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 http://www.statelessness.eu/blog/act-now-and-help-protect-stateless-people-across-europe

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

ENS launches Good Practices Guide on Statelessness Determination and Protection to Mark International Human Rights Day

The European Network on Statelessness (ENS) celebrated International Human Rights Day yesterday, by launching its inaugural publication “Statelessness Determination and the Protection Status of Stateless Persons: a Summary Guide of Good Practices and Factors to Consider when Designing National Determination and Protection Mechanisms”. Stateless people are a particularly vulnerable group when it comes to the ability to exercise human rights, and determination procedures are key to their effective protection in a migratory context. This ENS guide serves as a tool for civil society advocates lobbying for and states considering the establishment of domestic statelessness determination procedures and protection mechanisms.

On this the 20th anniversary year of the establishment of the mandate of the High Commissioner for Human Rights, International Human Rights Day has been themed “20 Years: Working for Your Rights”, but with an emphasis on the future and challenges that lie ahead. The task of looking back over 20 years of endeavour and achievement in the human rights field and drawing on this foundation to plan for future challenges resonates strongly with statelessness as an issue, the development of ENS and its recently launched campaign to improve protection for stateless persons in Europe. The publication of the good practices guide is a key component of one of the campaign’s two primary objectives, namely that all European states take steps to introduce statelessness determination procedures.

Twenty years ago, statelessness was a well hidden and poorly understood issue. As the High Commissioner for Refugees (UNHCR) began to actively explore its statelessness mandate and as academics and NGOs began to grapple with the issue, our collective understanding of the extent of statelessness and its human impact evolved, enabling us to respond more effectively to the challenge of statelessness. Over these past 20 years, statelessness has ceased to be perceived purely as a complex legal anomaly and been re-characterised as fundamentally a human rights issue that must be addressed through both the human rights framework and international statelessness mechanisms. This joined up thinking as well as efforts to understand the impact of statelessness on related fields such as development, healthcare, economics, humanitarian aid and security (to name but a few) has the potential to greatly strengthen the statelessness movement, and to draw in new and important allies from other disciplines. The growth of expertise and interest in statelessness over the past two decades is well reflected in the ENS story, which germinated as an idea in 2010, evolved into an informal discussion between a few organisations in 2011 and today is a fully functional civil society network with over 50 member organisations in more than 30 European countries. 

The identification of stateless persons is an important process, necessary to ensure compliance both with the 1954 Convention Relating to the Status of Stateless Persons and with international human rights law. The state obligation to not discriminate against stateless persons, for example, can only be fully complied with if states know who the stateless are among their populations. The failure to implement fair, accessible, non-discriminatory and non-arbitrary determination procedures that comply with substantive and procedural standards under international law would result in people not being appropriately identified as stateless and consequently being denied the human rights protection they are entitled to.

Twenty years ago, only two countries (France and Italy) had procedures in place to identify and protect the stateless. Today, there are twelve such states, with several others having made pledges in this regard. The ENS Guide looks at these twelve states, at UNHCR and expert guidance and at international law, to tease out good practices that states about to implement new procedures should consider adapting and replicating. Consequently, it is an exercise in the discipline of looking back in order to plan for the future – which goes to the very core of the theme of this year’s celebration.

Looking forward to the next few years of the human rights journey, ENS remains committed to addressing statelessness in Europe and globally. The identification of stateless persons is a crucial first step towards protection, and ENS hopes this Guide will contribute to the growing human rights movement to protect the stateless and end statelessness in the future.

 The ENS Good Practice Guide is available on the ENS website at  http://www.statelessness.eu/resources/ens-good-practice-guide-statelessness-determination-and-protection-status-stateless  and a print copy can be requested by emailing ENS Coordinator Chris Nash at info@statelessness.eu

[This blog originally appeared on 10 December 2013 on the website of the European Network on Statelessness, www.statelessness.eu] 

A time for action - ENS launches campaign to protect stateless persons in Europe

As a founding member and active participant of the European Network on Statelessness, we at the Statelessness Programme are proud to be a part of the first Europe-wide civil society campaign for the protection of stateless people in Europe. Below is the blog by ENS coordinator Chris Nash, explaining the aims of this campaign [first posted on the website of ENS here].

Since its launch in June last year the European Network on Statelessness (ENS) has attracted  50 new member organisations in over 30 European countries. Encouraged by the diversity of its membership base and keen to build on recent momentum with regard to global efforts to tackle statelessness, ENS today launches a year-long campaign seeking to improve protection for stateless persons in Europe.

A public statement launching the campaign is available here and is intended to be circulated as widely as possible to help spread awareness about the campaign and what we hope to achieve.

Previous ENS blogs have reported on the impressive strides made with regard to ratification of the two UN Statelessness Conventions – for an up to date progress report by UNHCR see here. At the regional level two striking features stand out. The first is the critical agenda for concerted action provided by the European Union in October 2012 when it pledged that all its Member States not already having done so (that’s Estonia, Cyprus, Malta and Poland) would accede to the 1954 Statelessness Convention – the international instrument setting out obligations owing to stateless persons on a State Party’s territory. The second is that despite this near universal ratification, relatively so few states have in place dedicated statelessness determination procedures which are a prerequisite for them to fulfil their obligations towards stateless persons in practice (those EU states with provisions in place are France, Hungary, Italy, Spain and the UK as well as outside the EU Georgia and Moldova).

What’s surprising is that this glaring gap between notional rights owing and the possibility of attaining them in reality has continued unquestioned for so long. Many European states signed up to help stateless persons decades ago but then simply did nothing – this for example in stark contrast to their response to having ratified the 1951 Refugee Convention, with regard to which almost all signatories have considered it de rigueur to adopt asylum procedures in order to be able to recognise and reward those deserving of sanctuary. The absence of an equivalent protection framework for stateless persons can have devastating consequences for those individuals stuck in limbo as a result.

Joint research conducted in 2011 by UNHCR and my organisation Asylum Aid found that previously stateless persons in the UK were left unidentified and at risk of human rights abuses. Many of the stateless persons we interviewed had been destitute for months, had been detained by immigration authorities in spite of evidence that showed there was no prospect of return, or had been separated for years from their families abroad. Some had been forced to sleep on the streets. Many had seen their accommodation and support repeatedly cancelled and reinstated. Almost all of this group were prohibited from working. Few were in a position to break this cycle. UNHCR mapping studies in Belgium and the Netherlands revealed a similar picture with the absence of adequate protection mechanisms leaving stateless migrants stuck in an endless limbo without respect for their fundamental rights. UNHCR is currently undertaking mapping studies in the Nordic and Balltic states which will hopefully also shed much needed light on the situation in those countries. As such there is a growing body of evidence about the harsh reality facing stateless persons in Europe today.

As reported more fully in a previous blog, what has changed - in the UK at least – is the introduction of new Immigration Rules effective from April this year which now provide stateless persons with a regularisation route and a crucial lifeline out of limbo. This example now needs to be followed by other European countries.

ENS has chosen today, the anniversary of Hannah Arendt’s birthday, to launch a pan-European campaign seeking to improve the protection of stateless persons in Europe. Timed to coincide with the 60th anniversary of the 1954 Statelessness Convention, this campaign will bring together our members and other civil society organisations across Europe in calling for:

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

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

While not underestimating the ambitious nature of these objectives, we believe that we can make real progress towards achieving them through a combination of awareness-raising and advocacy activities at the national and European Union level. Central to this will be our efforts to put a human face on the statelessness issue by gathering individual stories and testimonies from across Europe. Equally important will be our ability to successfully engage broader popular support through online advocacy and use of social and other media. Finally, the campaign will culminate with a concerted day of action against statelessness across Europe on 14 October 2014. We are asking our members and other interested organisations to plan ahead in order to mark that day with a special event or action – for example a public meeting, film screening, photo exhibition, umbrella march, public lecture or media briefing/press release. As well as providing an important focus point for the campaign, it will hopefully also demonstrate the value of implementing ENS’s existing call for the UN General Assembly to adopt an international day of action against statelessness.  

Our campaign launch statement concludes that:

“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 since the philosopher Hannah Arendt famously identified their plight in her seminal text The Origins of Totalitarianism back in 1951. The fact that there remain an estimated 600,000 stateless persons living in Europe today shows that action is long overdue. The time for action is now.”

Ultimately the success of this initiative will be dependent on the level of backing it receives from a broad spectrum of supporters. We hope that working together we can bring about real change. Please start by sharing details of the campaign as widely as possible.

For further information or to get involved visit www.statelessness.eu

or email ENS Coordinator Chris Nash at info@statelessness.eu

Statelessness as a utopia

‘My own wish is to be a citizen of the world, to be a fellow-citizen to all men – a pilgrim, better still.’

Desiderius Erasmus, letter to Huldrych Zwingli, 1522.

Statelessness is a problem. All of us, academics, practitioners, activists, and even artists, who work with stateless persons, are sharply aware of the harsh reality of statelessness. Statelessness means instability, poverty, discrimination and despair. We work with the ‘problem’ of statelessness, because the human suffering takes priority over anything else.

But for me, statelessness is more than just a problem. There is something about the idea (and not the reality!) of statelessness that inspires me, that is ultimately romantic, and completely unrealistic. It is something vaguely communist, and maybe even anarchist. It is an idea of an individual who is beyond the state, who does not need the state. A stateless individual is beyond nationalism, wars and borders, not needing to belong anywhere and therefore welcome everywhere. Do you recognise this idea?

The birthday wishes from the Statelessness Programme Campaign put me in a dreamy mood. They addressed important issues – I can relate to all of them, and I wish all these wishes come true. Most of these wishes were policy objectives, lobbying plans and calls for activism. Many of them made me think: ‘Yes, I can really do something about this! If we join hands with all these dedicated people, we can make this wish come true!’. But there was one specific wish which I thought was a wish in the true sense of the word – a wish which cannot be realised within the practical limits of the world, and where you need involvement of some heavy magic:

‘I wish that statelessness soon only means there are no more states’ (a wish from Stichting STIL in Utrecht)

This is the wish I would make if I met a little fairy with a magic wand, or got hold of a Aladdin’s Lamp. It is my dream of a stateless utopia.

I wish sometimes that all people were stateless, and happy in their statelessness. I wish we didn’t need states – neither for practical purposes, nor for psychological reasons. I wish the world could be organised without borders, and individuals had something better to base their confidence on than their national identity. I don’t know how this can ever be true, or whether all my fellow human beings would agree to that, but I can dream, can’t I?

I wonder sometimes whether this image of a stateless utopia actually motivates me to help stateless persons. It is so far away from the reality of my every day working routine. The primary motivation is probably compassion to fellow human beings in great need of legal advice, but there are many categories of individuals who are in difficult legal situations, such as the refugees, the homeless, the ‘illegals’ and so on. There is also, of course, pure intellectual curiosity towards the legal complexities around the phenomenon of statelessness, but English tort law is not less complex, nor is the issue of animal rights. When I think of what makes statelessness so special for me that I am prepared to dedicate four years of my life to study it in a PhD project, and spend my free time giving legal advice to stateless persons, I come back to this romantic, impossible and nothing-to-do-with-reality image. While in my perfect world statelessness means the lack of a state in the life of an individual, I see how in reality statelessness (ironically!) leads to extreme dependence of individuals on states, and I want to do something about it. Even though I will never witness a stateless utopia, I do want to make the life of stateless persons a little less ‘state-full’, so that it does not revolve so much around papers, stamps, and moods of civil servants. I want stateless persons to be more independent, and more empowered in their relations with states.

Even though my dream is nothing but a dream, it clearly shapes the way I see my research. I don’t want to eliminate the problem of statelessness. Instead, I want statelessness to no longer be a problem. I am more interested in researching the issue of protecting stateless persons, rather than eliminating statelessness.

I would of course do anything within my power to help a stateless person to acquire the citizenship of some state, and cease to be stateless, since (alas!) it is often the best way to secure their access to basic rights. But while I would be doing that, I would hope that one day there would be no need for citizenship.

Katja Swider, Research Advice Service Coordinator, Statelessness Programme