Statelessness Ireland s obligations under the 1954 Convention relating to the Status of Stateless Persons. Karen Berkeley, Solicitor

Transcription

1 Statelessness Ireland s obligations under the 1954 Convention relating to the Status of Stateless Persons Karen Berkeley, Solicitor

2 Introduction : Mr Roman Uustalu, first declaration of Statelessness in Ireland Mr Uustalu is part of 370,000 persons rendered stateless in 1991 break up of the USSR Issued Alien s Passport, identifying citizenship as undefined Arrival in Ireland 2002 no stateless procedure Stateless application unanswered High Court proceedings Opened a pathway

3 Statelessness and International law: Granting Citizenship a matter for domestic governments but must conform international legal principles Art Universal Declaration of Human Rights right to nationality and not be deprived nationality Two international instruments to enhance protection and reduce statelessness 1954 Convention relating to the Status of stateless persons 1961 Convention on the reduction of stateless persons

4 Statelessness and International law Aims of the Conventions; Comprehensive legal framework to avoid creation of statelessness and ensure stateless persons are entitled to legal status 1954 Convention it is about protection in law and practice, it ensures access to fundamental rights and creates obligations on contracting States

5 Definition of statelessness No internationally accepted definition Most widely accepted Art 1 of 1954 Convention: A person who is not considered a national by any State under the operation of its law Formal legal lack of nationality De Jour Statelessness Ineffective nationality De Facto Statelessnes

6 Definition of Statelessness 1954 Convention distinguishes between refugees and non refugee stateless persons Adopted to protect those who are not refugees who would be covered by the 1951 Convention

7 Why is declaration of statelessness so important? Declaration serves fundamental purpose permitting access to basic human rights; Right of residence, right to work, right to access medical services, right to travel, access welfare on same basis as nationals, right to education, religious freedom, access to courts

8 How should stateless status be assessed? This is complicated Not all stateless persons have a well founded fear of persecution, but often the stateless and asylum will overlap De Jour v De Facto stateless - careful consideration Convention silent on specific procedure UNHCR mandate ; 2008 Paper Statelessness- An analytical framework for prevention, reduction and protection

9 How should statelessness be assessed Individual determination process, full assessment and investigation of facts and application of law - asylum process Clear and transparent legal framework, interpreters, interviews, trained decision makers, grounded written decision, independent appeal authority, burden proof and evidential requirements, welfare provision

10 Stateless assessment and the single procedure A stateless procedure must run in conjunction with the asylum and subsidiary protection Stateless cases need early identification Stateless person with grounds for asylum not covered by the 1954 Convention asylum first Stateless person no grounds for asylum must not be forced to apply for refugee status Application to be accepted at arrival or any time thereafter

11 Ireland and Statelessness Ireland became a party to the 1951 Convention on the 18 th January 1973 Ireland has failed completely in obligations No formal procedure exists to establish stateless To date applications for recognition of stateless status made on ad hoc basis though asylum humanitarian and deportation process Stateless status recognized but no declaration - limbo

12 Irish legislative measures Ireland failed to implement a procedure but has legislated on the derivative rights of declared stateless person Article 28 Right to Travel Document available but not available Article 32 Facilitate and expedite naturalization Section 16 (g) Naturalization and Citizenship Act waives conditions for stateless person

13 Irish legislative measures 1961 Convention Reduction of Stateless children acquire nationality of state in which they are born if otherwise would be stateless Article 6(3) of the Irish Nationality and Citizenship Act as amended A person born in the island of Ireland is a citizen from birth if he or she is not entitled to citizenship of another country

14 The story of a stateless family in Ireland Arrival in Ireland six years ago to seek protection, carrying passports indicating stateless status ORAC refused to accept asylum application Judicial Review successful settlement Extreme welfare Stateless application deemed ineligble Second Judicial Review case

15 Conclusion Today s discussion is about the single procedure - stateless persons have no procedure The Immigration Residence and Protection Bill of 2008 has been delay over 6 years Crucial to find durable solution to the stateless problem requires imminent action Temporary procedure required now

16 Conclusion Failings of Irish State must be addressed and international obligations fulfilled by setting up legal framework whereby stateless persons can access their rights Best of luck to the ICI, UNHCR, Nasc and other Irish NGO s who have taken up this campaign

17 Thank you Thank you for your kind attention Karen Berkeley Solicitor Brophy Solicitors