Tuesday, 24 January 2012

Stateless and detained in the Netherlands

On December 16, the UNHCR brought out a report on statelessness in relation to the Netherlands. Reading it, it is quickly apparent that much improvement is needed in the interest of effectively addressing statelessness in this country and the report indeed makes a number of valid recommendations. What struck me most about the findings of the study however, are the often degrading and inhumane conditions that stateless people who find themselves here may be faced with. In particular the lack of a specific procedure to determine statelessness contributes to this situation. The result is that many stateless people have nowhere to go after being through every procedure possible. In many cases, according to the report, these people end up in illegal detention.

If a stateless person is not able to prove that his/her stay in the Netherlands is legal, this person can be detained. The detention is a vicious circle: detention, no prospect of deportation, with a release command to leave the country, arrest and potential declaration of undesirability for illegal presence, again detention. Before 2010, when the EU Return Directive took effect, there was not even a legal restriction on the maximum duration of detention. Despite the Directive, today it is still possible to continue the detention for up to 18 months. Arguments for this are often that "the third country national concerned does not cooperate," or that "the necessary documentation from third countries has been delayed.

Of the 24 interviewees in the report, 20 have gone through this disturbing process. They describe the detention conditions heavier than or similar to criminal detention. The idea of not having an outlook on deportation or knowledge of the length of detention causes psychological disturbance. Even when one is released, the anxiety becomes so great that the person does not dare to leave the shelter or the house. As an identification requirement exists since 2004 – meaning that everyone is expected to carry an official form of identification and proof of legal status with them at all times - further discouraging people from leaving the house, because the risk is greater to be detained again.

The issue is if a stateless person is not regarded as stateless he/she cannot effectuate the rights preserved in the 1954 Convention. A stateless person has great difficulty in proving his/her status as a stateless person due to several factors. An IND document that indicates citizenship may not be accepted as valid, or the state where the person comes from does not provide assistance in the clarification of nationality. The Dutch state also does not provide the necessary help, creating a tunnel without light for the stateless person.

In the Netherlands there is not a particular procedure that determines statelessness. Because of the lack of a procedure like this stateless individuals are always placed in the wrong corner.  A frequently made mistake is that stateless persons are put in the category of "unknown nationality”. Only after it becomes clear of what nationality the person is, their status is modified. But the burden to prove the nationality – or indeed statelessness - is entirely on the shoulders of the stateless individual. At present, the no-fault procedure offers a solution for some by recognising them as “non-removable”. While doing this you can claim a residence permit, it is no substitute for a statelessness determination procedure because it does not formally recognize stateless people as stateless. It is only a temporary solution, because the state cannot remove people who have nowhere to go, plus the procedure has a high burden of proof that can be very difficult for people to satisfy.

The absence of a legal process to determine statelessness creates degrading and inhumane conditions. To prevent more people ending up in a hopeless situation with psychological problems, to which the current Dutch government policy contributes, it is important to intensify measures to protect stateless persons. At the very least, a temporary residence permit could offer a solution until a statelessness determination procedure has been completed. In this way, at least the waiting will go by in acceptable humanitarian circumstances.    

Moshgan Wahedi, Intern, Statelessness Programme

Thursday, 19 January 2012

Ukraine: time to accede

Being a citizen of Ukraine and currently working as an intern for the Statelessness Programme at Tilburg University, I got very interested in the status of stateless people in Ukraine,- where, according to UNHCR statistics, over 40,000 people were affected by statelessness at the end of 2010. I decided to take a closer look at the national legislation which regulates this issue and this is what I have learnt.

A new law of Ukraine on the legal status of foreigners and stateless persons was adopted on the 22nd of September 2011 and entered into force on the 25th of December 2011. Although some lawyers and academics had hoped the new law to change the situation of the stateless people in Ukraine, it has not undergone any major substantive changes to the former one of 1994. However, a new point in the law of 2011, for example, has been introduced by Article 1 (21): “Certificate of a stateless person for travel abroad - a document that identifies the stateless person when crossing the state border of Ukraine and staying abroad”. This Article is linked to another one, Article 19, which stipulates that stateless persons residing in the territory of Ukraine without a permanent travel document receive an ID of a stateless person for travel abroad, which is a document that identifies the stateless person when crossing the state border of Ukraine and staying abroad. Apart from this, the general picture of the mentioned law of 1994 has been preserved.

The new law mainly covers the issues of entry, stay and exit from Ukraine for foreigners and stateless people. The law does not include specific provisions on the fundamental rights and freedoms, nor the duties of the aforementioned categories of people. It does, however, state that foreigners and stateless people, who stay in Ukraine on a valid legal basis, are entitled to the same rights and freedoms, as well as bear the same duties, as the citizens of Ukraine, subject to provisions of the Constitution of Ukraine, as well as national laws and international agreements.

Another negative feature of the new law is that currently, statelessness affects several groups of people already physically residing in Ukraine. Among them, the biggest one is the Crimean Tatars, most of whom live in the Crimean peninsula in the South of the country; but also people from former Soviet Union, such as Uzbekistan, Tajikistan, Kyrgyzstan, Armenia and others. So, while the law is mainly aimed at people who come from the outside and try to enter Ukraine, all of these people live within the territory of the country and their status is therefore left unchanged.

Nevertheless, this law as well as the previous one of 1994 has also shown us its positive tendencies. Thus, Article 1 (15) of the law provides that “a stateless person is a person that under applicable law is not recognized as a citizen by any of the state”. Despite not being a party to either of the two main Conventions on statelessness: Convention relating to the status of stateless persons 1954 and Convention on the reduction of statelessness 1961, the drafters of the new law decided to integrate the international definition of a stateless person from the Convention 1954, which although slightly differently formulated, still conveys the same message as in the Convention relating to the status of stateless people 1954.

With such good policy in place, there are still some points that should be improved by the Ukrainian legislator. In particular, I believe that the two groups who are the beneficiaries of this law, namely the foreigners and stateless people, are too different in order for the same rules to apply to them. And most of the provisions of this law come as a “package deal” regulating the status of the two groups in the same manner. I think that the law should be divided into two separate parts, one explicitly dealing with foreigners, and another one, - with stateless people. This would give a clear picture on how to apply it correctly to two different groups and in different realities that foreigners and stateless people face.

Moreover, what this law truly lacks is a specific statelessness determination procedure, which would help to identify and protect stateless people in Ukraine. This is, however, a problem in many other countries throughout the world and probably one of the hardest to achieve. That is why Ukraine should become a party to both aforementioned Conventions and implement the provisions of those documents. And, despite the fact that, at the UNHCR Ministerial meeting in Geneva which took place on December 7-8, 2011, the representative of Ukrainian government mentioned that Ukraine is regarding the possibility of acceding to the Statelessness Conventions, this promise was formulated in comparatively vague terms while other countries offered a concrete and actionable pledge to accede to the Conventions in the near future.

With the new law in place, it is high time for the Ukrainian government to prove its statement made at the UNHCR Ministerial meeting last December and accede to the two major Conventions on statelessness. There is no better moment than now, especially taking into consideration the introduction of an ID of a stateless person for travel abroad for those stateless people who reside in Ukraine and do not have a permanent travel document in Article 19 of the new law 2011. Such travel document is an indirect recognition of a stateless person and thus implies a need for the further development of the appropriate legal basis. Thus, Ukraine should accede to the two Conventions on statelessness to be able to secure the implementation of its new law.

Valeriia Cherednichenko, Intern, Statelessness Programme


Friday, 13 January 2012

Looking back on 2011, an historic year for statelessness

As 2011 drew to a close, it was clear to anyone working in the field of statelessness that it had been an historic year. This was, of course, the year in which the Statelessness Programme was established, but more importantly it was a year of simply unprecedented interest in the problem of statelessness worldwide. There were two particular highlights that it is worth recalling now for the purposes of posterity. The first was the media campaign spearheaded by UNHCR in August which caused a brief but important flurry of interest in the issue from many mainstream news outlets and papers - listen here, for instance, to a BBC interview about statelessness with High Commissioner Antonio Guterres. The second undeniable highlight was the much-anticipated Interministerial meeting, convened by UNHCR, which would be a make-or-break moment in a lengthy campaign for action and pledges by states to more effectively address statelessness. While the event dealt with all of the issues under UNHCR's mandate, even before the closing address by the High Commissioner, it was clear that statelessness had stolen the limelight. To date the area of work to receive the least attention in most fora, statelessness succeeded in attracting several dozen state pledges and was a significant focus of a number of key speeches, including that of US Secretary of State Hillary Clinton. Suddenly, the small but extremely dedicated team of statelessness experts became celebrities in the corridors of UNHCR's headquarters and the recipients of many warm words of congratulations. The meeting was summed up as a "breakthrough for statelessness", as illustrated in a great little video posted shortly thereafter on UNHCR's website.

Although somewhat overshadowed by reports of the achievements of the Interministerial meeting, another late-2011 development should not be neglected: the release of the first two in-depth studies of statelessness in countries of Western Europe. For us at the Statelessness Programme and for the also newly established in 2011 European Network on Statelessness, these reports provide invaluable amunition in the fight to get statelessness on the public and political agenda in a number of countries were the issue is a major concern. The first study released was that developed by Asylum Aid in cooperation with UNHCR about statelessness in the United Kingdom. It uncovered real difficulties in the statistical reporting on statelessness and indeed the identification of individual cases with a view to ensuring the protection of rights. The second report looked at the situation of statelessness in the Netherlands, drawing similar conclusions about the dire consequences of the lack of a procedure to establish a person's statelessness status. Both studies point to a worrying cycle of detention and destitution for stateless people, a trend that clearly underlines the urgency of taking steps forward to implement the reports' recommendations.

So, while 2011 was certainly an historic year for statelessness, it must be seen as the beginning, rather than the end of the story. 2011 witnessed the setting of a critical agenda for action and we must now seize on the momentum that has been gathered and the apetites that have been whetted for this issue. At the Statelessness Programme, we already have big plans for 2012, inspired in part by some of the past year's developments. This spring, we'll be doing a little research of our own into some of the areas flagged in UNHCR's report about statelessness in the Netherlands - after all, this is the country which plays host to our programme. We'll also be throwing our energy into a host of training activities, targeting all sorts of different stakeholders, from students to legal practitioners. Application are now, for instance, being received for our Statelessness Summer Course, organised in cooperation with Open Society Justice Initiative in July 2012. Keep an eye open throughout the year for more news on our site and for updates on the work of the European Network on Statelessness (http://www.statelessness.eu/, full website to be launched at this address in the spring).

Laura van Waas, Senior Researcher and Manager, Statelessness Programme