A commentary on the UNHCR Expert Meeting Conclusions 'Statelessness Determination Procedures and the Status of Stateless Persons'...
Better Later than Never!
The 50th anniversary of the 1961 UN Convention on the Reduction of Statelessness was marked by a UNHCR expert inquiry as to how we can actually determine who is stateless and who is not. It was high time to address this issue, since the lack of functioning determination procedures for statelessness is still the main stumble block in the access of stateless persons to the protection intended for them. Millions of people suffer hardships of exclusion from the domain of law due to their statelessness, or more specifically – due to their statelessness not being recognised as a legal status entitling them to a set of legal rights.
Even though the Expert Meeting Conclusions have little to do with the reduction of statelessness, but rather with another UN Convention – 1954 Convention Relating to the Status of Stateless Persons – which is is celebrating its unimpressive 57th birthday this year, let us not be picky. Any excuse is good to embark on this important and highly relevant issue of protection of stateless persons!
What Was Concluded?
The task of the expert meeting was not easy: to break 50 years of relative international silence on determination of statelessness and national implementation of protection mechanisms for stateless persons. Naturally, in the meanwhile different states went their own ways in dealing (or not dealing) with these issues. Some fused statelessness determination procedures with procedures for the recognition of refugees, some included it into procedures for acquiring a residence status, and for some determination of statelessness does not seem like a suitable solution to the problems of statelessness at all, but instead ways of recognising stateless persons as nationals are sought. Some regularly (attempt to) contact foreign governments to inquire about nationality statuses of individuals, while others have strong objections against such practice. Some see the recognition of statelessness as implying the right of residence, while others consider it acceptable under certain circumstances to require a stateless person to move back to the state of previous habitual residence. These and many other fascinating differences in practices and opinions are reflected in the Conclusions.
On some important points the Expert Meeting also seem to have found agreement. These were, among others:
- to train and educate national officials on the determination procedures available for stateless persons;
- to keep confidentiality when communicating with foreign governments about nationality statuses of individuals, to avoid endangering stateless persons who may have refugee-related concerns;
- to provide procedural guarantees in the statelessness determination procedures, such as remedies against rejection, availability of legal aid, establishing reasonable fees and suspending deportation orders until the final outcome of the determination procedure;
- not to place the entire burden of proof on the individual in establishing his or her statelessness.
In addition to discussing how can an individual be identified as stateless, the Expert Meeting touched upon certain relevant issues of protection, especially those that have not been made explicit in the 1954 Convention, such as legal immigration status of stateless persons, their right of residence, and the relation between the protection of refugees and of stateless persons.
Even though the Expert Meeting did not bind any government with legal obligations to enhance their determination procedures for stateless persons, the value of its Conclusions should not be underestimated. It finally drew international attention to one of the major challenges on the way to protecting stateless populations, it identified the points of consensus as well as disagreements, but most importantly, it gave a strong tool for national policy-makers, lobby groups and activist organisations to promote structural changes related to the status of stateless persons.
The year of 2011 was not only marked by this Expert Meeting, as far as the attention to the problem of statelessness is concerned. The UNHCR has commissioned several nation-wide studies on statelessness in Europe, and there is a clear increase in the academic interest on the issue. Hopefully this “anniversary push” will stimulate the long-overdue formalisation and effective implementation of the protection of stateless persons within national jurisdictions. The transformation of statelessness from legal anomaly into a well-functioning legal status has thus clearly been defined as a goal, and hopefully we will witness changes to that end before another 50 years of the existence of UN Conventions on Statelessness have elapsed.
Katja Swider, Researcher/Advisor, Statelessness Programme
The full text of the Conclusions can be found here: http://www.unhcr.org/refworld/docid/4d9022762.html