States must have an effective and accessible procedure: statelessness considered by the European Court of Human Rights in Hoti v Croatia

In its recent judgment Hoti v Croatia the European Court of Human Rights considered what it means for the Applicant to be stateless and without access to an effective and accessible procedure in the host state to obtain residency and legal status.

Background to the claim in Hoti v Croatia

Mr Hoti, the Applicant, moved to Croatia in the 1980s as a teenager with his Albanian parents. This was prior to the break-up of Yugoslavia into sovereign states, of which Croatia was one.  He has lived in Croatia for over 40 years. The Applicant was born in Albania, but no nationality was listed on his birth certificate. During his childhood, and prior to the breakup of Yugoslavia the Applicant might have been able to obtain Socialist Federal Republic of Yugoslavia (SFRY) citizenship. But, as the intervener in the case, the UNHCR, pointed out, not all SFRY citizens possessed and could prove citizenship of the republic in which they resided. Many were not registered as citizens in one of the republics of the SFRY to which they (or their parents) had moved. Citizenship registration between 1945 and the break-up of Yugoslavia varied across the six republics which made up Yugoslavia.  After the break-up of Yugoslavia, anyone unable to prove they held citizenship of one of the successor States of the SFRY was left stateless. ¹

The effect of statelessness on the Applicant

The Applicant did not rely on SFRY citizenship but chose to seek permanent residence in Croatia. Throughout his time in Croatia, the Applicant sporadically held temporary residence permits, usually on humanitarian grounds. Despite a number of attempts to regularise his stay in Croatia and obtained permanent residence, he was repeatedly refused.  To be issued with a residence permit he had to provide evidence of his citizenship (assumed by the Croatian authorities to be Albanian) or some kind of travel permit. This is despite the fact that under the relevant domestic law of Croatia, stateless persons are not required to have a valid travel document when applying for a permanent residence permit ². Having arrived in Croatia as a minor, with no nationality listed on his birth certificate, the Applicant found it impossible to comply with the requirements for residence status.

Reasoning of the Court

Reliance on Article 8

The Court saw the claim as falling under Article 8 ECHR right to respect for private and family life ³ and focused on the issue of “aliens who, irrespective of many years of actual residence in a host country, were not able to regularise their residence status”.

The Court found that Article 8 protects disproportionate intrusion by the state to “the right to establish and develop relationships with other human beings and the outside world and can sometimes embrace aspects of an individual social identity” ⁴.

The Court accepted that there is a positive obligation on states to ensure effective enjoyment of private life as guaranteed by Article 8. That enjoyment includes having access to an effective and accessible procedure for regularising one’s status. It also includes an effective remedy where this was not done.

The limits of Article 8: no particular legal status guaranteed

The Court ruled, however, that Article 8 does not guarantee that an individual should have any particular legal status or type of residence document. A state can fulfil its obligation to respect individuals’ Article 8 private and family life, where it does not interfere with the individual’s ability to reside within the territory of the host country and where that individual can exercise freely the right to respect for his private and family life.

The state’s positive and negative obligations under Article 8 cannot be precisely delineated. In considering the distinction and the duty of the state to respect Article 8 regard should be given to the fair balance between the general interest and the interest of the individual. The Court would not rule on whether one type of legal status was capable of achieving this more than another type of legal status. It would be for the state, using its margin of appreciation under the Convention, to determine what legal status it gave to its residents.

Breach of Article 8: No effective and accessible procedure

Crucially, the Court ruled that it could consider the circumstances of the case. In this case consideration could be given to whether Croatia provided an effective and accessible procedure or combination of procedures to enable the Applicant to have his status in Croatia considered and determined in line with his Article 8 rights.  Having gone on to consider the circumstances of the Applicant’s case as a whole and specifically the Applicant’s continued status as a stateless migrant in Croatia, despite spending over 40 years of his life there, the Court found that there was a violation of the Applicant’s Article 8 rights.

Is a breach of Article 8 a strong enough finding from the Court?

The Strasbourg Observers eloquently argue that the Court should also have considered the Applicant’s Article 3 rights and especially whether his continued statelessness and lack of permanent legal status is a breach of Article 3 ⁵. However, in my view, even without the Article 3 consideration, the Article 8 findings are sufficiently useful to advance the rights of stateless persons in Europe. The ruling that a state has a positive obligation under Article 8 to have adequate and effective procedures to settle the legal status of residents in its borders is key. As is the finding that a breach Article 8 might occur in some circumstances where the conditions for legal status are impossible to meet by stateless individuals.  The Court’s findings highlight this positive obligation and engage with the true obstacles that migrants and especially stateless migrants face in regularising their stay.

Meaning of effective and accessible procedure

The Court does not specify what it means for a state to have “an effective and accessible procedure or a combination of procedures to enable an applicant to have his further stay and status determined with due regard to his private-life interests”  but I think some conclusions can still be reached on the meaning of effective and accessible procedures. In my view, those would include:

♦ Domestic laws which do not place disproportionate barriers on stateless and undocumented individuals, and especially undocumented children, to apply for legal status.

♦ Domestic laws or procedures to determine statelessness so that stateless migrants who do not qualify for asylum or another form of international protection can regularise their status in the host country.

♦ A more consistent approach to determining a person’s status (something which did not occur in the case of the Applicant. He made a number of applications over the 40 years and was refused for different reasons or was granted temporary status in Croatia on a number of grounds).