Saturday, 31 May 2014

Act now and help protect stateless people across Europe

When meeting a stateless person what is often so very striking is their understandable bewilderment about the situation they have been unlucky enough to find themselves in, and a corresponding desperate desire on their part to establish an identity and to enjoy the sort of normal daily life that most of us take for granted.

This same sense of frustration and longing jumps out from testimonies gathered by the European Network on Statelessness as part of its campaign to protect stateless persons in Europe. Launched last October, this will culminate with a coordinated day of action on 14 October, and several ENS members are already planning actions or events in support of the campaign. The stories launched today, along with an online petition (available in 9 languages) calling on Europe’s leaders to take action, are intended to give stateless persons a voice and to try to help uncover at least a little of their invisibility. The six stories offer only a snapshot of the typical problems faced by stateless people across Europe today but hopefully will help serve as a wake-up call for governments to put in place the relatively simple reforms that would provide a much-needed solution.

Take Isa, stateless in Serbia, and who feels different a “million times” because of his lack of citizenship or any identity documents. Or Sarah, stuck in limbo in the Netherlands, who explains “I live day by day, not knowing what the future will bring”. Or Luka, who despite having lived in Slovakia for over 20 years, is unable to work or even officially to be recognized as the father of the child he has with his partner, a Slovak national. In many respects even more alarming is the fact that both Luka and Roman, another stateless person stuck in limbo in Slovakia, have lost their personal liberty for no other reason than that they are unlucky enough to be stateless. Roman describes having been detained on 6 to 7 occasions while Luka once spent 14 months in an immigration detention centre.

But as I learnt when invited to speak at a statelessness roundtable organised by UNHCR in Bratislava last week, Slovakian legislation actually already provides a discretionary power to regularise stateless persons but unfortunately lacks any form of dedicated determination procedure to enable officials to reliably identify stateless persons on its territory. But it would be unfair to single out Slovakia in this regard as the regrettable fact is that most European states still lack such basic procedures which are urgently necessary if these countries are to honour the obligations they signed up to when ratifying the 1954 Statelessness Convention. So except for a few states that have yet even to take the first step of acceding to the Convention (including Cyprus, Estonia, Malta and Poland) the problem really is one of implementation.  In this regard, last December ENS published its good practice guide on statelessness determination, intended as a tool for states considering introducing these essential dedicated procedures.

Obviously the stories described above are just a glimpse of the human impact of statelessness but they echo recent more detailed research undertaken, including through UNHCR mapping studies in Belgium and the Netherlands. This research confirms that the absence of a route by which stateless persons can regularise their status leaves these individuals at risk of a range of human rights abuses. Many stateless persons find themselves destitute or forced to sleep rough on the streets. Others are subjected to long term immigration detention despite there being no prospect of return. Few are in a position to break this cycle, and as a consequence are left in legal limbo for years.

We are asking you and others concerned about statelessness in Europe to sign the following online petition:

To European leaders,

Around 600,000 stateless persons live in Europe today, including many migrants stuck in perpetual limbo. They urgently require our protection. We ask that:

1) All European states accede to the 1954 Statelessness Convention by the end 2014.

2) All European states without a functioning statelessness determination procedure make a clear commitment during 2014 to take necessary steps to introduce one by the end 2016.

Act now by signing and sharing this petition with your contacts!

With your support we can bring Europe’s legal ghosts out of the shadows and ensure that stateless persons are treated with the respect and dignity which has been lacking.

Thank you!

By Chris Nash, Coordinator of the European Network on Statelessness

This blog first appeared on the European Network on Statelessness website at

Thursday, 22 May 2014

Guest Post: A question of ‘if’ and ‘when’

Farid is in UK immigration detention pending deportation. He has an Iranian passport that has expired. One month into his detention, he attempts to contact his country’s consular authorities to facilitate his removal, they do not respond. Two months in, he tries again. They fail to respond again. Meanwhile, the UK Home Office has also been trying to get Iran to accept Farid, but to no avail. Three months into his detention, they continue to ignore his efforts.
Is Farid stateless?
This pattern of approach, indifference and rejection continues for four, five, six, seven, eight, nine, ten, eleven, twelve, thirteen, fourteen, fifteen, sixteen, seventeen months. For seventeen months Farid languishes in immigration detention because his country will not have him back, will not even respond to his many pleas; but also because the country he now lives in, thinks it ok to deprive him of his liberty for no good reason other than its inability to deport him.
Is Farid stateless?
Ultimately, Farid is released on bail. But he is not allowed to work, he is destined to a life of destitution, forced into criminality, rearrested, subjected to removal proceedings again.
He feels betrayed, let down and humiliated by the only two countries he knows. They both have denied him. They both don’t want anything to do with him. His expired Iranian passport and UK residence permit are not worth the paper they were printed on.
Is Farid stateless?
Farid is a figment of my imagination but he is also all too real; his story is shared by far too many people whose lives have wasted away amidst the physical imprisonment of detention cells and the mental imprisonment of helplessness, frustration, desperation, and that ever nagging question; “what if?” What if my country accepted me? What if this country respected my rights? What if I never overstayed? What if it all didn’t end up this way?
Immigration detention – such a cruel and inhumane practice – offers unique insight into the human impact of statelessness. Nothing better highlights the farcical but tragic failure of any system, than people being forcibly deprived of their liberty for indefinite time periods while futile efforts are made to remove them to countries that will not have them. The immense cost borne by the individual as life, freedom, ambition, relationships, belonging, love, dignity and sanity are eroded for no good reason, is the ultimate cost of statelessness. It is the cost of the failure of states to protect the stateless.
But to go back to the question, is Farid stateless?
Any serious attempt to answer this question takes us onto uncertain territory. That grey area where the line between statelessness and non-statelessness is not straight and sharp; but a blur, a sequence of dots that don’t follow each other, a smudge on a damp paper.
UNHCR’s guidelines on the definition of statelessness establish that the question of whether a person is stateless is one of both fact and law:
“Where the competent authorities treat an individual as a non-national even though he or she would appear to meet the criteria for automatic acquisition of nationality under the operation of a country’s laws, it is their position rather than the letter of the law that is determinative in concluding that a State does not consider such an individual as a national.”
In Farid’s case therefore, the question is both whether according to the law of Iran, he should be considered to be a national and whether according to the implementation this law, he actually is considered to be a national. Let us assume that being a (now expired) passport holder and having exercised his right to Iranian nationality in the past, the letter of the law deems him to be a national and was accordingly applied in the past. If so, the next question to be asked is, could the Iranian authorities arbitrarily cease to treat him as a national – not through a dramatic proclamation but through subtle indifference - and if so, does that make stateless?
The evidence available to assess if he has a nationality or not is his expired documentation and the failed attempts to communicate with and seek consular assistance from the Iranian authorities. With regard to the latter, the UNHCR guidelines state that:
“In some cases an individual or a State may seek clarification of that individual’s nationality status with competent authorities… Such enquiries may be met either with silence or a refusal to respond from the competent authority. Conclusions regarding a lack of response should only be drawn after a reasonable period of time. If a competent authority has a general policy of never replying to such requests, no inference can be drawn from this failure to respond based on the non-response alone. Conversely, when a State routinely responds to such queries, a lack of response will generally provide strong confirmation that the individual is not a national.” (Emphasis mine.)
What is meant by a “reasonable period of time” is not further elaborated on. However, there is a clue in UNHCR’s second set of guidelines on identifying stateless persons, according to which:
“In general, it is undesirable for a first instance decision to be issued more than six months from the submission of an application as this prolongs the period spent by an applicant in an insecure position. However, in exceptional circumstances it may be appropriate to allow the proceedings to last up to 12 months to provide time for enquiries regarding the individual’s nationality status to be pursued with another State, where it is likely that a substantive response will be forthcoming in that period.”
The implication is that six months is a reasonable period of time within which to decide if a person is stateless or not, and that this can be extended to a maximum of one year, if it is likely to result in a substantive response.
However, closer study of these two quotes from UNHCR guidelines reveals that they are not necessarily in sync. The first says that if a state as a matter of practice never responds to such queries, the failure to respond should not be construed as evidence of statelessness; whereas the second says that the process of identification of statelessness should happen within a six month period, extendable to one year only if this is likely to result in a substantive response from the state being asked. The contradiction here is that the first set of guidelines caution against jumping to any hasty conclusions based on the habitual non-responsiveness of states, whereas the second only allow for the recommended six month timeframe to be extended if the state being asked is likely to be responsive (i.e. is not a habitually non-responsive state).
If the first set of guidelines only were to be applied to Farid, the result would be that Iran’s failing would not in itself be seen as evidence of his statelessness as it is common practice for Iran to not cooperate with such requests. If the second set of guidelines were applied, the result would be that a decision on Farid’s status would have to be taken within six months, as any extension is unlikely to increase the likelihood of cooperation and result in a substantive response. And when both sets of guidelines are applied, the decision would be taken in six months, and it would be that there isn’t sufficient evidence to establish whether he is stateless or not – i.e. it would be a non-decision. This places Farid right back in a situation of limbo, the “insecure position” cautioned against in the second set of guidelines. It increases his vulnerability and erodes his human rights protection. It is a grey area that is academically challenging, but humanly devastating.
It must be acknowledged that Farid’s case is set in the context of removal – Iran was not asked if he was considered to be a national or not. Rather, based on the UK’s assumption that he was an Iranian national, Iran was asked to facilitate his removal to Iran. But as he is my creation, let’s reinvent him as someone applying for recognition as a stateless person under the now one year old UK statelessness determination procedure. If under this process, Iran refused to answer questions about Farid’s nationality for 17 months, should he be considered stateless after 6 months, 12 months or never? And if he is considered stateless after 6 or 12 months, is the point of recognition, the point at which he becomes stateless, or is it the point at which his pre-existing state of statelessness was finally accepted? This question is an important one, because in a situation like Farid’s the very act of questioning whether he has a nationality or not, may be the trigger for a country to arbitrarily deny him of his nationality. By being asked if Farid is considered to be an Iranian citizen, the opportunity is provided for the country to say he is not or to refuse to cooperate until it is only rational to conclude that he is not. In such a situation, the more time a country is given to continue denying, perhaps in the hope that it would accept responsibility for its own, the longer the period of insecurity and limbo for the individual concerned.
This is perhaps an impossible problem to get around. A Dworkinian hard case. However, it emphasises the need to always protect – regardless of status – be it as a person with nationality, a stateless person, a soon to be stateless person or someone whose status is yet to be determined. This is why I initially set Farid in the detention context – a setting that is prone to so much abuse; a setting in which it is so crucial to identify the stateless and those in a statelessness like situation; and a setting in which the non-cooperation of states is a challenge that must be addressed in a way that does not penalise the individual.
Amal DeChickera, Head of Statelessness and Nationality Projects at the Equal Rights Trust. 
PLEASE NOTE - This blog originally appeared on the website of the European Network on Statelessness, here: 

Tuesday, 13 May 2014

Life is Waiting…

Remember the predicaments of Tom Hanks’ character Viktor Navorski in The Terminal? After a coup in his East European country Krakozhia, Navorski wasn’t allowed to arrive or depart JFK airport until his formal status had been determined, and meanwhile was to remain stationary, unable to participate in society, in the comparable legal quagmire of a stateless person in no man’s land.

The real story is happening with Igor Skrijevski (51) and Galina Skrijevskaia (49), who fled to the United States from what was in 1990 still the Soviet Union. Lawful stay in the US was eventually denied, but meanwhile the USSR they left behind ceased to exist and the couple proved unable to be deported back to this country that had now disappeared. An uphill struggle with bureaucracy for recognition and admittance followed, ultimately continuing to this day from that ill-defined legal space in between countries where stateless persons are relegated to. They’ve been passing time in waiting rooms like airports, holding cells, and asylum centres; the non-places where non-persons often end up. After being sent to Ukraine, which in its turn tried to return them, they became stranded in the Netherlands. Sitting in waiting, now nearly eight years ‘delayed’.

The legal perspective

Regardless of possibly violated US obligations (e.g. under the HRC’s understanding of a person’s right to enter his ‘own country’ under Article 12(4) ICCPR), the pertinent question is what the country where the Skrijevskis currently are ought to do with them. This question became most pressing after the Netherlands rejected their asylum claims and moved to expel them under the EU-Ukraine readmission agreement – a move which the highest Dutch appeals court for such decisions found unobjectionable.

One expects to find answers in the 1954 Convention which aims to protect stateless people. While it does offer the Skrijevskis some important rights as administrative assistance and identity papers, many are conditional upon lawful stay, such as access to the labour market, social security, travel documents, and protection from expulsion. Yet at the moment there is no obligation to grant lawful stay. Although implementation of a determination procedure would briefly help (see paragraph 20, UNHCR Guideline #2), without a corresponding right of residence for verified stateless persons little would improve. The UNHCR therefore recommends a (temporary) residence permit as good practice – echoed by the UN Secretary-General – unless protection is realistically available elsewhere or when statelessness results from voluntary renunciation as a matter of convenience or choice (Guideline #3). These two exceptions could be called the ‘alternative’ and ‘unwilling’ obstacles to residency. In the first exception a transitory arrangement is appropriate, in the second involuntary return would not be ruled out. However, the UNHCR narrowly interprets voluntary renunciation and distinguishes this from the ‘loss of nationality through failure to comply with formalities, including where the individual is aware of the relevant requirements and still chooses to ignore them’ (paragraph 44 and accompanying footnote, Guideline #1). By the many references to the couple’s personal responsibility and their uncooperativeness in obtaining Ukrainian nationality, choosing to give up a nationality or choosing to refuse one, passively or actively, might be the same in the eyes of the Netherlands (or the UK, cf. Al-Jedda). Both exceptions would then apply. In their defence, after almost sixteen years of working and living in New York they understandably feel American. Their business and social life is there. They also connect Ukraine with the place they fled from persecutions. Lastly, it’s conceivable that they’ve been advised to remain stateless in order to increase their chances of gaining readmission to the US.

The Skrijevkis expose an uncomfortable challenge in addressing statelessness. Can people choose to become or remain unnecessarily stateless, and if so, are States justified in attaching the consequence of withholding certain rights? Does the right to have a nationality mean there’s no obligation to have one, just like the right to health doesn’t mean one can’t choose to live unhealthy? Here is not the place to go into this in detail, but in short I think the answer to the last question should be no. The reasoning in Pretty v UK can be applied whereby the right to life emphasises a State’s obligation to protect it, rather than an individual’s discretion to reject it – the same could be true for nationality.

A short comment is warranted on other possible obligations aside from those under the Statelessness Conventions. In DCI v the Netherlands, the European Committee of Social Rights held that foreign children are entitled to certain rights under the Revised European Social Charter, whatever their residence status, hence despite the exclusion clause in the Appendix, paragraph 1 to such effect. In CEC v the Netherlands, the right to food, clothing and shelter are now being invoked for undocumented adults. If the claim is upheld, it could bring such rights into reach for stateless persons. Although they receive separate treatment in paragraph 3, excluding them when the lawful residence requirement would be waived for aliens is hardly tenable in light of the 1954 Convention’s core principle, codified in Article 7, which prohibits treating stateless persons worse than foreigners who do possess a nationality. Especially when the second requirement of belonging to contracting Parties is also ignored, perhaps because of the progressive insight that fundamental human rights shouldn’t be based on reciprocity. Whether stateless persons could benefit from the Charter remains to be seen though.

Finally, an important question remains as to what sort of protection the ECHR obliges States to provide. In this regard, a potentially important case now pending is Dabetić v Italy. Dabetić became stateless after Yugoslavia dissolved and his nationality was ‘erased’. His complaint was previously declared inadmissible in Kurić v Slovenia for not exhausting domestic remedies, because in the Court’s view he had failed to express any wish to reside in Slovenia. His presumed unwillingness to obtain a solution elsewhere makes the case nearly identical to the Skrijevskis. If the Court will find Italy in breach of (any of) Articles 6, 8, 13 and 14 ECHR, by withholding statelessness status, a (temporary) residency permit and the more favourable treatment provided to refugees, it will have significant consequences for Dutch obligations. It will be interesting whether the Court could clear the ‘alternative’ and ‘unwilling’ obstacles through independent operation of ECHR standards.

Address unknown

In 2011, a Dutch television programme organised a protest at the Skrijevskis’ behest at the US embassy in The Hague. While the reporter saw his ambitions and patience run into a bureaucratic wall, Igor and Galina stood by carrying signs with ‘return to sender’. Standing in waiting, with quiet accusation in their defeated looks. Igor and Galina are among more than ten million persons frequently treated by States as undeliverable parcels, attempted to be sent back and forth. A solution to statelessness requires political will, but above all prevention by sound nationality laws. Drawing attention to the issue and talking about stateless persons is a way to help, to grant them recognition and to make them more visible.

Martijn Keeman, Statelessness Programme Research Clinic participant 2013-2014