Transcript Document

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