1. Statelessness in Europe and good practice regarding statelessness determination and the protection of stateless persons Statelessness in Ireland Dublin, 21 October 2014 Chris Nash Director, European Network on Statelessness chris.nash@statelessness.eu

2. European Network on Statelessness The European Network on Statelessness (ENS) is a network of non-governmental organizations, academic initiatives, and individual experts committed to address statelessness in Europe. We believe that all human beings have a right to a nationality and that those who lack nationality altogether – stateless persons – are entitled to adequate protection. We are dedicated to strengthening the often unheard voice of stateless persons in Europe, and to advocate for full respect of their human rights. We aim to reach our goals by conducting and supporting legal and policy development, awareness-raising and capacity building activities. European Network on Statelessness2

3. Outline of this session  Why is statelessness determination necessary?  What are the main building blocks of a statelessness determination procedure?  What legal status and benefits for stateless persons in a migratory context?  What are the relevant standards?  What good practice exists?

4. A.International standards B.Good practices C.Issues to consider -STRUCTURE -ACCESS -PROCEDURE -ASSESSMENT -APPEAL -STATUS

5. Determination procedures for non- refugee stateless persons  UNHCR Guidelines No.2 and No.3  1954 Convention does not explicitly prescribe how statelessness should be determined  But … it does establish standards of treatment which can only be applied by States if they can establish who are the recipients  Two outcomes – 1) Finding that a person is stateless = protection, or 2) Confirmation that person is a national = prevention

6. Migratory vs in situ context  Two different contexts: countries that host stateless persons who are predominantly of a migrant background Countries that have in situ stateless populations  Recognition as a stateless person is not a substitute for acquisition of nationality but an interim measure until a nationality can be acquired (e.g. through naturalisation)

7. Some examples Warda:  Stateless Palestinian, born and raised in Kuwait  Moved to Spain 5 years ago as a student, when her residence permit expired she “overstayed”  As a stateless person, cannot return to Kuwait with long-expired documents Marco:  Born in Italy 10 years ago, his parents are stateless Roma migrants from Serbia  Under Italian law he should have acquired Italian nationality at birth (to avoid statelessness), but his birth was never properly registered, so he remained stateless

8. 3 generations of national protection regimes FRANCE ITALY SPAIN HUNGARY LATVIA MEXICO GEORGIAMOLDOVA SLOVAKIAPHILIPPINES TURKEYUK

9. Existing state practice As of May 2014: 12 states’ legislation defines statelessness as a protection ground per se  Specific rules in law, clear or relatively clear procedural framework: Spain (2001), Latvia (2004), Hungary (2007), Moldova, Georgia and the Philippines (2012), UK (2013)  Clear protection ground in law, but no detailed procedural rules: France (1953), Italy (since the 70s), Mexico (2007)  Clear protection ground in law, but just basic (yet incomplete) framework: Slovakia (2012), Turkey (2013)  No single “best practice”, all models have important achievements and challenges  Several other states are working towards the establishment of such a system

10. Building blocks – Structure Which authority should be in charge?  No general rule, state practice varies  If limited caseload → Centralised and specialised authority is preferable  Key considerations: Ensuring access to both RSD and statelessness procedure Prioritise asylum claim (suspend enquiries) Proper training and development of expertise

11. Building blocks – Access Conditions for submitting a claim  No lawful stay requirement  No time limits  Flexible framework: language, reasonable formal requirements, physical and geographical access  Rights during procedure

12. Building blocks – Procedure  Realistic time limit (6+6 months)  Free-of-charge interpretation and translation  Access to state-funded legal aid or other forms of professional legal assistance  Mandatory personal interview  Access to and supervisory role of UNHCR

13. Building blocks – Assessment  Shared burden of proof (cooperation)  Lower standard of proof (“establish to a reasonable degree”, “substantiate”)  Limited assessment only where applicant has a relevant nationality connection  Contacting foreign authorities  Examination of the practice as well as the law in relation to nationality in the relevant state (access to accurate and up to date info)

14. Building blocks – Appeal Effective remedy against refusal National structures and practices may vary, but:  Automatic right to appeal  Both on facts and law  Appeal and judicial review with independent, preferably centralised and properly trained bodies  Possibility to grant protection  Same procedural safeguards as at first instance (interpretation, legal aid, hearing, etc.)

15. Status of stateless persons – Rights Issuance of a residence permit is crucial (with some exceptions) and should attach as a minimum these rights:  Right to work, unrestricted access to the labour market  Right to education, unrestricted access to primary, secondary and higher education  Access to health care and social assistance  Family reunification  Facilitated access to naturalisation

16. The UK experience  2011 UNHCR/Asylum Aid mapping study  Close dialogue and access to data  The UK government’s response  Initial feedback on the new procedure European Network on Statelessness16

17. Campaign to protect stateless persons European Network on Statelessness17

18. ENS petition and animation European Network on Statelessness18

19. THANK YOU! Chris Nash European Network on Statelessness