Rottmann and Genovese: How will Europe’s nationality laws stand up to the scrutiny of its regional courts?

For such a core area of domestic law, that goes to the very heart of the question of who we are and who belongs within our community, it is somewhat surprising how often the rules relating to nationality are held up for review. Just in the past week or so, nationality policy has been in the news again in the Netherlands. The latest proposal centres upon an apparent desire to limit the incidence of dual nationality – i.e. to make it more difficult for people to hold both Dutch and a foreign citizenship simultaneously. The suggested legal reform would result in people automatically losing their Dutch nationality if they were to naturalise abroad, while would-be Dutch nationals will also be expected to forfeit their original citizenship once they have been approved for naturalisation. In itself, such a reform would not necessarily raise any difficulties in terms of the Netherlands’ international legal obligations with regard to nationality policy, since it neither looks to be discriminatory nor should it immediately lead to cases of statelessness. However the further tightening of naturalisation requirements that is also part of this reform proposal will inevitably make access to Dutch nationality more complicated, potentially also for vulnerable groups such as stateless people or refugees for whom facilitated access to naturalisation is of vital importance.

Moreover, the debate surrounding this newest proposal to amend the Dutch nationality act does not address an existing area of discrepancy between the law and the state’s international commitments. As pointed out by numerous actors, most recently in a December2011 UNHCR report, the Dutch nationality act requires a period of “lawful stay” for a child who is born stateless on Dutch territory to acquire citizenship under the requisite safeguard. This is not in conformity with the Netherlands’ obligations under the 1961 Convention on the Reduction of Statelessness, to which it has been a party since 1985. It is unfortunate that the latest debate on Dutch nationality rules concentrates on a fascination with dual nationality – a phenomenon that in reality has both pros and cons for the state, and is not currently a major international concern – rather than a desire to fully implement key international standards relating to the prevention and reduction of statelessness.

The foregoing is somewhat remarkable given that overall legal developments within Europe demonstrate increased scrutiny of domestic nationality policy, precisely with a view to combating statelessness and discrimination. There are, indeed, regional instruments dedicated specifically to steering states’ regulation of nationality in which these principles play a guiding role, including the innovative European Convention on Nationality adopted in 1997. Moreover, the development of jurisprudence by the European Court of Human Rights and the Court of Justice of the European Union and culminating, respectively, in the Genovese and Rottmann rulings demonstrate just how closely examined European states may expect their nationality policy to be in future. Each marks the culmination of developments over a 15-20 year period, during which the respective courts progress from a largely theoretical acknowledgement that they are empowered to scrutinise states’ nationality laws to an actual ruling on the lawfulness of a particular nationality policy. It would therefore seem wise for European governments, including that of the Netherlands, to take this into account if they are considering amendments to the nationality law and keep a keen eye on their international obligations in this field.

In Rottmann, the case centred on the question as to whether a decision to revoke citizenship acquired through fraudulent naturalisation raised problems under EU law, given that it would result in the concomitant loss of EU citizenship and indeed statelessness. The Court of Justice reasserted its position that regulating access to nationality was, in principle, a sovereign matter for each state, but that EU member states must have due regard for EU law when setting the conditions for the acquisition and loss of nationality. As such, it was possible for nationality issues to fall within the jurisdiction of the court and the potential loss of EU citizenship was enough reason for the court to proceed in assessing the legitimacy of such a decision in this case. The court decided that responding to fraud could be legitimate reason for withdrawing nationality, but that the decision to do so in an individual case must weigh the facts of the fraudulent act against the ultimate consequences of loss of citizenship. In other words, a proportionality test needs to be met, taking the person’s overall legal situation into account. Elsewhere in the Rottmann ruling, the court also ponders the question as to whether the influence of EU law – and the reach of the court’s own jurisdiction – also stretches to decisions relating to acquisition of nationality. The circumstances of the case allow the court to defer this question for the time being, but the wording of its assessment suggests that such matters could also be held up for scrutiny in the future. Thanks to the link to EU citizenship, it appears that there is now every scope for the Court of Justice to test EU states’ nationality policy against core EU principles such as proportionality and non-discrimination. Nor is the court afraid to seek further inspiration for its rulings in other areas of international law, such as the 1961 Convention on the Reduction of Statelessness and the European Convention on Nationality, both cited as part of the court’s assessment in the Rottmann case.

Similarly, the Genovese case illustrates how the European Court of Human Rights now deems questions relating to the regulation of nationality to be firmly within its jurisdiction, despite the absence of the right to a nationality in the European Convention on Human Rights. Here, the court determined that even though Malta had gone “beyond its obligations” under the European Convention on Human Rights in creating an entitlement to citizenship by descent within its law, this did not put the law itself beyond scrutiny and it must, as such, meet the non-discrimination test. Maltese legislation failed this test because it discriminated both on the basis of gender (different rights in terms of transmission of nationality to children for men and women) and on the basis of illegitimacy (different rights in terms of acquisition of nationality from a parent for children born in and out of wedlock). Central to the court’s assertion that the Maltese nationality law could be scrutinised in this manner was its recognition of citizenship as a part of a person’s social identity, thereby bringing this issue generally within the scope of the protection offered by article 8 of the European Convention on Human Rights as an element of private life. This broad statement on the meaning of nationality and the link to the European Convention on Human Rights will allow the court a wide margin in the exercise of its jurisdiction over questions of nationality policy in future – on top of which previous jurisprudence already indicated that other articles of the Convention could potentially also be invoked.

The clear recognition of the regulation of nationality as an area over which, given the right circumstances, jurisdiction can be exercised by both these two regional courts should make European states give more careful consideration to this area of policy in future. The inconsistency of Dutch nationality law with its obligations under the 1961 Convention on the Reduction of Statelessness is just one example of the many difficulties that can still be encountered in Europe. Across the region, there is evidence that legislative safeguards that should protect people from statelessness are being implemented inadequately – as seen, for instance, in the citizenship scandal in Denmark that hit the media in 2011. There are also other pockets of evidently discriminatory nationality law or practice, like that of Malta, which was found to violate the state’s obligations under the European Convention on Human Rights in Genovese. Again, Denmark can be cited here, but also Austria and several others. Following the Rottmann and Genovese rulings, there is increased scope for such policy to be brought to the attention of – and struck down by – Europe’s regional courts. So, as nationality law reform is contemplated by any European government in the coming years, this should be informed not only by changes in popular sentiment or notions of public interest, but also clearly guided by the state’s international commitments to the avoidance of statelessness and to a non-discriminatory nationality policy.

An article looking in detail at the Rottmann and Genovese rulings and their position among overall legal developments within the EU and Council of Europe with regards to the regulation of nationality by states has been submitted for publication in the European Journal of Migration and Law. If accepted, the piece will appear in a special edition of this Journal, featuring a series of reflections on the issue of statelessness.

Laura van Waas, Senior Researcher and Manager, Statelessness Programme

GUEST BLOG: Mapping Statelessness in the United Kingdom

For too long, the situation facing stateless people in the UK has been little understood.  In light of this in November 2011, and on the 50^th anniversary of the 1961 Convention on the Reduction of Statelessness, Asylum Aid and the UN Refugee Agency (UNHCR) published a joint research report Mapping Statelessness in the United Kingdom.

This year-long research was motivated by a desire to shed light on this hidden issue – basically to better understand the situation and to see what government could do to improve the way it treats stateless persons in the UK.  There were three main goals. Firstly to evaluate available data sources in order to map the number and profile of stateless persons in the UK. Secondly to gain an in-depth understanding of the situation faced by stateless persons by carrying out 37 semi-structured interviews in 10 cities across the UK. Thirdly to analyse national law, policy and practice in light of the UK’s international obligations.

It is to the UK’s credit that it is one of only 37 states that have ratified both the 1961 Convention on the Reduction of Statelessness and the 1954 Convention on the Status of Stateless Persons. Yet at the same time the report findings bring home the reality that ratification without proper implementation is not enough to adequately protect the rights of stateless persons. While British nationality law is generally effective at preventing statelessness among children born in the UK, there remains significant scope for improvement in the way the UK treats stateless migrants. Many of the key findings from the research relate to problems flowing from the fact that at present the UK does not have a dedicated or accessible statelessness determination procedure. This limits the ability of the UK authorities to identify which individuals are stateless in order to confer the rights owing to them under the 1954 Statelessness Convention and international human rights law.

We identified several key recommendations. Firstly the UK needs to reform its data management systems in order to more accurately record the size of the stateless population. Secondly improved guidance and training is required to enable decision-makers to better identify stateless persons who come into contact with immigration control. Thirdly the UK should follow the example of other European states by introducing a dedicated statelessness determination procedure. Fourthly this should be combined with a grant of lawful immigration status for those individuals recognised as stateless and who lack a right of residence in any other country.

Otherwise, and without any means to regularise their immigration status, stateless persons will continue to be left in limbo and at risk of destitution, arbitrary detention and other human rights infringements. Of the 37 persons interviewed for the research 12 had been detained and 28 had experienced destitution (11 of whom had spent periods sleeping rough on the streets). The vast majority had been compelled to claim asylum because that was the only route open to them but if refused found themselves left in a nightmarish legal limbo with no solution in sight. A robust statelessness determination procedure would not only reduce the risk of human rights infringements but would also help relieve pressure on an already over-stretched asylum system. Asylum Aid will be advocating that any new determination procedure should be based on forthcoming UNHCR Guidelines on the proper identification of statelessness.

As well as seeking to continue a constructive dialogue with the UK authorities about how to implement the report’s key recommendations, Asylum Aid will continue its awareness-raising and capacity-building work to help equip civil society organisations to better identify and respond to the needs of stateless persons. We will also continue to engage at the pan-European level, including through involvement with the European Network on Statelessness (ENS) bringing together non-governmental organisations, academic initiatives, and individual experts committed to address statelessness in Europe by conducting and supporting legal and policy, awareness-raising and capacity-building activities. The setting up of this network is testament to an increased understanding of the need for European governments and civil society to be better able to pick out stateless persons from their caseloads or populations of concern. The UK statelessness research, along with the recently published UNHCR mapping study in the Netherlands, also point to the critical importance of and provide a possible model for similar research in other European countries in order to raise awareness about this important but hidden issue.

Mapping Statelessness is, hopefully, the start if a much-needed conversation about statelessness in the UK and beyond – and one that concludes in a lasting and fair solution for those devastated by its effects.

Chris Nash, Asylum Aid

The full UNHCR/Asylum Aid report Mapping Statelessness in the United Kingdom is available at http://www.asylumaid.org.uk/data/files/publications/mapping_statelessness.pdf

For further information about the report or Asylum Aid’s work on statelessness contact Chris Nash at chrisn@asylumaid.org.uk

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

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

    

  

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