Ways to resolve statelessness

Michael Williams, FARR, has interviewed Nina Murray and Julia Zelvenska about statelessness. Nina is active at the European Network on Statelessness (ENS), a civil society alliance committed to protecting stateless people and ending statelessness in Europe. The network includes 175 organisations and individual members in 41 European countries. Nina is head of the network’s policy and research. Julia is active at ECRE (European Council on Refugees and Exiles), an alliance that includes 100 organisations. Julia is head of ECRE’s legal support and strategic litigation. She also coordinates the ELENA network (European Legal Network on Asylum), a network for asylum lawyers comprising around 500 lawyers/jurists in 38 European countries.

Is there a definition of statelessness that most countries accept?

Nina: Yes, the international law definition refers to a stateless person rather than statelessness itself. A stateless person is defined in a UN convention, the 1954 Convention relating to the Status of Stateless Persons, which states that a stateless person is someone who is not considered as a national of any state under the operation of its law. What is decisive is the situation in which the person finds themself, not whether they can acquire a nationality, or whether they have had a nationality in the past, but what their status is here and now.

How widespread is statelessness in the world? Are there any estimates at the global level?

Nina: There are only estimates. One of the challenges of statelessness is that it is very difficult to count people who are legally invisible. UNHCR has previously estimated that there are 10-12 million stateless people in the world. Lately, they have refrained from trying to give a specific figure, talking instead of millions, because it is so difficult to determine the number of people affected. Currently, UNHCR collects and presents data from approximately 75 states around the world that report data on stateless people on their territory. But that data always covers only a small percentage of the real figure.

In the UNHCR’s latest global trends report, 4.3 million recognized stateless people are mentioned in the world, which is likely a large underestimate of the real number. In Europe, we estimate that there are over half a million stateless persons, but again, it is very difficult to establish exact numbers because not all states report numbers, and not all states have mechanisms to identify and determine stateless persons.

What are the most common causes of statelessness?

Nina: There are various causes of statelessness. Some of the most common reasons are gaps or deficiencies in legislation – or discriminatory nationality laws. There are about 25 countries in the world that still do not give women the same right as men to transfer their nationality to their children. If you have a single mother from a country where she is not allowed to transfer her nationality, that could be a reason for the child to become stateless. There are also situations where a state transitions to a new state, so-called state succession. In Europe, for example, the dissolution of the former Soviet Union and the dissolution of the former Yugoslavia led to increased risks of statelessness, as national borders shifted and, as a result, new citizenship laws excluded some people from obtaining citizenship. Others were unable to acquire or confirm their nationality during these processes. Another important reason is discrimination in the application of the laws. We see large populations of minority groups in various parts of the world being affected by statelessness because they cannot acquire nationality in the country in which they were born. These may be Roma communities, Rohingya in Myanmar, and other groups around the world.

Gaps in laws must be addressed either to ensure that all children born within a territory acquire a nationality, or to prevent statelessness arising from the loss or deprivation of nationality.

The Universal Declaration of Human Rights of 1948 states that the right to a nationality is a fundamental human right. What conventions do we have at the global level that promote this right?

Julia: There are UN conventions on statelessness, and we also have specific provisions under the other UN Treaties, for example, the UNCRC (Convention on the Rights of the Child). As far as the global order is concerned, these are the most important legal provisions.

What other legal provisions are important to eliminate statelessness in the world?

Nina: As Julia said, we have the two UN conventions, the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness. The Convention on the Rights of the Child is important because Article 7 establishes the right of every child to acquire a nationality and a legal identity. At the regional level, we also have the European Convention on Nationality from 1997, which sets out some regional standards for Europe regarding the acquisition and loss of nationality to prevent statelessness.

There are also other conventions that are less well-known or well-acceded to, such as the Convention on the Avoidance of Statelessness in Relation to State Succession. This convention does not have as many signatories as the European Convention on Nationality or the UN Conventions.

Being stateless sometimes means that you are not protected by any state, which makes stateless people more vulnerable to persecution. 

What is UNHCR’s role in relation to statelessness?

Julia: I think it can sometimes be difficult to understand what UNHCR’s role is in practice in different contexts but officially UNHCR has an extended mandate to protect stateless persons, and this mandate also means that UNHCR encourages the states that are not yet parties to the UN conventions to become it. They also encourage states to have special safeguards in place to ensure they are working to reduce statelessness.

Both in terms of recognition of their needs based on statelessness, or if these people are potentially in need of international protection, these rights must be respected. In the Geneva Convention, stateless persons are also specifically recognized in the definition of a refugee.

Is it correct to say that UNHCR’s mandate regarding statelessness is not based on the fact that these people are necessarily in need of protection from persecution, but is instead based on the fact that they are stateless?

Julia: Not everyone person who is stateless is a refugee, but of course there are recommendations from UNHCR, the Council of Europe and judicial authorities on the interlink between statelessness and refugeehood. To illustrate, the Council of Europe highlights that being stateless can lead to persecution. In most situations, stateless people will be more vulnerable, and they will have less access to rights. Being stateless sometimes means that you are not protected by any state, which makes stateless people more vulnerable to persecution. This means that sometimes there is a clear link to persecution in respect of stateless persons, sometimes not.

Nina: UNHCR has a mandate to monitor the implementation of the 1954 Convention Relating to the Status of Stateless Persons. If a stateless person is not a refugee and does not meet the definition in the Geneva Convention, there is the 1954 Convention which provides a similar set of rights for all stateless persons. UNHCR is mandated to monitor the implementation of this convention and to ensure that, whether stateless people are refugees or not, they are protected under the 1954 Convention and the rights set out therein.

Do you think that UNHCR has gained more influence in recent years, and if so in what way?

Nina: Yes, I really think so. For the past eight years, UNHCR has launched a campaign to eradicate statelessness called the ”I Belong Campaign”, which is a global campaign that aims to end statelessness by 2024. The goal is very ambitious, but I think everyone recognizes that it’s a long-term ambition and that will take longer than another two years to resolve statelessness. What the campaign has achieved is bringing a lot of focus, attention, and resources attached to the work of UNHCR and its mandate to address statelessness. During the campaign, UNHCR launched an action plan which has led to some progress. There have been some high-level intergovernmental events where states have pledged to take action under the action plan. Progress has also been made in implementing regional strategies to address statelessness, for example in West Africa and in the Americas, particularly in Latin America. To some extent, we have also seen progress in Europe. Having said that, it is always a smaller part of UNHCR’s mandate than refugee protection, perhaps understandably as more people in the world are refugees than stateless. At the same time, part of our role in Europe is to work with UNHCR to ensure that resources and efforts are being made to address statelessness.

Within ENS there is a project called the Statelessness Index. What is the purpose of this index and what results has it produced so far?

Nina: Our Statelessness Index is a comparative online database that benchmarks the performance of European states against international norms and standards in relation to statelessness. We hope it is an accessible tool that everyone can use. We currently have thirty European countries in the database and the information is presented by theme. The theme areas include the country’s accession to international and regional conventions, population data, statelessness determination and protection of stateless persons, and detention. There is a lot of information to be gleaned from the Index about how a state performs under each individual theme. It also enables a comparison between states. For example, it is possible to look up how Sweden protects stateless persons and compare it with France, the United Kingdom, Germany or Switzerland, for example. It is a useful tool for both decision-makers and legislators, to see where good practice is being applied and to help shape new laws. We hear from stateless individuals that they find it useful for them to understand what rights they have in the country they are in. Of course, it is also useful to support civil society organisations identify good practice as well as gaps and challenges so they can focus their advocacy on a particular issue.

Is there any area where improvements can be made in the European countries?

Nina: Unfortunately, there are some areas, but the most important thing in terms of protecting the rights of stateless people is probably having a statelessness determination procedure and protection status. There are only a handful of European countries that have a dedicated procedure to determine who is stateless on their territory and which grants these people protection and rights under the 1954 Convention. This is indeed one of the biggest challenges for Europe. We are seeing some progress in some countries that have introduced procedures in recent years. Not having a statelessness determination procedure for the stateless would be like having a country without an asylum procedure to determine who is a refugee. So, it’s really a critical gap in terms of the legal and policy framework in Europe. When you compare Europe with other regions, you see that most countries in the Americas, especially Latin America, most countries have good procedures in place to determine who is stateless and to grant them protection. We are lagging behind some regions of the world. I think it is a real challenge for Europe to introduce and strengthen procedures.

I suppose that one of the most important gaps in Sweden is, as in many European countries, that there is a lack of a statelessness determination procedure or protection status for stateless persons. 

Does UNHCR have a template for this procedure that you think is applicable in most countries?

Nina: Of course, every country’s rules are different, and to some extent the procedures have to work for the context in which they are to be applied, but at the same time there is a great need for a template or standards to achieve good practice. An important support for this is UNHCR’s Handbook on Protection of Stateless Persons, from 2014. It is a useful tool that sets out all the different elements of a procedure, procedural safeguards that should be in place and guidance on how to make an assessment. It is a comprehensive manual and I highly recommend it.

In what other ways does the ENS act to improve the situation of stateless persons?

Nina: We have three operational pillars in ENS. The first is law and policy development where the Index is one of our key tools to support long-term policy development. Under that pillar, we also bring some legal cases to court, and we support our members litigating statelessness cases. We have developed a case law database not only with specific cases on statelessness, but also on related issues dealing with statelessness. We also have two other pillars: information and increased awareness as well as training and capacity building.

Regarding the latter, we work a lot with UNHCR, national authorities and our members in different countries. We train authorities and provide support functions in matters of statelessness to assist them in their work. We are increasingly working with stateless people, change-makers and representatives of communities affected by statelessness, to try to ensure that their voices, views and expertise inform our and others’ work to address statelessness.

Is statelessness an issue that ECRE will address in the coming years?

Julia: For us, it goes without saying that the primary work with statelessness is the work carried out by ENS. Statelessness is not a primary focus of ECRE, but at the same time it has been quite significant in our work. We do trainings on international refugee law and EU law, so in principle the connection to statelessness would also be highlighted in our trainings and in legal support. We also have a caselaw database, which does not specifically address statelessness but contains most of the important cases relating to statelessness. These cases are as relevant to the refugee context as to statelessness. We have dealt with the issue of statelessness when we specifically addressed the special significance of the EU Charter on Fundamental Rights and the concept of human dignity. In this regard we published guidance for lawyers. Normally we would avoid advising on statelessness cases unless lawyers who come to us do not have access to ENS, or there are particular reasons why a case is more appropriate to deal with in the asylum process such as in Keita vs Hungary or the most recent cases before the CJEU for example. At the same time, as our lawyers represent stateless people, we tend to advise on their cases outside the national litigation.

What about strategic litigation from the ENS point of view?

Nina: We have developed our work around strategic legal cases. I think one of the first ground-breaking judgments in the European Court of Human Rights was Kurić v Slovenia about ten years ago, which addressed the issue of erasure of people from the population registry. In recent years, we have seen developments around the detention of stateless people, for example in the case of Kim v. Russia. We also have the case of Hoti vs Croatia which requires states to introduce effective procedures to regulate the stay of stateless persons in a country. And then we have the case of Genovese vs Malta which limits state sovereignty in granting and revoking nationality.

We have seen some progress in the Court of Justice of the European Union (CJEU) , particularly in relation to the renunciation and revocation of citizenship. The CJEU issued a judgment earlier this year, C-118/20 JY v. Wiener Landesregierung, on the revocation of guarantees for the grant of Austrian citizenship. We have also seen several cases related to Palestinians, for example on the scope of UNWRA’s assistance.

Interesting cases recently arose involving children born to same-sex parents that raises an important issue of principle in relation to statelessness, where children struggle to obtain proof of their nationality and identity documents. Children born to same-sex parents from Bulgaria and Poland could not obtain proof of their nationality in those countries. Then of course there is also the Human Rights Committee and the Committee on the Rights of the Child, which have issued important decisions on children’s right to a nationality.

ENS has recently published a report in the Statelessness Index that analyses Sweden. What do you see as strengths and weaknesses in the Swedish system?

Nina: I suppose that one of the most important gaps in Sweden is, as in many European countries, that there is a lack of a statelessness determination procedure or protection status for stateless persons. There is thus no path to protection, or a residence permit on the basis of statelessness in Sweden.

There are also gaps in relation to protection against arbitrary detention, lack of mechanisms in place to identify and offer safeguards to prevent arbitrary detention of stateless persons in a return context. This means that people can end up in a limbo situation at the end of an asylum procedure.

When it comes to preventing and limiting statelessness, we see some protective measures in Swedish citizenship legislation that are positive. In many cases, there are guarantees in the Citizenship Act to prevent statelessness from occurring. However, the provisions to protect or prevent children born in Sweden from being born stateless are not completely in line with the 1961 Convention. There are some flaws there that could still be addressed.

There are also challenges in relation to naturalisation. Acquiring Swedish citizenship has become more difficult, given the changes in the law in recent years, which has made it more difficult to obtain a permanent residence permit in Sweden.

Stateless Palestinians as asylum seekers belong to a special category and ENS has recently, together with Badil (Palestinian Resource Center)), produced an analysis of how different European countries treat Palestinian asylum seekers. What are your recommendations for improving that process?

Nina: We published a report in July together with the BADIL Resource Center for Palestinian Residency and Refugee Rights in Palestine, where we looked at jurisprudence regarding the protection of Palestinians, both under the 1951 Refugee Convention and the 1954 Convention in various European countries. I believe this is the first time this has been brought together in a report, so we hope it will be useful as a starting point for discussion and debate around this complex issue. Some of the main things that we have highlighted are that there are gaps in the legal protection framework for Palestinians. The United Nations Relief and Works Agency for Palestine (UNWRA) does not always offer adequate protection and durable solutions. States have very different attitudes towards recognizing Palestinians as stateless. We were very happy to work with BADIL on this project and it is important to recognize the complexity of identity and self-identification. We specifically looked at international law and the 1954 Convention’s definition of a stateless person and how it is applied in legal terms in various European contexts. We found many gaps and inconsistencies in jurisprudence on whether states consider Palestinians to be stateless. We found gaps in both domestic jurisprudence and in the jurisprudence and approach of the CJEU. In Belgium, for example, the courts apply different definitions. We really need more research, more education for policy makers, including the judiciary, and more guidance in general so that we can work together for a consistent and harmonized approach to the protection of Palestinians.

In the case of Palestinians, is there a connection between refugee status and a stateless person?

Julia: There are several cases that the EU Court of Justice (CJEU) has taken up regarding stateless persons, and many of them concern the issue of UNWRA protection in the region as there is no harmonized approach to how the definitions are used across Europe. The CJEU tried addressing this situation, but their rulings did not always follow the guidelines of UNHCR. However, we already saw this divergent interpretation when we looked at some national judgments and saw that they do not follow the reasoning of the EU Court of Justice. It is difficult to have specific recommendations in this regard, given that the position of the UNHCR and the position of the CJEU may differ in relation to the assessment of the protection provided by UNWRA. However, the Court applied a very useful approach in relation to specific safeguards to remedy this situation. So, our recommendation is to implement the binding judgments of the EU Court of Justice, but also to ensure that states not only comply with their obligations under EU law, but also their obligations under international law and in this regard continue to follow UNHCR’s recommendations.

A situation that several stateless persons, along with asylum seekers, can find themselves in is that their cases are rejected and that they are then kept in detention, even though it is known that the country of habitual residence does not accept them.

States say that if you try to return yourself, you should be able to return on a voluntary basis, and with that conclusion, the responsibility is placed solely on the individual to do something about the limbo situation they find themselves in. We have hundreds or possibly thousands of people in Sweden, stateless and non-stateless persons who have been here for many years and who, if they are adults without children, have no support and no right to work.

For example, Sweden says it is conducting negotiations with Kuwait to take stateless people back, and since this process is ongoing, Sweden does not use the law’s ability to grant people a temporary residence permit, which would at least give them the right to work and some other social rights. People’s lives just wither away year after year. We have people who have been in this situation, six, ten, twelve and sometimes fourteen years and nothing happens.

Nina: I think the situation you describe is common to many individuals in countries that do not have this statelessness determination procedure. This is one of the reasons why one of our core issues is to encourage more states to introduce dedicated procedures. The solution is to have a procedure in place that will grant stateless people their rights under the 1954 Convention. That is exactly what a statelessness determination procedure does, it identifies and determines that the person is stateless and provides them with a pathway to settlement, protection and ultimately naturalization to resolve their statelessness. Where these procedures are not in place, stateless people end up in these protracted situations that you describe. They have no other paths to regularization or opportunities for a residence permit. They end up in limbo, remaining vulnerable and subject to detention and failed deportation attempts, to countries that do not recognize them as citizens. The situation you describe, where states negotiate to return stateless people, is really problematic under international law, because the 1954 convention and international law state that in order for a stateless person to be returned, they must be guaranteed rights, and it is not enough just to have lived there before with certain rights or a right of residence. The norm is that they can only be returned to a country where they previously resided if they are to be covered by the same rights as the country’s citizens. That is a really high threshold and there are exceptions in international law that are well-established. It is disturbing to see this type of bilateral agreement being negotiated between states for the return of stateless persons to Kuwait. Stateless Bidoon, for example, face discrimination in Kuwait and are refused access to fundamental rights. In many countries they are granted refugee protection on this basis.

What are your thoughts, Julia?

Julia: For us, detention is a priority area in our strategic work, and of course we have seen many cases that contravene the law. There are a number of CJEU cases and quite a lot of the ECtHR caselaw, that underline that if there is no tangible prospect of removal, people cannot be kept in detention. In many situations, such detention would be unnecessary and disproportionate, so we try to bring in these aspects. Nina mentioned that the threshold is really high, and it depends on the specific situation the person is in. We also try to encourage less common arguments to be raised, for example the EU Charter’s provision on human dignity, relevant UN Treaties and not just focusing on the European Convention on Human Rights and the corresponding article under the EU Charter. For example, there was an important win in a statelessness case filed by the members of our Swiss ELENA network, the case MKH vs Switzerland. We also intervened in this case. The case concerned a removal to Bulgaria from Switzerland, but one of the main arguments was that it is not in the best interests of the child to be deported and the case also brought in the child’s right to nationality. There is quite significant case law regarding Article 8 of the European Convention on Human Rights (the right to family and private life) from the European Court that actually addresses the issue of the inability to be regularised for a certain period of time. We think the recommendation should be to stop the unlawful detention practices in all their forms and to remind that there is EU and international law and that the protection under these laws is quite extensive.

We see that the war in Ukraine has also affected a number of stateless persons. Do you think that the Directive on temporary protection (TPD) adequately addresses their needs?

Julia: I do not think that the directive is a good solution in this situation for a large number of stateless people, especially in a long-term. Obviously, it is a good, feasible and best option in a situation where international protection system fails or is overwhelmed in a specific country. Moreover, it may be a good temporary solution for countries that do not have procedures for statelessness. In this regard the TPD can actually help people to get status quite quickly, but it is quite a short-term status which may not be so good for stateless people. At the same time, the protection provided by the TPD for stateless people without permanent resident permits is optional, and not many states have offered this optional protection. I believe that the directive does not address the situation of stateless people well enough. It is a directive adopted in 2001 with a rather old rights-based approach, so some rights for beneficiaries are missing or are very basic.

Ukraine hosted a large number of Syrians and Palestinians, and there was a large population of former citizens of the Soviet Union living in Ukraine who did not or could not acquire the nationality after the Soviet Union collapsed. For the latter category the TPD would probably be the best option in case they had permanent residence in Ukraine, but for the other categories the directive is not the best option.

A large number of the Roma population in Ukraine are also at risk of becoming stateless due to undetermined nationality, lack of documentation, exposure to discrimination and lack of access to birth registration. 

ENS has taken a closer look at stateless people in Ukraine. What conclusions have you drawn based on the current situation?

Nina: I agree with what Julia has said. There are some positive aspects to the response that Europe has given to Ukrainians fleeing the war. It is important and we welcome it. At the same time, we see many gaps for other stateless groups in Ukraine when it comes to getting access to that protection, or access to any protection at all. Ukraine is a country that has a significant stateless population, one of the largest in Europe in terms of migration or refugees. Palestinians, Syrians and others actually make up a smaller percentage of the population affected by statelessness in Ukraine. The large population is of former citizens of the Soviet Union who never acquired any nationality after the collapse of the Soviet Union. A large number of the Roma population in Ukraine are also at risk of becoming stateless due to undetermined nationality, lack of documentation, exposure to discrimination and lack of access to birth registration. There are estimates that 8-10% of Roma in Ukraine are at risk of becoming stateless and thus unable to prove their ties to Ukraine, which is crucial for the purpose of the TPD. We also have tens of thousands of children born since 2014 in non-state-controlled areas of Crimea whose births have not been registered, and who cannot prove their links to any country, either to Ukraine or elsewhere. Those with undetermined nationality risk becoming stateless. Their first challenge is to flee the country and cross a border, but due to various checkpoints and obstacles on the Ukrainian side of the border, some people find it difficult to escape. If they do manage to leave the country, we have seen that they face significant barriers to accessing protection because the way in which the TPD is applied is so strict in many countries. Even the operational guidance published by the European Commission does not take full account of in situ stateless persons who have no ties to any country other than Ukraine. They are in a Catch 22 situation. We are trying to work with the European Commission and with states to ensure they are more flexible in their implementation of the directive, but also to ensure that people can access other forms of protection that are sustainable and that help them resolve their status. Now we see that people want to return to Ukraine, which is their home, but they cannot prove their connections to Ukraine.

Does this mean that if they want to return to Ukraine, they will not be allowed in by the Ukrainian authorities?

Nina: Exactly, and we have seen examples of that, especially when it comes to a minority group like the Roma. The basis for this is still anecdotal as the situation changes every day, but we are hearing of cases where people face barriers to return because they cannot cross borders within the EU. The borders are closed to these people and free onward transport has ceased. In other words, the challenge is to physically get back to Ukraine.

But isn’t it the case that Ukraine has a fairly enlightened procedure for determining statelessness, which has recently been implemented? Do you think it could be used to give them the right to return? Perhaps they could have their cases investigated from the country they are currently residing in and resolve the legal aspects from there to establish that they are stateless in Ukraine?

Nina: You are right, Ukraine has a new statelessness determination procedure with relatively good practice, although there are some challenges. It’s not perfect, but around 800 people had applied for protection as stateless persons in Ukraine before the war escalated. Only about 50 have received a decision. There are thus several hundred pending decisions. We have heard of a person in Germany who received a decision from the Ukrainian authorities granting them stateless status. We tried to cooperate with our colleagues in Germany to support that person to find a way to regularise his stay either in Germany, or to return if he wanted, but it is very complicated because statelessness status granted in one country is not necessarily recognised by another country.

Julia: I was in Ukraine a few weeks ago when we discussed these issues with lawyers in the ELENA network. We are not talking only about stateless people, we are also talking about Ukrainian citizens, without recognized documents. With regard to statelessness, the main issue concerns the granting of temporary protection under the TPD, not stateless status but a residence permit. The fact that you stayed as a stateless person in Ukraine does not mean that you would have a permanent residence permit issued in Ukraine.  This means that unless there is an extended scope for the TPD, you are excluded from the outset.

Nina, do you have any closing comments?

Nina: I would just like to say that one of the most important things we have to do is still to carefully discuss these issues and publish articles to raise awareness about statelessness in different contexts, how and when it can arise, and what the solutions are. It is good that this interview is published and that we are doing it together with ECRE. I also think it is very important to have different perspectives and to show how the subject relates to forced migration, but also to the rights of minorities, so that we build an awareness and understanding of how to address statelessness.

I would like to mention that we are about to launch a campaign at the end of October called ”Stateless Journeys”, which specifically aims to raise awareness about statelessness in the context of forced migration in Europe. We will share materials and campaign asks and try to build a coalition of organisations around Europe to make some noise about statelessness. The solutions are there! It is possible to fix statelessness. Hopefully, we can work together with many of your readers and with all of you to push for these solutions to be implemented.