, which provides that lawyers are paid a fixed sum of 80 Euros per appeal. Ministerial Decision 12205/2016 (gg B 2864) art 3. See also Greek Council for Refugees, ‘Country Report: Greece’ (aida, Update 2016) 48. 155 Greek Refugee Council (n 54) para 9; Virginia Vigliar, ‘In Greece Lack of Legal Aid Leaves Migrants and Refugees Guessing’ (DEVEX, 25 November 2016) accessed 22 March 2017. 156 unhcr ‘Mapping Statelessness in the Netherlands’ (2011) 18. 157 unhcr ‘Mapping Statelessness in Sweden’ (2016) 20.

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people, in 2015, 77,562 and in 2016, 74,055.158 By contrast, the Personal Records Database distinguishes between the two categories, and it records 80,000 persons as having ‘unknown nationality’ and more than 4,000 as being stateless.159 Similarly, in Sweden, the Swedish Population Register and the Register of the sma are not aligned and contain inconsistent information regarding a person’s nationality.160 The lack of common guidelines for assessing cases of potential statelessness causes the risk of someone being registered as stateless in one of the registers and as having an ‘unknown nationality’ in the other.161 Also, in the Czech Republic, statistics published by the Ministry of Interior show that by 30 June 2015, the number of stateless persons with lawful status was 586, of whom 459 were permanent residents and 127 were temporary residents.162 According to the unhcr, in the first half of 2016, 11 asylum applications were received by persons claiming to be stateless, and 6 of them were granted refugee status/subsidiary protection.163 Therefore, in all of the States under category three, it remains unclear in the national statistics how many cases are unidentified, and it is impossible to determine the real magnitude of statelessness.164 Concerning the second finding, statistics confirm that in most States, it is very difficult to remain on the grounds that it is impossible to leave, as the administrations rarely believe that this is the case and that the person has made sufficient efforts to that extent.165 For instance, in the Netherlands, in 2011, there were 290 applications, of which 30 were approved. In 2013, there were 80 applications, of which 15 were granted. In 2014, there were 80 applications, 20 of which were successful.166

158 StatLine, ‘Statistics Netherlands. Population; Sex, Age and Nationality, 1 January’ (24 October 2016) accessed 7 April 2017. 159 In the Netherlands, most stateless persons are Moluccans, Roma, Palestinians from Syria, people of Surinamese origin and those from the former Soviet Union. Government of the Netherlands, ‘Statelessness’ accessed 1 April 2017. 160 unhcr ‘Mapping Statelessness in Sweden’ (2016) 19. 161 Ibid 19. 162 Janků (n 32) 256, 280. 163 unhcr ‘Czech Republic Country Sheet’ (n 28). 164 Batchelor (n 3) 40. 165 Johannson (n 99); Dubova (n 26); Hijma (n 81). 166 Given the limited data available, there is no reliable explanation for the decrease of applications. Beversluis (n 71) 19–20.

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Germany is the only State where both the toleration and temporary residence permits for impossibility-to-leave provisions are frequently issued: by the end of 2015, toleration was granted to 546 stateless persons and 6,260 persons with unclear nationality. The residence permit was given to 2,630 stateless people and 10,015 people with unclear nationality. Furthermore, by the end of 2015, 1,789 stateless people and 12,685 individuals with unclear nationality remained in the country without any residence permit or toleration.167 Finally, the third finding is that Germany and Sweden are the two eu States with the highest number of stateless persons. By the end of 2015, Germany recorded 18,608 stateless people. Out of them, 784 were granted permission to stay under the old Aliens Act of 1990 and 12,678 were allowed to under the 2004 Aliens Act. Out of the latter group, 7,152 persons received a temporary residence permit. There are as many as 61,221 persons with unclear nationality. Out of them, 1,121 are in the country under the Aliens Act of 1990, and 30,741 are so under the Aliens Act of 2004, of whom 21,657 have a limited residence permit.168 Finally, 4,267 stateless people and 6,116 people with unclear nationality are recorded as having a settlement permit.169 In Sweden, at the end of 2015, the Population Register included: – 21,580 stateless persons – 5,523 persons with ‘unknown’ nationality and – 119 with their nationality ‘under investigation’.170 Furthermore, the sma’s Register recorded the following asylum seekers at the end of 2015: – 7,771 stateless asylum seekers – 317 asylum seekers with ‘unknown’ nationality and – 918 asylum seekers with their nationality ‘under investigation’. It also recorded 382 stateless persons and 165 persons with ‘unknown nationality’ who were awaiting return to the country of origin.171 167 Statistisches Bundesamt, ‘Bevölkerung und Erwerbstätigkeit. Ausländische Bevölkerung. Ergebnisse des Ausländerzentralregisters 2015’ (2016) Fachserie 1 Reihe 2, 143. 168 Ibid 141. 169 Ibid 142. 170 unhcr ‘Mapping Statelessness in Sweden’ (2016) 17, 30. 171 Ibid 30. The Register of the sma contains information concerning aliens, such as name, age, nationality and other data. Ibid 18–19.

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Therefore, the total number of stateless persons known to be in Sweden, by the end of 2015, amounted to 29,733, the number of persons with ‘unknown nationality’ was 6,005 and the number of persons with nationality ‘under investigation’ was 1,037.172 11 Conclusion States under category three are those providing the least level of protection of all, as they lack a legal framework to identify stateless persons. Although it is recognised that States have discretion in adopting different types of statelessness determination procedures, in these cases, they cannot be certainly said to guarantee the essential elements of justice discussed in Chapter 4 or to satisfy the ‘international standard of reasonable efficacy and efficient implementation’.173 In these States, stateless persons tend to be forced into refugee status procedures and are dealt with in this framework, including that for humanitarian or subsidiary protection. For stateless persons with claims of persecution, asylum is the appropriate channel in which to present their cases. Nevertheless, it is not for those who do not meet the refugee definition and who are left with no clear solution to tackle their lack of nationality and legal status.174 In four of these States, stateless persons may qualify for lawful status on the grounds that it is impossible to leave the country, but this is usually a residual category, used when all other venues have been attempted. In addition, these procedures treat stateless persons as other irregular migrants and fail to take into consideration that they have special protection needs due to their frequent lack of financial means, documents and knowledge of the local language and laws. The provisions on the burden of proof are very strict, often requiring official proof of identity or impossibility to leave. For instance, in the Netherlands, the no-fault residence permit is granted only to those that can provide official evidence of identity and nationality in support of the application. Similarly, Sweden takes a stringent approach to proving one’s identity. Thus, these legislations, adopted to address the situation of unreturnable persons, in reality have been drafted so as to exclude most of the applicants who would need them to regularise their status, including stateless persons. Regarding the 172 Ibid 30. 173 Guy Goodwin-Gill, ‘The Process and Rights of Asylum Seekers’ in Karen Musalo, Jennifer Moore, Richard A Boswell (eds), Refugee Law and Policy. A Comparative and International Approach (4th edn, Carolina Academic Press 2011) 922. 174 Batchelor (n 3).

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guarantee of suitable adjudicators, in all of these States, except for Sweden, the data suggest that the main problem concerns the administrative decisionmakers’ structure and organisation, as their discretion is subject to political influences, creating tension between the need for applicants’ legal status and immigration control. Moreover, there is a lack of resources and well-trained adjudicators. This issue is of critical importance, given that judicial oversight is not always easily accessible and able to shape bureaucratic decision-making. Greece appears to be the State affording the least protection of all, as it does not even have provisions for impossibility to leave, and national practices are frequently not in compliance with existing general procedural guarantees – for instance, concerning the right to provide interpreters and the frequent unlawful use of immigration detention. Following the unhcr and pressure by civil society, both Greece and the Netherlands announced changes in their national legal frameworks as far as the determination of statelessness is concerned. On 1 April 2016, the Greek parliament adopted text to introduce a statelessness determination procedure. Specifically, Article 7, Paragraph 7 of Law 4375/2016175 foresees the adoption of a presidential decree which will establish a procedure for the ­determination of stateless persons. It appears that the responsibility for the  determination  of stateless status will be placed with the Greek Asylum Service, which is an ­autonomous body reporting directly to the Minister of Migration Policy. Its personnel is trained and supported by the European Asylum Support Office and the unhcr.176 In the Netherlands, in November 2016, the government presented a legislative proposal to introduce a statelessness determination procedure with ­competence to decide on cases to the District Court of the Hague.177 It is problematic that in the proposal, the burden of proof is borne by the applicant, and 175 Law 4375/2016 (gg A 51) on the organisation and operation of the Asylum Service, the Appeals Authority, the Reception and Identification Service, the establishment of the General Secretariat for Reception, the transposition into Greek legislation of the provisions of Directive 2013/32/EC on common procedures for granting and withdrawing the status of international protection (recast) (L 180/29.6.2013), provisions on the employment of beneficiaries of international protection and other provisions (unofficial tr). 176 Ibid art 1; Erika Kalantzi, ‘Greece Moves One Step Closer to Introducing an Effective Statelessness Determination Procedure’ (14 April 2016) accessed 21 March 2017. 177 Government of the Netherlands, ‘Statelessness’ accessed 1 April 2017; Katja Swider, ‘Change is in the Air: An Update on Efforts to Tackle Statelessness in the Netherlands’ (6 March 2015)

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the extent of proof necessary is not specified. Moreover, those recognised as being stateless will not be offered a residence permit.178 The next chapter further demonstrates how different types of procedures and substantive provisions implementing the 1954 Convention can affect findings of statelessness. In particular, the next chapter explores how stateless persons in similar circumstances are found to be stateless in some States and not in others. Whereas several studies have addressed different approaches to the application of the ‘refugee’ definition at the national level,179 very little is known regarding that of ‘stateless person’. accessed 2 April 2017. 178 verheid.nl, Internetconsultatie, Overheidsinformatie, ‘Rijkswet Vaststellingsprocedure Staatloosheid’ (28 November 2016) accessed 2 April 2017; Katja Swider and Caia Vleiks, ‘Proposal for Legislation on Statelessness in the Netherlands: a Bittersweet Victory’ (12 October 2016) accessed 2 April 2017. 179 James C Hathaway, The Rights of Refugees under International Law (cup 2005); Guy Goodwin-Gill and Jane McAdam, The Refugee in International Law (oup 2007) 530; Karen Musalo, Jennifer Moore, Richard A Boswell (eds), Refugee Law and Policy. A Comparative and International Approach (4th edn, Carolina Academic Press 2011).

206 Table 3

Chapter 7 Essential procedural guarantees in States under category three cz

ger

gre

nl

sw

Suitable decision-makers?

No

No

No

No

Temporary permit while application for impossibility to leave is pending? Right to individual interview? Specific rules on the identification of statelessness?

No

No

Not applicable No

Separate from executive but problems with quality of decisions No

No

Yes

Not applicable Yes

No

No

No

No

Specific rules Yes of evidence b/c ­impossible to leave? Right to interpreter? Yes

Yes

Yes, but limited No to certificate of postponement of removal No Yes

Written reasons for refusal? Finding of statelessness usually made? Length of procedures?

Right of review?

State-funded legal assistance?

Yes No

Not guaranteed at Yes, but admin stage problems in practice Yes Yes

Yes

Yes

Yes

Yes

Yes

Only by the No No courts 30 days, but Residence permit Not applicable 6 months, in practice, should be issued after 18 months but about 3 longer in on toleration (in months practice, years) practice Admin review. Yes Not applicable Internal Disputed if review and there is right to appeal to appeal the court Only for appeals Yes Only for Both at admin appeals stage and appeal but limits

No 3 months

Yes, if sma agrees to review a case for impossibility to leave Both at admin stage and appeal but limits

Chapter 8

The Implementation of the Definition of ‘Stateless Person’ 1 Introduction Although it is acknowledged that the definition of ‘stateless person’ involves several issues of interpretation and that findings of statelessness vary from State to State, not much is known about the actual implementation of Article 1 of the 1954 Convention.1 Therefore, this chapter aims at exploring and discussing common and meaningful selected issues of the interpretation and application of the definition of ‘stateless person’ in the States under study.2 Firstly, this chapter looks at whether Article 1 of the 1954 Convention has been incorporated into the national legal systems. Secondly, it analyses whether a person who could easily acquire a nationality is likely to be considered stateless. This problem often arises in practice, and States adopt a variety of approaches to it. Thirdly, it examines the treatment of stateless Palestinians and the application of the exclusion clause for persons who receive protection from agencies of the United Nations aside from the unhcr under Article 1(2)(i).3 Fourthly, it considers the treatment of persons whose nationality is disputed.4 This last matter was among the most contentiously debated ones during the preparatory works of the 1954 Convention5 and remains unresolved. Finally, in the conclusion, it analyses how different types of statelessness determination procedures and substantive provisions have an impact on findings of statelessness, and it contributes to the debate on the use of the terms de facto and de jure statelessness.

1 Carol A Batchelor, ‘The 1954 Convention Relating to the Status of Stateless Persons: Implementation within the European Union Member States and Recommendations for Harmonization’ (2004) 22(2) Refuge 31. 2 See Katia Bianchini, ‘The “Stateless Person” Definition in Selected eu Member States: Variations of Interpretation and Application’ (2017) 36(3) rsq 81–107. 3 See Ch 3, s 6. 4 Ibid ss 4 and 6. 5 Ibid s 4.

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004362901_010

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The Incorporation of the Definition of Stateless Person into National Law

Article 1 of the 1954 Convention, which states that a stateless person is ‘a person who is not considered as a national by any State under the operation of its law’,6 is incorporated into the nationality laws of all of the States under consideration, except for the Czech Republic and Sweden. Specifically, in the Czech Republic, stateless persons are not recognised as a separate category from other ‘foreign nationals’. A ‘foreign national’ is a natural person who is not a Czech national, including a national of the European Union.7 Thus, the definition of ‘stateless person’ under Czech law lacks the significant feature of this status: that such a person is not a national of any State under the operation of its law.8 In Sweden, the Aliens Act only incorporates the definition of refugee and stateless refugee of the Refugee Convention. As Sweden is a dualist country and has not adopted any law implementing Article 1 after having ratified the 1954 Convention, this Article is not part of the national legal framework.9 In the uk, one complication is that Paragraph 401(c) of the Immigration Rules incorporates the exclusion clauses of the 1954 Convention in the definition of ‘stateless person’ instead of stating that a person is stateless but can be excluded from protection.10 Precisely, Paragraph 402 excludes from the definition Palestinians who are currently protected and assisted by the ­United Nations Relief and Works Agency for Palestine Refugees in the Near East (unrwa) and all persons against whom there are serious grounds for considering that they have committed war crimes, crimes against peace or humanity, serious non-political crimes or acts contrary to the purposes and principles of the United Nations.11 On the other hand, the Home Office Guidance on 6

7

8 9

10 11

Convention Relating to the Status of Stateless Persons (adopted 28 September 1954, entered into force 6 June 1960) 360 unts 117 (Statelessness Convention) (hereafter the ‘1954 Convention’) art 1. Act No. 326/1999 on the residence of foreign nationals in the Czech Republic and amending certain laws (Foreign Nationals Act) s 1(2); questionnaire reply from unhcr Office (Prague, Czech Republic, 4 May 2017). Helena Hofmannová, ‘Legal Status of Stateless Persons in the Czech Republic’ (2013) 1 The Lawyer Quarterly 55, 67. Telephone interview with Bo Johannson, Lawyer, Swedish Refugee Advice Centre (Stockholm, Sweden, 17 December 2013). Regarding the implementation of international law in dualist States, see Ch 1, s 8.1. Immigration Rules (hc 1039 6 April 2013) Part 14: Stateless People para 401. Ibid para 402; Home Office, ‘Exclusion (Article 1F) and Article 33(2) of the Refugee Convention’ (1 July 2016) V6.0.

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209

S­ tatelessness suggests that the definition of ‘stateless person’ should be in line with the 1954 Convention, and therefore, Paragraph 401 of the Immigration Rules is internally inconsistent. Thus, it seems that the deviation from the text of the 1954 Convention is likely due to poor drafting, but it should be amended, as failure to identify stateless persons due to flaws in the Rules can result in lack of protection.12 In Spain, the Netherlands and Hungary, there is a discrepancy between the translations of the definition and its English version: the former say that a ‘stateless person’ is someone who is not considered a national by any State under its law, whereas the latter states that a ‘stateless person’ is someone who is not considered a national by any State under the operation of its law.13 This means that the incorrect translations of the definition may restrict access to protection for persons who have a nationality but do not enjoy it in practice (for instance, persons who do not receive assistance from the embassy of the country of origin to obtain documents and to return). In Spain and the Netherlands, these persons risk being considered undocumented and not stateless.14 On the other hand, in Hungary, one national informant reports that the translation of the definition is not a big problem in practice and that decision-­makers have approved cases adopting a holistic approach to Article 1, in line with the recommendations of the unhcr Handbook on the Protection of Stateless Persons (the ‘unhcr Handbook’).15 It is worthwhile to note that in the Netherlands, a recent legislative proposal has been made to change the definition to a person ‘who can be considered as stateless on the basis of the determination procedure’.16 This is problematic, as the recognition of statelessness is normally considered a declaratory and not constitutive act. Therefore, what emerges is that in most States, Article 1 of the 1954 Convention has been accepted in municipal law but with variations in four of them. In Sweden and the Czech Republic, Article 1 has not been incorporated at all. 12 13

14 15 16

Home Office, ‘Asylum Policy Instruction. Statelessness and Applications for Leave to Remain’ (18 February 2016) V2.0 para 4.1. acnur, ‘Convención Sobre el Estatuto de los Apátridas’ accessed 27 April 2017; Katja Swider and Caia Vleiks, ‘Proposal for Legislation on Statelessness in the Netherlands: a Bittersweet Victory’ (12 October 2016) accessed 4 June 2017; interview with Gábor Gyulai, Refugee Programme Director, Hungarian Helsinki Committee (Budapest, Hungary, 4 May 2017). Questionnaire reply from unhcr Officer (Madrid, Spain, 27 April 2017). Interview with Gyulai (n 13). Swider and Vleiks (n 13).

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The next sections explore how the definition of ‘stateless person’ is interpreted and applied and focus on significant variations of the selected issues relating to Article 1. 3

The Treatment of Stateless Persons Who Can Easily Obtain a Nationality

One significant question regarding the application of Article 1 concerns ­ hether those who appear to be eligible for citizenship, but who must lodge w an ­application, are found to meet the definition of stateless person. The ­u nhcr Handbook, Paragraph 26, states that in non-automatic modes of acquisition of nationality, as an act of the individual or of a State authority that is required before the change in nationality status takes place, States should recognise the person to be stateless. In Paragraph 50, it adds that ‘[a]n individual’s ­nationality is to be assessed as at the time of determination of eligibility under the 1954 Convention. It is neither a historic nor a predictive exercise’. ‘[I]f an individual is partway through a process for acquiring nationality but those procedures are yet to be completed, he or she cannot be considered as a national (…)’.17 The unhcr takes a slightly different approach as far as the reacquisition of a former nationality is concerned: in such a case, a person should make attempts towards this end. The State only needs to provide temporary permission during the time required to obtain the nationality. If the time limit has been reached and readmission or reacquisition of nationality has not materialised, the State should then issue the status that is generally accorded upon recognition of statelessness.18 According to Batchelor, in order to safeguard against statelessness, a person must be considered a national at the time the case is examined. She argues that it is not sufficient to be eligible to apply for citizenship, as the acquisition of nationality is not always automatic but rather discretionary.19 A discretionary grant of nationality, by definition, presumes that a State can grant its nationality but can also reject an application on a number of different grounds which are open to interpretation. When discretion exists, only after the application

17 18 19

unhcr ‘Handbook on Protection of Stateless Persons under the 1954 Convention relating to the Status of Stateless Persons’ (2014) para 50. Ibid paras 158–60. Batchelor, ‘The 1954 Convention Relating to the Status of Stateless Persons’ (n 1) 37.

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has been approved and nationality conferred can the individual be considered a national of that State.20 Among the States under review, only the uk, in its Home Office Guidance, explicitly addresses the implications of a future entitlement to nationality in line with the unhcr Handbook and Batchelor’s interpretation and in favour of a stateless person: An individual’s nationality is to be assessed as at the time of determination of the stateless application. It is not a historic or predictive exercise. Caseworkers must consider whether at the point of making a determination, an individual is or is not a national of the country or countries in question. This means that if an individual is partway through a process for acquiring a nationality but those procedures have not been completed at the date of determination of the stateless claim, he or she cannot be considered to be a national for the purposes of Article 1(1) of the 1954 Convention.21 However, it is reported that in several cases, the ho made an incorrect temporal assessment of whether someone has a nationality. Specifically, the ho refused applications on the grounds that the person was not stateless, because he could make an application to the relevant authorities to acquire a ­nationality.22 The Upper Tribunal intervened on this matter, and in the case of Semeda, it made it clear that the assessment of whether someone is a national should refer to the time at which the statelessness application is made. Whether a person could acquire a nationality in the future is irrelevant: ‘[t]he question which should have been addressed, and answered, was w ­ hether the Libyan government recognised the Applicant as one of its nationals at the 20

21

22

[T]he fact that an individual does fit the category of persons who, with reference to the law, is normally granted nationality does not mean that a particular person was granted such status, as there may always be exceptions to the legislation, variances between the written word and the implementation of the law or inadvertent actions on the part of either the individual or the State, which result in a failure to acquire nationality. Thus, consultations with the State concerned are imperative for verification of nationality status. Carol A Batchelor, ‘Statelessness and the Problem of Resolving Nationality Status’ (1998) 10(1–2) ijrl 156, 171. Home Office, ‘Asylum Policy Instruction. Statelessness and Applications for Leave to Remain’ (n 12) para 4.4; Alison Harvey, ‘The uk’s New Statelessness Determination Procedure in Context’ (2013) 27(4) jianl 294, 301. Katia Bianchini, ‘Protecting Stateless Persons from Arbitrary Detention in the uk’ (European Network on Statelessness 2016) 20.

212

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time when the decision was made’.23 This case followed the reasoning of the Supreme Court in Al-Jedda v Secretary of State for the Home Department [2013] uksc 62.24 The gaps in Hungarian and German legislation on this issue have been filled by the courts, which found a person without a nationality, but who appears to be eligible to apply for one, to be stateless.25 In particular, the German Federal Administrative Court forcefully stated that even if a stateless person could eliminate his statelessness in a reasonable way, he is not required to do so by the 1954 Convention. He has no such obligation.26 Other judgments clarified that an administrative decision that requires an alien to eliminate his statelessness through naturalisation is void.27 By contrast, the other States adopt a narrow interpretation of this issue. In Spain, normally, the person would not be found to be stateless, neither by the administration nor by the courts, if he could obtain a nationality through a non-automatic mode of acquisition.28 In France, the administration would usually require a person to make attempts to obtain the other possible nationality.29 The courts would check the causes of statelessness and whether they are independent from the person’s will.30 Recently, the administrative court in Nancy denied stateless status to an applicant born in an autonomous republic 23

In R (on the application of Semeda) v Secretary of State for the Home Department (statelessness; Pham [2015] uksc 19 applied) ijr [2015] ukut 658 (iac). 24 Al-Jedda v Secretary of State for the Home Department [2013] 62 (uksc). 25 For Germany, see VGH Baden-Württemberg 16.02.1994, NVwZ 1994, 1233; BVerwG 16.07.1996, dvbi 1997, 177–178; VG Regensburg, Gerichtsbescheid v 17.01.1997 – ro 2 K 96.0069; VG Stuttgart, Urteil v 26.09.2002 – 11 K 4536/01; VG Schleswig-Holstein, Urteil v 7.02.2007 – 1 A 130/04; VG München, Gerichtsbescheid v 15.05.2007 – M 7 K 05.159, M 7 K 06.545. For Hungary, the information was provided through a telephone interview with Tamás Molnár, Head of Unit, Unit for Migration, Asylum and Border Management, Department of eu Cooperation, Ministry of Interior [of Hungary] and Assistant Professor at Corvinus University of Budapest (Budapest, Hungary, 16 December 2013). 26 BVerwG 16.07.1996 (n 25). 27 VGH Baden-Württemberg 16.02.1994 (n 25); VG Karlsruhe 26.02.2003 – 5 K 2350/02. 28 Telephone interview with Arsenio Cores, Immigration Lawyer (Madrid, Spain, 11 December 2013); Manuel Jesús López Baroni, ‘Apátridas Saharauis en España: Europa y su Memoria’, in Universidad Nacional Autónoma de México-Instituto de Investigaciones Jurídicas, Anuario Mexicano de Derecho Internacional, vol. xiv (2014) 381, 405, 409, 416. 29 Telephone interview with Lacene Magali, Solicitor and Legal Trainer, France Terre D’Asile (Paris, France, 27 December 2013). 30 Denis Seguin cites the following cases: ce, 21 novembre 1994, n° 147194; ce, 17 mars 1999, n° 160895; ce 29 décembre 2000, n° 216121. He also adds that the courts clarified that stateless status will not be granted to those who have voluntarily renounced a ­nationality.

The Implementation of the Definition of ‘Stateless Person’

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of Azerbaijan, because she had not engaged in the voluntary process to obtain either Azerbaijani or Armenian nationality.31 In another case, the administrative court in Bourdeaux denied stateless status to a member of the Roma community, because she could not prove serious attempts to obtain Kosovar or Serbian nationality, even though she and her parents were born in Kosovo and she had lived in Serbia.32 In the context of asylum seekers’ claims, in 2009, the National Asylum Court required North Korean applicants to try to obtain South Korean nationality by approaching the embassy before they could be given protection.33 But, in a decision issued on 5 April 2016 (No. 09001713), the National Asylum Court annulled the ofpra’s decision to deny refugee status to a North Korean citizen and granted him refugee status on the grounds that, despite the South Korean law that theoretically entitled him to South Korean nationality, the circumstances he actually faced could not be interpreted as a lack of will to obtain a nationality. In practice, South Korean authorities require applicants to meet very demanding criteria, notably excluding those who have lived outside the Korean peninsula for more than ten years. The Court acknowledged the discretionary power involved and the lack of transparency in the process, which gave sufficient grounds to North Korean natives to apply for protection.34 In Italy, the trend of the recent case law is that a person cannot be stateless if he can opt to acquire a nationality. The courts reason that in these cases, statelessness would not depend on an objective fact independent from the interested person but from a choice, and so, international protection is not deserved.35 In contrast, some previous Italian cases recognised stateless status even if the cause of statelessness depended on the freewill of the interested person not to acquire a nationality.36 In the Czech Republic and the Netherlands, a person who may obtain a nationality would probably not be granted any permission to remain if his

31 32 33 34 35

36

ce, 21 novembre 1994, n° 147193; caa Bordeaux, 19 juillet 1999, n° 98BX00688. Denis Seguin, Guide du Contentieux du Droit des Étrangers (Lexis Nexis 2013) 22. caa de Nancy, 11 mai 2017, n° 16NC01203. caa de Bourdeaux, 1 février 2017, n° 10BX01072. See e.g., the case of the cnda, 23 décembre 2009, n° 636547/08017005. cnda, 5 avril 2016, n° 09001713; questionnaire reply from Raphaële Bouniol, Immigration Lawyer (Paris, France, 11 July 2017). E.g., Farci cites a decision of the Tribunal in Genova: Trib Genova, 13.12.2010. Paolo Farci, Apolidia (Giuffrè 2012) 376; email from Paolo Farci, Immigration Lawyer, to author (Florence, Italy, 25 May 2017). E.g., Farci cites a decision of the Tribunal in Ancona: Trib Ancona, 13.6.1950. ibid 376.

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a­ rgument was based on the impossibility to leave the country.37 However, in the Netherlands, a person may be granted a no-fault permit if he did everything he could to obtain a nationality and be issued travel documents to return but all efforts failed.38 For Greece, there are no easily accessible data on how the authorities would deal with this situation.39 In Sweden, it appears that the assessment of the person’s possibility to acquire a nationality varies from case to case, and this matter is taken into consideration when granting a permit to remain. In some instances, the assessment is comprehensive, while in others, such a possibility is not evaluated at all.40 So, apart from the uk, clear legislative intervention clarifying when a person is considered stateless would be needed in all of the States under consideration. 4

The Treatment of Palestinian Cases

It is often acknowledged that for Palestinians, it is common not to be allowed to return to their place of origin, and for them, statelessness is an even more significant problem than the refugee aspect.41 Nevertheless, there is no unified standard of treatment for them, and their rights and access to services vary drastically from State to State. This is amplified by the application, on the part of many States, of the exclusion clause of Article 1(2)(i) of the 1954 Convention, which, as explained in Chapter 3, s 6, refers to those who are at present receiving protection or assistance from the unrwa as long as they continue to receive such assistance. Given the complexity of the subject, the national informants were asked to report on what might happen in a hypothetical case (vignette)42 concerning a Palestinian from the West Bank seeking protection. Thus, I present the summary of the original vignette. 37

38 39 40 41 42

Telephone interview with Alexandra Dubova, Immigration Lawyer, Organizace pro pomoc uprchlíkům, o.s. (Prague, Czech Republic, 2 January 2014); questionnaire reply from Rombout Hijma, Immigration Lawyer (Utrecht, The Netehrlands, 30 January 2014). Email from Marlotte van Dael, Researcher, askv Refugee Support, to author (Amsterdam, Netherlands, 9 May 2017). Questionnaire reply from Erika Kalatzi, Immigration Lawyer (Athens, Greece, 22 December 2013). unhcr, ‘Mapping Statelessness in Sweden’ (2016) 28. Lex Takkenberg, The Status of Palestinian Refugees in International Law (oup 1998) 195. Regarding the use of vignettes, see text to ns 59–63 in Ch 1.

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The vignette depicts the case of X, a Palestinian originating from the West Bank. X was born in Palestine and is 30 years of age. X left the West Bank and entered the country illegally. His asylum application was refused, because the authorities did not believe that he faces persecution upon return. Then, X makes a claim for protection, claiming that he is stateless. The issues that the authorities will face are whether: (1) X will likely meet the definition of Article 1 of the 1954 Convention, (2) the answer to the first question would be different if, after his birth, X and his family fled to Jordan and (3) X will likely be excluded from protection under Article 1(2) (i) of the 1954 Convention? 4.1 Will X Likely Meet the Definition of Article 1 of the 1954 Convention? In States under categories one and two, X is likely to be found to meet the definition of Article 1 of the 1954 Convention. In States falling under category three, the administrations will avoid making a finding of statelessness whenever possible. The impracticality of return, however, may become the key question for claiming other residence permits, such as for humanitarian protection or the impossibility to leave the c­ ountry.43 In Sweden, following the recognition of Palestine as a State, the sma has adopted a Judicial Position44 to guide decision-makers. The Judicial Decision states that Palestine must be considered to have nationals, even though it lacks nationality laws. It acknowledges that the issue of nationality presents deficiencies and that Palestinians, in certain situations, should be considered de facto stateless. Nonetheless, the Judicial Position adds that persons who can show that they are likely to be registered as residents in the West Bank, Gaza or East Jerusalem, as can their children, can be treated as nationals of Palestine. By contrast, Palestinians originating from other areas shall be treated as stateless,

43 See Ch 7.2. 44 Migrationsverket, ‘Rättsligt Ställningstagande Angående de Migrationsrättsliga Konsekvenserna av Sveriges Erkännande av Palestina’ sr 11/2015 accessed 27 March 2017. A ‘legal position’ is a binding country guidance for administrative decision-makers adopted by the Head of the Swedish Migration Agency. Given the lack of guidance from the highest judicial instance, legal opinions are crucial for judicial decision-making, as well, although they are not binding, and sometimes, judges go against them. Livia Johannesson, In Courts We Trust. Administrative Justice in Swedish Migration Courts (PhD Thesis, Stockholm University, March 2017) 115; telephone conversation with Livia Johannesson, PhD Candidate, Stockholm University (Stockholm, Sweden, 27 March 2017).

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and their asylum claims shall be assessed in relation to their former country of habitual residence.45 In Greece, no determination of statelessness will be undertaken, but the trend is to grant some kind of protection to these kinds of applicants.46 In Germany, the courts appear to be more open to making findings of statelessness and granting protection than the administration.47 In particular, most courts have found Palestinians without another nationality to be de jure stateless according to Article 1 of the 1954 Convention.48 Although the Federal Administrative Court did not directly address whether a Palestinian nationality exists,49 some lower administrative courts found that there is neither a Palestinian State under international law nor a Palestinian nationality.50 In any case, both the Federal Administrative Court and the High Administrative Court in Berlin held that an ‘unclear nationality’ in legal terms is not possible.51 They stressed that if the investigation on the existence of a nationality cannot be concluded, the person in question is stateless.52 Will X be Likely to Meet the Definition of Article 1 of the 1954 if, after His Birth, He and His Family Fled to Jordan? The second question of the vignette illustrates the situation where a Palestinian may have acquired Jordanian nationality or some kind of protection.53

4.2

45 46 47 48 49 50

51

52 53

unhcr, ‘Mapping Statelessness in Sweden’ (2016) 26. Questionnaire reply from Kalatzi (n 39); telephone conversation with unhcr Officer (Athens, Greece, 31 May 2017). Germany is a civil law country, and therefore, the administration is bound by court decisions only in the individual case brought against it. BVerwG, Urteil v 23.02.1993 – 1 C 7.91, 9–10; BVerwG, 23.02.1993, BVerwGE, 92, 116, 119–120 mwN; ovg Berlin, Urteil v 18.04.1991 – 5 B 41.90; BVerwG, Beschluss v 17.07.1987 – 1 B 23.87. BVerwG, Urteil v 23.02.1993 (n 48); BVerwG, 23.02.1993, BVerwGE 92 (n 48). VG Aachen, Urteil v 1.03.2001 – 4 K 3022/99; VG Aachen, 1.03.2001, InfAuslR, 2001, 338; VG Saarland, Urteil v 24.11.2006 – 5 K 97/05; OVG Niedersachsen, Beschluss v 21.04.2004 – 11 la 61/04. BVerwG, 12.02.1985, NVwZ, 1985, 589; BVerwG, 15.10.1985, NVwZ 1986, 759; ovg Berlin, Urteil v 18.04.1991 (n 48); vg Berlin, Urteil v 12.06.1985 – 11 A 655.84; vg Berlin, 12.06.1985, InfAuslR 1985, 237–238; vg Berlin, Urteil v 24.02.1988 – 23 A 341.87; vg Berlin, 24.02.1988, InfAuslR 1988, 174, 176. BVerwG, 12.02.1985 (n 51); BVerwG, 15.10.1985 (n 51); Katia Bianchini, ‘On the Protection of Stateless Persons in Germany’ (2014) 19(1–2) tlr 35, 39, 49. Currently, in Jordan, only Palestinian refugees from the 1948 War have Jordanian nationality. Other Palestinian refugees from the Gaza Strip enjoy the right to employment and education, on par with Jordanian nationals. In Jordan, Palestinian refugees are probably treated better than in other countries of the Arab world. Reem Salahi, ‘Reinterpreting

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In States under category one – France, Germany, the Czech Republic and the Netherlands – an additional assessment will be made as to whether X acquired Jordanian nationality or residence rights and whether his return is possible there.54 Specifically, in the uk, Paragraph 403(c) of the Immigration Rules sets out that stateless persons admissible to their country of former habitual residence or any other country where they will have permanent residence should not be granted leave to remain. The ho Guidance clarifies that the person must have secure residence and the rights normally attached to the nationality of that State.55 In Italy, the treatment that X will receive depends on the procedure that he initiated. In the judicial procedure for statelessness determination, it will probably make no difference that X had migrated to Jordan, as neither the judges nor the government lawyers have the specialised knowledge to distinguish these cases from those of people who only lived in the West Bank.56 On the other hand, in the administrative procedures, the decision is likely to be made after having obtained the opinion of the experts in the Foreign Affairs Ministry, who usually engage in research.57 In Sweden, X would normally be considered and registered as stateless and have the claim assessed in relation to the former country of habitual residence, similar to Palestinians coming from areas other than the West Bank, Gaza or East Jerusalem.58 It is reported that the extent of such an assessment varies from case to case. Sometimes, it is comprehensive, whereas sometimes, it is not.59 In most cases, the sma will conclude that the fact that the person was stateless in the country of former habitual residence does not, as such, amount to persecution or constitutes grounds for subsidiary protection or another status.60 It will also try to implement expulsion orders of rejected Palestinian

Article id: Seeking Viable Solutions to the Palestinian Refugee Anomaly’ (2008) 1 Berkeley jmeil 127, 145. 54 Telephone interview with Cores (n 28); Molnár (n 25); Magali (n 29); Dubova (n 37); Hijma (n 37). 55 See Home Office, ‘Asylum Policy Instruction. Statelessness and Applications for Leave to Remain’ (n 12) paras 1.4 (last line), 3.4 (line 3), 6.2 (line 2). 56 Telephone interview with Giulia Perin, Immigration Lawyer (Padova, Italy, 6 December 2013). 57 Ibid. For the difference between the two procedures, see Ch 6, s 3. 58 Johannson (n 9); unhcr, ‘Mapping Statelessness in Sweden’ (2016) 26. 59 unhcr, ‘Mapping Statelessness in Sweden’ (2016) 28. 60 Ibid.

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a­ sylum seekers, though it will not assess protection problems during the return journey, such as arbitrary detention.61 Will X be Likely to be Excluded from Protection under Article 1(2)(i) of the 1954 Convention? As far as the last question is concerned, it involves whether it is likely that a stateless Palestinian is excluded from protection under Article 1(2)(i) of the 1954 Convention because he falls under the unrwa’s mandate.62 The answer seems to be mostly dependent on the State’s policy regarding the treatment of Palestinian refugees. In favour of X, Spain,63 the Czech Republic64 and Italy are likely to grant some kind of protection. In Italy, this seems to be due to the lack of specialised knowledge of the judges and government lawyers rather than to a policy choice. One national informant has underlined that he is not aware of any case law or of any administrative decision dealing with the issue.65 By contrast, Spain and the Czech Republic have a well-defined policy on this matter.66 In particular, in Spain, once the unrwa’s protection or assistance ceases for any reason and the unrwa confirms registration of an applicant, protection will be granted ipso facto.67 Cases of Palestinians from the Occupied Territories who are not registered with the unrwa are usually granted humanitarian protection on their own merits, as the administration considers these claims based on the situation of generalised violence in the area.68

4.3

61 62 63 64

65 66

67

68

Ibid 45. See Ch 3, s 6. Telephone interview with Cores (n 28). Dubova (n 37); badil, Resource Center for Palestinian Residency and Refugee Rights, Closing Protection Gaps: Handbook on Protection of Stateless Palestinian Refugees in States Signatories to the 1951 Convention (2nd edn, 2015) 106; questionnaire reply from unhcr (Prague, Czech Republic, 5 May 2017). Email from Farci (n 35). In the Czech Republic, in addition to in asylum and subsidiary protection cases, this issue is relevant in the context of ‘tolerated stay’; questionnaire reply from the unhcr (Prague, Czech Republic, 5 May 2017). Ley 12/2009, de 30 de octubre, reguladora del derecho de asilo y de la protección subsidiaria (BOE-A-2009-17242) [Law 12/2009 of 30 October 2009 regulating the right to asylum and subsidiary protection (BOE-A-2009-17242)] art 8.1(a); badil (n 64) 193, 194. In Spain, there are very few cases of Palestinian refugees coming from other countries outside the unrwa’s area of operation. In these cases, the Spanish authorities usually check if the person can receive effective protection in the relevant State.

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In Germany, the Federal Administrative Court held that the concerned person does not need to actually receive the unrwa’s protection and assistance at the time of the decision on his claim, based on the 1954 Convention.69 What is decisive is that he belongs to the category of people whose support falls under the unrwa, which comprises:70 (1) people who are still registered with the unrwa and have left the area of the unrwa’s operations,71 including those that cannot return or have lost the authorisation to return due to lapse of time, as long as the impossibility to return does not depend on their will, and (2) those forced to leave or whose return is affected by unforeseeable circumstances that have arisen during the stay abroad. In the latter case, a person may even qualify for protection on asylum or humanitarian grounds.72 In general, the German courts have not accepted the deprivation of socio-economic and cultural rights as sufficient to grant protection. Objective reasons that prevent return are restricted to civil and political rights, along with barriers to return (for instance, bans to return as long as the applicant is not responsible for them).73 In Hungary, there is no specific guidance on this matter, and in the context of statelessness, one national informant has stated that he has no knowledge of any case where Article 1(2)(i) was applied.74 For asylum cases, 69

BVerwG, 21.01.1992, BVerwGE 89, 296, 302–04; BVerwG, Urteil v 21.01.1992 – 1 C 18.90; BVerwG, 21.01.1992, InfAusIR 1992, 161, 163–64; BVerwG, 23.02.1993, BVerwGE 92, 166; BVerwG, 23.02.1993, InfAusIR 1994, 35; vg Berlin, Urteil v 24.02.2014 – 34 K 172.11 A; VG Schwerin, Urteil v 05.06.2013 – 5 A 1656/10 As;vg Berlin, Beschluss v 22.03.2013 – 34 L 51.13. 70 BVerwG, 21.01.1992 (n 69) 161. unrwa protection depends on the agreement of the State in which it operates and on whether the Palestine refugee still has the right to return to and reside in that State. The departure itself does not automatically make a person qualify for international protection. 71 Ibid. 72 Ibid. In this case, the Federal Administrative Court noted that the claimant was registered with the unrwa. Whether she actually receives concrete help from the unrwa is irrelevant. When she came to Germany, the unrwa could not provide protection for her anymore. However, she could return to Lebanon until 8 October 1988 and obtain the unrwa’s protection again. She did not use that opportunity, and by staying in Germany beyond this date, she had chosen to lose the unrwa’s protection. Therefore, the Court found that the 1954 Convention was not applicable and dismissed the claim. Bianchini, ‘On the Protection of Stateless Persons in Germany’ (n 52) 41–42. See also, vg Berlin, Urteil v 24.02.2014 – 34 K 172.11 A (following El Kott and BVerwG, Urteil v 21.01.1992 (n 69); badil (n 64) 139. 73 VG Dresden, Urteil v 25.11.2010 – A 5 K 1072/08; vg Berlin, Urteil v 24.02.2014 – 34 K 172.11 A; badil (n 64) 139, 350. 74 Questionnaire reply from Gábor Gyulai, Refugee Programme Director, Hungarian Helsinki Committee (Budapest, Hungary, 20 January 2014); interview with Gyulai (n 13).

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the El Kott judgment is followed in administrative and judicial decisions.75 Should this issue arise in statelessness claims, it is likely that the same principles would apply. Regarding France, in some cases that pre-dated El Kott and which specifically involved the exclusion clause in the 1954 Convention, the Council of State and the administrative court of appeal found that persons outside the unrwa’s areas of operation can no longer enjoy its protection or assistance and should be granted stateless status.76 However, decision number 318356 of the Council of State (23 July 2010) should be mentioned. This case involved an asylum applicant from Palestine who left Jordan and could be relevant for statelessness claims by analogy. According to this decision, a person who left the unrwa’s areas of protection or assistance is entitled to protection only if he was forced to leave and cannot return due to one of the grounds of the Refugee Convention. In the uk, the 2016 Home Office Instruction states that persons ‘may come within the scope of the Stateless Convention if they have not received [unwra] assistance or have ceased to receive assistance for reasons beyond their control and independent of their volition’ (Paragraph 5.1).77 The ‘reasons’ considered include legal and practical barriers to return to the unrwa’s area of protection. In practice, it seems that the ho applies the exclusion clause according to its policy guidance.78 In Sweden, the Migration Court of Appeal, in line with El Kott, held that the applicant, a stateless Palestinian from Syria, was registered with and accessed the unrwa’s assistance but was forced to leave its area of operation due to personal and security reasons. After the flight, the applicant did not have the opportunity to access the unrwa’s assistance, which was therefore considered terminated. As the unrwa’s assistance had ceased and safety concerns

75 76

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78

badil (n 64) 146–47. ce, 10ème et 9ème Sous-Sections Réunies, 22 novembre 2006, n° 277373, Publié Au Recueil Lebon; caa de Paris, 3ème Chambre, 20 decembre 2009, n° 09PA00158, Inédit Au Recueil Lebon. Sections 2.2.14 to 2.2.25 of the Home Office, ‘Operational Guidance Note Occupied Palestinian Territories’ (19 March 2013) V4.0, were updated to reflect the El Kott judgment. Available at accessed 30 September 2016. Author’s conversations with practitioners and policy-makers at the First Global Forum on Statelessness (The Hague, Netherlands, 15–17 September 2014); interview with Immigration Solicitor (London, uk, 6 June 2016); email from Immigration Solicitor to author (Liverpool, uk, 14 June 2017).

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­precluded a return, the court held that the applicant deserved refugee status.79 The Migration Court of Appeal’s decision was upheld in subsequent cases regarding Palestinians from Syria.80 However, Palestinians such as X would receive a different treatment. In this regard, the sma adopted the position that in Gaza and Iraq, there is no ‘armed conflict’ but rather ‘severe conflicts in progress’ and that the situation is different from that in Syria.81 In particular, it made no reference to the unrwa in cases involving Palestinians from Gaza and Jordan.82 Finally, it should be noted that in Sweden, the exclusion clause is also applied when a Palestinian requests forms of protection other than refugee status, as well as a refugee or stateless travel document.83 In the Netherlands, the State Secretary of Security and Justice has issued guidelines regarding the recognition of Palestinian refugees which require decision-makers to assess a claim in light of El Kott.84 The guidelines state that the fact that a person is outside the unrwa’s area of operations or left that area voluntarily does not in itself constitute cessation of protection or assistance. Palestinian asylum seekers’ claims must be assessed in relation to whether they can both return to the unrwa’s area of operation and enjoy its protection. The impossibility to return must not depend on the person’s control or volition.85 If that person cannot return, the authorities will assess the claim under the normal criteria of the Refugee Convention. However, the impact of El Kott on the Netherland’s practice as far as the treatment of Palestinian applicants is concerned remains unclear.86 Stateless persons who have not been granted asylum can apply for a no-fault permit if they can prove that they are stateless and that the authorities in their country of former habitual residence will not issue travel documents for their return. Generally, it is very difficult to obtain such permits, because the Dutch authorities often take the view that other States allow the return of their inhabitants.87 In Greece, there are variations in the application of the two paragraphs of Article 1D, and much depends on the individual decision-maker or the s­ pecific 79 80 81 82 83 84

85 86 87

Migration Court of Appeal: Case um 1590–13 (26 November 2013); badil (n 64) 199–200. badil (n 64) 199. Ibid 201–02. Ibid 200, 202; unhcr, ‘Mapping Statelessness in Sweden’ (2016) 28. badil (n 64) 205. State of the Netherlands, ‘Decision of the State Secretary of Security and Justice of 23 September 2013, Issue wbv 2013/20, Amending the Aliens Act 2000’ (23 September 2013), in badil (n 64) 169. Ibid 169. badil (n 64) 170. Ibid 171–72.

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Appeals Committee at the second instance. In general, there is no clear line, neither at the first nor second instance, on the interpretation. Decision-­ makers follow the criteria as set by the unhcr’s relevant notes, as well as the El Kott decision. In case of contradiction between the two concerning Article 1D, it is possible that either the unhcr’s interpretation or the cjeu’s view is applied. Decision-makers in Greece do not ask applicants to produce unrwa cards as proof that they are Palestinians, and they rely on a credibility assessment involving whether they had one or were entitled to unrwa’s assistance or ­protection. Should any applicant of Palestinian origin meet the criteria of the two paragraphs of Article 1D, they can be automatically granted refugee status.88 So, the interpretation and application of Article 1 of the 1954 Convention vary greatly, with some States granting Palestinians different categories of stay on impossibility to leave or protection grounds, without necessarily making a finding as to their nationality status. The possible exclusion from protection under Article 1(2)(i) further creates uncertainty and leaves stateless Palestinians in legal limbo. Of course, the primary cause of these issues is the failure of the international community to reach a lasting political solution to the problems posed by what territory Palestine comprises and what people are nationals of that territory.89 However, lack of legislative guidance, inconsistencies in interpretation and abstruse positions of decision-makers only further hinder the status and protection of stateless Palestinians. In addition, the recent judgment of El Kott further complicates the interpretation of the exclusion clause.90 This decision narrows the interpretation of the first sentence of Article 1D of the Refugee Convention, and as far as the second sentence is concerned, it requires the assessment of the reasons of departure but does not provide enough guidance. Arguably, as discussed in Chapter 3, Section 6, such assessment is not even necessary, as it is against the drafters’ intentions.91 Given the different outcomes of claims for protection made by the stateless Palestinians, I agree with Batchelor that in this area, ‘States may benefit from reviewing approaches with an eye to harmonisation’.92 88

89 90 91 92

Questionnaire reply from Erika Kalatzi, Immigration Lawyer (Athens, Greece, 23 April 2017); telephone conversation with unhcr Officer (n 46); email from unhcr Senior Protection Associate to author (Athens, Greece, 19 June 2017). Reem Salahi, ‘Reinterpreting Article id: Seeking Viable Solutions to the Palestinian Refugee Anomaly’ (2008) 1 BerkeleyJMEIL 127–28. See text to ns 103–108 in Ch 3. See Ch 3, s 6. Batchelor, ‘The 1954 Convention Relating to the Status of Stateless Persons’ (n 1) 37.

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Disputed Nationality: The Treatment of Eritrean-Ethiopian Cases

Both the preparatory works of the 1954 Convention and the literature show that cases of ineffective nationality were, and still are, among the most debated questions in the area of statelessness.93 As explained in Chapter 3, it is debated what having an ‘effective nationality’ means, and the unhcr points out that it is necessary to distinguish between when a person is being recognised as a national but not being treated as such and is not being recognised as a national at all. The former situation is connected with the rights attached to nationality, whereas the second is connected with the right to nationality itself.94 A frequent situation when the lack of an effective nationality needs to be assessed may arise in cases of individuals who are outside of their State of origin and cannot obtain assistance or documents to return because their nationality is disputed. So, the question to address is whether they are stateless and should obtain international protection. Batchelor believes that if a person is unable to obtain an effective nationality due to administrative obstacles, then he may fairly be considered de facto stateless.95 She argues that the resolution attached to the 1961 Convention on the Reduction of Statelessness and the Final Act of the 1954 Convention recommend that persons who are de facto stateless should as far as possible be treated as de jure stateless to enable them to acquire an effective nationality.96 However, several scholars and experts point out that cases of ineffective nationality are often confused with de facto statelessness cases.97 I agree with van Waas that the question of whether these individuals are de jure or de facto stateless is superfluous and that the main issue is that of identifying them as stateless through appropriate procedures and well-defined means of evidence.98 For example, rules would be needed to clarify whether and at what point the absence of replies from the foreign authorities regarding requests for assistance in obtaining travel documents or in recognising a person as a national would weigh in identifying statelessness. Through such

93 94 95 96 97 98

See Ch 3, ss 3–4 and Ch 1, s 7. unhcr ‘The Concept of Stateless Persons under International Law (“Prato Conclusions”)’ (May 2010) 2; unhcr Handbook (n 17) para 53. See Ch 2, s 3. Batchelor, ‘Statelessness and the Problem of Resolving Nationality Status’ (n 20) 172–74. See Ch 3, s 3. See Ch 3 s 4. Laura van Waas, Nationality Matters: Statelessness under International Law (Intersentia 2008) 26–27.

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rules, cases that have been traditionally labelled as de facto statelessness may fall within the de jure definition of statelessness.99 Regarding which rules to follow in cases of disputed or ineffective nationality, the unhcr advises one to ‘assess the State’s general attitude in terms of nationality status of persons who are similarly situated’.100 If the State has the tendency of recognising the nationality status of those who appear to fall under the relevant nationality law, this may be indicative that the person concerned is also a national of that State. On the other hand, if the individual belongs to a group whose members are routinely denied nationality (for instance, they are denied identification documents issued only to nationals), this may indicate that the person is not considered a national by the State.101 In cases where an individual or a State seeks clarification of that individual’s nationality status with the competent authorities but lacks any documents proving this, such enquiries may be met either with silence or a refusal to respond from the competent authority. Conclusions regarding a lack of response should only be reached after a reasonable time and as long as the person cooperates in good faith. If a competent authority has a policy of never replying to such requests, no inference can be drawn from the failure to respond, based on the non-response alone. On the other hand, when a State routinely responds to such enquiries, a lack of response should generally provide strong confirmation that the individual is not a national. Where a competent authority issues a standard response and it is clear that it has not examined the particular circumstances of an individual’s case, such a reply carries little weight.102 To explore how the States under study deal with cases of ineffective nationality, when the nationality is disputed and/or a person cannot return, I use another vignette. In this hypothetical case, the effective link with the State of origin becomes questionable. As an example, I choose the situation that may occur with persons of Ethiopian or Eritrean origin. It is outside the scope of this thesis to explain the long and complex history of Eritrea and Ethiopia, and so, I only mention that the conflicts and tensions in these States have created a lot of confusion regarding national identity for several thousands of people. In addition, there is a severe lack of country of origin information on the current treatment of Eritreans in Ethiopia and Ethiopians in Eritrea and particularly on the nationality issues surrounding the situation since the cessation

99 Ibid 26. 100 unhcr Handbook (n 17) para 38. 101 Ibid. 102 Ibid para 41.

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of hostilities.103 Also, very little is known of the problems that those of mixed Eritrean-Ethiopian parentage104 face, as they are not normally considered separately from ‘full’ Eritreans or Ethiopians. Research has shown that people with one Ethiopian and one Eritrean parent have often found themselves unable to obtain the protection of either Eritrea or Ethiopia. Many of those people of Eritrean origin who were deported from Ethiopia during the war were subsequently able to obtain Eritrean citizenship. However, some were either not allowed to enter Eritrea or, after having been stripped of their Ethiopian nationality and having remained in Ethiopia, unable to gain Eritrean citizenship.105 For them, it may be extremely difficult or impossible to prove their nationality, especially if they are abroad. The literature reports an attitude of some Eritrean and Ethiopian embassies to be at best obstructive to people of mixed parentage who apply for passports or recognition, often refusing a­ ssistance 103 In 2004, Ethiopia introduced a ‘one-off’ registration of resident Eritreans, allowing some individuals to obtain Ethiopian nationality if they did not hold Eritrean nationality but excluding many others. Among the issues, it appears that the Authority in charge has no defined administrative or legal framework to handle the cases. In addition, it is unknown whether people of Eritrean origin outside Ethiopia have succeeded in obtaining ­nationality and returning. Louise Thomas, ‘Refugees and Asylum Seekers from Mixed Eritrean-Ethiopian Families in Cairo. “The Son of a Snake Is a Snake”’ (2006) fmrs Report 11–12. 104 In summary, both Eritrean and Ethiopian law provides for the acquisition of nationality on the basis of jus sanguinis from either or both parents. Therefore, people of mixed Eritrean-Ethiopian parentage can be nationals of either country through their parents. However, neither Ethiopia nor Eritrea allows dual nationality. If a person born to an Ethiopian parent acquires another nationality at birth, then he would be considered an Ethiopian subject. In order to be considered an Ethiopian citizen, he would have to renounce his other nationality and be naturalised. The Eritrean nationality law provides that anyone eligible for citizenship by birth or naturalisation and who wishes to acquire Eritrean citizenship must make an application for a certificate of citizenship. The Eritrean system requires three Eritrean witnesses, holding a valid Eritrean identification card or passport, to testify to the Eritrean origins of a person. Therefore, acquisition of citizenship is not automatic but relies on administrative procedures and decisions of officials. The jus sanguinis principle, rather than allowing people of mixed parentage the option of either Eritrean or Ethiopian citizenship, has allowed Ethiopia to claim that these individuals are Eritrean and Eritrea to claim that they are Ethiopian, thereby leaving them stateless despite being entitled to either of two citizenships. Research Directorate, Immigration and Refugee Board of Canada, ‘Eritrea: Procedures for Obtaining Eritrean Nationality for Persons Born outside Eritrea; whether New Nationality Legislation is Being Drafted or Enacted’ (3 September 2009) ERI103223.E; Katherine Southwick, ‘Ethiopia and Eritrea: Statelessness and State Succession’ (2009) 32 fmr 15–16; Thomas (n 103) 14, 18. 105 Thomas (n 103) 19.

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outright or knowingly imposing impossible conditions.106 For these individuals, it can therefore hardly be said that they enjoy the rights and protection of a nationality according to international law.107 Of course, the confusion may also occur over the nationality of a person because of his own contradictory statements, but this scenario is not considered in the vignette. The summary of the vignette is the following: Z is a migrant originating from Ethiopia. Following the succession of Eritrea from Ethiopia, Z migrated and entered illegally into the State under consideration. It is unclear whether Z’s nationality is Eritrean or Ethiopian. Z has made an application to receive assistance and a passport to the national authorities of both Ethiopia and Eritrea, only to find that more evidence is requested. Despite his efforts, he is unable to provide any evidence on his nationality. After two years, neither the Eritrean nor the Ethiopian authorities have given a definite answer as to whether Z is one of their nationals. During these two years, Z cooperated with the immigration authorities by providing statements, signing documents and undergoing interviews trying to establish his nationality. The first question is whether or when such long delays will be considered as amounting to a denial of recognition of nationality, even without a definite answer from the foreign officials. The second question is whether Z will receive any protection or permission to remain in the State. As far as the first question is concerned, the long delays will be relevant for the case of Z and will be considered as amounting to a denial of nationality if he is making an application for stateless status or impossibility to leave the country in Hungary, the uk, the Netherlands and the Czech Republic. In particular, in Hungary, it is possible that the person will be recognised as stateless if he has made good faith efforts to prove his nationality. If, within a reasonable time, there is no final answer from the concerned States, the immigration authorities may suspend the statelessness determination procedures for one or two years. During such time, the immigration authorities can make further enquiries with the foreign authorities. If no answer is finally obtained, the

106 Maureen Lynch, ‘Lives on Hold: The Human Cost of Statelessness’ (Refugee International 2005) 28; Thomas (n 103) 20; John R Campbell, ‘The Enduring Problem of Statelessness in the Horn of Africa: How Nation-States and Western Courts (Re)Define Nationality’ (2011) 23(4) ijrl 656–66, 668. 107 See Ch 2, s 3.

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a­ dministration will conclude that the person is stateless.108 Z will likely receive permission to stay as a stateless person if he meets the other requirements set by law.109 In cases of disputed nationality regarding a person in immigration detention where he cannot be removed because the authorities of the State of origin are at fault, he may be freed and issued a residence permit on humanitarian grounds.110 So, the fact that Hungarian law defines a stateless person as someone who is not considered a national under the law of any State, instead of under the operation of the law of any State, is not a problem in practice.111 Generally, the administration correctly applies the legal provisions, and only a minority of cases have been identified as raising problems concerning the validity of the legal or evidentiary arguments.112 In the uk, the Home Office Guidance takes a similar approach to that of the unhcr Handbook and states that when the result of enquiries with national authorities is silence or refusal to respond, it is a matter of judgment in the individual case as to how long it is reasonable to wait.113 If the State representatives have a general policy or practice of never replying to such requests, no inference can be drawn from a failure to respond, even though this will leave the applicant without an effective nationality and no prospect of being able to leave the uk. However, when a State routinely responds to such queries, a lack of response will generally provide evidence that the individual is not a national. Therefore, persons not recognised as nationals in practice, regardless of what the nationality laws say, are de jure stateless according to the Home Office Guidance.114 The advantage of this is that ‘it avoids the trap of thinking that such persons are only “not really” (“de facto”) stateless. The way in which a State operates its nationality laws is integral to the definition of statelessness in the 1954 Convention’.115 In practice, in several cases, the ho has required applicants to engage in futile attempts to contact the relevant embassies and

108 Molnár (n 25). 109 Ibid. 110 The humanitarian permit entitles the holder to receive some income support but no right to work. Ibid. 111 Interview with Gyulai (n 13). 112 Gábor Gyulai, ‘Statelessness in Hungary. The Protection of Stateless Persons and the Prevention and Reduction of Statelessness’ (Hungarian Helsinki Committee 2010) 29–30. 113 unhcr Handbook (n 17) para 41. 114 Home Office, ‘Asylum Policy Instruction. Statelessness and Applications for Leave to Remain’ (n 12) para 4.6.5. 115 Harvey (n 21) 301.

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has not found a lack of a nationality in the case of absence of replies.116 In this context, in the recent case of Pham, the uk Supreme Court stated that the sentence ‘operation of its law’ does not include those who have no citizenship because of arbitrary conduct by a State, in cases where the rule of law is weak and the denial of citizenship has no legal basis.117 At the previous stage, the Court of Appeal had held that the failure of the Vietnamese government to acknowledge Mr. Pham’s nationality was arbitrary and therefore did not make Mr. Pham stateless:118 The fact that in practice the Vietnamese Government may ride roughshod over its own laws does not, in my view, constitute ‘the operation of its law’ within the meaning of Article 1.1 of the 1954 Convention.119 Against this backdrop, the case of Pham reveals a cautious approach to the interpretation of the definition of a ‘stateless person’. As a consequence, the decision jeopardises the primary aim of the 1954 Convention, which is to protect those at risk of random conduct of national authorities. Whilst the remarks of the uk Supreme Court in Pham are obiter and therefore not binding, they raise the risk of demanding applicants for stateless status to challenge negative decisions about their nationality in the courts of their State of origin. Clearly, doing so is impracticable for those living without lawful status and resources.120 116 Bianchini, ‘Protecting Stateless Persons from Arbitrary Detention in the United Kingdom’ (n 22) 25. 117 One question in this case was whether the Home Office’s decision to deprive Mr. Pham of British nationality was lawful under s 40 of the British Nationality Act 1981. According to Section 40(4) of that Act, ‘[t]he Secretary of State may not make an order depriving an individual of a British nationality status if satisfied that the order would make a person stateless’. The Vietnamese government failed to confirm whether or not Mr. Pham was a Vietnamese national prior to the uk’s deprivation decision and stated that he was not only after the decision. The Supreme Court held that the timeline was crucial, and as at the time of the deprivation decision Mr. Pham was still a Vietnamese national according to the law of Vietnam (Paragraph 38), there was no barrier to deprivation of his British citizenship. Supreme Court, Pham v Secretary of State for the Home Department [2015] 19 (uksc); Bianchini, ‘The “Stateless Person” Definition in Selected eu Member States: Variations of Interpretation and Application’ (n 2) 81–107. 118 Immigration Lawyers Practitioners Association and University of Liverpool Law Clinic, ‘Statelessness and Applications for Leave to Remain: a Best Practice Guide’ (2016) 20; Bianchini, ‘The “Stateless Person” Definition in Selected eu Member States’ (n 2) 81. 119 B2 v Secretary of State for the Home Department [2013] ewca Civ 616, para 88. 120 Ibid para 20; Bianchini, ‘The “Stateless Person” Definition in Selected eu Member States’ (n 2) 81–107.

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However, in the subsequent case of R (Semeda), the President of the Upper Tribunal cited Lord Carnwarth in Paragraph 28 of Pham: [...] I would accept that the question arising under Article 1(1) of the 1954 Convention in this case is not necessarily to be decided solely by reference to the text of the nationality legislation of the State in question [...] reference may also be made to the practice of the Government [...].121 The President then asserted that ‘a broad meaning is to be ascribed to the words “under the operation of its law”’.122 In the Netherlands, one of the national informants believes that delays of one and a half years or two years may be relevant to consider issuing a no-fault residence permit for impossibility to leave the country, although he points out that he does not have direct experience with Ethiopian/Eritrean cases.123 However, the authorities have stressed that there is no country that structurally fails to fulfil its obligations under international law with regard to accepting the return of its citizens.124 So, the ind does not automatically issue a permit in the absence of responses from the authorities.125 Similarly, in the Czech Republic, in the context of visas for tolerated stay when statelessness is argued as a preliminary issue, the administration will likely accept such delays as one of the factors in determining statelessness. At what point they should decide on the case is not specifically regulated by law, but the principle is that they should decide within a reasonable time. What it is meant by ‘reasonable time’ depends on the context.126

121 Semeda (n 23) para 28. 122 Ibid para 28; Bianchini, ‘The “Stateless Person” Definition in Selected eu Member States’ (n 2) 81–107. 123 Hijma (n 37). 124 Annelieke Beversluis and others ‘Forced to Leave but Nowhere to Return To: Rights of Non-Returnable Stateless Palestinians in the Netherlands’ (Migration Law Clinic, University of Amsterdam, April 2016) 18; Tweede Kamer der Staten-Generaal, ‘Terugkeerbeleid. Brief van de Staatssecretaries van Veiligheid En Justitie Aan de Voorzitter van de Tweede Kamer der Staten-Generaal – 18 december 2012’ (Kamerstuk 2, 29 344, nr. 109) [Chair of the Second Chamber, ‘Return Policy. Letter from the State Secretary of Security and Justice to the Chair of the Second Chamber – 18 December 2012’ (Kamerstuk 2, 29 344, nr. 109) accessed 14 June 2017. 125 Interview with Marlotte van Dael, Researcher, askv Refugee Support, Amsterdam, the Netherlands (Budapest, 5 May 2017). 126 Dubova (n 37).

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In Italy, the case law is split on this issue, and there is no unequivocal guidance. In some cases, the long delays will be considered as amounting to a denial of nationality – in others, not. Z may be recognised as a stateless person and receive a residence permit on these grounds if his case is well prepared and argued, especially in light of the unhcr Handbook.127 As explained in the previous section, while the German administration avoids addressing the issue of statelessness and categorises these cases as cases of ‘unclear nationality’, the Federal Administrative Court and the High Administrative Court in Berlin held that an ‘unclear nationality’ is legally impossible.128 They clarified that if research and queries cannot bring to a conclusion on whether a nationality exists or not, the person in question is stateless.129 A permanent status of ‘unclear nationality’ is contrary to international law.130 On the other hand, in Spain and France, long delays are not sufficient to establish the lack of a nationality. In Spain, independent of whether or not a State recognises a person’s nationality, the immigration authorities will consider date of birth, place of birth and the laws of nationality. If, taking into account these three variables, it appears that Z is a national of one of the two States, he will be denied stateless status.131 In cases of disputed nationality, a person may receive only a ‘registration document’ (cédula de inscripción) of the fact of not being documented with the passport of any country. This is merely an identification document issued by the Spanish authorities. With the registration document, it is possible to apply for a residence permit at a later date according to a complicated and strict procedure. However, there are no reliable data on how often this option is being used.132 In France, the definition of stateless person is strictly interpreted by both the administration and the courts.133 Unless the foreign authorities straightforwardly reply that a person does not have his birth registered or that he is not a 127 Telephone interview with Perin (n 56). 128 BVerwG, 12.02.1985, NVwZ, 1985, 589; BVerwG, 15.10.1985, NVwZ 1986, 759; ovg Berlin, Urteil v 18.04.1991 – 5 B 41.90; vg Berlin, Urteil v 12.06.1985 – 11 A 655.84; vg Berlin, 12.06.1985, InfAuslR 1985, 237–238; vg Berlin, Urteil v 24.02.1988 – 23 A 341.87; vg Berlin, 24.02.1988, InfAuslR 1988, 174, 176. Nevertheless, there are a few decisions taking a different stand. For instance, a recent decision of the Administrative Court in Berlin found that claimants of Kurdish origins had ‘unclear nationality’. vg Berlin, Urteil v 1.03.2012 – 13 K 12.12. 129 BVerwG, 12.02.1985 (n 128); BVerwG, 15.10.1985 (n 128). 130 ovg Berlin, Urteil v 18.04.1991 – 5 B 41.90. 131 Telephone interview with Cores (n 28). 132 Ibid. 133 Catherine-Amélie Chassin, ‘Panorama du Droit Français de l’Apatride’ (2003) 19(2) rfda 324, 329.

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national, he would not be found to be stateless and would usually receive no protection. The refusal of the national authorities to issue a visa cannot lead to a conclusion that there is serious doubt on the nationality of a person.134 The difficulties that a person may encounter with the authorities of his country are not taken into consideration to determine whether or not the nationality link exists.135 Chassin explains that French law rejects the concept of de facto statelessness that was included in the preparatory works of the 1954 Convention.136 If there is real doubt on the nationality of a person and the case is before the administrative court, the court must stay the proceedings because of the exclusive competence of civil courts on the matter.137 As far as Greece is concerned, the national informant reports not being able to provide a reliable answer, as there is no specific statelessness determination procedure, and it is unclear how the authorities deal with these cases.138 It appears that Z may be issued a certificate of postponement of removal if there are technical reasons that make his departure temporarily impossible.139 In Sweden, individuals in Z’s situation have usually made an application for asylum that has been rejected and face a deportation order which forbids them from making a new protection claim for the next four years, unless new circumstances arise.140 In most cases, the immigration authorities consider that practical impediments to removal depend on the fault of the person (i.e., the person does not visit his native State’s embassy or does not try hard enough to obtain documents). So, Z will be left with no residence permit and no right to work.141 His daily allowance will also be reduced or withdrawn.142 In conclusion, it appears that in cases of disputed/ineffective nationality, the main trend is to refuse protection because of the assumption that a person is not doing everything he can to obtain evidence of his identity or lack of a nationality. It is also often believed that a person from one State could alternatively gain the nationality of another merely because the laws of those 134 Ibid. 135 See e.g., ce, 20 mars 2000, n° 190036 inédit: ta Paris 13/12/1995 Haque, rec. crr 1996 p 136. Chassin (n 133) 329. 136 Ibid. 137 Loi n° 93–933 du 22 juillet 1993 réformant le droit de la nationalité – jorf 23 juillet 1993, art 29 [Law no 93–933 of 22 July 1993 reforming the right to a nationality – jorf 23 July 1993, art 29]; Seguin (n 30) 22; Chassin (n 133) 329. 138 Questionnaire reply from Kalatzi (n 39). 139 Telephone conversation with unhcr Officer (n 46). 140 Johannson (n 9). 141 farr, ‘Good Advice for Asylum Seekers in Sweden’ (2017) 138. 142 Ibid.

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States and/or the statements of officials say that they can. Further, the administrations frequently fail to consider that the embassy of a State may not wish to provide documentary evidence that it is excluding an individual who has a theoretical right to the nationality of that State. The application of nationality laws and administrative practices are not always considered when determining whether a person is stateless according to Article 1 of the 1954 Convention despite the unhcr Handbook’s recommendations on this matter.143 This is in part due to the bigger issues of the non-binding nature of soft law, such as the unhcr Handbook, as well as the challenge that human rights standards are not translated automatically into national mechanisms upon the ratification of treaties and need implementing legislation, commitments of decisionmakers and support of institutions and civil society.144 I argue that individuals who are stranded somewhere in the world without the protection of an effective nationality should be able to present such evidence in weight of an assessment of statelessness. Furthermore, the situation of people such as Z should be considered sympathetically with regard to the possibility of being stateless.145 6 Conclusion The overall finding is that the interpretation and application of Article 1 of the 1954 Convention present great variations and difficulties, especially in States under categories two and three. The same case may arrive at different results, depending on the State in which the stateless person lodges the application. This lack of a harmonised approach to Article 1 limits the benefits of the 1954 Convention146 and creates uncertainty regarding the meaning of ‘stateless person’ and the acquisition of legal status. According to Batchelor, there are two main reasons for such different practices. The first is the absence of clear rules on the identification of cases of 143 Thomas (n 103) 23. 144 Dinah Shelton, Commitment and Compliance: the Role of Non-binding Norms in the International Legal System (oup 2003); Denis Galligan and Deborah Sandler, ‘Implementing Human Rights’ in Simon Halliday and Patrick Schmidt (eds), Human Rights Brought Home: Socio-legal Perspectives on Human Rights in the National Context (Hart Publishing 2004) 24–25; Bianchini, ‘The “Stateless Person” Definition in Selected eu Member States’ (n 2) 81–107. 145 Thomas makes a similar argument in the context of Ethiopian/Eritrean disputed cases. Thomas (n 103) 21–22. 146 Batchelor, ‘The 1954 Convention Relating to the Status of Stateless Persons’ (n 1) 35.

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statelessness, which, as discussed in Chapters 5 to 7, include general guidance on procedures, suitable decision-makers and burden of proof.147 In this regard, I stress the failure on the part of most States to guarantee suitable adjudicators. What emerges is that most decision-makers show resistance to identifying stateless persons, even when a specific legal framework has been established. As a consequence, this problem affects the effective implementation of the international obligations.148 The second reason concerns the definition of stateless person, which Batchelor believes is too narrow, as it does not include the quality and attributes of citizenship.149 In Batchelor’ s view, the definition in Article 1 of the 1954 Convention only refers to those whose statelessness could be ascertained by reference to national law.150 It does not protect persons who are ‘unable to “act” on their nationality because its effectiveness was denied to them’.151 I agree with van Waas that there is a fine line between the question of definition or substance and the problem of identification or procedure. However, critiques of Article 1 of the 1954 Convention because it excludes cases of de facto statelessness are not to be addressed with the adoption of a new and broader definition of statelessness.152 The central question is how the definition of statelessness is to be applied and what facts and evidence can be taken into account to prove the lack of a nationality. For instance, this could involve the introduction of provisions clarifying that the national authorities’ lack of assistance to return to the State of origin is a relevant fact towards ­establishing statelessness.153 Through such rules, it will become possible to determine which cases of de facto statelessness fall under the general definition of

147 van Waas (n 98) 404. 148 Susan Kneebone, Asylum Seekers and the Rule of Law (cup 2009) 309. 149 Blitz supports this view, as well. See Brad K Blitz, ‘Statelessness, Protection and Equality’ (September 2009) Forced Migration Policy Briefing 3, Oxford Refugee Studies Centre. 150 For instance, there are conflicts of laws on issues which might result in statelessness without any willful act or discrimination on the part of the State. Batchelor, ‘Stateless Persons: Some Gaps in International Protection’ 256–59. 151 Ibid. David Weissbrodt and Clay Collins have a similar view, ‘The Human Rights of Stateless Persons’ (2006) 28(1) HumRtsQ 245; Lindsey N Kingston, ‘Statelessness as a Lack of a Functioning Citizenship’ (2014) 19(1–2) tlr 127. 152 van Waas (n 98) 24. 153 Such a provision would find its rationale in the recognition that one of the essential functions of nationality in international law is the right to return to and reside in the State’s territory. The other is the right to receive international protection. Paul Weis, Nationality and Statelessness in International Law (Sijthoff and Noordhoff 1979) 6.

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­statelessness154 and which ones involve other types of human rights violations.155 In contentious cases, only if the rights to return and stay in the State of origin and international protection are ineffective, a finding of statelessness may be the appropriate solution.156 This approach would be in line with the meaning of ‘nationality’ under international law as interpreted by Weis, Edwards and the unhcr.157 As discussed in Chapter 2, general human rights violations are not issues of statelessness but of citizen’s rights and would actually be better protected under different mechanisms and provisions.158 These persons might be better placed to challenge the violation of their rights as citizens than as stateless persons.159 In so doing, the 1954 Convention can be strengthened to assist those it was designed to help,160 and the confusion created by the terms de jure and de facto stateless person can be prevented. Additionally, this approach addresses States’ concerns of not expanding protection to undeserving people.161 On this matter, the unhcr Handbook emphasises that it must be ensured that ‘those that qualify as ‘stateless persons’ under Article 1 of the 1954 Convention are recognised as such and not mistakenly referred to as de facto stateless persons, as otherwise they may fail to receive the protection guaranteed under the 1954 Convention’.162 So, if this perspective is followed, the number of cases falling under the de jure definition may therefore be larger than was argued in the past. Indeed, the data of this chapter have confirmed that in States that have adopted precise procedural rules to identify statelessness, such as Hungary, persons whose nationality is disputed or ineffective are more likely to be found to be de jure stateless under Article 1 of the 1954 Convention than in other States. The opposite outcome is reached in other States, such as France and Spain, where there is a lack of specific evidence rules to establish the absence of one’s nationality, and decision-makers have broad discretion to interpret these gaps. 154 155 156 157

158 159 160 161 162

See text to Ch 3 s 4. van Waas (n 98) 27. Weis (n 153). Ibid; Alice Edwards, ‘The Meaning of Nationality in International Law: Substantive and Procedural Aspects’ in Alice Edwards and Laura van Waas (eds), Nationality and Statelessness under International Law (cup 2014) 11, 30. unhcr Handbook (n 17) para 53. van Waas (n 98) 27. Jason Tucker, ‘Questioning de facto Statelessness by Looking at de Facto Citizenship’ (2014) 19(1–2) tlr 276, 283. Ibid 284. Batchelor, ‘Stateless Persons: Some Gaps in International Protection’ (n 150) 248; ­Robinson (n 16) 3. unhcr Handbook (n 17) para 7.

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Additionally, to elucidate the frequent tendency to refuse applications based on the erroneous interpretation or application of the definition of ‘stateless person’, I present one more explanation which has not been discussed much in the literature on statelessness: the failure to formally incorporate Article 1 into national legal frameworks and enact provisions clarifying its meaning and the scope of the exclusion clause, regardless of whether a State has adopted a system of legislative or automatic incorporation of international treaties. The data have demonstrated that if such measures are not taken, the 1954 Convention provisions may remain unknown and be of little use to both judges and administrators who must apply the law and to individuals who are its beneficiaries. For instance, in several States under category three, failed asylum seekers from Palestine are unlikely to be found to be stateless. In Italy, judges and government lawyers do not usually apply Article 1(2)(i) due to a lack of specialised knowledge. In most other States, case law and practice have widely misinterpreted Article 1(2)(i). Unlike Article 1D of the Refugee Convention, Article 1(2)(i) has not generated as much national jurisprudence or literature or as many unhcr official interpretations to clarify its application. The next chapter further explores how the treatment of stateless persons varies in the States under review. In particular, it looks at how, as an effect of the lack of harmonised and specialised procedures and uniform interpretation and application of the definition of stateless person, there is a wide range of statuses and rights that follow from the recognition of claims for protection.

236 Table 4

Chapter 8 Overview of the implementation of the definition of ‘stateless person’

Czech republic France

Germany

Greece

Incorporation of Article 1?

No

Yes

Yes

Yes

Is a person who can obtain a nationality stateless?

No

No

N/A No, by the administration. Yes, by the courts

Is a Palestinian found to be stateless?

Issue avoided. Yes Impossibility of return relevant for tolerated visas

Issue ­avoided Issue avoided but protection by the administration. granted Yes, by the courts

Is a Palestinian excluded from the Convention under Article 1(2)(i)?

No

Yes, but if unrwa’s ­protection ceases, Conv. applies unless ­impossibility to return depends on free will

Yes, but if unrwa’s ­protection ceases, Conv. applies unless impossibility to return depends on free will

Is a person ­stateless if not assisted by the State of origin to return?

No. Relevant for tolerated visas

No

No, by the N/A ­administration. Yes, by the courts

Is a person with ­ineffective ­nationality granted status?

Relevant for No tolerated visas

Relevant for toleration or permit to stay

Different ­approaches depending on decision-maker

Likely not

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Hungary

Italy

Netherlands

Spain Sweden

uk

Yes

Yes

Yes

Yes

No

Yes

Yes

No, ­according to recent decisions

No

No

N/A

Yes

Yes

Yes

Issue ­avoided by the administration

Yes

No, if from West Bank, Gaza and Jerusalem

Yes

No data. In asylum cases, El Kott applies

No

Yes, but if No unrwa’s protection ceases, Conv. applies unless ­impossibility to return depends on free will

Yes, but if unrwa’s ­protection ceases, Conv. applies unless impossibility to return depends on free will

Yes, but if unrwa’s ­ protection ceases, Conv. applies, unless dependent on free will

Sometimes Case law is No. Relevant for No divided no-fault permits

No. Relevant for permit on grounds of obstacles to return

Yes, according to ho Guidance. ­Problems with practice

Relevant for permit for obstacles to return

May be granted ­stateless status

May be granted stateless status

May be granted stateless status

Relevant for no No fault-permit

Chapter 9

Grant of Status and Rights 1 Introduction In Chapter 3, it was discussed that the 1954 Convention does not require a State to grant lawful status, even when a State finds a person to be stateless.1 This is a serious weakness, as in the absence of specific legislative intervention, it leaves stateless persons subject to general immigration laws. In this regard, the unhcr Handbook clarifies that a person determined to be stateless should be granted a right of residence, as only such permission would fulfil the object and purpose of the treaty.2 The grant of lawful status is important, because several rights of the 1954 Convention are attributed only to those that are lawfully staying or present in the State. So, the question of which legal status is to be granted arises as an important implementation matter.3 This chapter investigates the variety of legal statuses that are granted when a person is recognised to be stateless or when it is accepted that it is impossible for him to leave the State. It also provides an overview of some of the rights attached to such statuses and, in particular, the rights to work and travel ­documents.4 As effective implementation of the 1954 Convention can only be complete if it leads to a durable solution, the issue of facilitated naturalisation is taken into account and some of the conditions imposed on naturalisation applicants are analysed. The discussion of such conditions is not exhaustive. The aim is to illustrate the main barriers that stateless persons face when trying to naturalise and the specific provisions that are needed to eliminate them.5 1 See text to ns 171–75 in Ch 3. 2 unhcr ‘Handbook on Protection of Stateless Persons under the 1954 Convention relating to the Status of Stateless Persons’ (2014) para 145; Convention Relating to the Status of Stateless Persons (adopted 28 September 1954, entered into force 6 June 1960) 360 unts 117 (Statelessness Convention) (hereafter the ‘1954 Convention’) art 1. 3 Carol A Batchelor, ‘The 1954 Convention Relating to the Status of Stateless Persons: Implementation within the European Union Member States and Recommendation for Harmonization’ (2004) 22(2) Refuge 42. 4 The rights provided in the 1954 Convention are discussed in Ch 3, s 7. 5 Eva Mrekajova, ‘Facilitated Naturalization of Stateless Persons’ (2014) 19(1–2) tlr 211.

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004362901_011

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Outcome of Statelessness Determination: Length and Type of Residence

A State Party to the 1954 Convention is free to treat stateless persons as any other alien and subject them to their general provisions of immigration law.6 Thus, a State has several options. For example, it may try to negotiate a reinstatement of the individual’s nationality, particularly in cases where it was arbitrarily withdrawn. A State may decide against legalising the stay of the person concerned and seek his admission to another State. A State may also informally ‘tolerate’ a person without granting lawful status or admit him for either temporary or permanent stay.7 However, only the recognition of an individual as a stateless person and the grant of lawful status trigger the ‘lawfully staying’ rights under the 1954 Convention, as discussed in Chapter 3. These include the rights to work as accorded to aliens in the same situation, public relief as accorded to nationals and travel documents.8 Granting the right of residence to persons recognised as stateless fulfils the object and purpose of the 1954 Convention, which are to provide them with a set of basic rights. In the context of the Refugee Convention, Guy Goodwin-Gill and Jane McAdam take a similar position. They maintain that a potential useful test to assess whether a State has effectively implemented the international obligations involves distinguishing between the grant of refugee status on the one hand and the legal consequences of that status on the other. The latter may include the right to residency, which attaches a number of rights, such as the right to work, or only the right to be present in the territory of the State and to be eligible to a number of rights subject to discretionary power.9 International obligations are effectively implemented if a person enjoys fundamental human rights common to citizens and foreign nationals.10

6

Article 7(1) stipulates that except where the Convention explicitly contains more favourable treatment, ‘a Contracting State shall accord to stateless persons the same treatment as is accorded to aliens generally’. Batchelor, ‘The 1954 Convention Relating to the Status of Stateless Persons’ (n 3) 41. See See text to ns 171–75 in Ch 3. 7 Ibid. 8 See Ch 3, s 7; 1954 Convention arts 17, 28. 9 Guy Goodwin-Gill and Jane McAdam, The Refugee in International Law (3rd edn, oup 2007) 528–29. 10 Ibid 529.

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Right of Residence in Municipal Law

3.1 Right of Residence in States under Categories One and Two Within the States under study, those under category one and France grant residence permits upon recognition of stateless status. Spanish legislation is the most protection-oriented of all, as it immediately grants permanent residence to recognised stateless persons. Stateless persons are issued a card confirming the right to reside and work.11 In the uk, recognised stateless persons receive a residence permit for a period not exceeding 30 months, but it can be renewed.12 An application for permanent residence as a stateless person can be made after the applicant has spent five continuous years in the uk with lawful status and was last granted permission to remain as a stateless person.13 The rights attached to the residence permit include the rights to work and receive public benefits but not housing from a local authority or loans for studying.14 In Hungary, the residence permit is valid for three years. Afterwards, it can be extended for periods of one year each time.15 After three years on a temporary permit, a stateless person can apply for a permanent residence permit, but he must meet a number of conditions.16 While a person is on a temporary permit, the law does not provide for any accommodation or financial support.17 Moreover, access to the labour market is restricted. A work permit can only be obtained if a stateless person is able to demonstrate that there is no qualified Hungarian or eea citizen available to do the job.18 Additionally, delays 11

Real Decreto 865/2001, de 20 de julio, por el que se aprueba el Reglamento de reconocimiento del estatuto de apátrida (BOE-A-2001-14166) [Royal Decree 865/2001 of 20 July approving the Regulation for the Recognition of the Status of Stateless Persons ­(BOE-A-2001-14166)] (Real Decreto 865/2001) art 13. 12 Immigration Rules (hc 1039 6 April 2013) Part 14: Stateless People para 405. 13 Ibid 407. 14 ilpa and University of Liverpool Law Clinic, ‘Statelessness and Applications for Leave to Remain: a Best Practice Guide’ (2016) 76. 15 Telephone interview with Tamás Molnár, Head of Unit, Unit for Migration, Asylum and Border Management, Department of eu Cooperation, Ministry of Interior [of Hungary] and Assistant Professor at Corvinus University of Budapest (Budapest, Hungary, 16 December 2013). 16 Gábor Gyulai, ‘Statelessness in Hungary. The Protection of Stateless Persons and the Prevention and Reduction of Statelessness’ (Hungarian Helsinki Committee 2010) 31. 17 Ibid. 18 This condition is fulfilled if: (1) the employer notified his need for labour force to the competent labour affairs authority 15 to 60 days prior to applying for a work permit for a thirdcountry national (specifying the necessary skills and qualifications), (2) no registered job-seeker of Hungarian or eea nationality (or spouse of a Hungarian or eea national) having the necessary skills and qualifications applied for the job between the date of the

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in ­issuing work permits represent another obstacle.19 However, the Hungarian Government has committed itself to removing the restriction on the right to work in the next several years, as stated in the newly adopted Migration Strategy, which will be carried out between 2014 and 2020.20 In France, a stateless person receives a temporary residence permit for three years. Stateless persons have unrestricted rights to the labour market and access to health care and social benefits, as well as to all levels of education.21 If a stateless person has had regular residency in France for three years, he can then apply for a residence permit, which is valid for ten years.22 In contrast, it should be noted that recognised refugees are given the ten-year residence permit right away.23 In Italy, the legislation does not address whether the recognition of statelessness implies the right to the grant of a residence permit. This gap has been filled in practice: in general, the Questura grants a residence permit upon submission of the document stating recognition of stateless status issued by the administration or the courts.24 Such residence permits allow stateless persons to work and entitle them to social benefits similarly to Italian nationals.25 As the law does not regulate this matter, the length of validity of the residence permit varies and depends on the discretion of the Questura (normally, it is valid for one, two or five years). On this point, experts agree that a specific provision to harmonise the administrative practice would be needed.26 The residence permit can be renewed, and it is possible to apply for permanent residence after five years.27 notification above and the application for a work permit for a third-country national and (3) the third-country national applying for the job has the necessary skills and qualifications. ibid 32. 19 Ibid 32. 20 Telephone interview with Molnár (n 15). 21 Gábor Gyulai, ‘Statelessness in the eu Framework for International Protection’ (2012) 14 ejml 279, 290. 22 Ibid. 23 Catherine-Amélie Chassin, ‘Panorama du Droit Français de l’ Apatride’ (2003) 19(2) rfda 324, 336. 24 Giulia Perin, ‘Lacune Normative ad Alto Costo Umano: l’Apolidia in Italia’ (2012) 3 Dir imm citt 70, 79. 25 Batchelor, ‘The 1954 Convention Relating to the Status of Stateless Persons’ (2004) 22(2) Refuge 37–38; Perin, ‘Lacune Normative ad Alto Costo Umano: l’Apolidia in Italia’ (n 24) 79–81. 26 Telephone interview with Giulia Perin, Immigration Lawyer (Padova, Italy, 6 December 2013). 27 Ibid.

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3.2 Right of Residence in States under Category Three A common trend in most of the States under category three is that they have procedures to grant a form of stay on the basis that it is impossible for a person to leave their territory. While such an alternative exists, it is not often used to grant residence to stateless persons; consequently, they remain in a state of legal limbo.28 In a few cases, nevertheless, these States without specific statelessness determination procedures have no alternative but to grant a form of stay. States may reach the conclusion that leaving an individual indefinitely in an illegal position is not a viable option. If a departure cannot be enforced because of statelessness, a residence permit may be granted for either definite or indefinite periods. In situations where the permit is of a temporary nature, particularly if renewal is not automatic but depends on the discretion of the issuing authority, the stateless person is faced with continued uncertainty until he is able to apply for permanent residence. In the Czech Republic, Germany and the Netherlands, the status given for impossibility to leave for practical reasons either for lack of documents or the State of origin’s refusal to accept the person back is that of ‘tolerated stay’. Usually, ‘tolerated stay’ comes with a number of reduced rights compared to other residence permits or forms of protection.29 The path to obtaining permanent residence is longer and entails going through a number of applications. For example, in the Czech Republic, a visa for exceptional leave to stay (also called tolerated stay) is granted for the necessary period of time and is no longer than 90 days.30 If the reasons preventing the person from leaving the territory continue to persist, the person can apply for a long-term tolerated visa, which is valid for one year and can be renewed under the same conditions of ­‘persistence of reasons’.31 Persons on toleration have no right to receive benefits,32 but they can obtain a work permit.33 According to Sections 68(1) and 70(1)(a) of the Act on the Residence of Foreign Nationals, foreigners are 28 29 30

Batchelor, ‘The 1954 Convention Relating to the Status of Stateless Persons’ (n 3) 44. See Ch 7. Act No. 326/1999 Coll. on the residence of foreign nationals in the Czech Republic and amending certain laws (Foreign Nationals Act) s 33(1). 31 Telephone interview with Alexandra Dubova, Immigration Lawyer, Organizace pro pomoc uprchlíkům, o.s. (Prague, Czech Republic, 2 January 2014). 32 Ibid. 33 Ibid. People on tolerated visas receive special treatment compared to other aliens: they fall under one of the exceptions stipulated by law, which allows them to gain a work permit, regardless of the job market situation. Act No. 326/1999 (n 30) s 42g(6)(a); Integrovaný portál mpsv, ‘Foreigner’s Procedure Towards Starting Work in the Territory

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entitled to stay permanently in the Czech Republic on fulfilment of a number of requirements, including five years of continuous stay34 and holding a valid travel document.35 This latter condition is particularly problematic, as in most cases, stateless persons do not have any valid travel documents. In Germany, toleration is issued only for a few months and is renewed frequently.36 It does not confer any rights of residence, and the obligation to leave continues to apply.37 Deportation is suspended for as long as it is impossible in fact or in law, and the person is expected to take necessary and reasonable steps to leave.38 After a recent change in the law, in some circumstances, a tolerated person can be granted access to the labour market.39 Morover, due to the high refugee influx into the country since 2015, the government has adopted several provisions with the Integration Act40 to facilitate enrollment in language courses and to shorten waiting periods of four years down to 15 months to allow people on toleration to access financial and personal support for vocational training,41 financial help for academic education42 and faster

34 35 36

37

38

39 40 41

42

of the Czech Republic’ accessed 7 June 2017. Act No. 326/1999 (n 30) s 68(1); Helena Hofmannová, ‘Legal Status of Stateless Persons in the Czech Republic’ (2013) The Lawyer Quarterly 55, 69. Act No. 326/1999 (n 30) s 70(1)(a). Flüchtlingsrat Niedersachsen e.V., ‘17.1 Aufenthaltsrechtliche Situation’ accessed 14 January 2017. §60a Abs 2 Aufenthaltsgesetz (AufenthG) vom 25.02.2008 (BGBl 2008 i, 162), zuletzt geändert durch Artikel 10 Absatz 4 des Gesetzes vom 30.10.2017 (BGBl 2017 i, 3618) [Residence Act]. A suspension of deportation does not affect the alien’s obligation to leave the country. §60a Abs 3 ibid. Claude Cahn, ‘Minorities, Citizenship and Statelessness in Europe’ (2012) 14 ejml 297, 310. Flüchtlingsrat Niedersachsen e.V., ‘17.1 Aufenthaltsrechtliche Situation’ accessed 14 January 2017. 25.5.4 Allgemeine Verwaltungsvorschrift zum Aufenthaltsgesetz (AufenthG-VwV) vom 26.10.2009 (GMBl 2009, 878) [General Administrative Regulation for the Residence Act]. §48 AufenthG (n 37). See Ch 7, s 6. Integrationsgesetz vom 31.07.2016 (BGBl 2016 i, 1939) [Integration Act]. §132 Abs 2, 3 Drittes Buch Sozialgesetzbuch (sgb iii) – Arbeitsförderung – Artikel 1 des Gesetzes vom 24.03.1997 (BGBl 1997 i, 594), zuletzt geändert durch Artikel 2 des Gesetzes vom 17.07.2017 (BGBl 2017 i, 2581) [Social Code – Book iii – Employment Promotion]. §8 Abs 2–2a Bundesausbildungsförderungsgesetz (BAfög) vom 7.12.2010 (BGBl 2010 i, 1952; 2012 i, 197), zuletzt geändert durch Artikel 71 des Gesetzes vom 29.03.2017 (BGBl 2017 i, 626) [Federal Training Assistance Act].

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integration into the labour market.43 Some argue that tolerated stay is a form of protection for stateless persons.44 Yet, toleration cannot be considered an actual protection status. It prevents a person breaching the law, but it does not grant lawful stay, and the years on it do not normally count towards the time needed to naturalise.45 Against the practice of leaving people on toleration for many years, the German courts have ruled that the residence of a person who cannot be deported in a foreseeable time has to be regulated by the adminsitration. Toleration is not an adequate instrument in a prolonged situation. If toleration is granted for long-term stay, ‘toleration here is actually a residence document in disguise’.46 43

44 45

46

A person who has been on toleration for three months is not allowed to work. Between four and 15 months, a person on toleration has limited access to the labour market and has to apply to receive a work permit, which needs to be approved by the Federal Employment Agency. The Federal Employment Agency will carry out a ‘priority check’ (Vorrangprüfung) to see that there is no qualified German or eea citizen available for the job. After 48 months on toleration, unrestricted access to the labour market is allowed but not self-employment. §32 Abs 1, Abs 2 Satz 5, Abs 3, 5 Beschäftigungsverordnung (BeschV) vom 6.06.2013 (BGBl 2013 i, 1499), zuletzt geändert durch Artikel 2 der Verordnung vom 1.08.2017 (BGBl 2017 i, 3066) [Regulation on Employment of Aliens – Employment Regulation]. Employment for the highly skilled, those in a family business, vocational training and internships are allowed without obtaining permission from the Federal Employment Agency. §32 Abs 2 Satz 1–4 ibid. See also Kay Hailbronner, Asyl- und Ausländerrecht (4th edn, W Kohlhammer 2017) Rn 1261. Since the Integration Act, entered into force on 6 August 2016, the priority check has been suspended for three years in several States. Federal Ministry of Labour and Social Affairs, ‘The New Integration Act’ (7 July 2016) accessed 14 January 2017. See also Bundesagentur für Arbeit, ‘Positivliste. Zuwanderung in Ausbildungsberufe’ (9 September 2016). Email from Roland Bank, Head of unhcr Berlin Protection Unit, to author (4 April 2014). BVerwG, 16.10.1990, BVwerGE 87, 11, 18; VGH Baden-Württemberg, 31.03.1993, vbibw 1993, 482–83; OVG Niedersachsen, 30.09.1998, DVBl 1999, 1219–1221. In light of these cases, it should also be noted that a person with Duldung is only considered ‘lawfully in’ the country for purposes of the rights of the 1954 Convention. As explained in Ch 3, s 7, the protections offered under the 1954 Convention depend on the nature of the attachment of the stateless person and the host State. There are ‘five levels of attachment’, which, starting from the weakest, are: being subject to the State’s jurisdiction, physical presence, lawful presence, lawful stay and durable residence. Laura van Waas, Nationality Matters: Statelessness under International Law (Intersentia 2009) 23, 229. BVerwG, Beschluss v 1.10.1979 – 1 C 97.76, Buchholz 402.22 Art 26 gkg Nr 1; Kay Hailbronner, Hans-Georg Maaßenand, Günter Renner, Staatsangehörigkeitsrecht (5th edn, CH Beck 2010) I.G.IV.2.30.

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The German legislation adds that when deportation has been suspended because departure is impossible in fact or in law and the obstacle is not likely to be removed in the foreseeable future, a residence permit may be issued.47 Additionally, if deportation has been suspended for 18 months, the residence permit (Aufenthaltserlaubnis) shall be issued. Nevertheless, in practice, the ­administrations do not always give a permit after a period of 18 months.48 Statistics demonstrate that many people remain in ‘toleration chains’, as their non-lawful stay is renewed several times throughout the years.49 The toleration or residence permit can be withdrawn or not extended if (1) the obstacle to departure ceases to apply or (2) a readmission agreement between Germany and a State of former residence or even of simple transit applies.50 The residence permit may be issued and extended in each instance for a maximum period of three years. It cannot be issued for longer than six months if it was issued due to the impossibility of deportation and if the person has not been legally resident in Germany for at least 18 months.51 After five years on a temporary permit, it is possible to apply for a settlement permit (Niederlassungserlaubnis), as long as a number of other conditions are also met. These conditions include having a work permit, an income above the threshold to qualify for social benefits and sufficient command of the German language.52 In the Netherlands, the no-fault residence permit is valid for one year and can be renewed twice. A no-fault residence permit will not be renewed if new information comes to light as regards the ability of the person concerned to return to the State of origin or to legally reside in another State.53 After three 47 48 49

50

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§7 Abs 1, §60a Abs 2 AufenthG (n 37). See Ch 7, s 2. Telephone interview with staff member in charge of vulnerable refugees, Refugee Council of Lower Saxony (Flüchtlingsrat Niedersachsen) (Hildesheim, Germany, 2 May 2014). Some people have been on toleration for up to 15 years. Kay Wendel, Kettenduldung. Bleiberechtsregelungen und parlamentarische Initiativen 2000–2014 (Flüchtlingsrat Brandenburg 2014) 5–9; Hailbronner (n 43) Rn 542. §26 Abs 2 AufenthG (n 37); Katia Bianchini, ‘On the Protection of Stateless Persons in Germany’ (2014) 19(1–2) tlr 35. Germany has entered into readmission agreements with several States; Claudia Finotelli, Illegale Einwanderung, Flüchtlingsmigration und das Ende des Nord-Süd-Mythos (lit Verlag Berlin 2006) n 381, 120; Simone Grimm, Die Rückführung von Flüchtlingen in Deutschland (bww Berliner Wissenschafts-Verlag 2007) 49–146. Some of these readmission agreements are applicable to stateless persons, as well. §26 Abs 1, §26 Abs 2 AufenthG (n 37). §9 Abs 2 ibid; ovg Nordrhein-Westfalen v 1.10.1999, InfAuslR 2000, 155 in Hailbronner (n 43) Rn 267. Questionnaire reply from Laura van Waas, Associate Professor, Tilburg University ­(Tilburg, The Netherlands, 14 January 2014).

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years, the holder of the no-fault residence permit becomes eligible for another residence permit which is valid for a limited time (verblijfsvergunning regulier onder de beperking ‘voortgezet verblijf’).54 The latter permit differs from the no-fault residence permit in that an employment authorisation is no longer required from the administration, thus making access to the labour market easier.55 Both permits allow full access to social security.56 In Sweden, a person who is found to meet the conditions of Chapter 12, Section 18 is, in most cases, granted a residence permit of 13 months. When the temporary residence permit expires, it is possible to renew it, as long as there are impediments to enforcing the removal order.57 A person on a temporary permit may request a permanent residence permit after five years of continuous legal residence.58 Aliens who are granted permanent residence permits are allowed to work on the same terms as Swedish citizens. If they are granted a temporary residence permit, they receive a work permit valid for the same period.59 In conclusion, in the States under category three, tolerated stay is a safety net for stateless persons, but it does not represent an adequate form of protection. It is not a genuine effort to comply with the obligations of the 1954 Convention. Permits for impossibility to leave provide more rights than tolerated stay, but they are not frequently issued (except in Germany), as there are several conditions to meet. Only permanent residence status can be considered a meaningful protection status, as it usually allows one to work, access b­ enefits60 and live in the country without time limits. However, generally, there are several requirements to satisfy to obtain permanent residence, including having secured livelihood for himself and his family and adequate knowledge of the local language.61 54 Ibid. 55 unhcr ‘Mapping Statelessness in the Netherlands’ (2011) 44. 56 Questionnaire reply from Rombout Hijma, Immigration Lawyer (Utrecht, The Netherlands, 30 January 2014). 57 emn, ‘The Practices in Sweden Concerning the Granting of Non-EU Harmonised Protection Statuses’ (February 2010) 16; farr, ‘What Does the New Temporary Law Mean for Those Seeking Asylum? (28 August 2016) accessed 17 February 2018; farr, ‘Good Advice for Asylum Seekers in Sweden’ (2017) 90. 58 Hedvig Bernitz, ‘Naturalization Procedures for Immigrants. Sweden’ (eudo Citizenship Observatory 2013) 4. 59 emn (n 57) 17. 60 Batchelor, ‘The 1954 Convention Relating to the Status of Stateless Persons’ (n 3) 43–44. 61 Eg Act No. 326/1999 (n 30) s 70(1)(f), (h) in the Czech Republic; for Germany see §9 AufenthG (n 37).

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Greece is the only State with no provisions to obtain lawful stay on the grounds that a person cannot be removed. If a stateless person can remain on another basis, then he can apply for permanent residence after five years.62 4

Right to a Travel Document

As discussed in Chapter 3, Section 7.1, according to the first sentence of Article 28 of the 1954 Convention, lawfully staying stateless persons have the right to a travel document which is valid for not less than three months and no more than two years. In some of the States under review, a stateless person receives a 1954 Convention travel document, whereas in others, an alien’s travel document is issued.63 Typically, a 1954 Convention travel document is issued in States under categories one and two, when statelessness has been determined. An alien’s travel document is generally issued in States under category three, when they have granted residence on other grounds, without establishing statelessness.64 In States under categories one and two, obtaining a travel document is generally reported not to be a problem. There may be some fees associated with its application, but the procedures are straightforward.65 In States under category three, if a person’s stateless status has not been established in an authoritative way, the rights he is entitled to, including that of a travel document, cannot be fully accessed. His statelessness can still be challenged, and therefore, the exact application of Article 28 of the 1954 C ­ onvention 62

63 64 65

Christos T Vardikos, ‘Greece Immigration Issues 2011’ (2012) 15 accessed 17 September 2017. Batchelor, ‘The 1954 Convention Relating to the Status of Stateless Persons’ (n 3) 39. Ibid 40. Real Decreto 865/2001 (n 11) art 13(2); Gobierno de España, Ministerio de Justicia, ‘Extranjero. Documentos de identidad, títulos y documentos de viaje a extranjeros indocumentados y otros documentos’ 13 March 2017; Gyulai, ‘Statelessness in Hungary’ (n 16) 35; Immigration and Asylum Office, ‘Residence in Hungary. Granting of Stateless Status’ (30 November 2016) accessed 18 March 2017; Service-Public-fr, ‘Dans quels cas est-on reconnu apatride?’ (1 November 2015) ­accessed 13 March 2017; Home Office, ‘Asylum Policy Instruction Statelessness and ­Applications for Leave to Remain’ (18 February 2016) V2.0, s 7; Ministerio dell’ Interno, ‘Passaporti e ­Documenti di Viaggio Equivalenti’ accessed 16 February 2018.

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is unclear. By way of example, in the Netherlands, there are anecdotal stories of people having difficulty acquiring travel documents because they are not registered as stateless with the municipality.66 All people living in the Netherlands must be registered in the municipal basic administration (Gemeentelijke Basisadministratie – gba).67 Aliens who reside lawfully and who are likely to remain for longer than six months are included. The information in the registry must include a person’s nationality and must be based on official documents issued by the State of origin. If such documents are unavailable, an individual can be registered as having unclear nationality or as being stateless. The gba Operation Guidelines do not specify how the determination of statelessness occurs, and they state that statelessness is rare. Unless a stateless person is able to clearly prove his lack of nationality, he will not be registered as such. Even if a person succeeds in registering as being stateless, he does not have any legal rights arising from it.68 In Sweden, a travel document can be issued under Article 28 of the 1954 Convention if the person was granted a residence permit on protection grounds.69 The application form to obtain the travel document must be submitted along with the following documents: (1) a passport or other travel document, (2) other documents confirming the applicant’s identity and (3) in case of loss or theft, a copy of the police report.70 If an alien has no valid passport and is unable to procure one, it will not be accepted that it is difficult or expensive, and in such a case, he may be issued an alien’s passport instead of a travel document under Article 28 of the 1954 Convention. The period of validity of an alien’s passport is limited to no more than five years, and its territorial validity may be restricted. A provision may be entered on an alien’s passport that the holder’s identity has not been confirmed.71 Statelessness may be assessed by the administration for the purpose of issuing the alien’s passport. However, it

66 67

Questionnaire reply from van Waas (n 53). Wet Gemeentelijke Basisadministratie (9 juni 1994) [Act on the Municipal Basic Administration (9 June 1994)]. 68 unhcr ‘Mapping Statelessness in the Netherlands’ (2011) 17–18. 69 Swedish Migration Board, ‘Travel Document’ ­accessed 17 March 2017. 70 Migrationsverket, ‘Application for Travel Document’ accessed 7 June 2017. 71 emn (n 57) 18; unhcr, ‘Mapping Statelessness in Sweden’ (2016) 53–54.

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is unclear how the authorities make an assessment of statelessness, as there is not even a definition of it under national law.72 In the Czech Republic, in light of the reservation that was made to Article 28 of the Convention, an alien’s passport is commonly issued only to stateless persons who have been granted permanent residence and who can prove that for reasons beyond their will are unable to obtain a valid travel document.73 This entails showing that the embassy of the State of origin is unwilling to issue a passport. The main problem concerns obtaining permanent residence first, due to the burdensome requirements set by law. These include holding a valid travel document, which in most cases stateless persons do not have.74 In Germany, an application for a travel document has to be made to the local Aliens Office,75 and the law requires at least three years of lawful residence in the country. Generally, toleration is not sufficient to meet the lawful stay prerequisite set forth in the first sentence of Article 28 of the 1954 Convention.76 There are several judgments involving cases in which a person applied for a travel document and the administration refused it because it was not previously established that the person was stateless. The courts have shown a more sympathetic approach to statelessness, making findings of ­statelessness

72 73

74 75

76

These cases are mainly based on administrative practices. Email from Bo Johannson, Lawyer, Swedish Refugee Advice Centre, to author (Stockholm, Sweden, 2 January 2014). The matter of travel documents is governed by Ch ix of the Foreign Nationals Act, according to which the Ministry of Interior may issue an alien’s passport under the following circumstances: (1) at the request of a foreign national who is staying in the territory of the Czech Republic on the basis of a permanent residence permit but does not possess a valid travel document and proves that, against his will, he is unable to acquire such a document; (2) at the request of a foreign national who is entitled to permanent residence under Section 87 (a foreign national placed into foster care by a competent authority); (3) to a foreign national enjoying temporary protection under a separate piece of legislation who does not hold a travel document and (4) at the request of a foreign national who has been granted subsidiary protection under separate legislation but does not possess a valid travel document and proves that, against his will, he is unable to acquire such a document. Act No. 326/1999 (n 30) s 113(6); Hofmannová (n 34) 71. Email from Alexandra Dubova, Immigration Lawyer, Organizace pro pomoc uprchlíkům, o.s. to author (Prague, Czech Republic, 4 May 2014). §1 Abs 4, §4 Abs 1 Satz 4, §5 Abs 1 Aufenthaltsverordnung (AufenthV) vom 25.11.2004 (BGBl 2004 i, 2945), zuletzt geändert durch Artikel 1 der Verordnung vom 1.08.2017 (BGBl 2017 i, 3066) [Residence Regulation]. Travel documents are issued for a maximum period of three years. §4 Abs 1 ibid; Bianchini (n 50) 35. Ibid 47.

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and ordering the Aliens Office to issue travel documents.77 Regarding the interpretation of the second sentence of Article 28, which provides that States may issue a travel document to any other stateless person in their territory, regardless of lawful residence, and that they shall give sympathetic consideration to those who are otherwise unable to obtain a travel document, the case law is split. According to the Federal Adminsitrative Court, the implementation of the second sentence of Article 28 is up to the discretion of the Aliens Office.78 However, the Administrative Court in Berlin ruled that a person who has been on toleration for four years is entitlted to a travel document under such a provision.79 In Greece, a stateless person residing lawfully in the country can apply for a travel document to the police authorities according to Article 28 of the 1954 Convention.80 In practice, it is issued only to stateless persons who arrive legally in Greece holding a Convention travel document and who need to replace it when they are granted a residence permit for one of the general reasons provided for in Law 3386/2005.81 The national informant reports having experience with a few cases of foreigners who became stateless while residing legally in Greece and who obtained a travel document upon proving, with documents issued by the State of their former citizenship, that they became stateless. These cases mainly concerned former citizens of the Soviet Union who had close ties with Greek citizens and/or citizens of an eu member State.82 In this context, it should be underlined that no specific procedure is applicable for the determination of stateless status, and these travel document applications are dealt with on the basis of a practice supported by the Annex of the 1954 Convention. Moreover, the power to issue the 1954 Convention travel documents is based not on a legislative text but on an unpublished internal circular of the police authorities.83

77 78 79

Bianchini (n 50) 46–48. BVerwG, Urteil v 16.10.1990 – 1 C 51.88. §42 Abs 1 Verwaltungsgerichtsordnung (VwGO) vom 19.03.1991 (BGBl 1991 i, 686), zuletzt geändert durch Artikel 5 Absatz 2 des Gesetzes vom 8.10.2017 (BGBl 2017 i, 3546) [Code of Administrative Court Procedure]; ovg Berlin, 15.05.1998, ezar 045 Nr 9, in Hailbronner (n 43) Rn 1263. 80 Questionnaire reply from Erika Kalatzi, Immigration Lawyer (Athens, Greece, 22 December 2013). 81 Ibid. 82 Ibid. 83 Erika Kalatzi, ‘Greece Moves One Step Closer to Introducing an Effective Statelessness Determination Procedure’ (14 April 2016) accessed 21 March 2017. 84 Legislative Decree No 3370/1955 Greek Nationality Code (unofficial tr) art 19; questionnaire reply from Kalatzi (n 80). Citizenship withdrawal from members of minorities was intended to control the Muslim minority from Thrace. Dimitris Christopoulos, ‘Country Report: Greece’ (eudo Citizenship Observatory 2013) 5. According to the administration, the number of people who had lost Greek citizenship from 1955 until its abolition amounted to about 60,000. ibid 5. Article 19 was a discriminatory measure that stripped minority groups of their citizenship under the pretext that they had permanently established residence abroad. Greek Helsinki Monitor and Minority Rights Group Greece, ‘Human Rights in Greece: Joint Annual Report 2000’ (February 2000) para 1.3. 85 Christopoulos (n 84) 5. Greek citizenship law makes a distinction between individuals of Greek Orthodox genos or descent and individuals of other descent (allogenis). A Circular of the Ministry of 1960 specifies that: “the Ministry, in its interpretation of the terms homogenis and allogenis, does not consider the racial origin of the individual as a unique criterion [...]. [T]he main criterion for the distinction between homogenis and allogenis is national consciousness […] The individual’s racial origin or national descent does not define on its own a sense of homogenis or allogenis, but constitutes a subsidiary element for appraisal in a specific judgment.” Christopoulos (n 84) 1–2. ‘National consciousness’ is defined as the link with the Greek nation, understood in terms of common language, religion and traditions. In practice, either the criteria of origin and consciousness are employed cumulatively or the ethnic origin criterion prevails. ibid 6. The terms homogenis and allogenis are not defined as strict legal categories but rather as flexible ideological concepts which change according to political priorities. The distinction is the subject of ongoing historical and political debate. ibid 2, 5, 8. 86 Ibid 2, 5, 8. 87 Ibid. 88 One of the main distinctions between naturalisation applications of homogeneis and allogenis is that applications of homogeneis are decided by the General Secretary of the Region of their permanent domicile, whereas applications of allogenis are decided by the

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others have not.89 The bureaucratic requirements that applicants had to satisfy were one of the main causes.90 In conclusion, although Article 28 is a self-executing provision, the right to obtain a travel document is only easily accessible in States under categories one and two. In States under category three, the absence of comprehensive implementing legislation regulating findings of statelessness, guiding decision-­ makers and granting stateless status causes problems as far as obtaining a travel document is concerned. 5

Facilitated Naturalisation

Naturalisation is a non-automatic, discretionary way of acquiring a nationality. Naturalisation of stateless persons falls under the broader matter of the right to a nationality and citizenship laws and is very regulated and politicised.91 States have diverging traditions and policies regarding the naturalisation of foreigners. In most cases, naturalisation is a costly, long and difficult process.92 As discussed in Chapter 3, Article 32 of the 1954 Convention provides that States shall facilitate the naturalisation of stateless persons.93 In particular, States shall make every effort to expedite naturalisation proceedings and to reduce as far as possible the charges and costs of such proceedings.94 Article 32 of the 1954 Convention does not prevent States from offering access to facilitated naturalisation to unlawfully present stateless persons but does not provide further guidance in this regard.95 On the other hand, the European Convention on Nationality provides for a right to apply for naturalisation for lawfully resident persons. In addition, it sets forth that State Parties shall facilitate the acquisition of the nationality of stateless persons (Article 6(4) (g)), and the standard ‘waiting time’ prescribed by law before lawfully staying

89 90 91 92 93 94 95

Minister of Interior. In addition, homogeneis are exempted from the interview requirement. ibid 6. Al Jazeera World, ‘Stateless’ accessed 5 May 2014. Greek Helsinki Monitor and Minority Rights Group Greece, ‘Human Rights in Greece: Joint Annual Report 2000’ (February 2000) para 1.3. Rainer Bauböck and Sara Wallace Goodman, ‘Naturalization’ (2010) Policy Brief No 2 (eudo Citizenship). Ibid 2. See Ch 3, s 7.3. See 1954 Convention art 32. See Ch 3, s 7.3.

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­non-nationals can lodge an application for naturalisation cannot exceed ten years (Article 6(3)).96 Contrary to the spirit of Article 32, all States under review require applicants for naturalisation to have lawful residence. Furthermore, all States have introduced additional conditions to meet, such as uninterrupted residence, a minimum number of years in the country and/or holding permanent residence,97 a clear criminal record or proof of being of good moral conduct, material/financial conditions, renunciation of one’s previous nationality (in the case that the State does not accept multiple nationalities) and knowledge of the national language. States often set more favourable criteria for persons who are particularly vulnerable.98 The most relevant provisions will be summarised and analysed in the next subsections. 5.1 Length and Type of Lawful Residence In the States under categories one and two, Italy, France and Hungary are positive examples as far as the time and type of residence that they require to have been in the country to naturalise are concerned. In Italy, stateless persons, similar to refugees, can apply for naturalisation after five years of lawful residence, which is half the waiting time according to the general rule (ten years). Also, in France, any foreigner can apply for French citizenship after five years of lawful residence.99 In Hungary, the normal time to naturalise is eight years of continuous domicile, but for stateless persons, it can be reduced to three years (‘simplified naturalisation’).100 Having a ‘domicile’ entails more than having a

96 97 98

European Convention on Nationality [1997] ets No 166. Bauböck and Goodman (n 91) 2. Gábor Gyulai, ‘The Black Box of Nationality. The Naturalisation of Refugees and Stateless Persons in Hungary’ (Hungarian Helsinki Committee 2016) 5. 99 L 5 febbraio 1992, n 91, ‘Nuove norme sulla cittadinanza’ art 9(1)(e) [Law 5 February 1992, n 91, ‘New provisions on citizenship’ art 9(1)(e)]; Batchelor, ‘The 1954 Convention Relating to the Status of Stateless Persons’ (n 3) 42 fn 109; Loi n° 93–933 du 22 juillet 1993 réformant le droit de la nationalité – jorf 23 juillet 1993, art 50 [Law no 93–933 of 22 July 1993 reforming the right to a nationality – jorf 23 July 1993, art 50); Service-public-fr, ‘Naturalisation: Conditions à Remplir’ (15 March 2015) accessed 16 March 2017. 100 Act lv of 1993 on Hungarian Citizenship ss 4(1)(a), (c), 4(2)(e); Hungarian Helsinki Committee, European Network on Statelessness and Institute on Statelessness and Inclusion, ‘Joint Submission to the Human Rights Council at the 25th Session of the Universal Periodic Review. Hungary’ (21 September 2015) para 25 accessed 16 March 2017.

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place of residence.101 In practice, establishing a domicile requires obtaining a permanent residence permit after a minimum of three years with lawful status in the country and then waiting to become eligible for naturalisation after another three years. Therefore, against this background, in the best-case scenario, a stateless person can only apply for Hungarian nationality after six years.102 Among the States under category three, the Netherlands and Sweden require a short time for the naturalisation of stateless persons: three and four years, respectively, of lawful residence.103 Nevertheless, in Sweden, a person who cannot prove his identity may be naturalised only if he has resided in the State for at least eight years prior to the application for citizenship, the information about the person’s identity is credible and the person ‘lacks the opportunity to obtain acceptable documents to prove [his] identity’.104 A person can build up residency that includes all periods with any residence permit, as long as the periods are continuous, but must hold a permanent Swedish residence permit at the time of the citizenship application.105 101 Hungarian Helsinki Committee, European Network on Statelessness and Institute on Statelessness and Inclusion (n 100) para 25. 102 Gyulai, ‘The Black Box of Nationality’ (n 98) 17. 103 Rijkswet op het Nederlanderschap (rwn) [Netherlands Nationality Act] art 8(4) [Netherlands Nationality Act (as in force on 8 February 2015, art 8(4)) accessed 3 March 2017]; Ministry of Security and Justice, Immigration and Naturalisation Service, ‘Naturalisation’ accessed 3 March 2017; (sfs 2001:82) (sfs 2006:222) (sfs 2014:794) Lag om svenskt medborgarskap [Swedish Citizenship Act], s11(4)(b). In Sweden, you must have been a resident for at least four years if you are stateless. Migrationsverket, ‘You Must Have Lived in Sweden for a Certain Period of Time’ (23 January 2017) accessed 3 March 2017. The application for Swedish citizenship can be made online. Migrationsverket, ‘Online Application for Swedish Citizenship’ (19 January 2017) accessed 3 March 2017. 104 Migrationsverket, ‘You Must Be Able to Prove Your Identity’ (8 July 2015) accessed 3 March 2017. (sfs 2001:82) (sfs 2006:222) (sfs 2014:794) Lag om svenskt medborgarskap [Swedish Citizenship Act]. 105 emn (n 57) 18–19; Migrationsverket, ‘You Must Have Lived in Sweden for a Certain Period of Time’ (n 103); (sfs 2001:82) (sfs 2006:222) (sfs 2014:794) Lag om svenskt medborgarskap [Swedish Citizenship Act].

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Also, in the Netherlands, a person can apply for naturalisation as long as he holds a non-temporary residence permit.106 In practice, the provision of facilitated naturalisation is infrequently applied, as statelessness is rarely identified.107 Germany is the State requiring the longest period to naturalise: a person must have eight years of lawful residence and hold a permanent permit.108 This qualifying period may be reduced to six years in the case of discretionary naturalisation, which, however, implies meeting other conditions, in particular the ability to integrate, which can be proven by sufficient language knowledge.109 The only preferential treatment for stateless persons consists of having the administration assess difficulties in obtaining documents.110 5.2 Economic Requirements Nationality laws of most States also expect applicants for naturalisation to meet certain economic prerequisites. For example, they may include having a home and/or sufficient income to support themselves and their families or not be a financial burden for the State.111 These requirements serve to protect the social system of the State. The European Convention on Nationality does not include owning property under forbidden discriminatory grounds in the attribution of nationality. Nevertheless, this prerequisite may be particularly problematic for stateless persons, especially if it is difficult for them to obtain a work permit. Therefore, while generally justified, some exceptions should be allowed.112

106 Ministry of Security and Justice, Immigration and Naturalisation Service, ‘Naturalisation’ accessed 3 March 2017. 107 Questionnaire reply from van Waas (n 53). 108 §10 Abs 1, §10 Abs 1, Satz 1, Nr 3 und 6 Staatsangehörigkeitsgesetz (StAG) in der im Bundesgesetzblatt Teil iii, Gliederungsnummer 102–1, veröffentlichten bereinigten Fassung, zuletzt geändert durch Artikel 3 des Gesetzes vom 11.10.2016 (BGBl 2016 i, 2218) ­[Nationality Act]. 109 §10 Abs 3, Satz 2 ibid. This requirement may be waived to avoid special hardship. §10 Abs 6 ibid. 110 Bianchini (n 50) 35, 50. 111 Council of Europe, Committee of Experts on Nationality (cj-na), ‘Report on Conditions for the Acquisition and Loss of Nationality Adopted by the Committee of Experts on Nationality on the Basis of a Draft Prepared by Mr. Andrew Walmsley’ (2003) cj-na (2002) 1, para 31. 112 Mrekajova (n 5) 208–09.

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5.3 Renunciation of Former Nationality A minority of States, such as Germany, Spain and the Netherlands, necessitate renunciation of a former nationality.113 In Spain, this requirement is loosely applied, as it only requires the applicant to sign a document renouncing his nationality of origin during the naturalisation ceremony. The applicant does not need to provide any additional documentation proving renunciation, and he does not have to inform the authorities of his country of origin that he has acquired Spanish nationality. In the case of a dual nationaility agreement between Spain and the country of origin, renunciation is not required.114 5.4 Language and Civic Knowledge Tests One of the trends since 2000 has been the introduction of language and civic knowledge tests: ‘in 2007, 15 out of 26 Council of Europe countries (58 percent) required formal assessment or certification’.115 By 2013, the number rose to 28 countries out of 36 (78 percent).116 These tests are related to the goal of integrating foreigners into the host society. However, there has been very little research to find out whether the tests are effective in achieving these goals.117 Usually, these differentiations do not amount to discrimination.118 Nonetheless, they should be used exclusively to integrate non-nationals, and no State should use them in a biased manner to select its nationals.119 The State should therefore not ‘require more than an adequate knowledge of one of its official languages’.120 The word ‘adequate’ is open to different interpretations and raises problems of implementation. The level of knowledge of grammar and 113 Ministry of Security and Justice, Immigration and Naturalisation, ‘Renouncing your Current Nationality’ accessed 16 September 2017. Bauböck and Goodman (n 91) 2. 114 Francisco Javier Moreno Fuentes and Alberto Martín Pérez, ‘Naturalisation Procedures for Immigrants. Spain’ (eudo Citizenship Observatory 2013) 4, 6. 115 alte, ‘Language Tests for Access, Integration and Citizenship: An Outline for Policy Makers’ (2016) 11; Maarten Peter Vink and Gerard-René de Groot, ‘Citizenship Policies in the eu’ in Douglas J Besharov and Mark H Lopez (eds), Adjusting to a World in Motion. Trends in Global Migration and Migration Policy (oup 2016) 211, 223. 116 alte (n 115) 11. 117 Bauböck and Goodman (n 91) 4. 118 The European Convention on Nationality lists only ‘sex, religion, race, color or national or ethnic origin’ as prohibited discriminatory grounds. See European Convention on Nationality (n 96) art 5; Mrekajova (n 5) 206. 119 Council of Europe, Committee of Experts on Nationality (cj-na) (n 111) 1 para 36. 120 Explanatory Report to the European Convention on Nationality [1997] ets No 166, para 52.

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vocabulary necessary to pass the language test is debated. Some argue that the standard for naturalisation tests should be what the linguists consider sufficient to conduct a simple conversation – i.e., the knowledge of 800 words (A2 level).121 Even if States comply with the standard above, others point out that language and knowledge tests might still be problematic to pass for certain categories of applicants due to their age or physical or mental conditions. Among the States under review, the requirements of written and oral, or simply oral, exams vary. Greece,122 the Netherlands and Spain ask to pass a level A2 test, while the Czech Republic,123 France, Germany and the uk demand level B1. Spain requires an interview, whereas in Italy and Sweden, no test is necessary.124 Generally, language and civic tests have been reported to constitute a serious barrier to naturalisation for applicants in Hungary, France, Germany and the Netherlands. In Hungary, the citizenship test has been criticised, because it requires not only mastery of the Hungarian language but also an in-depth knowledge of Hungarian history, literature and the constitutional system.125 Although only 3–10 percent of applicants fail it, some argue that it sets the bar too high and does not specify the mandatory level of knowledge of the language, as recommended by the Common European Framework for Reference for Languages.126 Individuals who are legally incompetent or with limited 121 Vadim Poleshchuk, Advice not Welcomed: Recommendations of the osce High Commissioner to Estonia and Latvia and the Response (Kieler Schriften zur Friedenswissenschaft) (lit Verlag 2001) 56; Mrekajova (n 5) 203, 206. 122 Greece requires a country knowledge test. Sara Wallace Goodman, Immigration and Membership Politics in Western Europe (cup 2014) 62; alte (n 115) 12. 123 In the Czech Republic, people have to pass the examination of language and cultural studies to apply for naturalisation. There are exceptions for people over 65 years or those with a physical or mental disability. Act No. 186/2013 Coll. the citizenship of the Czech Republic and amending certain laws (Law on Citizenship of the Czech Republic) ss 14(4), (5), 19(g). 124 alte (n 115) 13–14; Real Decreto 1004/2015, de 6 de noviembre, por el que se aprueba el Reglamento por el que se regula el procedimiento para la adquisición de la nacionalidad española por residencia (BOE-A-2015–12047) [Royal Decree 1004 / 2015, 6 November, which approves the Regulation which regulates the procedure for the acquisition of Spanish citizenship based on residence]; Prefettura e Comune di Cremona, ‘Cittadinanza: Diritto o Concessione. Guida Pratica alla Cittadinanza Per Stranieri’ (2013) accessed 7 June 2017. 125 Act lv of 1993 on Hungarian Citizenship s 4A(1). 126 Szabolcs Pogonyi, ‘Naturalization Procedures for Immigrants. Hungary’ (eudo Citizenship Observatory 2013) 4.

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­capacity, as well as people who have obtained a diploma in Hungarian language in a Hungarian institution of higher education, individuals who are 65 years of age and those who are unable to sit the exam because of ‘persistent and irreversible deterioration’ of health, can get exempted.127 In France, the test (language level B1)128 includes the history and ‘culture’ of France, and there is evidence that it is difficult to pass for certain applicants, above all women, who do not have enough formal education.129 The condition of knowledge of French language does not apply to stateless persons who have been residing regularly and habitually in the coutnry for at least fifteen years and who are older than 70 years of age.130 In Germany, the test requirement is strictly ­applied (language level B1). The condition can be waived if the applicant is unable to pass it ‘on account of a physical, mental or psychological illness or disability or on account of his or her age’.131 In 2010, the Federal Administrative Court clarified that illiteracy is sufficient to exempt one from the test only if it is due to an illness or disability. In all of the other cases, the authorities can take into consideration the fact that a person is illiterate and make a discretionary decision in his favour.132 In turn, in the Netherlands, people have to pass the civic integration exam to demonstrate sufficient language knowledge (A2 level) or Dutch as a Second Language within three years. In addition, the individual has to pass the ‘Knowledge of Dutch Society’ exam and, if the integration period started after 1 January 2015, the ‘Orientation on the Dutch Labour Market’ test, as well.133 127 Act lv of 1993 on Hungarian Citizenship s 4/A(2). 128 Service-Public-fr, ‘Comment Justifier de Son Niveau de Connaissance de la Langue Française?’ (15 July 2015) accessed 16 March 2017. 129 Abdellali Hajjat, ‘Naturalization Procedures for Immigrants. France’ (eudo Citizenship Observatory 2013) 4; Migration Policy Group and France Terre d’Asile, ‘Access to Citizenship and Its Impact on Immigrant Integration. Handbook for France’ (2013) 11. 130 Loi n° 93–933 du 22 juillet 1993 (n 99) art 21-24-1. An exemption also applies to disabled people. Service-public-fr, ‘Naturalisation: Conditions à Remplir’ (15 March 2015) accessed 16 March 2017. 131 §10 Abs 6 StAG (n 108). 132 BVerwG, Urteil v 27.05.2010 – 5 C 8.09. In this case, the claimant was illiterate only because he did not go to school in Turkey. Bianchini (n 50) 50. 133 The extra exam was introduced by the Modern Migration Policy Act (Wet Modern Migratiebeleid (MoMi 2013)), which entered into force on 1 January 2013, amending the Aliens Act of 2000. Dienst Uitvoering Onderwijs, Ministerie van Onderwijs, Cultuur en Wetenschap, ‘How to Integrate. Integration Exams or Dutch as a Second Language State Exam (staatsexamen NT2)’ accessed 3 March 2017.

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There are exemptions for people with disabilities and illness or persons who have failed the test four times.134 Moreover, it is possible to extend the three-year period, in case of illness, pregnancy and illiteracy.135 Regarding the lawfulness of the integration conditions in the form of a civic integration examination (language test and knowledge of Dutch society) in the Netherlands, the cjeu held that eu States may ask third-country nationals with long-term resident status to pass a civic integration examination but ‘must not jeopardise the achievement of the objectives pursued by the directive on long-term residents’.136 In stating so, the cjeu referred ‘to the level of knowledge required to pass the examination, to the accessibility of the courses and material necessary to prepare for that examination, to the amount of registration fees or to the consideration of specific individual circumstances, such as age, illiteracy or level of education’.137 5.5 Naturalisation Procedures In most States, naturalisation involves the administration’s discretionary decision. The competent authorities vary, with some States having specialised bodies for the administration of citizenship, as in Sweden. In many cases, local administrations are in charge of checking applications and interviewing, and the central State authorities are in charge of making the decision. Naturalisation is not considered a routine administrative decision but a privilege, and it is only granted if it is in the interest of the State.138 Processing applications for naturalisation can take a long time. In the majority of the States under review, the law does not specify a maximum time limit for deciding on the applications (such as Sweden and the uk).139 In the Czech Republic, the Regional Authority sends the application to the Ministry of Interior within 30 days. According to the law, the Ministry has to decide

134 Dienst Uitvoering Onderwijs, Ministerie van Onderwijs, Cultuur en Wetenschap, ‘How to Integrate. Exemption’ accessed 3 March 2017. 135 Dienst Uitvoering Onderwijs, Ministerie van Onderwijs, Cultuur en Wetenschap, ‘How to Integrate. Do you Need More Time?’ accessed 3 March 2017. 136 Council Directive (ec) 2003/109 of 25 November 2003 concerning the status of thirdcountry nationals who are long-term residents [2004] oj L 16/44. 137 C-579/13 P and S v Commissie Sociale Zekerheid Breda, College van Burgemeester en Wethouders van de gemeente Amstelveen [2015] ecr 369 para 49. 138 Bauböck and Goodman (n 91) 8. 139 Ibid; Bernitz (n 58) 6.

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within 180 days.140 In Italy, although the law sets the limit to 730 days, the average length is around five years.141 In France and Germany, applicants may have to wait up to two years.142 In Hungary, the law stipulates that ‘[t]he President of the Republic decides on a request for the acquisition of Hungarian citizenship by naturalisation…, on the basis of the Minister’s proposal’.143 The competent authority must process the application within 60 days and forward it to the Minister, who, in turn, must submit his proposal within three months.144 The law, however, undermines the outlined timelines by specifying that they do not apply when the authorities are trying to obtain ‘data or document concerning nationality’.145 In Sweden, the decision can take between approximately one and four months, if the sma does not need to do any research on the application. Otherwise, it may take between 16 and 20 months.146 In the Netherlands, the decision period for naturalisation is one year, but it can be extended twice for six months.147 Naturalisation applicants have to bear considerable costs. These may include tuition fees for language courses, language tests, costs for official translations of documents and substantive administrative fees for processing the applications, despite Article 32 of the 1954 Convention stating that the charges and costs of proceedings shall be reduced.148 Only France, Hungary and S­ weden do

140 Act No. 186/2013 (n 123) ss 17, 21(1), 23(1). 141 Guido Tintori, ‘Naturalization Procedures for Immigrants. Italy’ (eudo Citizenship Observatory 2013) 4. 142 Bauböck and Goodman (n 91) 8; interview with Heiko Habbe, Immigration Lawyer, Jesuit Refugee Services Berlin (Hamburg, Germany, 9 August 2013); Service-Public.fr, ‘Demande de Naturalisation’ (20 June 2016) accessed 16 March 2017. 143 Act lv of 1993 on Hungarian Citizenship ss 6(1), 17(2). 144 Ibid s 17(2)-(3). 145 Ibid s 17(5)(d). 146 Migrationsverket, ‘Time to a Decision’ (21 February 2017) 3 March 2017. 147 Ministry of Security and Justice, Immigration and Naturalisation Service, ‘Decision Periods’ accessed 3 March 2017. 148 For instance, in Hungary, ‘the basic constitutional studies examination has a mandatory fee (applicable in every case), which is 50% of the gross monthly minimum salary (Government decree 125/1993 (IX. 22.) on the implementation of Act lv of 1993 on Hungarian Citizenship Section 13 (6), the exact sum of which is determined by a government decree on a yearly basis’. According to statistics between 2014 and 2015, the costs ranged between 170 and 520 Euros. Gyulai, ‘The Black Box of Nationality’ (n 98) 17.

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not charge naturalisation fees.149 Stateless persons pay reduced fees in Greece (100 Euros), Spain (100 Euros) and the Netherlands (636 Euros).150 In the Czech Republic, an administrative fee applies only upon a successful grant of nationality (the fee is 2,000 czk – 74 Euros – but it is reduced to 500 czk – 18.50 Euros – if the applicant was granted international protection).151 A second administrative fee of 500 czk (18.50 Euros) is required for the acceptance of the decision.152 In Germany, the cost is 255 Euros.153 The uk is the country with the highest fee: 1,282 Pounds.154 In all States, applicants for naturalisation must present extensive official documentation relating to their identity or other nationalities.155 It may be a problem for stateless persons to demonstrate that they have no nationality, if it had not been established before, especially in the Netherlands, Sweden and the Czech Republic. In the Netherlands, applicants have to present a passport and/or birth certificate. If a person lacks such evidence, he can declare a ‘lack 149 Bauböck and Goodman (n 91) 8; Migrationsverket, ‘Fees for Swedish Citizenship’ (4 November 2016) accessed 1 March 2017; Gyulai, ‘The Black Box of Nationality’ (n 98) 17; Guida Fisco, ‘Cittadinanza Italiana 2017: Come Fare Domanda, Requisiti e Documenti’ (3 Aprile 2017) accessed 14 April 2017. 150 Government Gazette of the Hellenic Republic (9 July 2015) Series A, Issue no. 76, Law 4332, art 1(6); Gobierno de España, Ministerio de Justicia, ‘Ciudadanos. Trámites y Gestiones Personales. Nacionalidad por Residencia’ accessed 16 March 2017; Real Decreto 1004/2015 (n 124); Ministry of Security and Justice, Immigration and Naturalisation Service, ‘Costs’ accessed 3 March 2017; emn, ‘Ad-Hoc Query on Fees for Citizenship Application’ (2015) 4. 151 emn, ‘Ad-Hoc Query on Fees for Citizenship Application’ (2015) 4; Law No. 186/2013 (n 140) s 83. 152 emn (n 151) 4. 153 §38 Abs 2 StAG (n 108). 154 uk Government, Home Office, ‘Fees with Effect from 6 April 2017 for Citizenship Applications and the Right of Abode’ accessed 21 September 2017. 155 Service-public-fr (n 130); Law No. 186/2013 (n 140) ss 19–20; Andrea Baršová, ‘Naturalisation Procedures for Immigrants. Czech Republic’ (eudo Citizenship Observatory 2013) 6–7; Law 3838/2010 (gg A 49) Contemporary provisions for Greek Nationality, the political participation of homogeneis and legally residing migrants and other provisions (unofficial tr) art 6; Tintori (n 141) 4; Ministry of Security and Justice, Immigration and Naturalisation Service (n 103); Gobierno de España, Ministerio de Justicia (n 150); Real Decreto 1004/2015 (n 124).

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of documentary evidence’ and needs to prove with documents why it is not possible to get a passport and/or birth certificate and that he made efforts to obtain the requested documents. Nonetheless, it is not easy to ‘get an exemption from the obligation to provide a birth certificate or travel document’.156 If statelessness is established and registered in the Municipal Personal Records Database of the corresponding municipality, the individual does not have to present a passport for naturalisation, but a birth certificate is needed most of the time.157 As discussed in Chapter 7, Section 5, Sweden has strict guidelines as far as proving one’s identity is concerned. Exceptions are possible, but in most cases, an applicant must prove his identity by showing the original national passport or original identity document. If this is impossible, a close relative may attest to the applicant’s identity. The passport or identity document must have been issued by a public authority in the State of origin and be of good quality, and there must be no issue as far as whether it is genuine. There must be a photo on the document, which allows the sma to easily identify the applicant. If the applicant has documents which do not fulfil these requirements, the sma may assess whether some of them jointly can prove the identity. A person who cannot prove his identity may be naturalised only if he has resided in the State for at least eight years prior to the application for citizenship, the information about the person’s identity is credible and the person ‘lacks the opportunity to obtain acceptable documents to prove [his] identity’. If the applicant has changed his identity during this time, it is more difficult to make an exception to the proofof-identity requirement.158 The sma has published special guidance on identity documents that are considered acceptable for persons originating from Afghanistan, Iraq, Kosovo, Somalia, Eritrea and stateless Palestinians.159 156 Interview with Reinhard Marx, Immigration Lawyer (Frankfurt, Germany, 22 July 2013); Habbe (n 142); Questionnaire reply from van Waas (n 53). Ministry of Security and Justice, Immigration and Naturalisation Service, ‘Lack of Documentary Evidence’ accessed 3 March 2017. 157 Ministry of Security and Justice, Immigration and Naturalisation Service (n 156). 158 Migrationsverket, ‘You Must Be Able to Prove Your Identity’ (n 104); (sfs 2001:82) (sfs 2006:222) (sfs 2014:794) Lag om svenskt medborgarskap [Swedish Citizenship Act], s 11(1). 159 The sma has published on its website a guideline on identity documents that are considered acceptable for persons originating from Afghanistan, Iraq, Kosovo, Somalia, Eritrea and stateless Palestinians. Migrationsverket, ‘Migration Agency’s Assessment of Identity Documents’ (10 April 2015) accessed 3 March 2017.

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The Czech Republic requires that documents issued by foreign authorities be presented in a ‘higher authentication’ form, a demanding legalisation clause, unless an international agreement stipulates otherwise. The situation thus varies from case to case, depending on whether the Czech Republic has signed an international treaty on the recognition of documents with the State that issued the documents.160 Generally, the Ministry of Interior may excuse one from submitting certain documents, provided that problems in obtaining them are linked to a barrier which is difficult to overcome and that facts can otherwise be accurately established. At the same time, the Ministry may ask the applicant to submit further documents not stipulated by law, which in certain cases becomes a point of legal dispute.161 In this context, Hungary is an exception and a good example, as stateless persons are allowed to submit their expired passports, expired identity documents or marital status documents issued by another State.162 Similarly, in Greece, a copy of one’s passport is acceptable. In addition, if a foreign national has the right to international protection as a political refugee or enjoys the status of subsidiary protection or is a stateless person and cannot present his birth certificate, it suffices to present the act of recognition of status or any official certificate showing statelessness. If the alien was born in Greece, then he is allowed to present only his birth certificate. If the alien is unable to be in possession of a passport for objective reasons, he can present his residence permit.163 So, all States have adopted a multitude of onerous rules related to naturalisation (knowledge testing, language proficiency, financial means, residence periods) due to political concerns and tensions over the integration of foreigners, as well as fraud. The trend, contrary to the recommendation in Article 32 of the 1954 Convention, is to restrict stateless persons’ access to naturalisation. The few provisions that some States have adopted specifically with regard to stateless persons are not sufficient to facilitate their acquisition of a nationality. 6 Conclusion This chapter has shown that implementing legislation that provides for the grant of lawful status upon recognition of statelessness is of particular 160 161 162 163

Baršová (n 155) 6–7. Ibid 7. Szabolcs Pogonyi (n 126) 2. Law 3838/2010 (gg A 49) (n 155) art 6.

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­importance, given that it is essentially through this mechanism that it is possible to access the full rights and benefits of the 1954 Convention.164 In particular, it found that all States under categories one and two grant a residence permit upon recognition of stateless status. All of these permits ensure access to travel documents and to the labour market, with the exception of Hungary, where an application for a work permit must be made. These permits can be renewed and can lead to permanent residence. In Italy, upon the recognition of statelessness, a person is normally granted a residence permit, but its length of validity varies, and legislative intervention would be needed to harmonise administrative practices. In States under category three, the rights and benefits available to stateless persons are normally attached to the type of residence permit that is granted. The tolerated stay and temporary residence permit for impossibility to leave may be evaluated positively in order to avoid the legal limbo in which stateless persons may find themselves. On the other hand, the main negative aspects of these provisions are the following: (1) statelessness is not identified and remains a hidden problem, causing a lack of awareness of decision-makers, stateless persons, legal advisors and the public in general, (2) due to the lack of publically available information (including internal guidelines and policies) in some States, such as Germany, it is difficult to understand how the immigration authorities of different offices deal with statelessness when it arises in the context of other residence permits, travel documents or naturalisation applications, (3) the protection that is given is much more limited than that of refugees or recognised stateless persons in States under category one. Usually, these non-statelessness-specific protection statuses are unable to grant access to all of the social, economic and residence rights of the 1954 Convention when comparing them to models with determination procedures and which follow the standards recommended in the unhcr Handbook,165 (4) they are much slower in providing a long-term solution than stateless-specific protection mechanisms166 and (5) they are subject to almost no international guidance, creating highly non-harmonised statuses and different treatments for stateless persons.167 So, these provisions do not constitute an acceptable alternative to specific implementing legislation for the protection of stateless persons.

164 Batchelor, ‘The 1954 Convention Relating to the Status of Stateless Persons’ (n 3) 27–30. 165 unhcr Handbook (n 2); Bianchini (n 50) 45. 166 Bianchini (n 50) 46; Caia Vlieks, ‘A European Human Rights Obligation for Statelessness Determination?’ (Master’s thesis, Tilburg University 2013) 9. 167 Cahn (n 37) 311.

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In this chapter, it was also discussed that, as far as accessing a durable s­ olution is concerned, although the 1954 Convention and other international instruments recommend States to facilitate the naturalisation of stateless persons, there is little guidance on what it means and what States should do in this regard.168 In the context of refugees, according to Hathaway, this implies dispensing ‘with as many formalities in their naturalisation process as possible so that [stateless persons] are positioned to acquire citizenship with the absolute minimum of difficulty’.169 For stateless persons, this would mean adopting provisions that reduce the number of years of lawful residence, reducing the fees and associated costs to prepare an application,170 allowing alternative evidence where certain documents cannot be presented171 or providing that the burden of proof shifts to the State if a person objectively and in good faith cannot provide some documents.172 Such provisions would be needed, given that one of the main problems for stateless persons is that they may not always be in possession of the documents required, and it may be very difficult or impossible to obtain them. Asking a stateless person to present several documents, as any other foreigner, may constitute an unreasonable impediment for naturalisation. The few provisions that the States under review have adopted with regard to the naturalisation of stateless persons do not constitute adequate and specific implementation of Article 32 of the 1954 Convention, as it has been demonstrated that a number of burdensome conditions to naturalise remain. This is problematic and should be improved, as the protections of the 1954 Convention cannot be considered a substitute for holding a nationality.173 168 169 170 171 172 173

Mrekajova (n 5) 203–04. James C Hathaway, The Rights of Refugees under International Law (cup 2005) 985–86. Batchelor, ‘The 1954 Convention Relating to the Status of Stateless Persons’ (n 3) 42. van Waas (n 45) 368. Mrekajova (n 5) 210. Tamás Molnár, ‘A Fresh Examination of Facilitated Naturalisation as a Solution for Stateless Persons’ in Laura van Waas and Melanie J Khanna, Solving Statelessness (Wolf Legal Publishers 2017) 230–31.

266 Table 5

chapter 9 Main characteristics of residence permits and facilitated naturalisation

Czech republic

France

Germany

3 months

1 to 1 and a half years

At least 18 Such permits months after do not exist deportation was ­suspended, but it takes longer

Maximum ­validity of 1 year ­residence permit?

3 years

3 years

N/A

Unrestricted right to Yes work?

Yes

Yes

N/A

Benefits?

No

Yes

Yes

N/A

Right to travel document?

Yes Only for stateless persons with permanent residence

Practice unclear

Practice unclear

Years to qualify for ­permanent residence?

5 years

3 years

5 years

5 years

Years of lawful residence to naturalisation?

5 years of permanent residence

5 years

8 years; 6 years for discretionary naturalisation

10 years

No

No

No

Time to receive a permit for ­impossibility to leave or for ­stateless status?

Permanent residence No to naturalise?

Greece

267

Grant of Status and Rights

Hungary Italy

Netherlands Spain

Sweden

uk

Up to 3 years

Admin. procedure: 2 years; judicial procedure: 2–3 years

2 and a half years

About 3 years

About 3 months

No ­reliable data

3 years

5 years

1 year

30 months Unlimited Can be ­unlimited or temporary

No

Yes

No

Yes

Yes

Yes

No

Yes

Yes

Yes

Yes

Yes

Yes

Yes

Practice unclear

Yes

Practice unclear

Yes

3 years

5 years

3 years

N/A

5 years

5 years

3 years

5 years

3 yearsa

10 years

4 years; 8 years if there is no proof of identity

5 years

Yes

No

No

No

No

Yes

a The permit must be for a non-temporary purpose; so, the no-fault permit would not be sufficient. Anita Böcker and Ricky van Oers, ‘Naturalization Procedures for Immigrants – The Netherlands’ (eudo Citizenship Observatory 2013) 4–6.

Part 3 Conclusions and Recommendations

∵

Chapter 10

Summary and Comparative Analysis of the Implementation of the 1954 Convention 1 Introduction Based on the foregoing findings, this chapter summarises the main issues related to the text of the 1954 Convention and compares the different legal frameworks dealing with the treatment of applications for protection made by stateless persons. In particular, it analyses the national responses to claims of protection of stateless persons in light of the essential elements of justice that should be guaranteed in all procedures. It highlights the variations, main challenges and strengths of the different systems. It also discusses the implementation of the definition of ‘stateless person’ and the rights attached to the status granted, if any. It critiques the literature on statelessness, which only makes an initial, somewhat superficial observation that specialised decision-makers should be in charge of statelessness claims, and it argues that even in the presence of incorporating legislation, substantive outcomes may be influenced by political and organisational pressures.1 2

Summary of Main Issues of the Provisions of the 1954 Convention

As discussed in Chapter 3, the 1954 Convention is a crucial instrument in the protection of stateless persons, as it sets forth the internationally accepted definition of ‘stateless person’. It also provides for a set of basic rights and freedoms that stateless persons should enjoy, depending on their attachment to the host State. However, it is proven that its protection is incomplete, because it attributes most of the rights to stateless persons that are lawfully in the State’s territory. Given that stateless persons are often illegally present and that the 1954 Convention does not explicitly require granting lawful status even to recognised stateless persons, this is a serious weakness. Furthermore, 1 Rebecca Hamlin argues that in the jurisdictions that she reviewed, the most important factor in determining asylum applicants’ cases was the level of insulation of decision-makers from migration politics. Rebecca Hamlin, Let Me Be a Refugee. Administrative Justice and the Politics of Asylum in the United States, Canada and Australia (oup 2014).

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004362901_012

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the 1954 Convention does not have any effective enforcement mechanisms, nor does it have any provisions on the procedures for the identification of statelessness. The Convention definition of ‘stateless person’ remains debated and is subject to different interpretations. Finally, many other provisions are open-ended and leave wide discretion as far as their implementation is concerned. These problems are reproduced at the domestic level, and in order to address them, States need to adopt specific legislation to identify and grant status to stateless persons. The data support the view that such provisions are crucial, as otherwise, the rights of the Convention will not be accessible.2 Similarly, the Refugee Convention does not contain an explicit obligation to introduce a refugee determination procedure or to grant the status of refugee.3 Nevertheless, the implicit duties to do so have been extensively accepted.4 In both cases, it is practically impossible to comply with the Conventions if the beneficiaries of their rights are not identified and granted lawful status on the basis of their special circumstances.5 This argument applies equally to both States with systems of automatic incorporation of international law into the domestic legal framework and those with systems of legislative incorporation. However, from the findings of this book, it emerges that the range of variations in the implementation of the 1954 Convention, even in States within the same region, goes from having specific legislation to identify and protect stateless persons to having no legislation at all. The next section analyses such variations in detail and highlights difficulties and good practices, as well as the need for improvements.

2 Carol A Batchelor, ‘The 1954 Convention Relating to the Status of Stateless Persons: Implementation within the European Union Member States and Recommendations for Harmonization’ (2004) 22(2) Refuge 31–32. 3 Chapter 3 explained that the Refugee Convention and the 1954 Convention share a joint drafting history, and several of their provisions remain similar. This means that much can be learned from the implementation of the Refugee Convention. Article 27 of the Refugee Convention, similar to Article 27 of the 1954 Convention, requires contracting States to issue identity documents to any refugee (or stateless person in case of the 1954 Convention) in the territory. However, this Article does not confer any additional right. Atle Grahl-Madsen, ‘Commentary of the Refugee Convention 1951 (Articles 2–11, 13–37)’ (2nd edn, unhcr 1997) art 27. 4 See e.g., unhcr ‘Handbook on Procedures and Criteria for Determining Refugee Status’ (reissued December 2011) un Doc HCR/1P/4/ENG/Rev.3, para 189. See also Hemme Battjes, European Asylum Law and International Law (Martinus Nijhoff Publishers 2006) 466–68. 5 See e.g., unhcr ‘Handbook on Procedures and Criteria for Determining Refugee Status’ (n 4) para 189; see also Battjes (n 4) 466–68.

Summary and Comparative Analysis of the 1954 Convention

3

273

The Implementation of Procedures for the Protection of Stateless Persons

3.1 Comparison of Procedures Dealing with Claims for Protection The first observation about how the ten eu Member States implement the procedures dealing with claims for protection made by stateless persons is that progress has been made from the situation of one decade ago, when Spain was the only State in the eu with procedures to identify statelessness. Now, a small minority of other eu States, including the uk and Hungary, have statelessness determination procedures in place. In particular, the British and Hungarian legislations, as well as the Italian draft legislation and case law, are moving towards the incorporation of several provisions of the unhcr Handbook. Nevertheless, it is too early to conclude that all States are progressing towards the harmonisation of procedures. The treatment of stateless persons still varies widely between the States under review, both formally and in practice, and no State can claim to have the ‘right’ solution in place. The low number of successful applications also allows the inference that national procedures are not yet adequate.6 The second observation is that States under category one (Hungary, Spain and the uk), which have adopted formal legislation to implement the 1954 Convention, ensure more essential procedural elements (i.e., the right to an adequate opportunity to prepare the case, to have the case decided by suitable adjudicators and to be heard and a right of review) than States under categories two and three. The Hungarian and British procedures present clear-line rules and raise the expectation to limit decision-makers’ discretion. In particular, Hungary stands out as being the State with not only the best framework but also practice. By contrast, the Spanish statelessness determination procedure provides some guidance, but it is worded in general terms and says very little regarding the burden and elements of proof. The States under category two (France and Italy) recognise statelessness as protection grounds and have only basic provisions which set standards but are inadequate to direct decision-makers, and courts have to fill the gaps. The States under category three (Sweden, Greece, the Netherlands, the Czech Republic and Germany) do not have specific mechanisms for identifying statelessness. Decision-makers are not provided with clear instructions on how to register stateless persons, and the tendency is to include them under the group of persons with ‘unknown nationality’ and treat them as asylum 6 It is a combination of the low number of applications for protection and the higher number of stateless persons that allows this inference. See Ch 5, s 10 and Ch 6, s 10.

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seekers or irregular migrants. This may be due to the fact that the procedures are not designed to identify persons in need of protection and instead are focused on the assessment of obstacles to return rather than the criteria for assessing stateless status. Toleration and permits for impossibility to leave are considered by the governments as tools to deal with irregular migration, often in relation to persons who could not show sufficient evidence or lacked credibility and therefore did not receive refugee status. Consequently, toleration and permits for impossibility to leave do not help with the identification of statelessness, and no reliable statistics on statelessness exist in these States. In situations where there is an element of discretion, such as in Germany, there is lack of clarity on how the administrations decide on applications for permits for impossibility to leave. States under category three are also much slower in reaching a long-term solution than those with stateless-specific procedures, as a person may be required to go through the futile asylum path before applying for permits for impossibility to leave. This also has the effect of overburdening and affecting the integrity of the asylum systems. Among the States under category three, Greece gives raise to most concerns, because it does not have any grounds to legalise those whose departure is impossible. Moreover, general principles of administrative law are often disregarded in the context of other immigration procedures, and very little is known of its practices regarding the treatment of stateless persons. The Czech Republic constitutes an anomaly, as it recently introduced a basic provision allowing the possibility to claim protection under the 1954 Convention within the asylum framework but without any explanation on how to apply it. The third observation is that on a comparative level, most States, including those under categories one and two, share common issues: (1) Lengthy proceedings and lack of status for applicants while their cases are pending. The lack of status pending a case reflects the absence of a provision guaranteeing protection in the 1954 Convention. The only exception is Italy, where, however, this is due to good practice rather than specific legislative intervention. Such a gap in protection in the States under review is a problem, given that the length of time to obtain a first-instance decision is usually about one year. Even though the Czech Republic, the Netherlands and Sweden have shorter processing times as far as the applications on grounds for impossibility to leave are concerned, in most cases, these procedures are started only after an asylum claim has been refused, which increases the length of the procedures. (2) The applicant must prove that he is not a national on the balance of probabilities, according to general administrative law rules. This is difficult for

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stateless persons, because they are frequently without documentation and can only rely on indirect evidence. Moreover, the search for information, which may require a collaborative approach with the decisionmaker, is reported as lacking in most cases. Hungarian law is the only good example, as it explicitly sets a lower burden of proof, provided that the applicant can substantiate his claim.7 It also introduces a shared obligation to collect the evidence. In Italy, the case law has filled the gaps, establishing that the principles of the lowered and shared burden of proof as recommended by the unhcr Handbook shall be followed. In the uk, judicial decisions have clarified when the burden of proof shifts to the decision-maker.8 (3) There is little guidance on means of proof to identify statelessness, and decision-makers generally do not look at the absence of collaboration on the part of the States concerned (except in the uk and Hungary). The legislation of States falling under categories two and three is particularly concerning, as it totally ignores the fact that stateless persons face evidentiary requirements to obtain legal status that they cannot usually fulfil. In general, the rules on the means of proof are very onerous for people who often have no documentation and are therefore unjust when applied to them. (4) Regardless of whether a statelessness determination is specifically defined in the legislation of a State or is part of a procedure to acquire a residence permit or a travel document, there are concerns about whether the right of review or appeal is effective in rectifying mistakes. Whereas generally such a right is included in all of the States under study, it is also subject to restrictive grounds. In some jurisdictions where no specific procedure exists and discretionary power is used to grant stay, such as the Czech Republic and Sweden, there are no rights of review before a court.9 Moreover, in some review or appeal procedures, there is no real independence between those who made the original decision and those who hear the appeal.10 For instance, this is the case in the uk (limited to the internal review procedure), France and the Netherlands.11 7

Gábor Gyulai, ‘Statelessness Determination and the Protection Status of Stateless Persons’ (European Network on Statelessness 2013) 28; see Ch 5, s 4. 8 See Ch 5, s 4 and Ch 6 s 4. 9 Batchelor, ‘The 1954 Convention Relating to the Status of Stateless Persons’ (n 2) 42. 10 Denis J Galligan, Due Process and Fair Procedures. A Study of Administrative Procedures (2nd edn, oup 2004) 444. 11 Peter Cane, Administrative Tribunals and Adjudication (Hart Publishing 2009) 90. See also Romuald Likibi, Le Droit de l’Apatridie (Publibook 2013) 297–99; John Allison,

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(5) There is no free legal assistance provided by the State to prepare cases at the first stage of the procedures except in the Netherlands, Hungary and, in limited cases, the uk and Germany. At the appeals stage, legal representation is usually provided, and issues mainly concern its poor quality. In most cases, in France and Greece, free legal assistance is not provided on appeals, either. This prevents a fair opportunity to pursue claims. Several studies show how, absent the provision of legal aid, refugee claimants and other marginalised groups have a demonstrably lower probability of success in the pursuit of their claims.12 (6) Problems of access to the procedures for stateless persons in immigration detention. In particular, the amount of evidence that applicants are expected to provide is such that it is virtually impossible to collect it in the presence of physical barriers. (7) In most cases, administrative decision-makers are not independent from the government and are reported to be subject to political and work pressures. Moreover, many of them lack training and awareness of statelessness. This essential element of justice has been little discussed in the literature on statelessness, but it deserves to be further analysed, and Section 5 will do so. 3.2 Barriers to the Procedures This book reveals that stateless persons encounter more problems of access to the procedures in States under categories two and three than category one. These barriers are often related. For instance, one way to reduce costs is to ban legal representation in some proceedings, but on the other hand, this may have a negative impact on the capacity of persons to present their cases.13 Moreover, delays are often linked to complex legal rules.14 The lack of a temporary

12

13 14

A ­Continental Distinction in the Common Law: A Historical and Comparative Prospective of English Common Law (5th edn, oup 1996) 142. Michael Kagan, ‘Frontier Justice: Legal Aid and unhcr Refugee Status Determination in Egypt’ (2006) 19(1) jrs 45. See also Allan C Hutchinson, Access to Civil Justice (Carswell 1990); Nimrod Pitsker, ‘Due Process for All: Applying Eldridge to Require Appointed Counsel for Asylum Seekers’ (2007) 95(1) clr 169, 189–90; Katia Bianchini, ‘Legal Aid for Asylum Seekers: Progress and Challenges in Italy’ (2011) 24(2) jrs 390; Sheona York, ‘The End of Legal Aid in Immigration – a Barrier to Access to Justice for Migrants and a Decline in the Rule of Law’ (2013) 27(2) jianl 106, 118. Mauro Cappelletti and Bryant Garth, ‘Access to Justice: the Newest Wave in the Worldwide Movement to Make Rights Effective’ (1978) 27(2) BuffLR 189, 196. Emmanuel Breen, Évaluer la Justice (Presses Universitaires de France 2002); Christine Coumarelos, Zhigang Wei and Albert Z Zhou, Justice Made to Measure: nsw Legal Needs

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­residence permit, with attached rights to economic support and work, is an obstacle for applicants whose cases may take a long time to resolve (for instance, if the case proceeds to an appeal or the nationality is disputed and foreign authorities do not cooperate) and for those who have no means. The lack of a residence permit may also interfere with the possibility to receive State-funded legal assistance (for example, in France). The difficulties related to preparing a case due to the complexity of the laws and procedures, communicating in the language of the host State and lack of legal aid at the administrative stage are exacerbated for those in immigration detention. This is especially the case when there are inadequate or unclear procedures and detailed forms to fill out.15 Stateless persons face problems in accessing protection in States under category one, too. The findings show that States struggle to reconcile stateless persons’ protection with national self-interests, and the trend is to introduce restrictive and deterrent measures to limit the number of applications. These measures, which end up being used as the legal foundation for restricting access to stateless status, include: filing deadlines (Spain), lawful status to lodge the application (the administrative procedure in Italy) and removal to a State of former residence (uk). In Hungary, the requirement of lawful status was recently removed from the legislation, following a Constitutional Court ruling that declared it in breach of the international obligations, because it limited the scope of the definition of ‘stateless person’ in Article 1 of the 1954 Convention.16 Overall, the cost of such obstacles is great, as they make the success of claims highly problematic.17 The unhcr Handbook states that such barriers do not find any basis in the 1954 Convention, and they may arbitrarily exclude people from protection.18 It also adds that for procedures to be to ‘fair and efficient,

15 16 17

18

Survey in Disadvantaged Areas. Access to Justice and Legal Needs (Law and Justice Foundation of New South Wales 2006). Cappelletti and Garth (n 13) 192. See Ch 5, s 5. In a similar context of access to asylum procedures, Goodwin-Gill considers the requirements of lawful residence to be in breach of the Refugee Convention. Guy Goodwin-Gill, ‘The Process and Rights of Asylum Seekers’ in Karen Musalo, Jennifer Moore, Richard A Boswell (eds), Refugee Law and Policy. A Comparative and International Approach (4th edn, Carolina Academic Press 2011) 922. See Ch 4, s 3. See also text to n 79 in Ch 5 (regarding the recent decision of the Hungarian Constitutional Court quashing the requirement of lawful status to make an application for statelessness). unhcr ‘Handbook on Protection of Stateless Persons under the 1954 Convention relating to the Status of Stateless Persons’ (2014) paras 69–70.

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access to them must be ensured’.19 Therefore, it can be inferred that any formal requirement to access the procedures is in breach of the 1954 Convention. 3.3 Need for Clear Legislation In light of the discussion above, I argue that the disparate ways in which the determination of statelessness has been implemented need to be reviewed by States. The data indicate that there is a true need for the improvement of currently available frameworks for adjudicating applications in closer resonance with the aim and purpose of the 1954 Convention. In particular, in States under category one, further specific legislative intervention is needed to amend provisions that directly or indirectly affect the possibility to pursue claims for protection. In States under category two, the procedures should be refined and set out in comprehensive legislative acts to direct decision-makers. In States under category three, legislation is needed to establish statelessness as a protection ground and to provide for specific determination procedures. I also conclude that implementing legislation to determine statelessness must be adopted regardless of whether a State has a system of automatic or legislative incorporation. Such legislation must ensure essential principles of justice and eliminate barriers that directly or indirectly make access to the procedures problematic. At present, the attempts of the unhcr to harmonise the procedures through its Handbook, as well as its campaigns and persuasive efforts towards this goal, cannot be seen as a linear progression nor near completion. Despite the recent improvements, the emergence of a system based on essential principles of justice to protect stateless persons in the eu remains to be fulfilled. State procedures to implement the 1954 Convention have been fraught with internal contradictions which are to be resolved. 4

The Interpretation and Application of the Definition of ‘stateless person’

Regarding the central issue of the implementation of the definition of ‘stateless person’, Chapter 8 shows that the trend has been to incorporate Article 1 of the 1954 Convention into the national legal frameworks of almost all of the States under review, with the exception of Sweden and the Czech Republic. In the uk, the immigration rules present a variant, in that the exclusion clauses of the 1954 Convention are part of the definition of who is stateless.20 In Hungary, 19 20

Ibid 68. Immigration Rules (hc 1039 6 April 2013) Part 14: Definition of a Stateless Person para 401. See Ch. 8, s 2.

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the Netherlands and Spain, the translation of Article 1 differs from the English version, restricting protection to persons who are not nationals under the law of any State rather than under the operation of the law of any State. Moreover, in practice, the definition of stateless person, even when incorporated unchanged into national legislation, is applied and interpreted differently. The data also demonstrate that the treatment of persons who could acquire a nationality in a non-automatic mode varies widely from State to State. Hungary and Germany would usually grant protection, whereas other States would not (Czech Republic, France, the Netherlands, Spain), and others would sometimes (uk, Italy).21 Furthermore, major variations emerge from the analysis of the first vignette in Chapter 8, which shows that there is no consistent approach to the exclusion clause found in Article 1(2)(i) of the 1954 Convention,22 and its provisions have been widely misinterpreted. So, a failed asylum seeker from Palestine is likely to be found stateless in States under categories one and two, whereas the issue of his nationality is usually avoided by the administration in the Czech Republic and Germany. By contrast, in certain situations, the Palestinian applicant may be considered de facto stateless in Sweden. States that normally recognise a Palestinian applicant to be stateless (uk, Germany, France, the Netherlands and Hungary) would, however, refuse his claim if he is found to fall under the unrwa’s mandate unless he is unable to return to the unrwa’s area of operation for reasons beyond his control. On the other hand, Spain and the Czech Republic would not apply the exclusion clause by law. Italy would find the Palestinian to be stateless and assess the exclusion clause in the administrative procedure but only rarely in judicial cases. Greece has an unclear approach, as sometimes its decision-makers follow the unhcr approach and at other times the El Kott case. One important finding is that in some States, outcomes depend on whether the claim is assessed by the courts rather than the administrators, as the former generally take a more favourable approach to applicants than the latter. Finally, key differences of treatment exist regarding cases of persons with disputed nationality who are not assisted by the authorities of the States of origin, as illustrated in the second vignette of Chapter 8.23 Significantly, an applicant is likely to be found stateless in Hungary but not in France and Spain. Hungary, which has precise rules on the identification of statelessness, in most cases would take into account the ineffective nationality resulting from the failure of the foreign authorities to assist in the identification process. On the 21 22 23

See Ch 8, s 3. Ibid s 4. Ibid s 5.

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other hand, France and Spain, which lack such rules, would only refer to the relevant nationality laws and would not consider the State of origin’s lack of co-operation as a relevant fact to establish statelessness. In States under category three, it is likely that administrative decision-makers would avoid making any findings of statelessness. In light of the above, I argue that a restrictive interpretation of the definition of ‘stateless person’ (in Spain and France) or the tendency to avoid its assessment (States under category three) is linked to (1) the lack of legislative guidance on standard and means of proof, which are key elements of the whole statelessness determination procedure, as well as (2) the failure to incorporate substantive provisions on who falls under the definition of Article 1 of the 1954 Convention. This conclusion is meaningful in the context of the debate on the definition of ‘stateless persons’, as well. It shows that without the need to expand the definition of stateless persons to include de facto stateless persons, stateless persons should be able to show de jure statelessness by referring to both national laws and practice.24 Consequently, through definite rules, it would be possible to identify which cases of de facto statelessness fall under cases of de jure statelessness and which ones fall under other categories of human rights violations. Cases in which the substantive content of nationality (i.e., the right to return and live in a State and to receive diplomatic protection) is ineffective should be treated as cases of de jure statelessness.25 Lastly, the unsatisfactory application of the definition of ‘stateless person’ also depends on whether suitable adjudicators are in charge of the procedures,26 as discussed in the next section. 5

Implications of Findings on Administrative Decision-Makers as Suitable Adjudicators

Widely accepted assumptions in statelessness studies are that administrative decision-makers are better placed to decide statelessness applications than judicial bodies, but the arguments presented to support this do not go beyond the likelihood that these decision-makers would have special expertise and

24 25 26

Ibid ss 4–5. Laura van Waas, Nationality Matters: Statelessness under International Law (Intersentia 2009) 24, 27. See Ch 3, ss 3.3–3.4. Denis J Galligan, Law in Modern Society (oup 2007) 137. See Ch 4, s 3.

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would be more accessible.27 No study has addressed the possibility of resistance to stateless persons’ rights and variations of outcomes because of the characteristics of the decision-makers. In contrast to these hypotheses, I argue that administrative-decision makers do not always appear to be best placed to determine statelessness claims. Indeed, even in States with formal statelessness determination procedures, the data reveal problems of non-compliance with norms and highlight the tendency of decision-makers to adapt human rights to local realities and national immigration policies.28 For example, in Spain, it emerges that decision-makers do not have adequate knowledge of statelessness and administrative law in general. In Hungary, there are divergent practices, and some stateless persons with ineffective nationality have been granted status, whereas other have not. In one case, the court even found bad faith of the administration when they refused a statelessness application.29 In the uk, on many occasions, the ho required applicants to engage in futile attempts to contact the relevant embassies, did not believe their accounts and in the end refused their claims, even when the foreign authorities did not recognise a person as a national.30 The literature explains that one reason for such failings is that immigration officials are under an obligation to meet the organisation’s targets.31 In some States, this means that they may have inadequate time or resources to carry out their job. For instance, they may not have the research tools, legal information and time to check whether a person’s account is genuine.32 Another reason is that there is a deficiency of capable and competent decision-makers, very few

27

28

29 30 31

32

Gyulai (n 7) 9–10; Katja Swider and Caia Vlieks, ‘Proposal for Legislation on Statelessness in the Netherlands: A Bittersweet Victory’ (12 October 2016) accessed 6 April 2017. Simon Halliday and Patrick Schmidt (eds), ‘Introduction’ in Simon Halliday and Patrick Schmidt (eds), Human Rights Brought Home: Socio-legal Perspectives on Human Rights in the National Context (Hart Publishing 2004) 7–8. Interview with Gabor Gyulai, Refugee Programme Director, Hungarian Helsinki Committee (Budapest, Hungary, 4 May 2017); see Ch 5, s 2. Katia Bianchini, ‘Protecting Stateless Persons from Arbitrary Detention in the United Kingdom’ (European Network on Statelessness 2016) 25. James C Simeon, ‘A Comparative Analysis of the Response of the unhcr and Industrialized States to Rapidly Fluctuating Refugee Status and Asylum Applications: Lessons and Best Practices for rsd Systems Design and Administration’ (2010) 22(1) ijrl 72–103. Jean-Philippe Dequen, ‘Constructing the Refugee Figure in France: Ethnomethodology of a Decisional Process’ (2013) 25(3) ijrl 449, 458.

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of whom are jurists.33 Above all, whereas the extent of political influence is difficult to measure, and I do not attempt to do so, all of the national informants point out that the administrative decision-makers’ lack of independence from the government is another major factor affecting the outcome of cases. As set out in Chapters 5 to 7, most decision-makers work in institutions which are part of the Ministry of Interior. Because of their organisational structures, these decision-makers are, by their very nature, influenced by the political environment (elected politicians, interest groups, voters), and if a conservative government is in power, they are more likely to pursue goals of immigration enforcement.34 So, their attitude would be that of considering most protection claims as not genuine and made by ‘economic migrants’ rather than by persons having no other place to go.35 One additional important qualification is that in most States, the same authority in charge of international protection is responsible for border protection, as well, which creates conflicts and incompatibility between the two tasks. The literature on asylum processes confirms that decision-makers tend to disbelieve and refuse cases based on subjective and speculative arguments, unfounded assumptions and disingenuous reasoning.36 In the uk, James ­Souter discusses that even though some cases are found credible, decision-makers ‘shut out’ relevant information, filter the evidence before them and do not engage consciously with facts to the point of showing a pattern of refusals.37 Souter notes that this problem works both from ‘the top-down in policy and the bottom-up in routine decision-making’.38 In particular, from the top-down, 33 34 35

36 37 38

Ibid 458. Robert A Kagan ‘The Organisation of Administrative Justice Systems’ in Michael Adler (ed), Administrative Justice in Context (Hart Publishing 2010) 177. Asylum Aid, ‘Unsustainable: the Quality of Initial Decision Making in Women’s Asylum Claims’ (2011); Colin Yeo, ‘Immigration Officials are Failing Victims of Domestic Violence’ The Guardian (21 June 2010) accessed 16 August 2017; Trevor Trueman, ‘Reasons for Refusals: an Audit of 200 Refusals of Ethiopian Asylum Seekers in England’ (2009) 23 jianl 282, 299; Diane Taylor, ‘Home Office Eritrea Guidance Softened to Reduce Asylum Seekers Numbers’ The Guardian (22 January 2017) accessed 28 April 2017; John R Campbell, Bureaucracy, Law and Dystopia in the United Kingdom’s Asylum System (Routledge 2017) 143–70. Guy Goodwin-Gill and Jane McAdam, The Refugee in International Law (3rd edn, oup 2007) 547. James Souter, ‘A Culture of Disbelief or Denial? Critiquing Refugee Status Determination in the United Kingdom’ (2011) 1(1) OxMo 55, 57. Ibid 55.

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he states that studies of the use of the Home Office’s policy documents have shown that they may distort the reality of the human rights conditions in the countries of origin. From the bottom-up, he refers to studies which have demonstrated the selective use of information to support unfounded decisions.39 Souter defines the Home Office’s culture as one of ‘disbelief and denial’.40 Although there is something speculative about the argument that refusals are made despite belief in the truth of the claim, the political pressure surrounding these cases and the very structure of the governmental agencies suggest that they create the conditions in which this kind of decision-making could thrive.41 Accordingly, it is not difficult to see how decision-makers could well refuse statelessness cases despite, on one level or another, believing them. Among all of the States under review, it should be highlighted that only in Sweden have efforts been undertaken to minimise political interference with administrative decision-making,42 and its case is worth further study. These observations have implications for academics, the unhcr and other institutions and activists working on statelessness. For academics, they reveal that decision-making problems could be one factor to explain the low success rate of cases, and more detailed research should be carried forward. To analyse these dynamics, the insights of the public law field dealing with the role of courts, as well as administrative law and bureaucratic decision-making, could be taken into account. For the unhcr, ngos and other institutions, there are benefits to exploring the issue when pressing States for improving statelessness determination procedures and what the constituent elements should be. 6

Judicial Decisions and Uncertainty Concerning the Application of the 1954 Convention

The data show that domestic courts can be an important legal institution for the enforcement of the 1954 Convention and human rights in general. In some countries, such as Germany, the judiciary has constrained unlawful administrative action and interpreted the 1954 Convention within a human rights framework. The general trend of Federal Administrative court jurisprudence over the past ten years has been towards an increasing protection of the rights of stateless persons. On the other hand, despite providing a solution in ­individual 39 40 41 42

Ibid 56. Ibid 57. Ibid 56. See Ch 7, s 3.

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cases, judicial decisions are not appropriate to replace an administrative determination of statelessness for the following reasons: (1) Even if the courts apply the 1954 Convention, uncertainty of the law remains, as the administrators may not follow court decisions in subsequent cases, especially in civil law countries.43 In part, this is due to human rights having their origin outside the national systems and therefore lacking the legitimacy of standards generated internally. The commitment of administrators to implement human rights standards may consequently be weak, as they come into competition with strong internal practices and standards. Denis Galligan and Deborah Sandler explain that human rights ‘are outsiders looking in; they are not natural partners in social organisations and must compete with the powerful forces and currents’.44 For instance, the administrators in Germany tend to apply domestic law, even if it conflicts with the 1954 Convention and the jurisprudence.45 Although the Federal Administrative Court and the High Administrative Court in Berlin held that the category of ‘unclear nationality’ in legal terms is not possible,46 the administrators continue to use it when they cannot conclude whether a nationality exists. Accordingly, a solution is often reached only in individual cases and after costly and lengthy judicial procedures. (2) In the absence of legislation, administrative and judicial practices dealing with stateless persons may vary within individual States. For example, in Germany, applications for impossibility to leave or travel documents under Article 28 of the 1954 Convention are within the competence of each State, and practices change among and within them.47 43

44

45 46

47

This is the case in Spain and Germany. Interview with Reinhard Marx, Immigration Lawyer (Frankfurt, Germany, 22 July 2013); Valeria Cherednichenko, ‘Spanish Lesson Learnt: Theory and Practice of a Functional Statelessness Determination Procedure’ (Poster Presentation, First Global Forum on Statelessness, The Hague, The Netherlands, September 2014). Denis Galligan and Deborah Sandler, ‘Implementing Human Rights’ in Simon Halliday and Patrick Schmidt (eds), Human Rights Brought Home: Socio-legal Perspectives on Human Rights in the National Context (Hart Publishing 2004) 24, 27. Marx (n 43); see Ch 6 ss 4, 5. BVerwG, 12.02.1985, NVwZ 1985, 589; BVerwG, 15.10.1985, NVwZ 1986, 759; ovg Berlin, Urteil v 18.04.1991 – 5 B 41.90; vg Berlin, Urteil v 12.06.1985 – 11 A 655.84; vg Berlin, 12.06.1985, InfAuslR 1985, 237–238; vg Berlin, Urteil v 24.02.1988 – 23 A 341.87; vg Berlin, 24.02.1988, InfAuslR 1988, 174, 176. See Ch 8, ss 4 and 5. See Ch 9 ss 3.1, 4.

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(3) In civil law countries, as there is no rule of precedent, reversals of jurisprudence exist more frequently than in common law countries. In Italy, this has occurred in the context of cases of applicants who could reacquire a nationality. Whereas presently such applicants are generally found not to be stateless, some previous cases found them to be stateless, even if the cause of statelessness depended on their free will.48 (4) In States that adopt the automatic incorporation of international law into the domestic legal framework, judges may use devices to follow national legislation when there is a conflict between the two. For example, in States with strong principles of separation of powers, such as France, the courts tend to consider human rights treaties as alien to national legal systems, and they are cautious to protect national sovereignty.49 In these States, judges may restrictively use the concept of self-executing norms and require implementing legislation before they can be applied.50 (5) Sometimes, the implementation of a treaty may concern sensitive political issues, such as whether a State exists under international law, and judges may try to avoid them.51 For instance, in the Netherlands, the courts try to prevent a direct conflict with the political branch and occasionally ‘abstain’ from deciding. In some cases, the Dutch courts have ruled that even if a provision of international law is self-executing, it would be outside their competence to apply the international law provision and let it prevail over the domestic legislation. In particular, this has occurred when they must weigh different alternatives that they deem an issue for the political branch to decide.52 (6) Although the courts might contribute to partially addressing the problem, it has been noted that in general, they have been careful not to treat administrative processes as ‘lesser forms of judicial trial’.53 In other words, the courts have not developed, through jurisprudence, a ‘culture

48

E.g., Farci cites a decision of the Tribunal in Ancona: Trib Ancona, 13.6.1950; Paolo Farci, Apolidia (Giuffrè 2012) 376. 49 Jacqueline Hodgson, ‘Human Rights and French Criminal Justice: Opening the Door to Pre-Tribal Defence Rights’ in Simon Halliday and Patrick Schmidt (eds), Human Rights Brought Home: Socio-Legal Perspectives on Human Rights in the National Context (Hart Publishing 2004) 185. 50 Virginia Leary, International Labor Conventions and National Law (Springer 1982) 163. 51 Ibid. 52 Evert A Alkema, ‘Netherlands’, in Dinah Shelton, International Law and Domestic Legal Systems: Incorporation, Transformation and Persuasion (oup 2012) 417–18. 53 Galligan (n 10) 444.

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of administrative independence which reaches down to the lowest and least visible rungs of the administrative ladder’.54 (7) In some States, although one might expect that the administrative courts would be able to help to enforce rights, in reality, the courts’ assessment is mainly limited to the formal elements of the decision (whether the public authority used the right procedure rather than whether the decision is fair). In accordance with the principle of separation of powers, the administrative courts are not entitled to assess the substantive quality of the decisions and have to respect the public authorities’ decisions whenever the legislator provided them with discretion. As a result, administrative courts do not always provide administrative justice.55 (8) Even courts that have generally a high reputation for impartiality and independence, as well as the ability to produce appropriate outcomes in cases, raise concerns of speed, cost and accessibility.56 The comparative slowness of court procedures is partially explained by their working methods. The questions of cost and accessibility are closely linked, because the cost of legal representation due to the amount of time necessary to prepare and present a case, as well as court fees, affects the ability to pursue cases.57 Legal aid provides only a very partial solution, given that in some States, claimants fall outside the eligibility criteria. So, when the courts are thought to produce appropriate outcomes, it should be acknowledged that their effectiveness as grievance redress mechanisms is limited by a claimant’s access to adequate advice or representation. This is the case even more so in adversarial systems of justice, like the uk, where the courts decide on the basis of the evidence and arguments presented.58 Therefore, the solution is not found in giving competence to decide on statelessness applications to the first-instance courts but rather in improving the level of insulation of the administrators from the government, as well as their resources and personnel available. According to Galligan, problems connected 54 Ibid. 55 Albertjan Tollenaar and Ko de Ridder, ‘Administrative Justice from a Continental European Perspective’ in Michal Adler (ed), Administrative Justice in Context (Hart Publishing 2010) 301, 318. 56 Tom Mullen, ‘A Holistic Approach to Administrative Justice?’ in Michael Adler (ed), Administrative Justice in Context (Hart Publishing 2010) 383, 397. 57 Ibid. 58 Ibid 383, 398.

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to administrative decision-making ‘derive from the organization, structure and dynamics of administrative bodies, and they are likely to be alleviated only by careful attention being paid to those matters’.59 7

Grant of Status and Enjoyment of the Rights of the 1954 Convention

Where a stateless person has managed to obtain the determination of his stateless status, he may still face barriers to full enjoyment of his rights under the 1954 Convention. The 1954 Convention leaves to States large discretion as far as the status granted to recognised stateless persons is concerned, but the protections that it offers would be meaningless if no lawful status is granted.60 Though there is no internationally recognised right to be granted lawful status in the narrow sense of formal permission to enter and remain in a State and enjoy a set of basic rights, how States respond is a matter of international law, as it is connected to the good faith implementation of the treaty. The findings of Chapter 9 demonstrate that in the States under categories one and two, stateless persons can generally enjoy legal status and the rights attached to it under the 1954 Convention upon being recognised as stateless. For instance, in States under categories one and two, the issuance of a 1954 Convention travel document is usually straightforward. In the States under category three, the 1954 Convention is bypassed in many cases, and lawful status may (rarely) be granted only after very lengthy and complex procedures. Of particular concern are the provisions on ‘toleration’ in Germany and the Czech Republic. They do not actually grant any status, and the alien’s situation remains dependent on the authorities’ discretion. Toleration provides only limited social rights, similar to those granted to asylum ­seekers.61 In Germany, toleration is frequently renewed and used for long periods of time. As a consequence, it prevents full integration of stateless persons into the host State.62 Therefore, whereas toleration fills a void, it is clearly inadequate in terms of protection. As far as the permits granted for impossibility to leave are concerned, their requirements are too burdensome for someone 59 60 61 62

Galligan (n 10) 444. The same argument is made in the context of the Refugee Convention. Guy Goodwin-Gill, ‘The Dynamic of International Refugee Law’ (2013) 25(4) ijrl 651, 653. Hélène Lambert, Seeking Asylum: Comparative Law and Practice in Selected European Countries (Martinus Nijhoff Publishers 1995) 134–38. Claude Cahn, ‘Minorities, Citizenship and Statelessness in Europe’ (2014) 14 ejml 297, 311.

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who is stateless and without documents. In light of the usually low number of people who can obtain such permits, they appear ineffective. Greece is the most problematic State, as there are no provisions to legalise those whose departure is impossible. Stateless persons who do not qualify for a permit under normal immigration laws remain undocumented and live in insecurity and exclusion for protracted periods of time. Some of them may receive a certificate suspending their removal, but this is not a legal status. Generally, in States under category three, there is an inclination to grant less protection, and even upon grant of lawful status, the remaining provisions of the 1954 Convention may be available to stateless persons only insofar as they are available to aliens generally.63 The ‘specific provisions for the stateless’ may not be applicable at all, as statelessness may not have been determined.64 Permits that are granted on the grounds that it is impossible to leave the country do not assume that a person is stateless and do not require a decision-maker to make any such finding. Although States with systems of automatic incorporation of international law under category three can, in theory, directly implement Article 28 of the 1954 Convention, as this is a self-executing provision, if statelessness has not been established and a person’s nationality is ‘unclear’, the States tend to issue an alien’s passport instead.65 Clearly, whether a stateless person receives a travel document under the 1954 Convention or an alien’s passport depends on whether or not specific implementing legislation to identify statelessness has been adopted. Similarly, whether a stateless person has access to facilitated naturalisation under Article 32 of the 1954 Convention depends on whether or not he has been identified to be stateless and specific implementing legislation has been adopted. Contrary to the object and purpose of the 1954 Convention, the trend is not to offer facilitated naturalisation to stateless persons. Normally, although the exact conditions to naturalise vary (for instance, there are significant differences in the length of residence required to make an application), most States set a mix of lawful residence, language, good character and income requirements. Several documents and costly fees may also be required, along with an application. Practically, it is difficult to meet all of the conditions to naturalise, even when some of them are eased with respect to stateless persons. Furthermore, in most States, the decision-makers’ discretion in n ­ aturalisation 63 64

65

Batchelor, ‘The 1954 Convention Relating to the Status of Stateless Persons’ (n 2) 45. See, for a similar argument in the context of the Refugee Convention, unhcr ‘Handbook on Procedures and Criteria for Determining Refugee Status’ (n 4) para 189; Battjes (n 4) 466–68. See Ch 9, s 4.

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proceedings limits the possibility of challenging potential negative decisions. In Spain and France, the recommendation to facilitate naturalisation of Article 32 of the 1954 Convention has not been implemented at all. Particular difficulties exist in Germany and the Netherlands regarding the requirement of renouncing a former nationality, if such a nationality has not been established before. It is therefore vital to recognise that stateless persons can naturalise only if there are provisions that identify them as such, allow them to accrue a period of lawful residence and apply a number of other requirements with flexibility.66 8

Reflections on the States’ Breach of International Obligations

What emerges from the analysis above is that stateless persons claiming protection do not enjoy equivalent essential elements of justice throughout the processes, including in States that have adopted specific statelessness determination procedures.67 In particular, the lack of suitable adjudicators is a notable absence, as it impacts the outcome of cases which are determined on external factors rather than on the legitimate ones in accordance with legal standards.68 The situation giving the greatest concern involves States under category three. Although permits for impossibility to leave can be helpful to ensure a grant of legal status to a group of persons who fall outside the protection of international law, there is an obligation that the 1954 Convention be used to its full potential first and that implementing legislation is adopted to identify those who meet the definition under Article 1. If Goodwin-Gill and McAdam’s argument in the context of the Refugee ­Convention is followed, it can be concluded that all States, although at different levels, are in breach of the obligations of the 1954 Convention and the rule of performing the treaty obligations in good faith.69 Such a breach occurs when a State does not have specific determination procedures for the i­ dentification of

66

67 68 69

Ibid s 5; Sophie Nonnenmacher and Ryszard Cholewisnki, ‘The Nexus Between Statelessness and Migration’ in Alice Edwards and Laura van Waas (eds), Nationality and Statelessness under International Law (cup 2014) 247, 262. This was shown in Ch 5. See Stephen H Legomsky, ‘An Asylum-Seeker’s Bill of Rights in a Non-Utopian World’ (2000) 14 GeoImmigrLJ 619, 635. Galligan (n 10) 444. Goodwin-Gill and McAdam (n 36) 387. See Ch 1, s 8.

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stateless persons.70 It also occurs when it avoids or diverts obligations which it accepted or does indirectly what it is not allowed to do directly – for example, by employing measures that have the effect of barring access to procedures.71 In accordance with case law and doctrine, what is relevant is the conduct of the State and its consequences in fact, rather than its intentions.72 The test is an objective one, and ‘in applying the good faith standard, it is not necessary to prove bad faith’.73 Goodwin-Gill stresses the importance of the principle of good faith, which is found not only in the pacta sunt servanda rule but throughout international law. For instance, he cites the International Court of Justice statement in the Nuclear Tests case: ‘One of the basic principles governing the creation and performance of legal obligations, whatever their source, is the principle of good faith…’.74 Moreover, he refers to Article 2(2) of the United Nations Charter, which places the principle among the most central ones to govern Member States: ‘…2. All Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfil in good faith the obligations assumed by them in accordance with the Charter’.75 9 Conclusion This book has offered an empirical legal analysis of the implementation of the 1954 Convention in ten eu States that have ratified it. The main findings show that: (1) The treatment of non-refugee stateless persons varies greatly across the States of the European Union. Over the last decade, eu States have

70 71 72 73 74

75

Ibid 388. Ibid 387. Guy Goodwin-Gill, ‘R (ex parte European Roma Rights Centre et al.) v Immigration Officer at Prague Airport and Another (unhcr intervening)’ (2005) 17(2) ijrl 427, 434. Ibid. In this regard, Goodwin-Gill cites Ian Brownlie, Principles of Public International Law (6th edn, oup 2003) 423–27. Nuclear Tests (Australia v. France) Case, icj Reports, 1974, 253, 268, para 46; see also Case Concerning Border and Transborder Armed Actions, icj Reports, 1988, 105, para 94; Goodwin-Gill, ‘R (ex parte European Roma Rights Centre et al.) v. Immigration Officer at Prague Airport and Another’ (n 72) 433. United Nations, Charter of the United Nations (signed 26 June 1945, entered into force 24 October 1945) 1 unts xvi, Preamble; Goodwin-Gill, ‘R (ex parte European Roma Rights Centre et al.) v. Immigration Officer at Prague Airport and Another’ (n 72) 433.

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g­ iven signs of hope for a more responsible approach to the protection of ­stateless persons. Some of them have shown themselves to be more willing to undertake obligations to protect stateless persons than others, but none has fully committed itself to achieving such a goal, and, although at different levels, they all are in breach of their international obligations. Some States have used legislation to achieve policy objectives which are at odds with the 1954 Convention, whereas others are still ignoring the need to formally incorporate the treaty into national legislation. In some States, decision-making shows problems of non-compliance with norms and highlights the tendency to adapt human rights to local realities.76 The low number of successful applications also allows the inference that national procedures are not adequate. (2) On a comparative level, most States, including those under categories one and two, share common problems: poor decision-making; lengthy proceedings and lack of status for applicants while their cases are pending; the burden of proof on the applicant who must prove that he is not a national, according to general administrative law rules; little guidance on means of proof to identify statelessness and decision-makers who generally do not look at the absence of collaboration on the part of the States concerned (except in the uk and Hungary); regardless of whether a statelessness determination is specifically defined in the legislation of a State or is part of a procedure to acquire a residence permit or a travel document, a right of review or appeal is generally included in all of the States under study but subject to restrictive grounds; no easily accessible free legal assistance to prepare cases at the first stage of the procedures (except in Germany for irregular immigrants on toleration, Hungary and the Netherlands) and problems of access to the procedures. (3) As a consequence of States’ varying procedures of implementation of the 1954 Convention, the definition of ‘stateless person’ receives different readings, and the treatment of stateless persons takes the form of a highly fragmented system of protection rather than a unified one. ­Claimants for protection are often excluded from official registration as stateless persons, especially where no specific implementing measures of the 1954 Convention exist. (4) The analysis demonstrates that only a clear legal status granted to stateless persons as such can be linked to the enjoyment of all of the rights and benefits arising from the international provisions and bring them to a durable solution. The recognition of stateless status and the related 76

Halliday and Schmidt, ‘Introduction’ (n 28) 7–8.

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a­ pplication of a basic set of rights, according to the 1954 Convention are more likely to occur when States incorporate specific laws and procedures. In particular, the protection of stateless persons is more effective when States rigorously address the issue of identification of statelessness by adopting exact provisions rather than simply modifying existing norms and making marginal changes to immigration laws.

Chapter 11

Beyond the 1954 Convention: Reflections on the Wider Issue of Implementation of Human Rights Treaties 1 Introduction This chapter discusses the significance of the method and extent of incorporation of international law into national legal systems for the implementation of the 1954 Convention and, more generally, all human rights treaties. It presents arguments that scholars have raised in support of both the legislative and automatic method of incorporation of international law, and it shows that, based on the data collected, the former is to be preferred, because even in the absence of implementing legislation, in some cases, it may be possible for applicants to obtain a remedy. It also explains why, regardless of the incorporation method, explicit legislative incorporation produces the best outcomes in terms of rights that can be guaranteed. Finally, it considers the recent human rights scholarship, which has argued that the implementation of human rights must be conceived within the context of social and political institutions and practices.1 The chapter acknowledges that a number of actors are involved in the process of implementation and that they even apply key principles differently, making the framework fragmented and more complex. In any case, it stresses the importance of law in determining outcomes of claims and the need for clear rules incorporating the international obligations. 2

Significance of the Method and Extent of Incorporation of International Law Obligations into the Legislation of the National Legal Systems

This book demonstrates that the implementation of human rights treaties depends, among other factors, on the system of incorporation of international

1 Nergis Canefe, ‘The fragmented nature of the international refugee regime and its consequences: a comparative analysis of the applications of the 1951 convention’, in James C. ­Simenon, Critical Issues in International Refugee Law (cup 2010) 174, 183.

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law into national law2 and how the standards are stated through the enactment of laws. This, in turn, influences the treaties’ interpretation and application by decision-makers and other actors involved.3 For instance, the adoption of specific implementing legislation on the identification of statelessness, including rules on the burden and means of proof, determines how judges and administrators apply the definition of ‘stateless person’. This is obvious in cases of ineffective nationality or those involving the interpretation of the exclusion clause in Article 1 of the 1954 Convention.4 Furthermore, the data confirm that the principal challenge of human rights is that standards are not translated automatically into national mechanisms upon the ratification of treaties. Some legal systems require a formal legislative act of incorporation of the treaty standards into domestic law;5 otherwise, they have very little effect, and individuals are unable to claim their protections in administrative or judicial proceedings.6 In other systems, even if the human rights norms may be directly applicable into the national legal framework,7 they may need the positive intervention of the government and administration, commitments of decision-makers and support of institutions and civil society.8 Moreover, human rights may necessitate further actions to remove barriers found in laws of general applicability that are in conflict with them.9 ‘Automatic incorporation’ into national law is not, on its own, a guarantee of effective domestic implementation of treaties.10 In this regard, the book reveals that in States under category three, in the absence of specific implementing legislation and statelessness determination procedures, administrative 2

3 4 5

6 7

8 9

10

Denis Galligan and Deborah Sandler, ‘Implementing Human Rights’ in Simon Halliday and Patrick Schmidt (eds), Human Rights Brought Home: Socio-Legal Perspectives on Human Rights in the National Context (Hart Publishing 2004) 48. Ibid 49. See Ch 8, ss 2 and 4. Malcolm N Shaw, International Law (5th edn, cup 2002) 121–24; Philip Sales and Joanne Clement, ‘International Law in Domestic Courts: the Developing Framework’ (2008) 128 lqr 388. See Ch 7. For instance, there is agreement that art 28 of the 1954 Convention is a self-executing ­provision and that it is directly applicable in most States under review. See Ch 3, s 7.1; Ch 9, s 4. Galligan and Sandler (n 2) 24–5. For example, the requirement of lawful status to access protection or a number of rights of the 1954 Convention is an obstacle to its implementation. See also Galligan and Sandler (n 2) 45. Virginia Leary, International Labor Conventions and National Law (Springer 1982) 154.

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d­ ecision-makers tend to avoid making findings of statelessness. So, despite Article 28 of the 1954 Convention being directly applicable in systems of automatic incorporation, if, in previous proceedings, statelessness was not determined, travel documents are refused and applicants are considered persons with ‘unknown nationality’.11 In these cases, it is possible that a person is ­issued an alien’s passport instead. Furthermore, the book uncovers that administrative decision-makers, such as in Germany and Spain, do not usually adhere to judicial pronouncements. Specifically, there is a problem in creating a precedent and changing administrative practices. For instance, most German courts have found Palestinians without another nationality to be de jure stateless according to Article 1 of the 1954 Convention. However, the administration keeps avoiding findings of statelessness.12 Additionally, in some States, such as France, there is concern that the incorporation and application of international treaties would result in loss of sovereignty.13 So, regardless of the incorporation method, explicit legal incorporation of human rights at the domestic level and the adoption of administrative measures in compliance with the aim of the treaty in question have been shown to produce the best outcomes in terms of the quality of protection that is afforded (i.e., Hungary). Legal implementation of international human rights in national law gives them clear status, acceptability and publicity within the national systems.14 Some scholars may argue that this approach would undermine the monist theory, inasmuch as States may be thought not to recognise the supremacy of ratified treaties over national law. For instance, Pierre Cornil takes the position that if the good faith of States in recognising the superiority of international 11

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14

The first sentence of Article 28 states that lawfully staying stateless persons have the right to a travel document. The second sentence of Article 28 adds that States have discretion to issue travel documents to stateless persons who are not lawfully staying in their territory. See Ch 3, s 3.1; Ch 5, ss 1, 4. BVerwG, Urteil v 23.02.1993 – 1 C 7.91; BverwG, 23.02.1993, BVerwGE, 92, 116, 119–120 mwN; ovg Berlin, Urteil v 18.04.1991 – 5 B 41.90; BVerwG, Beschluss v 17.07.1987 – 1 B 23.87. See Ch 7, s 4. Jacqueline Hodgson, ‘Human Rights and French Criminal Justice: Opening the Door to Pre-Trial Defence Rights’ in Simon Halliday and Patrick Schmidt (eds), Human Rights Brought Home: Socio-legal Perspectives on Human Rights in the National Context (Hart Publishing 2004) 185–87. Leary (n 10) 154; Tom Campbell, ‘Introduction: Realizing Human Rights’ in Tom Campbell and others (eds), Human Rights: From Rhetoric to Reality (Blackwell Publishers 1986); Jack Donnelly, ‘The Virtues of Legalization’ in Saladin Meckled-García and Başak Çali (eds), The Legalization of Human Rights. Multi-Disciplinary Perspectives on Human Rights and Human Rights Law (Routledge 2006) 67.

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law over national law is questioned, States may easily question it themselves and will return to adopt the theory of absolute national sovereignty. States too often wish that constitutional provisions stating the superiority of treaties be disregarded. As the future of international law depends in large part on the States’ attitudes towards it, it is essential that the relevant constitutional provisions be applied scrupulously.15 However, the situation in the States under review justifies the adoption of implementing legislation. The assumption that judicial supervision affords the rights contained in a treaty is not supported empirically. This is true especially for provisions that are not self-executing. For example, judicial decisions in States of automatic incorporation have not ­always taken into account Convention provisions. Chapter 8 shows that this is the case in France, where the courts have strictly applied the definition of ‘stateless person’ both when a person could acquire another nationality16 and in cases of disputed nationality.17 In Germany, in cases concerning who qualifies under Article 1(1) of the 1954 Convention, although the highest courts d­ ecided that Convention provisions applied, a long period of uncertainty preceded them, as conflicting decisions of the lower courts caused confusion among administrators and individuals.18 In Italy, after many years, the Constitutional Court eased the formal requirements that legal aid applicants have to satisfy, allowing those with unlawful status to have access to it.19 Even when the courts of a State clarified the relevance of Convention provisions, the administration did not always follow them in subsequent situations, such as in Germany regarding the assessment of whether or not a person is stateless.20 Furthermore, only a small number of cases can proceed to the appeals stage, as the jurisprudence concerning the 1954 Convention is dependent on the system of judicial

15

See Cornil’s argument in text to ns 134–137 in Ch 1. Pierre Cornil, ‘Le Rôle de la Commission d’Experts de l’OIT dans le Contrôle de l’Application des Conventions Internationales du Travail’ (1970) 1 rbdi 265, 270–73. 16 See Ch 8, s 2. 17 See Ch 8, s 5. 18 Ibid. 19 The Constitutional Court held that it is sufficient that the person states on his application for legal aid his name, last name, place and date of birth and State in which he is normally liable to pay taxes. Corte Cost, 14.5.2004, n 144. See Ch 6, s 9. 20 In Germany, the courts have held that the concept of unknown nationality is against international law, and a person either is a national of a State or is stateless. Nevertheless, the administration keeps using the category of ‘unknown nationality’. See Ch 8, s 5; interview with Reinhard Marx, Immigration Lawyer (Frankfurt, Germany, 22 July 2013). For a similar argument in the context of labour conventions, see Leary (n 10) 154; 139–41.

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review, appeals and access to legal representation in each State.21 It seems that the monist approach, while able to afford some adjustments through the decisions of the courts, cannot ensure the structural and systematic changes which are needed to implement the standards of treaties.22 Some commentators even argue that from a practical point of view, the monist theory of international law would be valid only if an international legal system were superimposed, constituting a kind of generalised federalism.23 In the meantime, they suggest that all international treaties must be considered to have effects on national legislation according to the dualist theory. So, international provisions can only be applied if they have been incorporated in the national systems by bodies having internal legislative competence.24 Following a similar line of argument is the International Labour Organisation (ilo)’s interpretation of the incorporation of international labour conventions into national legal systems. According to the ilo, a State complies with the obligations arising from ratification only when it completely and exactly conforms law and practice with the ratified conventions. Given the difficulties of the supervision and application involved in the automatic integration of international standards into national legislation (in cases of both general obligations and self-executing provisions), the ilo takes the view that before ratification, a State should ensure that national legislation can give full effect to the international provisions. Only by following this dualist approach, the ilo believes that it is possible to properly assess to what extent there is agreement between the national and international provisions.25 Nevertheless, between the ‘system of legislative incorporation’ and the ‘system of automatic incorporation’, I agree with Leary that the latter guarantees more protection and is preferable.26 For instance, the data prove that several individuals could bring cases to the German courts on the grounds that the administration was breaching the rights contained in the 1954 Convention. Despite the absence of implementing legislation, these individuals were able to obtain a remedy. On the contrary, in dualist States like Sweden, the only remedy for an individual would be to seek the enactment of implementing 21

An elaborate system of judicial review and access to legal aid, for example, exists in ­ ermany and Italy, and as a consequence, there are more opinions concerning claims of G protection made by stateless persons. See Ch 6 ss 8 and 9; Ch 7 ss 8 and 9. 22 For a similar argument in the context of the echr, see Hodgson (n 13) 185–87. 23 Léon-Eli Troclet and Eliane Vogel-Polsky, ‘The Influence of International Labour Conventions on Belgian Labour Legislation’ (1968) 98 Int’lLabRev 389, 411. 24 Ibid. 25 Ibid 411–12. 26 Leary (n 10) 157.

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­legislation, and this would deprive him of any capacity to obtain the application of international law internally.27 Regarding the issue of the publicity of a treaty, it has been suggested that if the text of the treaty is included in the national code, it is not necessary to formally amend the national law in conformity with it.28 However, such a solution would not be sufficient to provide assistance to decision-makers when they are confronted with the application of vague treaty provisions. Gyulai also argues that it is preferable to increase the visibility of legislation for all of the parties concerned by enacting a separate Act or adding a particular chapter in the relevant law.29 To conclude, the evidence shows that merely ratifying a treaty does not make much difference for those claiming its protections. Human rights are inaccessible if States do not adopt specific legislation taking into consideration the marginalisation of those that they should protect. 3

Beyond Legislation: Actors Involved in the Implementation of Treaties

The data collected suggest that the dualist and monist theories and a merely positivist approach are inadequate to fully explain the incorporation of international law into national law.30 The monist and dualist theories are based on conceptions of ‘body of rules’, which do not take into account that a number of actors are involved and interrelate with international actors and processes in the creation of norms.31 The reality is that even in States that have adopted statelessness determination procedures and have detailed provisions on evidentiary matters, such as the uk and Hungary, there are problems with the quality of the decisions, as administrators do not always assess the evidence and apply the definition of ‘stateless person’ correctly. A number of scholars, such as Kneebone, Legomsky and Hamlin, adopting the lens of administrative law, explain that these issues 27 28 29

30 31

Ibid Ch 6. Cornil (n 15) 274–75. Gábor Gyulai, ‘The Determination of Statelessness and the Establishments of Statelessness-Specific Determination Regimes’ in Alice Edwards and Laura van Waas (eds), ­Nationality and Statelessness under International Law (cup 2014) 125. Rosalyn Higgins, Problems and Process. International Law and How We Use it (Clarendon Press 1994) 10. Myres McDougal, ‘The Impact of International Law upon National Law: a Policy-Oriented Perspective’ (1959) 26(4) SDLRev 25.

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are related to the lack of competent and independent decision-makers.32 Others stress that decision-makers have to cope with several social, political and organisational pressures, and as a consequence, they develop ‘routines and simplifications that economize on resources’, which may result in compliance with or failure to apply the law.33 On the other hand, the courts in different countries diverge in their approach to the application of the 1954 Convention. For instance, in some States with a few general provisions to determine statelessness (i.e., Italy) or no such provisions (i.e., Germany), the courts have shown willingness to enforce international law, even before the enactment of clear provisions implementing the 1954 Convention. By contrast, in others, such as France, the Netherlands and Sweden, the courts have been more reluctant to adopt such an approach. The role of national courts vis-à-vis international law and other arms of the government emerges as being controversial and subject to a number of domestic considerations that are generally the object of constitutional and adminsitrative law, which this book has only briefly mentioned. From an international law perspective, these findings confirm that there are other factors that facilitate, as well as impede, the incorporation of treaties into national legal systems, besides the adoption of formal laws. In line with recent international law theories, this book reveals that the incorporation of international law occurs through several actors and processes, in addition to the enactment of formal laws. As discussed in Chapter 1, Section 8.3, the international law theories that are based on processes consider incorporation not only from a legal perspective but also from political, moral and other nonlegal contexts,34 which this book has briefly explored. They maintain that the contribution of law to the implementation of human rights does not occur in isolation from other institutions and policy processes,35 although they stress that law is often important in determining outcomes.36 Some of them try to shed light on the infiltration of human rights norms into national systems even before their incorporation into formal legislative acts. 32

Albertjan Tollenaar and Ko de Ridder, ‘Administrative Justice from a Continental European Perspective’ in Michael Adler, Administrative Justice in Context (Hart Publishing 2010) 301, 314. 33 Susan Silbey, ‘Case Processing: Consumer Protection in an Attorney General’s Office’ (1980) 15(3–4) L&Soc’yRev 849–50; Paul Schiff Berman, ‘From International Law to Law and Globalization’ (2005) 43 ColumJTransnat’lL 499. 34 Donnelly (n 14) 67, 75–6. 35 Ibid 67, 76. 36 Ibid.

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Due to the scope of this book, I only collected limited data on the role of decision-makers as far as the incorporation of international law into domestic legal systems is concerned and looked at them within the framework of essential principles of justice that should be guaranteed in all procedures.37 At this point, I can only safely conclude that the incorporation of clear standards into national legislation, setting out limitations and exceptions, is a necessary element to ensure certainty of the law and its effectiveness.38 The enactment of clear rules matters for practice, as it limits the discretion of decision-makers and creates a legal environment for lawyers and advocates to efficiently use the international human rights treaties in individual claims.39 For instance, in order to provide a real opportunity to benefit from the 1954 Convention, laws for the identification of statelessness must be adopted or further elucidated. Future research could look more closely at the interaction of the different actors involved and how such interaction may contribute, in practice and through phases, to the internalisation of human rights norms in systems of both automatic and legislative incorporation. Such research could contribute to bringing forward the debate on whether international law is incorporated through norms or processes, which until now has been based more on ideological views rather than reliance on data.40 Such study would require an in-depth analysis of administrative and judicial practices on statelessness determination in each State.41 As Galligan and Sandler discuss, ‘[T]he test for successful implementation is whether human rights standards are accepted as authoritative by national institutions and officials in such a manner that their practical actions and decisions are in compliance with them’.42 Ideally, officials internalise the standards so that ‘they become central to their cognitive and normative understandings’.43 Thus, the investigation into statelessness and more generally into 37

38 39 40 41 42 43

McDougal (n 31) 25; Higgins (n 30); Harold Koh, ‘Transnational Legal Process’ (1996) 75 NebLRev 181; Koh, ‘The 1998 Frankel Lecture: Bringing International Law Home’ (1998) 35 HousLR 623. Campbell (n 14) 3. Luke McNamara, Human Rights Controversies. The Impact of Legal Form (Routledge-­ Cavendish 2007). Berman (n 33) 542. Koh argues that compliance programs must be adopted to ensure that administrative decision-makers internalise international law. Galligan and Sandler (n 2) 29. Ibid. In their study on the domestic implementation of human rights, Heyns and Vilojen also stress the importance that norms are internalised into the domestic legal system. Christof H Heyns and Frans Viljoen, ‘The Impact of the United Nations Human Rights Treaties on the Domestic Level’ (2001) 23(3) HumRtsQ 488.

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international law could look at it from a micro-level and as a less researched aspect of decision-making. In summary, the implementation of the 1954 Convention and human rights treaties in general can be understood using modern theories of international law and socio-legal studies. Future research could investigate the dynamics and outcomes of the different implementing approaches and the other forces beyond legislation that are play in addition to it. Thus, key domestic decisionmakers in each State should be considered, as should how they may affect the outcomes of claims. 4 Conclusion The discussion above lends credence to the hypothesis that the incorporation of human rights principles and obligations enshrined in international human rights instruments into domestic law is the most effective way of ensuring that treaties have a significant impact on a national legal order. Implementing legislation is the starting point to analyse whether international standards have been adopted into national legal frameworks, but it is also important to find out whether and how laws are applied and how institutions function in p ­ ractice.44 Whereas human rights come from the international legal order, they are subject to the interpretation and application in national contexts. Human rights go through different layers of implementation, from treaties to Constitutions and national legislation and administrative and judicial processes. As a consequence, the ‘partnership’ between international and national law presents tensions and practical problems and becomes very complex.45 44

45

Guy Goodwin-Gill and Jane McAdam, The Refugee in International Law (oup 2007) 530; Laura van Waas, Nationality Matters: Statelessness under International Law (cup 2014) 402–03, 407–08; Roger Blanpain, Comparative Labour Law and Industrial Relations in Industrialized Market Economics (11th edn, Kluwer Law International 2014); John R Campbell, Bureaucracy, Law and Dystopia in the United Kingdom’s Asylum System (Routledge 2017) 162; Chs 1, 5, 8. See also Ch 1, ss 3.1, 3.2.1. Halliday and Schmidt (n 2) 14.

Chapter 12

Recommendations towards Best Practices 1 Introduction Based on the discussion above, the challenge for the development of legislation implementing the 1954 Convention in the future will be the extent to which it complies with the international obligations. The domestication of international standards should develop high-level protection standards, and statelessness determination procedures should guarantee both procedural rights and substantive outcomes, based on the following four fundamental components: (1) the adoption of specific stateless determination procedures ensuring essential principles of justice, (2) the enactment of substantive provisions incorporating and claryfing Article 1, (3) the grant of a proper protection status and (4) the offer of a durable solution.1 These recommendations are in line with the unhcr’s Handbook and Action Plan to identify and protect stateless persons with the aim to end statelessness, as well as with the refugee law literature.2 2

Essential Elements of Justice in Statelessness Determination Procedures

Although it is recognised that States have wide discretion in the design and operation of procedures, as the 1954 Convention is silent on them, the unhcr takes the position that any effective mechanism dealing with claims of protection made by stateless persons must have, as a specific objective, the determination of statelessness.3 1 Gyulai suggests the adoption of similar measures but does not address the need to clarify the meaning of Article 1 of the 1954 Convention into the national legislations. Gábor Gyulai, ‘The Determination of Statelessness and the Establishments of Statelessness-Specific Determination Regimes’ in Alice Edwards and Laura van Waas (eds), Nationality and Statelessness under International Law (cup 2014) 116, 125–27. 2 However, the unhcr does not identify the need to adopt substantive provisions concerning Article 1. It is unclear if this is due to the failure to consider the matter as a problem or to a clear strategic choice not to interfere with States’ decisions on it. unhcr ‘unhcr’s Global 2014–2024 Action Plan to End Statelessness’ (2014) 16–18, 24–25. 3 unhcr ‘Handbook on Protection of Stateless Persons under the 1954 Convention Relating to the Status of Stateless Persons’ (2014) para 62.

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It is acknowledged that it would be difficult to meet all of the procedural standards that are recommended in the unhcr Handbook, because it is not binding, and several changes would be needed at the national level to comply with it. Nevertheless, at least partial reforms should be undertaken, in particular with regard to guaranteeing essential procedural elements and eliminating a number of key barriers limiting access to protection for potential applicants. First of all, there is a need for clear-line legislation which specifies what should be done. Rules must be ‘reasonably formal, distinct and rational’.4 Where laws do not have these characteristics, administrators are left with excessive discretion, and they tend to formulate their own rules, simplify complex cases and justify inconsistencies.5 Second, a clearly identified and competent authority, with expertise in the field of statelessness, making an impartial and objective examination of the claim would be an intrinsic aspect of any procedure.6 The determination of statelessness is a complicated task, which involves the collection and analysis of international and national laws, regulations and practices of other States.7 It also entails liasing with other States, usually through the Ministry of Foreign Affairs, and agencies, such as the unhcr, which have expertise in this area.8 As administrative decision-makers are responsible to apply the 1954 Convention at the first stage of the procedures, where most of the cases are concluded, it is important that they are competent, informed and well trained to carry out their assessment.9 To improve this aspect, political will would be needed to attract talented professionals to fill key positions, as well as investment in their training and development to ensure that they stay abreast of country conditions, case law and relevant international guidelines.10 It is also evident that a priority would be their independence. As uncovered in Chapter 7, the case 4 Denis J Galligan, Law in Modern Society (oup 2007) 277. 5 Ibid. 6 Gábor Gyulai, ‘Statelessness Determination and the Protection of Stateless Persons’ (European Network on Statelessness 2013) 9. 7 Carol A Batchelor, ‘The 1954 Convention Relating to the Status of Stateless Persons: Implementation within the European Union Member States and Recommendations for Harmonization’ (2004) 22(2) Refuge 41. 8 Ibid. 9 Denis J Galligan and Deborah Sandler, ‘Implementing Human Rights’ in Simon Halliday and Patrick Schmidt (eds), Human Rights Brought Home: Socio-legal Perspectives on Human Rights in the National Context (Hart Publishing 2004) 24–25. 10 Jaya Ramji-Nogales, Andrew I Schoenholtz, Philip Schrag (eds), Refugee Roulette: Disparities in Asylum Adjudication (New York University Press 2009) 105–09; James C Simeon, ‘A  Comparative Analysis of the Response of the unhcr and Industrialized States to

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of Sweden is the only one where efforts have been taken to ensure that administrative decision-makers are insulated from government policies, which should be further explored.11 In the literature, the most interesting proposals on ­decision-makers’ impartiality are found in studies on asylum adjudication and should also be further analysed and used as guidance. According to Jaya Ramji-Nogales, Andrew Schoenholtz and Philip Schrag, an independent executive agency that is not part of any government department should be in charge of decision-making.12 Major efforts should be undertaken to ensure that such an agency has the resources to afford staff and that decision-makers are selected using rigorous hiring standards. Moreover, Legomsky adds that access to a reliable and professional documentation centre should be provided, as it can help reach accurate outcomes13 – for instance, regarding country conditions and nationality legislations. Regarding other features of decision-making, some experts recommend a central designated authority, arguing that it would increase the likelihood of consistent decisions and the equal treatment of applicants.14 Having a better opportunity to develop its competence and expertise in statelessness matters, a central designated authority would reduce the risk of inconsistent decisions being made and would aid in the collection and dissemination of country-oforigin information for similar caseloads. If this approach is followed, an applicant should be allowed to present his claim to any of the designated offices spread throughout the territory, which then should forward the case to the central competent authority. However, according to Batchelor, a central authority is not necessary if decision-makers undertake a collaborative approach ‘that systematises the use of existing contacts and areas of expertise within the government structure and as well as between States’.15 Third, specific rules on the burden of proof shall be adopted. Establishing statelessness is difficult, because a person must prove that there is no legal

11

12 13 14 15

­ apidly Fluctuating Refugee Status and Asylum Applications: Lessons and Best Practices R for rsd Systems Design and Administration’ (2010) 22(1) ijrl 73, 102; Gyulai (n 1) 125. emn, ‘Annual Policy Report 2015 – Sweden’ (2016) 10, 11; email from Göran Melander, Professor, Lund University, Sweden, to author (20 March 2017); telephone conversation with Bernd Parusel, Researcher, Swedish Migration Agency (Borlänge, Sweden, 29 March 2017). See Ch 7, s 3. Ramji-Nogales, Schoenholtz, Schrag (eds) (n 10) 103–04. Stephen H Legomsky, ‘Learning to Live with Inequal Justice. Asylum and the Limits of Consistency’ in Ramji-Nogales, Schoenholtz and Schrag (eds) (n 10). Gyulai, ‘Statelessness Determination and the Protection of Stateless Persons’ (n 6) 9. Batchelor (n 7) 41.

Recommendations towards Best Practices

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bond with any relevant State.16 The most obvious problem with the determination of the negatively defined status of statelessness is that it is nearly impossible to prove with absolute certainty that someone is not a national of any State. So, unless the level of certainty with which statelessness is established is lowered, the statelessness definition would not be implementable in practice. Additionally, one general obstacle is that statelessness is often poorly documented. There is, by definition, no State that bears an international responsibility for a stateless person, and therefore, no State is obliged to supply him with identity, travel documents or any other relevant evidence. Frequently, there would be no State willing and able to provide documentary evidence of the individual’s identity, family links or residence history. When documents are available, it is a difficult task to assess their worth. Therefore, well-defined and fair rules addressing how to prove statelessness and detailing the concrete sources of evidence relating to a person’s nationality are crucial.17 The unhcr Handbook provides that in the case of statelessness determination, the applicant shall establish to a reasonable degree that he is not considered a national of any State under the operation of its law.18 The procedure should be collaborative one.19 Thus, the applicant has a duty to provide a truthful account of his case and submit all evidence reasonably available. On the other hand, the determining authority should be required to obtain and present all relevant evidence reasonably available to it, enabling an objective determination of the applicant’s status. Statelessness determination authorities should also give sympathetic consideration to testimonial explanations regarding the absence of certain kinds of evidence.20 The lack of replies to inquiries regarding a person’s nationality and the cooperation of the person concerned should be considered relevant facts.21 No blank requirement should be placed on the individual to supply specific types of documents to prove statelessness. It is desirable that any regulation contain unambiguous but flexible standards on a broad range of legal and factual evidence, which the applicant might be able to produce,22 including the applicant’s testimony, marriage certificate, military service record, school 16 17

Ibid 36. Laura van Waas, Nationality Matters: Statelessness under International Law (Intersentia 2008) 424–32. 18 unhcr Handbook (n 3) para 91. 19 Gyulai, ‘Statelessness Determination and the Protection of Stateless Persons’ (n 6) 28; unhcr Handbook (n 3) para 89. 20 See unhcr Handbook (n 3) paras 89–107. 21 Ibid paras 97–107; Batchelor (n 7) 37. 22 unhcr Handbook (n 3) paras 83–85.

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c­ertificates, medical certificates, identity and travel documents of direct relatives and record of sworn oral testimony of neighbours and community members.23 The legislation should address how to contact foreign authorities and how to evaluate the information provided by them. The use of speedy and informal approaches to information gathering, such as the telephone, might assist in the easy resolution of cases.24 Furthermore, if the State of origin does not reply within a reasonable time and the applicant makes good-faith efforts to document his situation, the receptive State should assume that the person is stateless, as the essential functions of nationality under international law are being denied.25 From a more general point of view, this recommendation entails trying to combine inquisitorial and adversarial techniques to enable unrepresented applicants to present their cases effectively.26 Whereas I only refer to general principles and attempt to generalise structures and processes, I am aware that they must then be applied, taking into consideration their context and legal and political traditions. Fourth, to minimise mistakes and misunderstanding in the gathering of the testimony, the right to an interview or hearing with interpretation before a decision-maker shall be established.27 Such in-person witness testimony may be helpful to elicit evidence from the applicant and allow him to comment on information held by the competent authority.28 Fifth, the law should require adjudicators to write reasons for their decisions. Written reasons for refusal are important, because they make it more difficult for a decision-maker to reach a hurried conclusion. Moreover, they assure that the process is transparent and that judicial review is possible.29 Sixth, an effective right to appeal against a negative first-instance decision is an essential safeguard that should always be guaranteed.30 Whether the appellate body can itself grant protection under the 1954 Convention or whether 23 24 25 26 27 28 29 30

Ibid para 84. Tom Mullen, ‘A Holistic Approach to Administrative Justice?’ in Michael Adler (ed) Administrative Justice in Context (Hart Publishing 2010) 383, 412. See Ch 2, s 2. Mullen (n 24) 383, 412. Martin Jones and France Houle, ‘Building a Better Refugee Status Determination System’ (2008) 25(2) Refuge 2. Hélène Lambert, Seeking Asylum: Comparative Law and Practice in Selected European Countries (Martinus Nijhoff Publishers 1995) 20. Stephen H Legomsky, ‘An Asylum-Seeker’s Bill of Rights in a Non-Utopian World’ (2000) 14 GeoImmigrLJ 640. Gyulai, ‘Statelessness Determination and the Protection of Stateless Persons’ (n 6) 32–33.

Recommendations towards Best Practices

307

it can merely quash the first-instance decision and send the matter back for reconsideration may reflect the general approach to such matters in the State’s legal and administrative system.31 However, providing appeal bodies with the possibility of granting protection by their own decision, such as in Hungary, Italy, Germany and Spain,32 may have a number of positive effects. Such full review can help avoid lengthy appeals proceedings, where cases are referred back for reconsideration several times.33 Moreover, it facilitates a more inmerit examination of cases and the development of useful judicial guidance.34 Seventh, the length of proceedings should be reasonable. This is important, especially because the applicant may remain in a situation of limbo and be subject to expulsion and immigration detention during the time to reach the decision. According to the unhcr, the case shall be concluded within six months of his submission. However, in cases in which an answer is awaited from foreign authorities, the proceedings may be allowed to last up to 12 months.35 Cooperation initiatives with other States or the unhcr, training programs and additional capacity may, for instance, help to expedite cases.36 Eighth, no legal prerequisites, besides the definition of stateless person according to Article 1 of the 1954 Convention, should be introduced in the national frameworks. Prerequisites, such as timelines or lawful status, are not found in the 1954 Convention and are against its aim and purpose, as they may exclude stateless persons from protection.37 Ninth, applicants for stateless status should be provided with legal assistance at all stages of the procedures. The complexity of immigration and nationality laws and of the procedures, compounded by the frequent lack of financial resources and of knowledge of the official language, leads to the necessity for applicants to have a legal representative.38 31 See unhcr Handbook (n 3) paras 76–77. 32 Gyulai, ‘Statelessness Determination and the Protection of Stateless Persons’ (n 6) 32–33. 33 Legomsky (n 29) 640; Gyulai, ‘Statelessness Determination and the Protection of Stateless Persons’ (n 6) 33. 34 Legomsky (n 29) 640–41. 35 See unhcr Handbook (n 3) para 75. 36 Gyulai, ‘Statelessness Determination and the Protection of Stateless Persons’ (n 6) 20. 37 Ibid 14–15. 38 Ronald Sackville, Law and Poverty in Australia (agps 1975) 3; Ellen H Greiper, ‘Stateless Persons and their Lack of Access to Judicial Forums’ (1985) 11 BrookJInt’lL 439, 444; Robert Doyle and Livy Visano, ‘Equality and Multiculturalism’ (1988) 3 JL&SocialPol’y 27; Roderick A Macdonald, ‘Access to Justice in Canada Today: Scope, Scale, and Ambitions’ in Julia Bass, W A Bogart, Frederick H Zemans (eds), Access to Justice for a New Century: the Way Forward (Law Society of Upper Canada 2005) 512–14.

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Finally, if an application has been made and the authorities are trying to determine whether an individual is stateless and replies from foreign States are slow, it may be necessary to provide for temporary stay and a number of rights attached to it while the process is underway. In any event, the individual will, in most cases, remain factually present and may be left in a clandestine situation for a significant period if the procedures are lengthy. In the context of asylum, it is noted that fair and expeditious procedures for determining refugee status are an important protection against detention.39 3

Substantive Provisions Regarding the Meaning and Scope of Article 1

The data show that a new definition of stateless person is not necessary, confirming van Waas’ argument in this regard.40 However, Article 1 of the 1954 Convention should be formally incorporated into the national systems, and substantive provisions regarding its interpretation should be adopted in accordance with the unhcr Handbook. In particular, it would be helpful to enact provisions addressing when a person is not considered a national under a State’s law and practice.41 Overcoming Batchelor’s criticism on the definition of stateless person as too narrow,42 the unhcr Handbook clarifies that the assessment of statelessness requires an analysis of laws, ‘ministerial decrees, regulations, orders, judicial case law (in States with a tradition of precedent) and, where appropriate, customary practice’43 of the State of possible nationality. In case that a State does not follow the letter of the law in an individual case, it is the assessment of facts that must prevail.44 On the matter of the possible reacquisition of a former nationality, the unhcr Handbook specifies that an applicant should explore all options available before claiming international protection. This should not place an undue burden on the applicant, and a temporary permit should be granted for the time 39

40 41 42 43 44

In the context of asylum, fair and expeditious procedures for determining refugee status are an important protection against detention. Guy Goodwin-Gill and Jane McAdam, The Refugee in International Law (3rd edn, oup 2007) 464. van Waas (n 17) 24, 27. unhcr Handbook (n 3) paras 13–56. Carol A Batchelor, ‘Stateless Persons: Some Gaps in International Protection’ (1995) 7(2) ijrl 232, 256–59; see Ch 3, s 4. unhcr Handbook (n 3) para 22. Ibid para 23.

Recommendations towards Best Practices

309

necessary to follow the process to obtain a nationality. A time limit should be set as far as how long procedures for the reacquisition of a nationality should reasonably last is concerned, in order to avoid leaving a person in limbo.45 Finally, it would be extremely useful to clarify the meaning of the clause concerning the treatment of the stateless Palestinians. The unhcr Handbook does not provide any advice on this matter, but some principles could be found in the literature and jurisprudence on the Refugee Convention, as well as the unhcr Notes on the Interpretation of Article 1D of the Refugee ­Convention.46 However, it was observed that such principles present limitations. Specific guidance would be needed to increase the consistency of standards and decision-­making, which is desirable from both a legal and political perspective. In particular, guidance would be needed to make clear that Palestinian refugees in secondary movements should not be subjected to further screening regarding the reasons for leaving the country of former habitual residence. On this point, there is a need to change laws, policies and practices regarding Palestinians at the international and national levels. Whereas this book is just a starting point, it is hoped that further studies and advocacy efforts will be carried forward. 4

Legal Status and Offer of a Durable Solution

Regarding the legal status to be granted to stateless persons, the unhcr Handbook recommends that it should allow them to live legally in the State and ­provide the possibility to integrate.47 In addition, it recommends ­granting a residence permit for at least two years and preferably for a longer duration, such as five years, to guarantee more stability.48 Such permits should be ­renewable and, importantly, should allow one to reach a durable solution with the acquisition of a nationality,49 which is the only exit from the ‘statelessness cycle’.50 As far as the naturalisation requirements are concerned, they should be applied with flexibility. In the context of naturalisation for refugees, the unhcr notes that the introduction of strict language tests and examinations on the 45 Ibid para 26. 46 See Ch 3, s 6. 47 unhcr Handbook (n 3) paras 125–43. 48 Ibid para 148. 49 Ibid. 50 Gyulai, ‘The Determination of Statelessness and the Establishments of Statelessness-­ Specific Determination Regimes’ (n 1) 126.

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history and culture of the State of refuge may penalise certain refugees – in particular, elderly or illiterate persons. Similarly, requirements to ­demonstrate self-reliance may be difficult for certain categories of refugees to meet. The unhcr therefore calls on eu Member States to apply such requirements flexibly to make naturalisation possible for refugees with specific needs.51 ­Similarly, stateless persons’ access to a nationality should be facilitated with provisions reducing the number of years of residence required before applying, the amount of fees to pay and other administrative obstacles, such as strict ­language and financial requirements.52 51

52

unhcr ‘Note on the Integration of Refugees in the European Union’ (2007); see also Sophie Nonnenmacher and Ryszard Cholewisnki, ‘The Nexus Between Statelessness and Migration’ in Alice Edwards and Laura van Waas (eds), Nationality and Statelessness under International Law (cup 2014) 247, 262. These recommendations are in line with the Council of Europe’s Explanatory Report to the European Convention on Nationality. See European Convention on Nationality. Explanatory Report [1997] ets No 166 para 52.

Annex

Meaning of the Terms ‘Deportation’, ‘Removal’ and ‘Expulsion’ The term ‘deportation’ refers to two possible procedures on the basis of a deportation order to return to the State of origin. One procedure may involve voluntarily leaving the State within a time limit (in Germany1). The other procedure may involve forcible return to the State of origin if the alien (1) has committed some specified crimes (i.e., in Germany,2 Hungary3 and the uk4) or (2) represents a danger to public security (in Germany,5 Hungary6 and the uk7). The term ‘removal’ is used in Greece,8 Sweden9 and the uk,10 and it refers to a procedure on the basis of which an order to leave the State is issued. It may concern individuals who leave voluntarily and cooperate with the authorities. It may also involve people who do not cooperate and are forcibly returned11 or who have committed some categories of crimes, such as illegal stay (i.e., in Sweden12 and the uk13). 1

§59 Abs 1 Satz 1 Aufenthaltsgesetz (AufenthG) vom 25.02.2008 (BGBl 2008 i, 162), zuletzt geändert durch Artikel 1 des Gesetzes vom 20.07.2017 (BGBl 2017 i, 2780) [Residence Act]. 2 In the case of deporation (Abschiebung), the alien is prohibited from re-entering German territory and residing again (Einreise- und Aufenthaltsverbot) (§11 Abs 1–3 AufenthG). §11 Abs 1–3; §59 Abs 1 Nr 1, Abs 7 ibid. 3 Act ii of 2007 on the Admission and Right of Residence of Third-Country Nationals s 65. 4 uk Borders Act 2007, s 32. 5 §58a, §59 Abs 2 Nr 1–2 AufenthG (n 1). 6 Act ii of 2007 (n 3) s 65(1)(c). 7 Immigration Rules (hc 1337 20 July 2006) Part 13: deportation paras 363(i), 364. 8 Official Gazette of the Hellenic Republic, Volume A, Number 7, ‘Law No 3907. On the establishment of an Asylum Service and a First-Reception Service, transposition into Greek legislation of Directive 2008/115/EC on common standards and procedures in Member States for returning illegally staying third-country nationals” and other provisions. (­unofficial tr) (Law 3907/2011) art 18(1)(e). 9 farr, ‘Good Advice for Asylum Seekers in Sweden’ (January 2017) 83–86. 10 Immigration and Nationality Act 1971, Ch 77, Part ii, ss 16–17. 11 For a general overview, see ec, ‘Study on the Situation of Third-Country Nationals Pending Return/Removal in the eu Member States and the Schengen-Associated Countries’ (HOME/2010/RFXX/PR/1001) (2013) 23–24. 12 (sfs 2005:716) (sfs 2009:1542) Act amending the Aliens Act (Regeringskansliet tr, official tr) Ch 20, ss 1–2. 13 Any person convicted of a criminal offence by uk courts and liable for either removal or deportation under the Immigration Act 1971, c 77 (as amended). © koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004362901_015

312

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Some countries, such as Greece and the Netherlands, distinguish between ‘return’ and ‘removal’. The term ‘return’ is used to mean a decision referring to aliens who must leave because they have illegal status and can opt to do so voluntarily within a time limit. ‘Removal’ means the enforcement of the obligation to return – namely, the physical transportation of a third-country national out of the territory.14 In France, the law refers to ‘an order to leave the territory’, which is a measure requiring the foreigner to leave within a specified timeline and which may be accompanied by a temporal entry ban.15 In Spain, the words ‘mandatory departure’ are used when a person is ordered to leave because they are not allowed to stay in the country or have received an expulsion order.16 The term ‘expulsion’ refers to the return of aliens when they have committed crimes punishable by imprisonment or when they are considered a serious risk to the public order in France,17 Germany,18 Greece,19 Spain20 and Sweden.21 It is also used in 14

Official Gazette of the Hellenic Republic, Volume A, Number 7, ‘Law No 3907’ (n 8) arts 18.1c, d, e and 21; Repatriation and Departure Service, Minsitry of Security and Justice, ‘Your Asylum Application Was Turned Down and You Must Leave the Netherlands’ accessed 4 October 2017. 15 Code de l’entrée et du séjour des étrangers et du droit d’asile, modifié par la loi 2016–274 du 7 Mars 2016, art L 511–1 [Code on the entry and residence of foreigners and right of asylum as modified by law 2016–274 of 7 March 2016, art L 511–1]. 16 Ministerio del Interior, Gobierno de España, ‘Salidas Voluntaria y Prohibiciones de Salida’ (2017)   accessed 4 October 2017. 17 Code de l’entrée et du séjour des étrangers et du droit d’asile (n 15) arts L 521–1, L 521–2, 521–3, L 541–1. 18 Expulsion (Ausweisung) implies a danger to public security and order (§53–54). It requires the alien to leave the country (§50 Abs 1, §51 Abs 1 Nr 5–5a) and imposes, depending on the severity of the case, a temporary prohibition to re-enter and reside in the territory (§11 Abs 1–5, §14 Abs 1 Nr 3, §15 Abs 1). §11 Abs 1–5, §14 Abs 1 Nr 3, §15 Abs 1, §50 Abs 1, §51 Abs 1 Nr 5–5a, §53–54, §58 Abs 3 Nr 3, §59 Abs 5 AufenthG (n 1). 19 In the case of illegal entry into or exit from the Greek territory, expulsion can be ordered. Law 3386/2005 (gg A 212) Codification of Legislation on the Entry, Residence and Social Integration of Third Country Nationals on Greek Territory, as amended by Laws 3448/2006 (gg A 57), 3536/2007 (gg A 42), 3613/2007 (gg A 263), 3731/2008 (gg A 263), 3772/2009 (gg A 112) and 3801/2009 (gg A 163) (unofficial tr) arts 76, 83. 20 Ley 4/2000, de 11 de enero, sobre derechos y libertades de los extranjeros en España y su integración social (BOE-A-2000-544) (Ley 4/2000), modificado por la Ley Orgánica 2/2009 de 11 de diciembre 2009 [Law 4/2000 of 11 January on the rights and freedoms of aliens in Spain and their social integration (BOE-A-2000-544)], as modified by law 2/2009 of 11 December 2009, art 57. 21 (sfs 2005:716) (sfs 2009:1542) Act amending the Aliens Act (Regeringskansliet tr, official tr) Ch 8, ss 7a – 9.

Meaning of The Terms ‘Deportation’, ‘Removal’ and ‘Expulsion’

313

Italy,22 Hungary23 and the Czech Republic24 to mean a procedure on the basis of which an order to voluntarily or forcibly leave the State is issued. 22

DLgs 25 luglio 1998, n 286 aggiornato (Testo unico sull’immigrazione) articoli 13, 15–16 [Legislative decree 25 July 1998, n 286 as amended – Unified text on immigration – arts 13, 15–16]. Usually, the expulsion order bans a person from re-entering for a period of three or five years. 23 Act ii of 2007 (n 3) ss 42–43. 24 Act No 326/1999 Coll., On the Residence of Foreigners in the Czech Republic and Amending Certain Acts, ss 9, 50, 118–123c.

Table of Cases

International Case Law



Permanent Court of International Justice/International Court of Justice

Case Concerning Border and Transborder Armed Actions, icj Reports, 1988, 105, Dickson Car Wheel Co. (usa) v United Mexican States [1951] unriaa vol. iv (Sales No 1951.V.1.) 669 Nationality Decrees Issued in Tunis and Morocco (Great Britain v France) [1923] pcij Series B No 4 Nottebohm Case (Liechtenstein v Guatemala) (Second Phase) [1955] icj Rep 4 Nuclear Tests (Australia v France) Case, icj Reports, 1974, 253



Regional Case Law



Court of Justice of the European Union



European Court of Human Rights



European Commission on Human Rights



Inter-American Court of Human Rights

C-31/09 Bolbol v Bevándorlási és Állampolgársági Hivatal [2010] ecr I-5539 C-364/11 El Kott v Bevándorlási és Állampolgársági Hivatal [2012] oj C46/8 C-579/13 P and S v Commissie Sociale Zekerheid Breda, College van Burgemeester en Wethouders van de gemeente Amstelveen [2015] ecr 369

Alsayed Allaham v Greece App no 25571/03 (ECtHR, 18 January 2007) Genovese v Malta echr 2011–1590 (2014) 58 ehrr 25 Karassev v Finnland echr 1999-II 31414/96 Kuric and others v Slovenia echr 2012-IV 26828/06 m.s.s. v Belgium and Greece App no 30696/09 (ECtHR, 21 January 2011) Zontul v Greece App no 12294/07 (ECtHR, 12 January 2012)

Harabi v The Netherlands (1986) 46 dr 112

Proposed Amendments of the Naturalization Provisions of the Constitution of Costa Rica, Advisory Opinion OC-4/84, Inter-American Court of Human Rights Series A No 4 (19 January 1984)

Table of Cases



National Case Law

France ce

ce, 22 juillet 1994, n° 144859 ce, 21 novembre 1994, n° 147193 ce, 21 novembre 1994, n° 147194 ce, 1 février 1999, n° 189527 inédit ce, 17 mars 1999, n° 160895 ce, 20 mars 2000, n° 190036 inédit: ta Paris 13/12/1995 Haque, rec. crr 1996 p 136 ce 29 décembre 2000, n° 216121 ce 22 novembre 2006, n° 277373, Publié Au Recueil Lebon



caa



cnda

caa de Bordeaux, 19 juillet 1999, n° 98BX00688 caa de Bourdeaux, 1 février 2017, n° 10BX01072 caa de Nancy, 11 mai 2017, n° 16NC01203 caa de Paris, 20 decembre 2009, n° 09PA00158, Inédit Au Recueil Lebon

cnda, 23 décembre 2009, n° 636547/08017005 cnda, 5 avril 2016, n° 09001713

Germany BVerwG

BVerwG, Beschluss v 1.10.1979 – 1 C 97.76, Buchholz 402.22 Art 26 gkg Nr 1 BVerwG, Beschluss v 17.07.1987 – 1 B 23.87 BVerwG, Urteil v 16.10.1990 – 1 C 51.88 BVerwG, Urteil v 21.01.1992 – 1 C 18.90 BVerwG, Urteil v 23.02.1993 – 1 C 7.91 BVerwG, Beschluss v 29.06.1998 – 9 B 604/98 BVerwG, Urteil v 21.3.2000 – 1 C 23.99 BVerwG, Urteil v 17.03.2004 – 1 C 1.03 BVerwG, Beschluss v 15.06.2006 – 1 B 54.06, Buchholz 402.242 §25 AufentG Nr 4 BVerwG, Urteil v 27.05.2010 – 5 C 8.09



olg

olg Frankfurt am Main, Beschluss v 30.06.2000 – 1 Ws 106/00

315

316

Table of Cases



ovg



vg



vgh

ovg Berlin, Urteil v 18.04.1991 – 5 B 41.90 ovg Berlin-Brandenburg, Urteil v 25.11.2014 – 3 B 4.12 ovg Niedersachsen, Beschluss v 21.04.2004 – 11 la 61/04

vg Aachen, Urteil v 1.03.2001 – 4 K 3022/99 vg Berlin, Beschluss v 22.03.2013 – 34 L 51.13 vg Berlin, Urteil v 12.06.1985 – 11 A 655.84 vg Berlin, Urteil v 24.02.1988 – 23 A 341.87 vg Berlin, Urteil v 25.08.2011 – 35 K 202.11 vg Berlin, Urteil v 1.03.2012 – 13 K 12.12 vg Berlin, Urteil v 24.02.2014 – 34 K 172.11 A vg Dresden, Urteil v 25.11.2010 – A 5 K 1072/08 vg Karlsruhe 26.02.2003 – 5 K 2350/02 vg München, Gerichtsbescheid v 15.05.2007 – M 7 K 05.159, M 7 K 06.545 vg Regensburg, Gerichtsbescheid v 17.01.1997 – ro 2 K 96.0069 vg Saarland, Urteil v 24.11.2006 – 5 K 97/05 vg Saarland, Urteil v 18.07.2008 – 6 K 0106/06 vg Schleswig-Holstein, Urteil v 7.02.2007 – 1 A 130/04 vg Schwerin, Urteil v 05.06.2013 – 5 A 1656/10 As vg Stuttgart, Urteil v 26.09.2002 – 11 K 4536/01

vgh Bayern, Urteil v 9.07.2012 – 20 B 12.30003



Journals/ Gazettes AuAS

vg Mainz, AuAS 1999, 244



BVerwGE



DVBl

BVerwG, 16.04.1985, BVerwGE 71, 180 BVerwG, 16.10.1990, BVwerGE 87, 11 BVerwG, 21.01.1992, BVerwGE 89, 296 BVerwG, 23.02.1993, BVerwGE 92, 116 BVerwG, 25.09.1997, BVerwGE 105, 232 BVerwG, 24.11.1998, BVerwGE 108, 21

BVerwG, 16.07.1996, dvbi 1997, 177

Table of Cases

317

ovg Niedersachsen, 30.09.1998, DVBl 1999, 1219 vgh Baden-Württemberg, 3.11.1995, DVBl 1996, 2996



ezar

ovg Berlin, 15.05.1998, ezar 045 Nr 9

InfAusIR

BVerwG, 21.01.1992, InfAusIR 1992, 161 BVerwG, 23.02.1993, InfAusIR 1994, 35 ovg Nordrhein-Westfalen v 1.10.1999, InfAuslR 2000, 155 vg Aachen, 1.03.2001, InfAuslR, 2001, 338 vg Berlin, 12.06.1985, InfAuslR 1985, 237 vg Berlin, 24.02.1988, InfAuslR 1988, 174 vg Braunschweig, 3.02.1999, InfAuslR 1999, 461 vg Hamburg, 31.08.1995, InfAuslR 1996, 65 vgh Baden-Württemberg, 30.07.1997, InfAuslR 1998, 18



NVwZ



vbibw

BVerwG, 12.02.1985, NVwZ 1985, 589 BVerwG, 15.10.1985, NVwZ 1986, 759 vgh Baden-Württemberg, 16.02.1994, NVwZ 1994, 1233

vgh Baden-Württemberg, 31.03.1993, vbibw 1993, 482

Hungary

7/2005 (iii. 31) ab határozat [Constitutional Court decision], parallel opinion of Attila Harmathy 6/2015 (ii. 25.) ab határozat (ügyszám III/01664/2014) [6/2015 (ii. 25.) Constitutional Court decision (case III/01664/2014)]

Italy Trib

Trib Ancona, 13.6.1950 Trib Prato, 14.1.1997 Trib Alessandria, 19.6.2002 Trib Lucca, 16.12.2002 Trib Torino, 2.2.2009 Trib Torino, 10.11.2008 Trib Milano, 28.7.2010

318

Table of Cases

Trib Genova, 13.12.2010 Trib Roma, 6.7.2012 Trib Roma, 24.6.2016

App

App Perugia, 20.4.2004 App Perugia, 12.6.2008 App Firenze, 12.4.2011 App Milano, 15.11.2012



Corte Cass



Corte Cost

Corte Cass, 18.6.2004, n 11441 Corte Cass, 28.6. 2007, n 14918 Corte Cass, 9.12.2008, n 28873 Corte Cass, 4.4.2011, n 7614 Corte Cass, 23.1.2012, n 903 Corte Cass, 3.4.2015 n 4262

Corte Cost, 14.5.2004, n 144

Spain sts

sts de 20 noviembre 2007 (Rec 10503/2003) sts de 20 noviembre 2007 (rj 2008/6615) sts de 18 julio 2008 (Rec 555/2005) sts de 28 noviembre 2008 (Rec 2515/2005) sts de 19 diciembre 2008 (Rec 7337/2005) sts de 30 octubre 2009 (Rec 2805/2006) sts de 20 septiembre 2011 (Rec 28/2010) sts de 27 de abril de 2012 (rj 2012/6407) sts de 21 de julio de 2016 (Rec 973/2013)



san

san de 7 de octubre 2013 (Rec 239/2013) san de 8 de octubre 2013 (Rec 245/2013)

Sweden mig mig 2007:9 mig 2007:12

Table of Cases



The Netherlands



United Kingdom

319

Administrative Jurisdiction Division of the Council of State. ABRvS of 3 July 2013, ECLI:NL:RVS:2013:183, jv 2013/290

Al-Jedda v Secretary of State for the Home Department [2013] uksc 62 B2 v Secretary of State for the Home Department [2013] ewca Civ 616 Pham v Secretary of State for the Home Department [2015] uksc 19 R (Hardial Singh) v Governor of Durham Prison [1983] ewhc 1 (qb) R (jm) v sshd (Statelessness: Part 14 of hc 395) ijr [2015] ukut 00676 (iac) R (on the application of Lumba) v Secretary of State for the Home Department [2011] uksc 12 R (on the application of Semeda) v Secretary of State for the Home Department (statelessness; Pham [2015] uksc 19 applied) (ijr) [2015] ukut 658 (iac) Smith v Secretary of State for the Home Department (Liberia) [2000] ukiat 00TH02130

Table of Legislation

Treaties and other International Instruments



League of Nations



United Nations

Convention on Certain Questions Relating to the Conflict of Nationality Law (adopted 12 April 1930, entered into force 1 July 1937) 179 lnts 89 (No 4137) (Hague Convention) Convention on Rights and Duties of States (adopted 26 December 1933, entered into force 26 December 1934) 165 lnts 19 (Montevideo Convention) Protocol Relating to a Certain Case of Statelessness (adopted 12 April 1930, entered into force 1 July 1937) 179 lnts 115 (No 4138) Protocol Relating to Military Obligations in Certain Cases of Double Nationality (adopted 12 April 1935, entered into force 25 May 1937) 178 lnts 227 (No 4117) Special Protocol Concerning Statelessness (adopted 12 April 1930, not entered into force) C.27.M.16.1931.V

Charter of the United Nations (signed 26 June 1945, entered into force 24 October 1945) 1 unts xvi Convention on the Reduction of Statelessness (adopted 30 August 1961, entered into force 13 December 1975) 989 unts 175 Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 unts 3 (Child Convention) Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 unts 150 (Refugee Convention) Convention Relating to the Status of Stateless Persons (adopted 28 September 1954, entered into force 6 June 1960) 360 unts 117 (1954 Convention) Final Act of the United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons (25 July 1951) 189 unts 137 Final Act of the United Nations Conference on the Status of Stateless Persons (28 September 1954) 360 unts 117 Final Act of the United Nations Conference on the Status of Stateless Persons (6 June 1960) 360–9 unts 118 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 unts 171 International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976) 993 unts 3 International Convention on the Elimination of All Forms of Racial Discrimination (adopted 21 December 1965, entered into force 4 January 1969) 660 unts 195

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321

Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, supplementing the United Nations Convention against ­Transnational ­Organized Crime (adopted 15 November 2000, entered into force 25 December 2003) 2237 unts 319 (Anti-Trafficking Protocol) Protocol Relating to the Status of Refugees (adopted 31 January 1967, entered into force 4 October 1967) 606 unts 267 Universal Declaration of Human Rights (adopted 10 December 1948, entered into force 23 March 1976) 999 unts 302 Vienna Convention on Succession of States in Respect of Treaties (adopted 23 August 1978, entered into force 6 November 1996) 1946 unts 3 Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 unts 331



Regional Instruments



Council of Europe



European Union

Council of Europe, Committee of Ministers, Recommendation CM/Rec(2009)13 of the Committee of Ministers to member states on the nationality of children [2009] CM/Rec(2009)13 Council of Europe, Committee of Ministers, Recommendation No. R (99) 18 of the Committee of Ministers to Member States on the Avoidance and Reduction of Statelessness [1999] No R (99) 18 Council of Europe Convention on the Avoidance of Statelessness in Relation to State Succession [2006] ets No 200 European Convention on Consular Functions [1967] ets 61 European Convention on Nationality [1997] ets No 166 European Convention for the Protection of Human Rights and Fundamental Freedoms (amended) [1950] ets 5 Explanatory Report to the European Convention on Nationality [1997] ets No 166 Protocol No. 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms, Securing Certain Rights and Freedoms other than Those Already Included in the Convention and in the First Protocol Thereto as Amended by Protocol No 11 [1963] ets No 155

Consolidated Version of the Treaty on the Functioning of the European Union [2008] oj c 115/47 Council of the European Union, ‘Council Conclusions on the Action Plan on Human Rights and Democracy 2015–2019’ (20 July 2015) accessed 15 June 2017 Council Decision (eu) 2010/649 of 7 October 2010 on the Conclusion of the agreement between the European Community and the Islamic Republic of Pakistan on the readmission of persons residing without authorization [2010] oj l 287/50 Council Directive (ec) 2003/109 of 25 November 2003 concerning the status of thirdcountry nationals who are long-term residents [2004] oj l 16/44 Council Directive (ec) 2004/83 of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted [2004] oj l 304/12 (Qualification Directive) Council Directive (ec) 2005/85 of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status [2005] oj l 326/13 Council Regulation (ec) 2725/2000 of 11 December 2000 concerning the establishment of ‘Eurodac’ for the comparison of fingerprints for the effective application of the Dublin Convention [2000] oj l 316/1 Council Regulation (ec) 1932/2006 amending Regulation (ec) 539/2001 listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement [2006] oj l 405/23 Council Regulation (ec) 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national [2003] oj l 50/1 Declaration No. 2 annexed to the Treaty of Maastricht on nationality of a Member State [1992] oj C191/1 Directive (ec) 2008/115 of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals [2008] oj l 348/89 Directive (eu) 2011/95 of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (recast) [2011] ojl 337/9–337/26 European Parliament resolution 14 January 2009 on the situation of fundamental rights in the European Union 2004 – 2008 (2007/2145(ini)) [2009] P6_ta(2009)0019 Regulation (ec) 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems [2004] oj l 166/1

Table of LEGISLATION



Inter-American System



Arabic League



National Legislation



Czech Republic

323

American Convention on Human Rights (entered into force 18 July 1978) oas Treaty Series No 36 (1967) reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser L V/II.82 Doc 6 Rev 1 at 25 (1992)

Arab Charter on Human Rights (entered into force 15 May 2008) reprinted in 12 International Human Rights Reports 893 (2005)

Act No. 1/1993 Coll. Ústavní zákon č 1/1993 (Constitution of the Czech Republic, Act No 1/1993 Coll.) Act No. 40/1993 Coll. to regulate the acquisition and loss of citizenship of the Czech Republic as amended by Act No. 272/1993 Coll., Act. No. 140/1995 Coll., Act No. 139/1996 Coll., Act No. 194/1999 Coll., Act No. 320/2002 Coll., and Act No. 357/2003 Coll. (unofficial tr) Act No. 326/1999 Coll. on the residence of foreign nationals in the Czech Republic and amending certain laws (Foreign Nationals Act) (unofficial tr) Act No. 186/2013 Coll. the citizenship of the Czech Republic and amending certain laws (Law on Citizenship of the Czech Republic)

France

Code de l’entrée et du séjour des étrangers et du droit d’asile abroge et remplace l’ordonnance n° 45-2659 du 2 novembre 1945 relative aux conditions d’entrée et de séjour des étrangers en France ainsi que la loi n° 52-693 du 25 juillet 1952 relative au droit d’asile (Code de l’entrée et du séjour des étrangers et du droit d’asile) [Code on the entry and residence of foreigners and right of asylum abrogated and replaced by ordinance no 45-2659 of 2 November 1945 on the conditions of entry and residence of foreigners in France as well as law n 52-693 of 25 July 1952 on the right of asylum (code on the entry and residence of foreigners and right of asylum)] Code de l’entrée et du séjour des étrangers et du droit d’asile, modifié par la loi 2016-274 du 7 Mars 2016 [Code on the entry and residence of foreigners and right of asylum as modified by law 2016-274 of 7 March 2016] Constitution de la République française du 4 octobre 1958 – jorf 05 octobre 1958 [Constitution of the French Republic of 5 October 1958 – jorf 05 October 1958];

324

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Décret n° 2015-1166 du 21 Septembre 2015 pris pour l’application de la loi relative à la réforme de l’asile [Decree no 2015-1166 of 21 September 2015 implementing the law on the asylum reform] Loi n° 93-933 du 22 juillet 1993 réformant le droit de la nationalité – jorf 23 juillet 1993 [Law no 93-933 of 22 July 1993 reforming the right to a nationality – jorf 23 July 1993] Loi n° 2015-925 du 29 juillet 2015 relative à la réforme du droit d’asile [Law n° 2015-925 of 29 July 2015 concerning the reform of the right of asylum] (replacing the former Loi no 52-893 du 25 juillet 1952 relative au droit d’asile [Law no 52-893 of 25 July 1952 concerning the right of asylum]) Loi n° 91-647 du 10 juillet 1991 relative à l’aide juridique (modifié par Loi n° 99-515 du 23 juin 1999 – 24 juin 1999) [Law no 91-647 of 10 July 1991 on legal aid (as modified by law no 99-515 of 23 June 1999 jorf 24 June 1999)] Loi n° 52-893 du 25 juillet 1952 relative au droit d’asile [Law no 52-893 of 25 July 1952 concerning the right of asylum] Loi n° 2016-274 du 7 mars 2016 relative au droit des étrangers en France [Law no 2016274 of 7 March 2015 concerning the right of aliens in France] (replacing the former Code de l’entrée et du séjour des étrangers et du droit d’asile [Code of entry and stay of foreigners and of the right to asylum])

Germany

Asylbewerberleistungsgesetz (AsylbLG) vom 5.08.1997 (BGBl 1997 I, 2022), zuletzt geändert durch Artikel 4 des Gesetzes vom 17.07.2017 (BGBl 2017 I, 2541) [Asylum Seekers’ Benefits Act] Asylgesetz (AsylG) vom 2.09.2008 (BGBl 2008 I, 1798), zuletzt geändert durch Artikel 2 des Gesetzes vom 20.07.2017 (BGBl 2017 I, 2780) [Asylum Act] Aufenthaltsgesetz (AufenthG) vom 25.02.2008 (BGBl 2008 I, 162), zuletzt geändert durch Artikel 10 Absatz 4 des Gesetzes vom 30.10.2017 (BGBl 2017 I, 3618) [Residence Act] Aufenthaltsverordnung (AufenthV) vom 25.11.2004 (BGBl 2004 I, 2945), zuletzt geändert durch Artikel 1 der Verordnung vom 1.08.2017 (BGBl 2017 I, 3066) [Ordinance Governing Residence] Beschäftigungsverordnung (BeschV) vom 6.06.2013 (BGBl 2013 I, 1499), zuletzt geändert durch Artikel 2 der Verordnung vom 1.08.2017 (BGBl 2017 I, 3066) [Regulation on Employment of Aliens – Employment Regulation] Bundesausbildungsförderungsgesetz (BAfög) vom 7.12.2010 (BGBl 2010 I, 1952; 2012 I, 197), zuletzt geändert durch Artikel 71 des Gesetzes vom 29.03.2017 (BGBl 2017 I, 626) [Federal Training Assistance Act] Drittes Buch Sozialgesetzbuch (sgb iii) – Arbeitsförderung – Artikel 1 des Gesetzes vom 24.03.1997 (BGBl 1997 I, 594, 595), zuletzt geändert durch Artikel 2 des

Table of LEGISLATION

325

­ esetzes vom 17.07.2017 (BGBl 2017 I, 2581) [Social Code – Book iii – Employment G Promotion] Gesetz über das Verfahren in Familiensachen und in den Angelegenheiten der freiwilligen Gerichtsbarkeit (FamFG) vom 17.12.2008 (BGBl 2008 I, 2586), zuletzt geändert durch Artikel 7 des Gesetzes vom 20.07.2017 (BGBl 2017 I, 2780) [Act on Proceedings on Family Matters and on Matters of Non-contentious Jurisdiction] Gesetz über Rechtsberatung und Vertretung für Bürger mit geringem Einkommen (Beratungshilfegesetz – BerHG) vom 18.06.1980 (BGBl 1980 I, 689), zuletzt geändert durch Artikel 140 der Verordnung vom 31.08.2015 (BGBl 2015 I, 1474) [Act on legal advice and representation for citizens with low income – Legal Advice Act] Grundgesetz (gg) für die Bundesrepublik Deutschland vom 23.05.1949 (BGBl 1949 I, 1), zuletzt geändert durch Artikel 1 des Gesetzes vom 13.07.2017 (BGBl 2017 I, 2347) [Basic German Law] Integrationsgesetz vom 31.07.2016 (BGBl 2016 I, 1939) [Integration Act] Staatsangehörigkeitsgesetz (StAG) in der im Bundesgesetzblatt Teil iii, Gliederungsnummer 102-1, veröffentlichten bereinigten Fassung, zuletzt geändert durch Artikel 3 des Gesetzes vom 11.10.2016 (BGBl 2016 I, 2218) [Nationality Act] Verwaltungsgerichtsordnung (VwGO) vom 19.03.1991 (BGBl 1991 I, 686), zuletzt geändert durch Artikel 5 Absatz 2 des Gesetzes vom 8.10.2017 (BGBl 2017 I, 3546) [Code of Administrative Court Procedure] Zivilprozessordnung (zpo) vom 5.12.2005 (BGBl 2005 I, 3202; 2006 I, 431; 2007 I, 1781), zuletzt geändert durch Artikel 11 Absatz 15 des Gesetzes vom 18.07.2017 (BGBl 2017 I, 2745) [Code of Civil Procedure] Zwölftes Buch Sozialgesetzbuch (sgb xii) – Sozialhilfe – Artikel 1 des Gesetzes vom 27.12.2003 (BGBl 2003 I, 3022), zuletzt geändert durch Artikel 2 des Gesetzes vom 17.08.2017 (BGBl 2017 I, 3214) [Social Code – Book xii – Social Assistance]

Greece

Law 4375/2016 (gg A 51) on the organisation and operation of the Asylum Service, the Appeals Authority, the Reception and Identification Service, the establishment of the General Secretariat for Reception, the transposition into Greek legislation of the provisions of Directive 2013/32/EC on common procedures for granting and withdrawing the status of international protection (recast) (L 180/29.6.2013), provisions on the employment of beneficiaries of international protection and other provisions (unofficial tr) Law 3386/2005 (gg a 212) Codification of Legislation on the Entry, Residence and Social Integration of Third Country Nationals on Greek Territory, as amended by Laws 3448/2006 (gg a 57), 3536/2007 (gg a 42), 3613/2007 (gg a 263), 3731/2008 (gg a 263), 3772/2009 (gg a 112) and 3801/2009 (gg a 163) (unofficial tr)

326

Table of LEGISLATION

Law 3838/2010 (gg a 49) Contemporary provisions for the Greek Nationality, the political participation of homogeneis and legally residing migrants and other provisions (unofficial tr) Law 3907/2011 (gg a 7) Establishment of Asylum Service and Service of First Reception (unofficial tr) Law 3284/2004 (gg a 217) Greek Citizenship Code (consolidated version 2010) (Haris Psarras tr, unofficial tr) Legislative Decree 3370/1955 (gg a 258) Greek Nationality Code (unofficial tr) Official Gazette of the Hellenic Republic, Volume A, Number 7, ‘Law No 3907. On the establishment of an Asylum Service and a First Reception Service, transposition into Greek legislation of Directive 2008/115/EC “on common standards and procedures in Member States for returning illegally staying third country nationals” and other provisions’. (unofficial tr) Official Gazette of the Hellenic Republic (9 July 2015) Series A, Issue No 76, Law No 4332

Hungary

Act ii of 2007 on the Admission and Right of Residence of Third-Country Nationals Act iii of 1952 on Civil Proceedings Act iv of 1978 on the Criminal Code (unofficial tr) Act cxl of 2004 on the General Rules of Administrative Procedures and Services (unofficial tr) Act lv of 1993 on Hungarian Citizenship (official tr) Act lxxx of 2003 on Legal Aid (unofficial tr) Government Decree 125/1993 (IX.22.) on the Implementation of Act lv of 1993 on the Hungarian Citizenship Government Decree 114/2007 (V. 24.) on the Implementation of Act ii of 2007 on the Admission and Right of Residence of Third-Country Nationals Magyarország Alaptörvénye [Fundamental Law of Hungary]

Italy

Codice di procedura civile, 28 ottobre 1940, n 253 (come modificato) [Code of civil procedure 28 October 1940, no 253 (as amended)] Costituzione (22 Dicembre 1947) [Constitution (22 December 1947)] Decreto legge 142/2015 [Law Decree 142/2015] DLgs 25 luglio 1998, n 286, Testo unico delle disposizioni concernenti la disciplina dell’immigrazione e norme sulla condizione dello straniero del come modificato dalla legge 161/2014 [Legislative Decree of 25 July 1998, no 286, Unified text on immigration law and foreigner status as modified by law 161/2014]

Table of LEGISLATION

327

ddl 26 novembre 2015, n 2148, Disposizioni concernenti la procedura per il riconoscimento dello status di apolidia in attuazione della Convenzione del 1954 sullo status delle persone apolidi [Draft Law 26 November 2015, no 2148, Provisions concerning the procedure for the recognition of stateless status implementing the 1954 Convention on the Status of Stateless Persons] dpr 12 ottobre 1993 n 572, Regolamento di esecuzione della legge 5 febbraio 1992, n 91, recante nuove norme sulla cittadinanza [Decree of the President of the Republic 12 October 1993 n 572, Implementing regulation to the Law of 5 February 1992, n 91, introducing new provisions on citizenship] dpr 31 agosto 1999, n 394, Regolamento recante norme di attuazione del testo unico delle disposizioni concernenti la disciplina dell’immigrazione e norme sulla condizione dello straniero, a norma dell’articolo 1, comma 6, del DLgs 25 luglio 1998, n 286 come modificato dal regolamento approvato con dpr 18 ottobre 2004, n 334 [Decree of the President of the Republic 31 August 1999, no 394, Implementing regulation of the unified text on immigration law and foreigner status, according to art 1, Section 6, of the Legislative Decree of 25 July 1998, no 286, as modified by regulation adopted with Decree of the President of the Republic 10 October 2004, no 334] dpr 30 maggio 2002, n 115, Testo unico delle disposizioni legislative e regolamentari in materia di ‘spese di giustizia (Testo A)’ [Unified text of laws and regulations in matter of ‘judicial expenses (Text A)’ 30 May 2002, no 115] dm dell’Interno 18 Aprile 2000, n 142, Tabella A [Ministerial Decree of the Ministry of Interior 18 April 2000, no 142, Table A] L 5 febbraio 1992 n 91, ‘Nuove norme sulla cittadinanza’ [Law 5 February 1992 no 91 ‘New provisions on citizenship’]

Israel

‘The Law of Return’ (1950) 5710



The Netherlands

Grondwet voor het Koninkrijk der Nederlanden (Grondwet) [Constitution of the Kingdom of the Netherlands (Constitution)] Rijkswet op het Nederlanderschap (rwn) [Netherlands Nationality Act] Vreemdelingenbesluit 2000 (Vb 2000) [Aliens Decree 2000] Vreemdelingencirculaire 2000 (B) [Aliens Act Implementation Guidelines] Vreemdelingencirculaire 2000 (Vc 2000) [Aliens Circular] VreemdelingenWet 2000 (Vw 2000) [Aliens Act 2000] Wet Gemeentelijke Basisadministratie (9 juni 1994) [Act on the Municipal Basic Administration (9 June 1994)]

328

Table of LEGISLATION

Wet Modern Migratiebeleid (MoMi 2013) [Modern Migration Policy Act] amending the Aliens Act 2000 Wijzigingsbesluit Vreemdelingencirculaire (wbv) 2005/11 [Decree amending Aliens Circular 2005/11]

Spain

Constitución Española (BOE-A-1978-31229) [Spanish Constitution (BOE-A-1978-31229)] Ley 1/1996, de 10 de enero, de asistencia jurídica gratuita (BOE-A-1996-750) [Law 1/1996 of 10 January on free legal assistance (BOE-A-1996-750)] Ley 29/1998, de 13 de julio, reguladora de la Jurisdicción Contencioso-administrativa (BOE-A-1998-16718) [Law 29/1998 of 13 July, regulating the Contentious-Administrative Jurisdiction (BOE-A-1998-16718)] Ley 12/2009, de 30 de octubre, reguladora del derecho de asilo y de la protección subsidiaria (BOE-A-2009-17242) [Law 12/2009 of 30 October 2009, regulating the right to asylum and subsidiary protection (BOE-A-2009-17242)] Ley 4/2000, de 11 de enero, sobre derechos y libertades de los extranjeros en España y su integración social (BOE-A-2000-544) [Law 4/2000 of 11 January on the rights and freedoms of aliens in Spain and their social integration (BOE-A-2000-544)] Ley 10/2012, de 20 de noviembre, por la que se regulan determinadas tasas en el ámbito de la Administración de Justicia y del Instituto Nacional de Toxicología y Ciencias Forenses (BOE-A-2012-14301) [Law 10/2012 of 20 November, which regulates certain fees in the area of the Administration of Justice and the National Institute of Toxicology and Forensic Sciences (BOE-A-2012-14301)] Real Decreto 865/2001, de 20 de julio, por el que se aprueba el Reglamento de reconocimiento del estatuto de apátrida (BOE-A-2001-14166) [Royal Decree 865/2001 of 20 July approving the Regulation for the Recognition of the Status of Stateless Persons (BOE-A-2001-14166)] Real Decreto 1004/2015, de 6 de noviembre, por el que se aprueba el Reglamento por el que se regula el procedimiento para la adquisición de la nacionalidad española por residencia (BOE-A-2015-12047) [Royal Decree 1004 / 2015, On 6 November, which approves the Regulation which regulates the procedure for the acquisition of Spanish citizenship based on residence]

Sweden

(sfs 2005: 716) Utlänningslag [Aliens Act] (sfs 2005:716) (sfs 2009: 1542) Act amending the Aliens Act (Regeringskansliet tr, official tr) (sfs 2006:97) Utlänningsförordning [Aliens Ordinance] (sfs 2001:82) (sfs 2006:222) (sfs 2014:794) Lag om svenskt medborgarskap [Swedish Citizenship Act]

Table of LEGISLATION

329

Utlänningslag (2005: 716)



United Kingdom



Secondary National Legislation



United Kingdom



Government Guidance and Policies

Immigration Act 1971, c 77 (as amended) British Nationality Act 1981 Legal Aid, Sentencing and Punishment of Offenders Act 2012 (as amended)

Civil Legal Aid (Remuneration) Regulations 2013 Immigration Rules (hc 251, 23 May 1994) Immigration Rules (hc 1337, 20 July 2006) Immigration Rules (hc 1039, 6 April 2013) Immigration Rules Appendix ar: Administrative Review (hc 667, 24 November 2016) Ministerial Decision 12205/2016 (gg b 2864) The Immigration and Asylum (Provision of Accommodation to Failed Asylum Seekers) Regulations 2005

Germany

Allgemeine Verwaltungsvorschrift zum Aufenthaltsgesetz (AufenthG-VwV) vom 26.10.2009 (GMBl 2009, 878) [General Administrative Regulation for the Residence Act]

Italy

Circolare del 7 dicembre 2006, Ministero dell’interno, Dipartimento della pubblica sicurezza, Direzione centrale dell’immigrazione e della polizia delle frontiere (Prot n 400/C/2006/401948/P/14.201) [Circular of 7 December 2006, Ministry of Interior, Department of Public Security, Headquarter of immigration and border police (Protocol number 400/C/2006/401948/P/14.201)]

Sweden

Migrationsverket, Rättsligt ställningstagande angående sannolik identitet i asylärenden. rci 08/2013, 2013-05-31 [Swedish Migration Agency, Judicial position on establishing identity in asylum cases (rci 08/2013, 31 May 2013)]

330

Table of LEGISLATION



The Netherlands



United Kingdom

State of the Netherlands, ‘Decision of the State Secretary of Security and Justice of 23 September 2013, Issue wbv 2013/20, Amending the Aliens Act 2000’ (23 September 2013)

Home Office, ‘Administrative Review’ (6 April 2017) V 8.0 – ‘Asylum Policy Instruction. Statelessness and Applications for Leave to Remain’ (18 February 2016) V 2.0 – ‘Exclusion (Article 1F) and Article 33(2) of the Refugee Convention’ (1 July 2016) V 6.0 –‘Operational Guidance Note, Occupied Territories ogn’ (19 March 2013) V 4.0 – ‘Reforming Support for Migrants without Immigration Status. The New System Contained in Schedules 8 and 9 to the Immigration Bill’ (January 2016) – ‘Stateless Guidance. Applications for Leave to Remain as a Stateless Person’ (1 May 2013) V 1.0

United Nations Materials Constitution of the International Refugee Organisation (adopted 15 December 1946, entry into force 20 August 1948) 18 unts 3



International Law Commission (ilc)



Office of the High Commissioner for Human Rights (ohchr)



United Nations General Assembly (unga)

Hudson M O ‘Report on Nationality, Including Statelessness’ (21 February 1952) Special Rapporteur Extract from the Yearbook of the International Law Commission: (1952) vol ii un Doc A/CN.4/50 Mikulka V ‘Second Report on State Succession and its Impact on the Nationality of Natural and Legal Persons’ (17 April 1996) Special Rapporteur Extract from the Yearbook of the International Law Commission: (1996) vol ii(1) un Doc A/CN.4/474

ohchr ‘Compilation Report – Universal Periodic Review: Germany’ (2012)

unga Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons, ‘Conference of Plenipotentiaries on the Status of Stateless Persons’ Summary Records (13–23 September 1954) un Doc E/CONF.17/SR. 1–18 unga Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons, ‘Summary Record of the Thirty-first Meeting’ (29 November 1951) un Doc A/CONF.2/SR.31 unga Res 429 (v) Draft Convention relating to the Status of Refugees (14 December 1950) un Doc A/RES/429(V) unga Res 629 (vii) Draft Protocol Relating to the Status of Stateless Persons (6 November 1952) un Doc A/RES/629(VII) unga Res 2252 (es-v) Humanitarian Assistance (4 July 1967) un Doc A/RES/2252 (es-v) unga ‘Note on International Protection: Addendum, Note on Statelessness’ (28 June 2011) un Doc A/AC/96/1098/Add.1. unga Res 194 (iii) Palestine – Progress Report of the United Nations Mediator (11 December 1948) un Doc A/RES/194 unga Res 302 (iv) Assistance to Palestinian Refugees (8 December 1949) Un Doc A/RES/302(IV) unga Res 3274(xxix) Question of the establishment, in accordance with the Convention of Reduction of Statelessness, of a body to which persons claiming the benefit of the Convention may apply (10 December 1974) un Doc A/RES/3274(XXIX) unga Res 31/36 Question of the establishment, in accordance with the Convention of Reduction of Statelessness, of a body to which persons claiming the benefit of the Convention may apply (30 November 1976) un Doc A/31/342

332

United Nations Materials

unga Res 2452 (xxiii) A Report of the Commissioner-General of the United Nations Relief and Works Agency for Palestine Refugees in the Near East (19 December 1968) un Doc A/RES/2452(XXIII)(A-C) unga Res 50/152 (9 February 1996) 50th session un Doc A/RES/50/152 unga States Delegations, Proposals and Amendments at the Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons (13–23 September 1954) un Doc E/CONF.17/L.1 to L.10; L.12 to L.14; L.16 to L.21; L.25 to L.28; L.35



United Nations Economic Social Council (unesc)



United Nations High Commissioner for Refugees (unhcr)

unesc, Ad Hoc Committee on Refugees and Stateless Persons, ‘Report of the Ad Hoc Committee on Statelessness and Related Persons (Lake Success, New York, 16 January to 16 February 1950)’ (17 February 1950) un Doc E/1618; E/AC.32/5 unesc ‘A Study of Statelessness’ (1 August 1949) un Doc E/1112; E/1112/Add.1 unesc, un Ad Hoc Committee on Refugees and Stateless Persons ‘Report of the Ad Hoc Committee on Refugees and Stateless Persons, Second Session, Geneva, 14 August to 25 August 1950’ (25 August 1950) un Doc E/AC.32/8; E/1850 unesc ‘Guiding Principles on Internal Displacement’ (11 February 1998) un Doc E/CN.4/1998/53/Add.2 unesc Res 116 (vi) (D) (1–2 March 1948) un Doc E/777 unesc Res 248 (ix) B (8 August 1949) 325th Plenary Meeting un Doc E/OR(IX)/Suppl. No. 1 unesc Res 319 B iii (xi) (11 August 1950) 11th Session un Doc E/1818

unhcr ‘Action to Address Statelessness. A Strategy Note’ (March 2010) unhcr ‘Conclusion of the Executive Committee on International Cooperation from a Protection and Solutions Perspective No. 112(lxvii) 2016’ un Doc No. 112(lxvii) – 2016 unhcr ‘Conclusion of the Executive Committee on youth No. 113(lxvii) 2016’ un Doc No. 113(lxvii) – 2016 unhcr ‘Conclusion on Identification, Prevention and Reduction of Statelessness and Protection of Stateless Persons’ (6 October 2006) un Doc No. 106 (lvii) – 2006 unhcr ‘Conclusion on the Return of Persons Found not to be in Need of International Protection’ (10 October 2003) excom Conclusions un Doc No. 95 (liv) – 2003 unhcr ‘Czech Republic Country Sheet – Statelessness Management’ (2016) unhcr, ‘Estalishing Statelessnes Determination Procedures to Protect Stateless Persons – Good Paper. Action 6’ (2016) unhcr ‘Global Action Plan to End Statelessness: 2014 – 2024’ (2014) unhcr ‘Global Trends. Forced Displacement in 2015’ (2016)

United Nations Materials

333

unhcr ‘Guidelines on Statelessness No. 1: The Definition of “Stateless Person” in Article 1(1) of the 1954 Convention Relating to the Status of Stateless Persons’ (20 February 2012) un Doc hcr/gs/12/01 unhcr ‘Guidelines on Statelessness No. 2: Procedures for Determining whether an Individual is a Stateless Person’ (5 April 2012) un Doc HCR/GS/12/02 unhcr ‘Guidelines on Statelessness No. 3: The Status of Stateless Persons at the National Level’ (17 July 2012) un Doc HCR/GS/12/03 unhcr ‘Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees’ (reissued December 2011) un Doc HCR/1P/4/ENG/Rev.3 unhcr ‘Handbook on Protection of Stateless Persons under the 1954 Convention Relating to the Status of Stateless Persons’ (2014) unhcr ‘#I Belong Campaign to End Statelessness. Special Appeal’ (2016) unhcr ‘Identity Documents for Refugees’ (20 July 1984) un Doc EC/SCP/33 unhcr ‘Mapping Statelessness in Sweden’ (2016) unhcr ‘Mapping Statelessness in the Netherlands’ (2011) unhcr and Asylum Aid, ‘Mapping Statelessness in the United Kingdom’ (2011) unhcr and ipu, ‘Nationality and Statelessness: a Handbook for Parliamentarians’, Handbook for Parliamentarians No 11 (unhcr and ipu 2005) unhcr ‘Revised Note on the Applicability of Article 1D of the 1951 Convention relating to the Status of Refugees to Palestinian Refugees’ (October 2009) unhcr ‘Note on the Applicability of Article 1D of the 1951 Convention relating to the Status of Refugees’ (October 2002) unhcr ‘Note on the Integration of Refugees in the European Union’ (2007) unhcr ‘Note on unhcr’s Interpretation of Article 1D of the 1951 Convention Relating to the Status of Refugees and Article 12(1)(a) of the eu Qualification Directive in the Context of Palestinian Refugees Seeking International Protection’ (May 2013) unhcr, ‘Pledges 2011. Ministerial Intergovernmental Event on Refugees and Stateless Persons’ (7–8 December 2011) unhcr ‘Prevention and Reduction of Statelessness and Protection of Stateless Persons’ (20 October 2005) excom Conclusions un Doc No 78. (xlvi) – 1995 unhcr ‘Preventing and Reducing Statelessness: the 1961 Convention on the Reduction of Statelessness’ (2014) unhcr ‘unhcr Recommendations on the Relevant Aspects of the Protection of Stateless Persons in Italy’ (October 2014) unhcr ‘Report on the Annual Consultations with Non-Governmental Organizations’ (Geneva 2012) unchr ‘Report of the Special Rapporteur on the human rights of migrants, François Crépeau. Addendum. Mission to Greece’ (2013) 23rd Session un Doc A/HRC/23/46/ Add.4

334

United Nations Materials

unhcr ‘Expert Meeting. Statelessness Determination Procedures and the Status of Stateless Persons (“Geneva Conclusions”)’ (December 2010) unhcr ‘The Concept of Stateless Persons under International Law (“Prato Conclusions”)’ (May 2010)



Human Rights Committee (hrc)



United Nations International Children’s Emergency Fund (unicef)



United Nations Secretariat

Human Rights Committee ‘General Comment 27. Freedom of movement (Art.12)’ (18 October 1999) 67th session un Doc CCPR/C/21/Rev.1/Add.9

unicef ‘Birth Registration: Right from the Start’ (vol 9, March 2002) unicef ‘Every Child’s Birth Right. Inequities and Trends in Birth Registration’ (2013) accessed 8 December 2016

United Nations Secretariat ‘unccp Memorandum on Relations Between unrwa and unccp’ (30 March 1950) un Doc A/AC.25/W/42

List of National Informants The national informants that provided the information on the treatment of claims for protection made by stateless persons in their State are:



Czech Republic

Alexandra Dubova Immigration Lawyer Organizace pro pomoc uprchlíkům (opu) [Mission of Organization for Aid to Refugees] Prague Stanislava Sládeková Immigration Lawyer Organizace pro pomoc uprchlíkům, z.s unhcr Office Prague

France

Raphaële Bouniol Immigration Lawyer Paris Lacene Magali Solicitor and Legal Trainer France Terre D’Asile Paris Immigration Lawyer Groupe d’Information et de Soutien des Immigreés Paris Lacene Magali Solicitor and Legal Trainer France Terre D’Asile Paris Claire Salignat Immigration Lawyer Forum Réfugiés Villeurbanne

Germany

Roland Bank Head of unhcr Berlin Protection Unit Berlin

336

List of National Informants

Executive Director Flüchtlingsrat Nordrhein-Westfalen [Refugee Council North Rhine-Westphalia] Bochum Heiko Habbe Immigration Lawyer Jesuit Refugee Services Berlin Reinhard Marx Immigration Lawyer Frankfurt Staff-member in charge of vulnerable refugees Flüchtlingsrat Niedersachsen [Refugee Council of Lower Saxony] Hildesheim Staff-member Projekt Q – Qualifizierung der Flüchtlingsberatung [Project Q – Qualified Refugee Advice] Gemeinnützige Gesellschaft zur Unterstützung Asylsuchender e.V. [Non-profit organization for the support of asylum seekers] Münster

Greece

Erika Kalatzi Immigration Lawyer Athens unhcr Senior Protection Associate Athens unhcr Protection Officer Athens

Hungary

Gábor Gyulai Refugee Programme Director Hungarian Helsinki Committee Budapest Tamás Molnár Head of Unit Unit for Migration, Asylum and Border Management Department of eu Cooperation Ministry of Interior [of Hungary] and Assistant Professor in the Corvinus University of Budapest Budapest

List of National Informants

Netherlands Marlote van Dael Researcher askv Refugee Support Amsterdam Rombout Hijma Immigration Lawyer Utrecht Laura van Waas Senior Researcher Tilburg University Tilburg

Italy

Paolo Farci Immigration Lawyer Firenze Immigration Judge Cagliari Giulia Perin Immigration Lawyer Padova

Spain

Valeria Cherednichenko Associate Legal Protection Officer unhcr Brussles Belgium Arsenio Cores Immigration Lawyer Madrid unhcr Protection Officer Madrid

Sweden

Birgitta Elfström Lawyer, Former decision-maker of the Swedish Migration Board Varberg Livia Johannesson Ph.D. Candidate

337

338

List of National Informants

Stockholm Bo Johannson Lawyer Swedish Refugee Advice Centre Stockholm Göran Melander Professor Lund University Bernd Parusel Researcher Swedish Migration Agency Borlänge Sanna Vestin Chairman of the Swedish Network of Refugee Support Groups (farr) Stockholm



United Kingdom

Nasser Al-Anezy Director of Kuwaiti Community Association London Immigration Solicitor Liverpool Immigration Solictor London Robert Jones Former Head of Asylum Policy Office The Home Office London Statelessness Review Unit, Complex Case Directorate, Home Office Liverpool

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Humphrey, S. ‘The Western Sahara Conflict’ (Atlantic International Studies Organization) accessed 4 May 2017. Hungarian Helsinki Committee. ‘Hungary’ (Asylum Information Database, 2016) accessed 27 April 2017. Hungarian Helsinki Committee. ‘Hungary – Overview of the Main Changes Since the Previous Report Update’ (Asylum Information Database) accessed 4 May 2017. Hungarian Helsinki Committee. ‘Regular Procedure’ (Asylum Information Database) accessed 3 May 2017. Hungarian Helsinki Committee. European Network on Statelessness and Institute on Statelessness and Inclusion, ‘Joint Submission to the Human Rights Council at the 25th Session of the Universal Periodic Review – Hungary’ (16 September 2015) accessed 16 March 2017. Immigration and Asylum Office of Hungary. ‘Residence in Hungary. Granting of Stateless Status’ (30 November 2016) accessed 18 March 2017. ilpa. ‘Comments to the Inspectorate of Borders and Immigration for the Inspection into Administrative Review’ (15 August 2014) accessed 9 July 2017. ilpa. ‘Training’ accessed 18 March 2017. Integrovaný portál mpsv. ‘Foreigner’s Procedure towards Starting Work in the Territory of the Czech Republic’ accessed 7 July 2017. Kalantzi, E. ‘Greece Moves One Step Closer to Introducing an Effective Statelessness Determination Procedure’ (14 April 2016) accessed 21 March 2017. Kohn, S. ‘Stateless in Kuwait: Who Are the Bidoon?’ (24 March 2011) accessed 15 April 2017. Kohn, S. ‘Statelessness in Sweden – Changes Ahead?’ (12 September 2012) accessed 26 January 2017. Kryshkin, Y. ‘Latvia and Estonia Discriminate Against Non-Citizens’ The Voice of Russia (26 February 2010) accessed 10 June 2017.

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Service-Public-fr. ‘Comment Justifier de son Niveau de Connaissance de la Langue Française?’ (15 July 2015) ­accessed 16 March 2017. Service-Public-fr. ‘Dans Quels cas est-on Reconnu Apatride?’ (1 November 2015) accessed 13 March 2017. Service-Public-fr. ‘Naturalisation: Conditions à Remplir’ (15 March 2015) accessed 16 March 2017. Service-Public-fr. ‘Demande de Naturalisation’ (20 June 2016) accessed 16 March 2017. Sironi, A. ‘The Double Plight of Stateless Migrants’ (13 May 2016) accessed 26 January 2017. State Secretary of Security and Justice to the Chair of the Second Chamber (the Netherlands). Letter of 18 December 2012 (Kamerstukken ii, 29 344, no 109) accessed 14 June 2017. StatLine. ‘Statistics Netherlands. Population; Sex, Age and Nationality, 1 January’ (24 October 2016) accessed 7 April 2017. Swedish Migration Agency. ‘If You Want To Appeal’ (6 April 2017) accessed 13 April 2017. Swedish Migration Agency. ‘Travel Document’ accessed 17 March 2017. Swider, K. ‘Change is in the Air: An Update on Efforts to Tackle Statelessness in the Netherlands’ (6 March 2015) accessed 2 April 2017. Swider, K and C. Vlieks. ‘Proposal for Legislation on Statelessness in the Netherlands: a Bittersweet Victory’ (12 October 2016) accessed 4 June 2017. Taylor, D. ‘Home Office Eritrea Guidance Softened to Reduce Asylum Seeker Numbers’ The Guardian (22 January 2017) acces­ sed 28 April 2017. The Law Society. ‘Immigration Judicial Review’ (13 January 2016) accessed 9 March 2017. The Swedish Network of Refugee Support Groups (farr) (Asylum Information Database). ‘Short Overview of the Asylum Procedure. Sweden’ accessed 13 April 2017. The Swedish Network of Refugee Support Groups (farr) (Asylum Information Database). ‘What Does the New Temporary Law Mean for Those Seeking Asylum? (28 August 2016) accessed 17 February 2018. uk Parliament, The Electoral Commission. ‘Can I Vote?’ (2017) accessed 4 January 2017. unga. ‘General Assembly Votes Overwhelmingly to Accord Palestine ­‘Non-Member Observer State’ Status in United Nations (Sixty-seventh General Assembly GA/11317)’ (29 November 2012) accessed 21 July 2017. unhcr. ‘Country Operations Plans’ acces­sed 9 June 2017. unhcr. ‘Ending Statelessness within Ten Years’ (2014) accessed 16 February 2018. unhcr. ‘Figures at a Glance. Global Trends 2015’ accessed 30 November 2016. unhcr. ‘Global Focus. unhcr Operations Worldwide. Financials’ accessed 5 January 2017. unhcr. ‘Global Trends. Forced Displacement in 2015’ accessed 10 June 2017. unhcr. ‘State Parties to the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol’ (April 2015) accessed 8 December 2016. unhcr. ‘States which Pledged to Establish or to Take Steps to Establish Statelessness Determination Procedures (as of 1 October 2012)’ accessed 15 June 2017. unhcr. ‘unhcr Launches Campaign to Combat Statelessness’ (25 August 2011) accessed 10 June 2017. University of Liverpool Law Clinic. ‘Statelessness’ accessed 16 February 2018. untc. ‘Convention on the Reduction of Statelessness’ ­accessed 22 February 2018.

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untc. ‘Convention Relating to the Status of Stateless Persons’ accessed 22 February 2018. untc. ‘Protocol Relating to the Status of Refugees’ accessed 25 September 2017. untc. ‘Convention Relating to the Status of Refugees’ accessed 25 September 2017. UNTC. ‘Refugee and Stateless Persons. Protocol Relating to the Status of Refugees’ accessed 25 September 2017. unpo. ‘European Parliament Subcommittee on Human Rights: Statelessness Should Have a More Central Role in eu Human Rights Policy’ (22 January 2015) accessed 5 January 2017. U.S. Citizenship and Immigration Services. ‘U.S. Citizenship’ accessed 4 January 2017. Vardikos, C.T. ‘Greece Immigration Issues 2011’ (2012) accessed 17 September 2017. verheid.nl. Internetconsultatie, Overheidsinformatie. ‘Rijkswet Vaststellingsprocedure Staatloosheid’ (28 November 2016) accessed 2 April 2017. Vigliar, V. ‘In Greece, Lack of Legal Aid Leaves Migrants and Refugees Guessing’ ­d evex (25 November 2016) accessed 22 March 2017. Wooding, B. ‘What Should the European Union Do About the Mass and Arbitrary Deprivation of Nationality in the Dominican Republic?’ (9 May 2014) accessed 26 January 2017. Yeo, C. ‘Immigration Officials are Failing Victims of Domestic Violence’, The Guardian (21 June 2010) accessed 16 August 2017.

Interviews and Questionnaires Czech Republic

Questionnaire reply from unhcr Office (Prague, Czech Republic, 4 May 2017).

References

367

Questionnaire reply from Stanislava Sládeková, Immigration Lawyer, Organizace pro pomoc uprchlíkům, z.s (Brno, Czech Republic, 4 April 2017). Telephone interview with Alexandra Dubova, Immigration Lawyer, Organizace pro pomoc uprchlíkům o.s. (Prague, Czech Republic, 2 January 2014).

France

Questionnaire reply from Raphaële Bouniol, Immigration Lawyer, (Paris, France, 11 July 2017). Questionnaire reply from Claire Salignat, Immigration Lawyer, Forum Réfugiés (Villeurbanne, France, 15 January 2014). Telephone interview with Lacene Magali, Solicitor and Legal Trainer, France Terre D’Asile (Paris, France, 27 December 2013).

Germany

Telephone interview with staff-member in charge of vulnerable refugees, Refugee Council of Lower Saxony (Flüchtlingsrat Niedersachsen) (Hildesheim, Germany, 2 May 2014 and 12 May 2014). Telephone interview with Executive Director of the Refugee Council North RhineWestphalia (Flüchtlingsrat Nordrhein-Westfalen) (Bochum, Germany, 14 March 2014). Telephone interview with staff member of the Department ‘Project Q – Qualified Refugee Advice’, Non-profit Association for the Support of Asylum-Seekers (Projekt Q – Qualifizierung der Flüchtlingsberatung, Gemeinnützige Gesellschaft zur Unterstützung Asylsuchender e.V.) (Münster, Germany, 14 March 2014). Interview with Heiko Habbe, Immigration Lawyer, Jesuit Refugee Services Berlin (Hamburg, Germany, 9 August 2013). Interview with Reinhard Marx, Immigration Lawyer (Frankfurt, Germany, 22 July 2013).

Greece

Questionnaire reply from Erika Kalatzi, Immigration Lawyer, to author (Athens, Greece, 22 December 2013 and 31 May 2017).

Hungary

Interview with Gábor Gyulai, Refugee Programme Director, Hungarian Helsinki Committee (Budapest, Hungary, 4 May 2017). Questionnaire reply from Gábor Gyulai, Refugee Programme Director, Hungarian Helsinki Committee (Budapest, Hungary, 20 January 2014). Telephone interview with Tamás Molnár, Head of Unit, Unit for Migration, Asylum and Border Management, Department of eu Cooperation, Ministry of Interior

368

References

[of ­Hungary] and Assistant Professor in the Corvinus University of Budapest (Budapest, Hungary, 16 December 2013).

Netherlands

Interview with Marlotte van Dael, Researcher, askv Refugee Support, Amsterdam, the Netherlands (Budapest, Hungary, 5 May 2017). Questionnaire reply from Rombout Hijma, Immigration Lawyer (Utrecht, The Netherlands, 30 January 2014). Questionnaire reply from Laura van Waas, Associate Professor, Tilburg University (Tilburg, the Netherlands, 14 January 2014).

Italy

Questionnaire reply from Giulia Perin, Immigration Lawyer (Padoa, Italy, 24 March 2017). Telephone interview with Immigration Judge (Cagliari, Italy, 21 March 2017). Questionnaire reply from Paolo Farci, Immigration Lawyer (Florence, Italy, 27 November 2013). Telephone interview with Giulia Perin, Immigration Lawyer (Padova, Italy, 6 December 2013).

Spain

Questionnaire reply from Arsenio Cores, Immigration Lawyer (Madrid, Spain, 3 May 2017). Questionnaire reply from unhcr Officer (Madrid, Spain, 27 April 2017). Telephone interview with Arsenio Cores, Immigration Lawyer (Madrid, Spain, 11 December 2013).

Sweden

Telephone conversation with Livia Johannesson, PhD. Candidate (Stockholm, Sweden, 27 March 2017). Telephone interview with Birgitta Elfström, Lawyer, Former Decision-Maker of the Swedish Migration Board (Varberg, Sweden, 17 February 2014). Telephone interview with Bo Johannson, Lawyer, Swedish Refugee Advice Centre (Stockholm, Sweden, 17 December 2013).

United Kingdom

Interview with Immigration Solicitor (London, uk, 6 June 2017). Interview with Nasser Al-Anezy, Director of Kuwaiti Community Association (London, uk, 2 May 2016). Interview with Robert Jones, former Head of Asylum Policy Office, The Home Office(London, uk, 6 August 2013).

References

369

Personal Communications Czech Republic

Email from Alexandra Dubova, Immigration Lawyer, Organizace pro pomoc uprchlíkům o.s., to author (Prague, Czech Republic, 4 May 2014).

France

Email from Immigration Lawyer, Groupe d’Information et de Soutien des Immigreés, to author (Paris, France, 11 June 2017). Conversations with experts at the European Network on Statelessness at the Training the Trainer’s event (Strasburg, France, 22 September 2015).

Germany

Email from Dr Roland Bank, Head of unhcr Berlin Protection Unit, to author (Berlin, Germany, 4 April 2014).

Greece

Email from unhcr Senior Protection Associate to author (Athens, Greece, 19 June 2017). Telephone conversation with unhcr Protection Officer (Athens, Greece, 31 May 2017). Emails from Erika Kalatzi, Immigration Lawyer, to author (Athens, Greece, 17 December 2015 and 22 March 2017).

Hungary

Email from Gábor Gyulai, Refugee Programme Director, Hungarian Helsinki Committee, to author (Budapest, Hungary, 11 October 2017). Conversation with Gábor Gyulai at the First Global Forum on Statelessness (The Hague, Netherlands, 16 September 2014).

Italy

Email from Paolo Farci, Immigration Lawyer, to author (Florence, Italy, 22 March 2017). Emails from Giulia Perin, Immigration Lawyer, to author (Padova, Italy, 20 and 21 March 2014).

Netherlands

Email from Marlotte van Dael, Researcher, askv Refugee Support, to author (Amsterdam, Netherlands, 9 May 2017). Conversations with practitioners and policy-makers at the First Global Forum on Statelessness (The Hague, Netherlands, 15–17 September 2014).

370

References

Spain

Email from Valeria Cherednichenko, Associate Legal Statelessness Officer, unhcr Brussles, Belgium, to author (Madrid, Spain, 24 December 2013).

Sweden

Telephone Conversation with Bernd Parusel, Researcher, Swedish Migration Agency (Borlänge, Sweden, 29 March 2017). Email from Göran Melander, Professor, Lund University, Sweden, to author (Lund, Sweden, 20 March 2017). Email from Sanna Vestin, Chairman of the Swedish Network of Refugee Support Groups, to author (Stockholm, Sweden, 17 February 2014). Email from Bo Johannson, Lawyer, Swedish Refugee Advice Centre, to author (Stockholm, Sweden, 2 January 2014).

United Kingdom

Email from Immigration Solicitor to author (Liverpool, uk, 14 June 2017). Email from Immigration Solicitor to author (London, uk, 12 April 2017). Conversations with practitioners, Training on Statelessness Determination Procedures (London, uk, 16 February 2017). Email from Statelessness Review Unit, Complex Case Directorate, Home Office, to ­author (Liverpool, uk, 21 June 2016). Conversations with practitioners and policy-makers at the First Global Forum on Statelessness(The Hague, Netherlands, 15–17 September 2014).

Index acquisition of nationality discretion 50 jus domicile 50 jus sanguinis 50, 56–57 jus soli 50 naturalisation 50, 106–07, 252–63 adequate opportunity to prepare one’s case 125–27 administrative assistance 97, 100, 144 administrative decision-making insulation from government 185, 276, 282–83, 286, 304 problems 233, 276, 281–284, 286–87, 295, 298–99 States under category one 137–38, 158 States under category two 161–62 States under category three 184–86, 189–91, 203 resistance to stateless persons’ rights  137–38, 161, 233 suitable adjudicators 125, 127–28, 280–81, 299, 303–04 See also procedures in the context of ­permits for impossibility to leave: decision-makers; stateless person status determination: decision-makers analogy between Refugee Convention and 1954 Convention 11, 78, 123, 131, 239, 272 ‘architecture of law’ 118–19 Article 1 of the 1954 Convention, ­interpretation of terms 83–86 See also definition of statelessness birth registration 52–53, 55, 56, 105, 146 categories of implementation features 117, 118, 121–22 category one (Hungary, Spain, uk) 121, 273 category two (France, Spain) 121, 273 category three (Czech Republic, Germany, Greece, Sweden, the Netherlands) 121,    273–74 causes of statelessness 39, 51–54, 212 causes of statelessness in Europe 59–61

citizen. See national comparison of States under study 4, 16–19, 121 See also categories of implementation Council of Europe Convention on Consular Functions 67 Convention on the Avoidance of Statelessness in Relation to State Succession 67 Convention on Nationality 46, 67, 110–11 Recommendation on the Nationality of Children 67 Committee on Refugees and Stateless ­Persons  75n6, 98n130 comparison of implementation of definition of statelessness 278–80 procedures to identify stateless persons 273–78 conflicts of laws 51, 61, 233n150 consular assistance 83 See also diplomatic protection Convention on the Reduction of Statelessness (1961 Convention) 61–62, 110 Convention on the Rights of the Child (crc) 12, 45, 111 Convention relating to the Status of Refugees (Refugee Convention) breach of 289 exclusion from 87, 89–96, 221, 222, 235, 309 expulsion 103 history 74–78 implementation, assessment of 28, 29, 36, 239 levels of attachment 97, 98–99 ratifications 80 travel document 102, 103 unlawful entry 106 unhcr, cooperation with 107 Convention relating to the Status of Stateless Persons (1954 Convention) enforcement 107, 272 history 75–78 interpretation 78 importance 14–15

372 Convention relating to the Status of Stateless Persons (1954 Convention) (cont.) overview 97 problems 107–08, 112–13, 271–72, 291–92 protection scope (see statelessness: definition in Article 1 of the 1954 Convention) ratifications 62–63, 80 standard of treatment 99 unhcr’s role 63–66 value 111–12 de facto statelessness debate 58, 79, 81–83, 113, 207, 223–24, 233–34 Final Act of 1954 Convention 79–80, 103 national practice 215, 227, 231, 279–80 de jure statelessness 58, 79–81, 216, 280 national practice 216, 227, 295 See also de facto statelessness: debate; statelessness: definition in Article 1 of the 1954 Convention departure, mandatory 149, 312 deportation 23, 73, 99, 178, 179, 180, 198, 231, 243, 245, 311 deprivation of nationality 48, 52, 72 detention 276, 277, 307 consequence of statelessness 44, 100, 104 protection from 124, 131, 308 States under category one 137, 149–50, 227 States under category two 167–68, 172, 173 States under category three 187, 189, 192, 193–94, 204 See also procedures in the context of permits for impossibility to leave: protection of applicants; stateless person status determination: protection of applicants diplomatic protection definition 43 Nottebohm case 40n7 refugees and stateless persons 43, 102–03 discretion decision-making States under category one 158 States under category two 160, 174, 213, 241

Index States under category three 182, 188, 203–04, 242, 250, 275, 287 implementation of human rights 29, 32 legislation allowing 118, 121, 234, 273, 274, 286, 300, 303 States 142, 234, 287 implementation of human rights 28 implementation of the 1954 ­Convention 26, 101, 104, 110, 112, 272 nationality, grant of 39, 48, 50, 72, 210, 259 implementation of Refugee Convention 78, 124, 239 discrimination 1, 14, 46, 47, 48, 49, 51, 57, 71, 72, 191, 256 displacement, statelessness resulting in 54, 56, 59 documentation, right to 100–01, 111, 112 dualist theory 30–31, 34, 297–98 dual or multiple nationality 225n104, 253 Duldung. See tolerated stay durable solution. See naturalisation due process international law 122 in the context of refugee status determination procedures 124 in the context of statelessness determination procedures 37, 104, 121, 125 effectiveness of obligations, principle of  124, 239 employment. See work, right to essential principles of justice 5, 10, 16, 117, 122–25, 133, 174, 273, 278, 300, 302–08 See also stateless person status determination Ethiopia, nationality disputes 223–26, 279–80 Eritrea, nationality disputes 223–26, 279–80 European Convention on Human Rights and Fundamental Freedoms 12 Article 3 (torture prohibition) 13, 192 Article 8 (private and family life, right to) 13, 46, 47 Article 13 (effective remedy) 46, 47 Article 14 (prohibition on ­discrimination)  46, 47

Index European Court of Human Rights 46, 47, 192 European Court of Justice 93–95 European Union activities on statelessness 70–71 statelessness provisions 68–70, 73 exclusion from stateless status analogy with article 1D of the Refugee Convention 87–88, 93–96 article 1(2)(i) of the 1954 Convention  86–87 meaning of terms 89–93 Palestinians 86–96, 279, 294, 309 expulsion 23, 103–04, 312–13 facilitated access to nationality. See naturalisation family life, right to. See European Convention on Human Rights and Fundamental Freedoms: Article 8 (private and family life, right to) good faith principle 28–29, 33, 88, 289–90, 287 grounded theory method 119–20 grounds to remain for impossibility to leave 120, 178–183, 214, 215, 222, 226,    229, 264 See also residence permit: States under category three; tolerated stay Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws 47 human rights treaties challenges 107, 294 incorporation 6, 12, 32, 36, 293, 300–01 judicial implementation 283–86, 296–97 value in national system 28 Handbook on Procedure and Criteria for Determining Refugee Status 123 Handbook on Protection of Stateless Persons 5, 66, 117, 122–23, 302–03 application Hungary 148, 209, 273 Italy 175, 273, 275 Czech Republic 182 uk 135, 144, 146, 227, 273 barriers 277, 307

373 burden of proof 129–30, 305 decision 130 decision-makers 127 definition of statelessness 83–86, 223, 224, 232, 234, 308 determination procedures 110–11 easy acquisition of nationality 210–11, 308–09 evidence presentation 126, 305–06 interview 128–29, 306 legal assistance 125, 307 length of procedures 130, 307 levels of attachment 97–99 naturalisation 107 removal 106 residence, right of 238, 309 protection during application 130–31, 308 review, right of 131, 306 identification of statelessness 2, 3, 24, 25–26, 70, 74, 82, 84, 108–11, 112, 113, 272, 294, 300 See also stateless person status determination identity documents 69n175, 100, 262, 263, 272n3 immigration authorities 44, 55, 127, 140, 189, 226, 230, 231, 264 See also administrative decision-making: suitable adjudicators; procedures in the context of permits for impossibility to leave: decision-makers; stateless person status determination: decision-makers implementation of the definition of statelessness disputed nationality cases 177, 223–32, 279, 296 incorporation into national law 208–10, 278–79, 308–09 persons who can easily obtain a nationality 210–14, 279, 308, 309 summary 236–37, 278–79 treatment of Palestinian cases at the national level 214–22, 262, 279, 295 impossibility to leave, permit 120, 178–83, 187, 189, 191, 195, 196, 197, 200, 202–03, 242, 245, 264, 273–74, 287–88

374 ineffective nationality 82, 223, 224, 231–32, 279, 281, 294 International Covenant on Civil and Political Rights (iccpr) 12, 14, 15, 45 International Covenant on Economic, Social and Cultural Rights (icescr) 12, 14–15 international law automatic incorporation 17, 31–32, 34, 235, 278, 285, 288, 294–97, 300 breach of 147, 277, 289–90, 291 codification 32–36 effective implementation 29, 32–34, 36, 117, 124, 174, 233, 239, 300–01 judicial application 32, 283–87, 296–97, 299, 301 hierarchy in national system 17–18, 174 implementation 22, 23, 28, 29, 31–33, 35, 285, 287, 295, 298 incorporation 17, 23, 28–30, 35, 38, 117, 272, 298–301 See also human rights treaties: incorporation interaction with national system 37 legislative incorporation 17, 31–34, 124, 133, 272, 278, 293, 294, 297, 300 positivist approach to 35–36, 298 role of actors 34–37, 293, 294, 298–301 judicial determination of statelessness 127, 152–54, 160, 163–65, 169–171, 175, 283, 299 Jurisprudence on definition of statelessness 228–31, 228–30, 296 exclusion from refugee status 93–95, 222 exclusion from stateless status 216, 219–22 temporal assessment of statelessness  211–12 treatment of persons who can easily obtain a nationality 211–13 unclear nationality 230 lawful stay 1954 Convention, silence about 105, 238–39, 271, 287–88 recommendation to grant 302, 309–10 See also residence permit

Index legal aid. See stateless person status determination: legal assistance legal status. See lawful stay levels of attachment, 1954 Convention durable residence 97 lawful presence 97–99, 131 lawful stay 97–99, 101, 103, 105, 271 physical presence 97, 101, 106 subject to jurisdiction 97 migration, leading to statelessness 16, 53–57, 61, 72–73 monist theory 30–31, 33, 34, 295–98 Montevideo Convention on Rights and Duties of States 85 See also statehood criteria movement, freedom of internal 97, 98, 105 international (see right to enter and reside) national 23 See also nationality national informants 19–21 nationality definition 40–41 limits to State power 45–49 procedural guarantees to 47–49 right to 45–47 substance 41–45, 84, 234 naturalisation Article 32 of the 1954 Convention, implementation of 265 Article 32 of the 1954 Convention, ­provision 106–07, 252 discretion 107, 252, 255, 258, 269, 288 facilitated 106–07, 252–53, 265, 288, 289, 309 economic requirements 255 European Convention on Nationality  110–11, 252–53 fees 261 language and civil knowledge test 256– 59, 260 procedures 259–63 proving nationality 262–63 renunciation of former nationality 256, 289

Index residence required, length and type  253–55 non-refoulement 105 ‘operation of its law’ 84, 227–29, 279 order to leave 312 pacta sunt servanda principle 28–29 See also international law: effective implementation Palestinians estimates in Europe 61 See also exclusion from stateless status passports. See travel documents postponement of removal 183, 186, 231 procedures in the context of permits for impossibility to leave (States under category three) assessment of evidence 191 burden and standard of proof 189–91, 274–75 cooperation of applicant 189–91 decision 195, 306 decision-makers 184–86, 204, 273, 276, 283 hearing 188–89 features of procedures 187–189 legal assistance 198–200, 276 length of procedures 195, 274 refugee status application, joint 181 preparation of case 125–27 protection of applicants 192–94, 276 refusal 195 right of review 195–98, 275 proposal of new legislation for statelessness determination Italy 175 Greece 204 the Netherlands 204–05 refugees definition 15n27, 80 difference from stateless persons 2 exposure to statelessness 53, 55–57 refugee status determination procedures  113, 124, 272 removal 23, 105, 130, 149, 193, 311–12 residence permit 239–47

375 outcome of statelessness determination  239, 291, 292 municipal law provisions (States under categories one and two) 240–41,  264 municipal law provisions (States under category three) 242–47, 264 right to enter and reside 42, 45, 57, 81, 103, 146, 280 Roma 59, 60, 173 Sahrawi 136, 142, 156–57 self-executing, international law provisions 28, 31, 32, 252, 285, 288, 296, 297 solution, 1954 Convention and right to. See naturalisation standards of protection or treatment, 1954 Convention absolute rights 99, 101 as accorded to non-nationals 99, 105, 239 national treatment 99 statehood criteria 85 See also Montevideo Convention on Rights and Duties of States stateless person. See statelessness stateless person status determination application States under category one 138–40 States under category two 162–65 barriers to procedures pending the application 130–31, 276–78 States under category one  145–150 States under category two 166–68 burden and standard of proof 129–30, 274–75, 304–06 States under category one 141–45 States under category two 163, 165–66 conditions to make the application 307 States under category one 145–48 States under category two 166 debates 10, 108, 112 decision 130, 306 States under category one 152 States under category two 169–70 decision-makers 127–28, 174, 273, 280–83, 303–04 States under category one 135–38 States under category two 160–62

376 stateless person status determination (cont.) erroneous insistence on documentary evidence 136 evidence, right to present 126 France 160–176 hearing 36, 128–29, 306 States under category one 140–41 States under category two 164–65 Hungary 134–159 Italy 160–176 legal assistance 125, 171–73, 276, 307 States under category one 154–56 States under category two 164 length of procedures 130, 151–52, 168–9, 274, 307 preparation of case 125–27 protection of applicants 130–31, 148–51, 166–68, 275, 276, 308 recommendations 302–08 refugee status application, joint 138, 139, 162 refusal 130 States under category one 152 States under category two 169–70 right of review 131–32, 275, 306, 307 States under category one 152–44 States under category two 169–71 Spain 134–159 uk 134–159 See also categories of implementation; identification of statelessness statelessness definition in Article 1 of the 1954 Convention 15, 79–81, 291, 294, 296, 308 difference from refugee situations  2, 15 proof of 109–10 See also implementation of the definition of statelessness stateless refugees 15, 16, 127, 178, 208 statistics on statelessness worldwide 57–8 Europe 59–61 France 173 Hungary 157 Italy 173 Germany 202

Index the Netherlands 201–02 Spain 156–57 Sweden 202 uk 157 Study on Statelessness 75 state succession 45, 46, 52, 54, 72, 75, 226 temporal assessment of statelessness 83, 86, 211 tolerated stay Czech Republic 181 Germany 179–80, 192, 198, 202, 242–45, 249, 250 problems 246, 264, 274, 287–88 trafficking in persons as a cause of statelessness 55 vulnerability of stateless persons 56 travel documents Art 28 of the 1954 Convention, provision 100–02 Art 28 of the 1954 Convention, implementation of 288, 295 States under category one 247, 252 States under category two 247, 252 States under category three 247–52 jurisprudence on 249–50 treaties. See international law; Vienna Convention on the Law of the Treaties United Nations Conciliation Commission (unccp) 90–92, 94–96 United Nations General Assembly (unga) Resolution 194(iii) 89–93 United Nations High Commissioner for Refugees (unhcr) Global Campaign to End Statelessness  65 interpretation of Article 1D of the Refugee Convention 95–96 statelessness mandate 2, 63 Universal Declaration of Human Rights (udhr) 45 unlawful entry, penalty for 106 United Nations Relief and Works Agency for Palestinian Refugees in the Middle East (unrwa) assistance 214, 222 cessation 94–96, 218–221

Index mandate 90–91, 94, 218, 279 See also exclusion from stateless status; jurisprudence on: exclusion from stateless status Vienna Convention on the on the Law of the Treaties 88–89 voluntary return 148, 311, 313

377 work, right to 131, 239, 277 1954 Convention 97, 98, 99 States under category one 148–49, 151, 240–41, 264 States under category two 167, 241 States under category three 192, 231, 242–43, 244n43, 245–46