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

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