Towards eradicating statelessness – Statelessness Determination Procedures: Part II

In my last blog, I looked at statelessness determination procedures as a tool to help eradicate statelessness and mitigate the effects of statelessness for stateless people. In this blog, I want to come back to this issue. I look more closely at how the procedure can help both stateless people and the state, which countries have made use of the procedure and how embracing the right solutions can make a big difference to the seemingly insurmountable problem of statelessness.

In brief, a statelessness determination procedure is a mechanism to identify stateless persons. In order for states to provide stateless people with appropriate treatment and for states to comply with their obligations under the 1954 Convention Relating to the Status of Stateless Persons, states must have a way to identify who is a stateless.

 

How can Statelessness Determination Procedures help stateless people?

The benefits for a stateless individual, if they are treated officially as stateless, are numerous. States can identify and document that person. Identification and documentation allow the stateless person to regularise their presence in the country, including through the grant of nationality in the host state. It also leads to access to basic rights and fuller participation in and contribution to the society in which they live. Identification of statelessness reduces the risk that stateless persons will be arbitrarily detained or spend prolonged periods in detention. An assessment under a determination procedure allows states to confirm that some individuals are in fact nationals of a State. The state can then facilitate the acquisition of identity and travel documents for those individuals ¹. In summary, a statelessness determination procedure ensures the protection of stateless persons and their enjoyment of rights to which they are entitled under international law.

Rights under such a procedure are both substantive and procedural. Substantive, in that a determination of statelessness confers rights on the individual such as permanent residence, a legal identity document, right to work and to access social and health services. It can even lead to a grant of nationality. Procedural, in that the individual is given access to an interview to explain their status and to the opportunity to answer questions, as well as access to a lawyer. The individual is also entitled to a decision by the competent authority that is reasoned, in writing, and produced within a reasonable time. There should also be a right to challenge the outcome of the decision.  Not only that, but during the period of the decision making (and ideally, during any challenge to that decision) the individual cannot be removed from the host state.  Again, that person should not be detained during the course of the procedure, as detention should usually be reserved for when removal is imminent.

 

How can stateless determination procedures help states to be part of the solution and not part of the problem?

A properly set up procedure also helps the state, not just the stateless person. For parties to the 1954 Convention, it can help states to comply with obligations under the Convention.  This includes the obligation to identify stateless persons within their jurisdictions in order to provide them with appropriate treatment and a range of rights, including juridical status, gainful employment, welfare, and administrative measures ².

And, as mentioned in my last blog, a statelessness determination procedure can be a tool for states to comply with their commitments under international human rights law and with customary international law ³.

The determination procedure can also bring practical benefits. For example, it can give a state a better sense of how many people within its borders are stateless and how many simply do not have the right documents to return to their home country. The identification of stateless persons can reveal the causes of statelessness and new trends.  Plus, if statelessness needs to be determined first and the procedure is followed correctly, then the state does not need to spend money on immigration/asylum procedures which may first depend on the outcome of the statelessness determination.

 

Countries which have statelessness determination procedures

If statelessness determination procedures can help both states and stateless persons, then surely every state should want to set one up? And yet, many states still do not have such a procedure.

To date, France, Italy, Spain, Latvia, Hungary, Mexico, Moldova, Georgia, Philippines, UK, Slovakia and Turkey have some form of determination procedure established. Some of those countries have entrenched their determination procedure in legislation. Other states have expressed an interest in setting up such procedures. In 2011, Belgium, Brazil, Costa Rica, Peru, USA, Uruguay and Australia pledged to establish statelessness determination mechanisms.

The usefulness of the procedure has even been recognised by a number of states, including the USA and Moldova, who are not parties to the 1954 Convention, but who have introduced statelessness determination procedures.

 

Moldova as example of best practice and good outcomes

Moldova, although not a signatory to the 1954 Convention, is a good example of how the determination procedure can be used to decrease statelessness numbers in the state and resolve the status of many of its stateless residents.

Moldova’s procedures follow best practice in that they are established in legislation and contain some of the most detailed provisions of any of the existing statelessness determination procedures ⁴. Applicants can stay in Moldova without risk of removal during the determination and the burden of proving statelessness is shared. The Government is obliged to assist by making contact with foreign authorities or its Embassies abroad. This is much easier done at state level than by an individual. Individuals with recognised statelessness status are provided with identity documents and are entitled to enjoy all the rights, freedoms and obligations available under Moldovan legislation. They also benefit from dedicated social integration activities offered by the Ministry of Culture, and language classes offered to foreigners by the Ministry of Education – all free of charge.

The benefits are clear. According to the OSCE, between the establishment of the statelessness determination procedure in 2011 and December 2015, 617 persons applied for statelessness status in Moldova and 256 persons had it granted. Even from among the 261 individuals rejected, a significant number were eligible to apply for Moldovan citizenship resulting in the grant of citizenship to many persons of undetermined nationality ⁵.

 

What happens when states do not create statelessness determination procedures?

When states do not have such a procedure, they have to rely on the issue arising in asylum procedures, or as a subsidiary question when applications for residence permits or travel documents are made. Alternatively, the issue can emerge at the most distressing point for a stateless individual: when the authorities try to remove a stateless person without lawful status to another State, but find that there is no place to which he or she can be sent ⁶.

Either way, where states do not set up such a procedure, this can result in a reluctance to make a decision, often leaving the person in limbo.  An example of what can happen when one is needed, but is not made available, can be found in my earlier blog discussing the number of persons of ‘nationality unknown’ in Holland and this useful blog from the European Network on Statelessness. Alternatively, without the procedure and without a specific determination of statelessness, the rights available to stateless people under the 1954 Convention may be overlooked.

For example, in Slovakia, a stateless person does not have separate status. When a person is identified stateless during the process of a residence permit application, they are granted the status of a third country national ⁷. But a third country national may not be entitled to those rights which should be given to a stateless person, such as juridical status ⁸, gainful employment and access to welfare.

In the case of Switzerland, although statelessness determinations are made by the authorities, the lack of clear procedure set out in legislation can create a lot of unnecessary stress and uncertainty for an individual. Without the procedure, it is not clear whether on making a request to be determined as stateless, an individual still has the right to work, and whether they may be subject to deportation proceedings, even before the determination has concluded ⁹.

 

Embracing the right solutions can make a big difference to a seemingly insurmountable problem

By putting in place statelessness determination procedures, a state will benefit from a formalised, consistent procedure to deal with the stateless individuals within their borders. It can seem a daunting task to grapple with what seems an insurmountable problem. But it need not be.  As the UN agency with the mandate for statelessness and stateless people, UNHCR can help.  The Handbook on Protection of Stateless Persons and the Guidelines on Statelessness No. 2: Procedures for Determining whether an Individual is a Stateless Person and other document published by the agency ¹⁰ can assist government officials, decision-makers, NGOs and legal practitioners in their efforts to identify and protect stateless persons.

Not only that, but states can benefit from specific advice from UNHCR on developing new statelessness determination procedures in line with existing realities on the ground within the state.  The UNHCR can also act as a broker, where necessary, and facilitate enquiries made by statelessness determination authorities with authorities of other States. It may even conduct statelessness determinations of individuals or groups.

The benefits to the state and to stateless individuals with the state’s borders are clear. As more and more people find themselves torn away from their home and in new host communities, there is no excuse not to tackle the problem of statelessness. The statelessness determination procedure is one of several tools that can help to safeguard the dignity and human rights of those who have already lost so much along the way.