An instant best practice: Philippines’ new Stateless Status Determination Procedure

The Philippines made history this week by becoming the first state in Asia to put a statelessness determination procedure in place. This move follows the country’s ratification, just over a year ago now, of the 1954 Convention relating to the Status of Stateless Persons and the pledge made at last December’s UNHCR High Level Meeting to proceed with establishing a procedure. The adoption of Department Circular No. 58 on “Establishing the Refugee and Stateless Status Determination Procedure” sets a good example, not only in the region, where protection frameworks for stateless people are largely absent, but also to countries in other parts of the world which acceded to the 1954 Convention but have yet to take this vital step in its implementation. There are currently 76 state parties to the 1954 Convention, but less than a dozen examples of dedicated statelessness determination procedures globally.

I was especially excited to hear of the new law passed in the Philippines because I was fortunate enough to have the chance to follow some of the preceding developments first hand. In late 2010, while I was working with UNHCR’s regional office in Bangkok, I had a wonderful, whirlwind 24 hour-trip to Manila, where I gave a presentation on international statelessness law to a room full of people drawn from different government agencies and civil society. Thanks to the amazing efforts of the UNHCR office in the Philippines and the incredible support and enthusiasm of key people within the Department of Justice to carry this issue forward, the decision to ratify the 1954 Convention was already pretty much in the bag. The purpose of the meeting was to ensure that the ratification and any steps that would subsequently be required to implement the treaty enjoyed the broadest possible support, from all relevant stakeholders. I remember very clearly the energy in the room and the overriding sentiment that it was a highly logical step for the country to become a state party: the Philippines was, after all, already a state party to the convention’s sister instrument, the 1951 Convention relating to the Status of Refugees, so surely it made perfect sense to ratify the 1954 Convention in order to complete the protection framework. Moreover, the Philippines had actually signed the statelessness instrument back in 1955, they had simply “forgotten” to follow this up with ratification when interest in this convention temporarily lapsed. This line of reasoning is indeed compelling and suggests that it may be possible to make up the lost ground in terms of accessions to the 1954 Convention relative to the 1951 refugee convention, now that statelessness is again gaining momentum as an issue of international concern.

In late 2011, I crossed paths with a government delegation from the Philippines again, just as the instrument of accession to the 1954 Convention was being deposited with the UN Secretary General. This time, it was at a statelessness workshop and photography exhibition in Madrid, which coincided with a “study visit” from the Philippines Department of Justice, facilitated by UNHCR.  They had travelled to Spain (and subsequently to Hungary), with a view to learning about the operation of statelessness determination procedures. What is most commendable about the law which has now been passed establishing the Philippines’ Stateless Status Determination Procedure, is this: while clearly incorporating good practices drawn from Spain, Hungary and the handful of other countries where a procedure exists, the Philippines’ procedure has addressed some of the shortcomings that are found elsewhere. For instance, it has not mimicked Hungary’s restrictive approach of only accepting applications for stateless status determination from people already lawfully staying in the territory. Moreover, the Philippines’ law explicitly states that, following the lodging of an application for statelessness determination, “any proceeding for the deportation or exclusion of the Applicant and/or his or her dependents shall be suspended” and that an order may also be given to release the applicant from detention (section 7). The Philippines’ law can therefore be considered as something of an instant best practice, providing a more favourable regime than the handful of “older” statelessness specific procedures and following instead in the footsteps of other recently created mechanisms in Moldova and Georgia. It has evidently also drawn from the recent UNHCR guidelines on statelessness determination procedures and the status of a stateless person, reinforcing the approach that is recommended in these guidance documents.

Besides the aforementioned section on the question of deportation and detention, other noteworthy elements of the Philippines law include: a shared burden of proof whereby the applicant and the government protection officer “collaborate” to determine whether the person is stateless; a standard of proof that takes into account the difficulty of establishing beyond any doubt that the person is stateless and instead requires this to be established “to a reasonable degree”; an entitlement to legal counsel, to an interpreter, to access to UNHCR and to be interviewed (heard) during the procedure; an explicit right to residence for a person found to be stateless and his/her family members; and the right to receive a motivated decision in writing and to seek review of a negative decision. In addition, the law deals clearly and appropriately with the relationship between stateless and refugee status determination. Where it is discovered that “a refugee claim appears to exist” in relation to an applicant for stateless status, the investigation into possible refugee status takes priority and stateless determination is only picked up again if the person is found not to be a refugee or following cessation of refugee status. For good measure, the law also explicitly reaffirms that “in no case shall there be contact with the authorities of a foreign state [an important tool in stateless determination] where there is a claim of persecution” (section 31). Finally, with the entry into force of this law, the Philippines’ Refugee Protection Unit has been renamed to become the Refugee and Stateless Persons Protection Unit, in acknowledgement of the need to promote the visibility of both vulnerable groups.

There are, nevertheless, a few questions that the Philippines’ law does not address. Although it indicates that the nationality laws of a specific group of countries with which the applicant has a relevant link must be examined, and that the applicant has the obligation to submit “all relevant evidence reasonably available”, it does not detail which forms of evidence may be accepted. Nor does it suggest how such evidence should be weighed, if there is any contradiction, or what conclusions are to be drawn from the failure of a country to which the applicant has a relevant link to respond to questions regarding his or her nationality status. Furthermore, the law prescribes a 90-day timeframe for reaching a decision on an application for either refugee or stateless status – “unless there are reasonable grounds for an extended period”. While it is certainly commendable to aspire to achieve such quick decision-making – establishing a “fair, speedy and non-adversarial procedure” is the stated objective of the law – it remains to be seen whether this is a realistic goal in the context of stateless status determination and whether it will be possible for the applicant to establish his or her statelessness “to a reasonable degree” within this time. All of these procedural issues are, nevertheless, likely to be ironed out as the determination officers gain experience with the new procedure. The law provides sufficient flexibility for on the job learning and all of the most important elements in terms of guiding principles, procedural protections and the rights of the applicant are in place. I wish the officers of the newly renamed Refugee and Stateless Persons Protection Unit the best of luck with their work and I look forward to continuing to follow the Philippines’ journey into the field of statelessness in the years to come.

Laura van Waas, Senior Researcher and Manager, Statelessness Programme.

Campaign for statelessness conventions gains traction, at last

The ‘statelessness conventions’, two little-known instruments that have long floated somewhere on the periphery of international law, are finally starting to command the attention that they deserve...

Closely related to, yet not really part of, either refugee law or human rights law, the Convention relating to the Status of Stateless Persons and the Convention on the Reduction of Statelessness did not initially make much of a splash after their adoption in 1954 and 1961 respectively. The 1954 Convention took twice the time to gather enough state parties to enter into force as compared to its sister instrument, the virtually identical 1951 Convention relating to the Status of Refugees. Meanwhile, the 1961 Convention on the Reduction of Statelessness took a full twelve years to gather just six ratifications and enter into force. After this less-than-promising start, both conventions continued to lag far behind other international agreements in terms of accessions and remained woefully under-appreciated. And so it was with no false modesty or irony that the instruments were still being described as “orphan conventions” into the late 1990s. Recently, however, there has been growing interest in these two international agreements which are specifically designed to help states to protect stateless people and avoid cases of statelessness.

In fact, over the past decade or so, repeated calls have been made by a variety of international and regional bodies - including on numerous occasions by the UN General Assembly - for states to embrace the statelessness conventions. With this renaissance of interest in the issue and rediscovery of the conventions, accessions have also started to pick up significantly. This trend now looks set to continue as the campaign to raise awareness of and support for the statelessness convention starts to really gain traction, especially with regard to Europe. Already at the December 2011 Ministerial Meeting convened by UNHCR, over 30 states worldwide made pledges relating to accession to one or both conventions and many, including some European countries have already acted on these promises. Then, at a similar UN high level meeting dedicated to the Rule of Law, there were further encouraging signs, in particular the pledge by the Delegation of the European Union on behalf of the EU Member States. This included the explicit and concrete statement that “the EU Member States which have not yet done so pledge to address the issue of statelessness by ratifying the 1954 UN Convention relating to the Status of Stateless Persons and by considering the ratification of the 1961 UN Convention on the Reduction of Statelessness” (pledge 4).

This recent EU pledge confirms the position of the statelessness conventions at the heart of the international legal framework for tackling statelessness – EU countries pledge to address the issue by signing up to these instruments. This sends a strong signal to governments elsewhere about the value of these conventions, regardless of their somewhat chequered history. A close inspection of how this statement has been formulated suggests a slightly stronger commitment to the 1954 convention, which serves as the foundation for identifying and protecting stateless people. This is perhaps unsurprising given that the European Union has already achieved near-universal accession to this instrument, with just a handful of states still needing to take action. Still, the promise that universal acceptance of the 1954 Convention relating to the Status of Stateless Persons in the European Union will be met is significant. The instrument is pivotal to the protection of non-refugee stateless people and once all EU member states become parties, this will help to raise the profile of statelessness in the region and may provide a new avenue for instigating a Europe-wide dialogue on the implementation of states’ obligations towards the stateless.

At the same time, it is also promising that EU member states have collectively pledged to “consider” acceding to the 1961 Convention on the Reduction of Statelessness. It is true that Europe already has its own, relatively strong, regional framework for the coordination of nationality policy and the avoidance of statelessness – provided by the 1997 European Convention on Nationality, the 2006 Council of Europe Convention on the Avoidance of Statelessness in relation to State succession and a range of related recommendations. Yet, there are still numerous EU member states which have not adopted these regional standards. And even if they were embraced across Europe, the 1961 Convention remains an important counterpart for this framework at the global level. It contains highly similar safeguards for the avoidance of statelessness and even provides a stronger guarantee with regard to acquisition of nationality at birth where a child would otherwise be stateless. Therefore, by also committing to universal accession of this second instrument, EU member states send a strong message to - and set a good example for - countries elsewhere about taking and sharing responsibility for ensuring that no-one is left without a nationality in this day and age. It remains to be seen within what timeframe these pledges will become a reality.

Laura van Waas, Senior Researcher and Manager, Statelessness Programme

This blog also appears on the website of the European Network on Statelessness

GUEST POST: Taking stock of State pledges to tackle statelessness?

It is now just three months short of a year since UN High Commissioner for Refugees António Guterres, hailed a “quantum leap” in global efforts to tackle statelessness at a Ministerial Meeting organised by UNHCR in Geneva to mark the 50th Anniversary of the 1961 Statelessness Convention. At this meeting 61 countries made statelessness-related pledges and 33 states committed to accede or take steps to accede to either or both conventions.

In the European context it is welcome that Bulgaria, Georgia, Moldova and Portugal have since ratified both the Statelessness Conventions. Some states are in the process of doing so or are taking other measures to improve the protection of stateless persons. However, a number of states who made pledges are yet to take any concrete action.

Moreover, despite the fact that soon almost all EU states will have ratified the 1954 Convention on the Status of Stateless Persons, only a small handful have in place dedicated and effective procedures for identifying stateless persons. Having such mechnanisms in place is a critical first step for states to comply with their obligations under the 1954 Convention and international human rights law.

Looking ahead, several upcoming dates in the international calendar provide an early opportunity for states and other stakeholders to take stock of progress in implementing state pledges to tackle statelessness, and to focus attention and renew effort where this has not happened.

The first such opportunity arises next week with the High-Level Rule of Law meeting during the General Assembly to be held in New York on the 24^th September 2012.  This forum is clearly relevant because the rule of law is undermined when individuals are made stateless and denied full equality before the law as a result of discrimination or arbitrary decision making.

Refugees International is marking this occasion by issuing a public statement signed by dozens of NGOs (including the European Network on Statelessness) which urges member states to take advantage of pledge accession to the Statelessness Conventions, to introduce procedures to identify and protect stateless persons subject to their jurisdiction and to amend nationality laws that discriminate against women, children and specific populations based on ethnicity, religion, or other impermissible factors.

Later in the week the focus switches from New York to Geneva for the Committee on the Rights of the Child 2012 Day of General Discussion on 28 September which focuses on “The Rights of All Children in the Context of International Migration”.  This discussion day provides an important opportunity to raise concerns about childhood statelessness, to provide documentation to the Committee in the context of its review of reports by State parties to the Convention and to push for a General Comment on Article 7 on the Convention of the Rights of the Child (the right of every child to be registered and to acquire a nationality). UNHCR has produced a leaflet which explains the link between Article 7 and the 1961 Statelessness Convention.

The meeting of UNHCR’s Executive Committee early next month (1-5 October), also in Geneva, presents another forum for states to  critically review their progress in implementing the commitments they made at the Ministerial Meeting last year.

All these meetings also provide civil society with an invaluable opportunity to evaluate what this means for their own campaigning and awareness-raising efforts. The European Network on Statelessness is organising an event in Budapest on 19-21 November to bring together many of its new members from across Europe in order to plan coordinated action. With over 35 new members having joined since the Network’s launch in June, we hope to be increasingly better placed to make a telling contribution.

Chris Nash is International Protection Policy Coordinator at Asylum Aid and Coordinator of the European Network on Statelessness (ENS). For further information about the Network contact info@statelessness.eu This blog first appeared on the ENS website - to sign up for future ENS newsletter and blog updates visit http://www.statelessness.eu/sign-up

GUEST POST: The benefits of birth registration to children, youth and governments

Plan is an international child-centred community development (CCCD) organisation, working across 50 countries in Africa, Asia and the Americas.  The United Nations Convention on the Rights of the Child (CRC) recognises that every child has the right to be registered immediately after birth and has the right to preserve his or her own identity through a nationality, name and family ties. In 2005, Plan officially launched its first global UBR campaign, now renamed ‘Count Every Child’ which has had a major impact globally on engaging communities and governments in birth registration. Plan also plays a pivotal role in influencing and strengthening the work of key human rights bodies in promoting adequate implementation and monitoring of the right to birth registration by states. In addition, Plan’s work on birth registration has led to the development of some important global partnerships such as with UNHCR on linking birth registration to statelessness.

Despite these achievements, little is still known internationally about the benefits birth registration can bring to children, youth and governments. Poverty and social disadvantage play a key role in determining which children are not registered and where. Global studies have empirically established that unregistered children tend to be poor, live in rural areas, have limited access to health and education and suffer from higher rates of malnutrition and mortality. Other primary research has also highlighted the many barriers to birth registration such as ethnicity and gender, rurality and cost. There is arguably now a growing consensus among international organisations working on birth registration about the groups of children most affected by non-registration and the barriers these children face in realising the right to birth registration.

The Committee on the Rights of the Child, the leading international authority on child rights, has interpreted the right to birth registration as helping to realise a range of other connected child rights linked to health, education, social welfare, work and the juvenile justice system to name just a few.  Plan and other international organisations have repeated this interpretation by long recognising birth registration as a tool to protect children from exploitation, such as child labour and child marriage, and as a means for children to access basic services such as health and education. There are numerous anecdotal examples of this analysis. For example, in some contexts schools have been known to refuse admission to a child, or to only temporarily admit them, until a birth registration certificate is produced. UNICEF has noted that although birth registration is linked to an array of rights and protections, ‘the exact linkages of cause and effect between the impact of birth registration and all these issues require much more research’. This view has been repeated by some commentators who have suggested that with the international community’s spotlight aimed at increasing registration rates, research needs to evolve in order to assess the benefits that birth registration delivers.

The importance of birth registration does not end with childhood. Birth registration also provides assistance in securing benefits and opportunities for youth. It has been anecdotally cited as a prerequisite for acquiring more ‘advanced’ or ‘sophisticated’ benefits and associated opportunities such as social security numbers required for employment in the formal sector, registration of a business, the ability to access credit, to open bank accounts or to be eligible for microfinance assistance and loans. In this context, Plan realises that birth registration could be important to youth, one of our key beneficiary groups, and its associated programmes, namely those focused on economic security. Birth registration can also be said to play a crucial role for the state. The Committee on the Rights of the Child regularly cite the need for robust and reliable statistical data for development planning and governance as well as the monitoring of progress towards realising child rights. Good governance requires that expenditure is allocated according to need and accurate population statistics arguably provide a means by which states can achieve this. Without accurate statistics, it may be hard to measure progress towards development indicators such as the Millennium Development Goals.

To help fill these research gaps, Plan International is seeking to appoint a multi-disciplinary team of consultants to undertake multi-country research to investigate these issues (autumn 2012). If you are interested in applying please see the Terms of Reference below for detailed information which provides key background information on the identified research gaps as well as the research objectives and research questions: http://plan-international.org/about-plan/consultancy-research-to-determine-the-benefits-of-birth-registration.

Applicants should submit an application package by the 16th September 2012 via email to lucy.gregg@plan-international.org

This Blog was prepared by Lucy Gregg, Research Coordinator at Plan International

GUEST POST: Statelessness - any attention at the national level?

Different international obligations have been established in order to address the problem of statelessness, mainly by the 1954 United Nations (UN) Convention relating to the Status of Stateless Persons and the 1961 UN Convention on the Reduction of Statelessness. Even though a growing number of states is committing to these obligations by acceding to the aforementioned treaties, a question that is often raised is whether states actually follow through and adhere to their obligation to prevent and reduce statelessness, and protect stateless persons at the national level. As part of my research regarding statelessness and statelessness determination – in my view an important first step in adequately protecting stateless persons in practice at the national level – in the European Union (EU), I therefore decided to test to what extent national legislation of EU member states actually pays any attention to statelessness. I did so by undertaking a small study into references to statelessness in the main laws regarding nationality/citizenship of three randomly selected EU member states: Czech Republic, Italy and Luxembourg. Of these countries, only Czech Republic is a States Party to the 1954 and 1961 Conventions; Italy and Luxembourg have both only ratified the 1954 Convention. What furthermore should be noted is that this study is not only limited by the small number of countries included, but also in the sense that only references to statelessness in the main nationality laws of these countries are considered. This approach was chosen because statelessness is closely linked to nationality, as the lack of this is statelessness. Despite these limitations, I still think my findings give an impression of whether states actually take statelessness into account at the domestic level. This preliminary research can also uncover whether it would be of interest to undertake a more elaborate study into references to statelessness in the domestic legislation of all EU member states in order to find good and bad practices in dealing with the different aspects of statelessness. My findings were as follows:

Czech Republic

The Czech Act to regulate the Acquisition and Loss of Citizenship refers to statelessness several times. With a view to prevention of statelessness, it provides that a child born on the territory of Czech Republic shall acquire Czech citizenship if its parents are stateless and at least one of them has permanent residence on the territory. Here, a definition of a stateless person is given as well: “a natural person without citizenship”. Furthermore, the issue of statelessness is acknowledged in naturalization and application procedures in the Czech Republic. Whenever certain documents are needed to prove that someone will lose his or her current/previous nationality with the acquisition of Czech citizenship, the Act provides for an exemption with the words “unless the person is a stateless person or a person with refugee status in the territory of the Czech Republic”. 

Italy

The Italian Citizenship Law No. 91 of 5 February 1992 (Law No. 91/92) elaborates on Italian citizenship and mentions statelessness. Again a preventive clause regarding statelessness is provided for, as any person who was born in Italian territory, of whom either both parents are unknown or stateless, or where he or she does not acquire his or her parents’ citizenship according to the law of the state to which the latter belong shall be considered an Italian citizen by birth. There are also some more specific provisions regarding stateless persons with Italian ancestors, and for spouses. A more general reference to statelessness concerns stateless persons who are legally resident in Italy – establishing that they shall be subject to Italian law insofar as the exercise of civil rights and the performance of military duties are concerned. This means that legally resident stateless persons can enjoy civil rights and be protected in this sense. From this, it can also be assumed that there is some way to be legally resident in Italy as a stateless person. Both protection and prevention thus seem to be covered in some way by the Italian law regarding citizenship.

Luxembourg

The Law on Luxembourg Nationality is active in the prevention of statelessness by providing that all children born in Luxembourg who have no nationality because their parents are stateless shall acquire Luxembourg nationality through birth. This kind of attention to statelessness can also been seen when the lineage of a child to a Luxembourg parent has not been established prior to him or her reaching the age of 18 years. Normally, a child would lose Luxembourg nationality in this case, unless the other parent possesses the status of Luxembourger or when the child would become stateless. Statelessness is also considered in the context of withdrawing Luxembourg nationality where it was obtained through fraudulent procedures: withdrawal is impossible if this would render the person concerned stateless. In the provisions regarding naturalization, however, no reference to statelessness is to be found. Still, Luxembourg laws clearly try to prevent statelessness, which should be commended.

Though this is only a limited study of references to statelessness in domestic laws of EU member states, some conclusions can be drawn. First of all, it is clear that there definitely are such references to be found – at least in the three countries studied – and that states do pay attention to statelessness at the domestic level. Secondly, the laws studied take statelessness into account in different ways, but certainly all have an interest in preventing statelessness. This could be expected because the rules studied are those dealing with access to nationality. Yet this might imply that in other laws, for example regarding aliens or refugees, references regarding the protection of stateless persons are also included. Overall I think this little piece of research shows that the implementation of the international obligations regarding statelessness at the national level is in need of further inquiry. Also, it demonstrates that states have already taken an interest in the issue of statelessness and sought to address certain problems through their laws. States should therefore be encouraged to join the international treaties on statelessness, and for States Parties to the conventions, guidelines, such as the Guidelines that are being issued by the Office of the United Nations High Commissioner for Refugees (UNHCR), that clarify the commitments and provide guidance in designing the appropriate domestic legislation are important for adequate implementation. Greater attention for the issue and more research will remain key in this process.

Caia Vlieks, Research Master Student, Tilburg Law School