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Should statelessness determination procedures be addressed at the EU level? Katja Swider, University of Amsterdam K.J.Swider@uva.nl Statelessness, which is defined as the lack of a nationality, 16 is not an obvious candidate for the EU agenda, considering that Member States still retain nearly exclusive competence in the field of nationality law. However, a closer look at both the nationality-related aspects of statelessness as well as its very prominent migration aspects reveals that the EU does have competence to address statelessness in a number of ways. The author argues that the development of EU-wide standards on statelessness determination procedures would enhance the current national and international efforts in addressing the contemporary challenges of this problem. 1. Does the EU have competence? A. Statelessness as a nationality issue Technically, statelessness is always caused by the loss of and/or the failure to acquire a nationality. An important part of addressing the problem of statelessness is its prevention and reduction through regulation of the rules on acquisition and loss of nationality. Within the EU, Member States still enjoy nearly exclusive competence on granting and withdrawing nationality. However, an established line of case law of CJEU requires the Member States to have due regard to EU law when exercising their competence in the field of nationality, 17 and the Rottmann judgment 18 has made it clear that especially when statelessness is at stake, the CJEU is prepared to hold Member States nationality practices to high international standards. B. Statelessness as a migration issue While prevention and reduction of statelessness is usually addressed through nationality laws, the protection of stateless persons takes place predominantly within the sphere of migration law. Citizens have an undisputed right of residence in their state, and the non-citizens, on the other hand, need a legal ground for a permission to reside. Stateless persons belong to the category of non-citizens, and therefore the regulation of their residence status and the rights attached to it often falls within the sphere of migration law, also if they have never crossed any state borders. Statelessness is not always a ground for a residence status. 19 However, if no solutions for legal residence are offered to a stateless person, states will often attempt to organize a return to a safe previous country of residence, and the regulation of the latter is also at the core of migration policies. Thus, protection of stateless persons covers potentially such policy areas as subsidiary/temporary protection and minimum standards for status determination, as well as the regulation of return to a 16 See for a definition of a stateless person Art. 1 of the 1954 UN Conv. on the Status of Stateless Persons. 17 See CJEU C-369/90, Micheletti, 7 July 1992, and other judgments that followed on nationality matters within Member States, such as C-192/99, Kaur, 20 February 2001; C-200/02, Zhu and Chen, 19 October 2004 and so on. 18 Judgment of the CJEU C-135/08, Rottmann, 2 March 2010. 19 This is not required by the two UN Conventions on Statelessness of 1954 and 1961. 66
previous country of residence when no legal residence is offered. The EU has already extensively legislated on such matters in the context of asylum law. 20 2. Should statelessness determination procedures be addressed at the EU level? Functioning statelessness determination procedures are essential for ensuring that the rights designated for stateless persons are benefited from by the target group. 21 This is equally true for the rights within the nationality law, and the rights enshrined in the migration legislation. There are a number of reasons for addressing statelessness determination procedures at the EU level. First of all, most EU Member States are parties to the 1954 Convention on the Status of Stateless Persons, 22 and are therefore bound by the definition of a stateless person contained therein. Common standards with regard to statelessness determination procedures in the EU would enhance the coherence and uniformity of the implementation of this definition. Secondly, parties to the 1954 Convention are obliged to provide a certain level of protection to stateless persons within their jurisdictions. If statelessness is a protection status, the access to this status would benefit from EU harmonization in order to prevent stateless persons from travelling among Member States in search of a better chance at obtaining the protection. Thirdly, the EU involvement would be timely at this stage, since most Member States do not have well-functioning statelessness determination procedures yet, and some have introduced them recently, or have committed to do so in the near future. 23 It is easier to adjust these procedures to a common EU standard when they are in the making, and have not solidified within national legal systems yet. Last but not least, the EU is already using the term of a stateless person in its legislation on asylum, 24 and common standards in the determination of this status would contribute to more coherence in the implementation of these existing EU measures. Valorization The problem of statelessness is prevalent in the EU, as evidenced by the recent UNHCR studies and academic publications. 25 In the context of raising international awareness of this important issue, 20 See Ch. 2 of the TFEU, and Directives 2013/32/EU of 26 June 2013 on common procedures for granting and withdrawing international protection, 2008/115/EC of 16 December 2008 on common standards and for returning illegally staying third-country nationals, 2011/95/EU of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as bene ficiaries of international protection. 21 This has been emphasized in the recent UNHCR Guidelines and studies on statelessness, available here: <www. refworld.org/statelessness.html>. 22 See UN Treaty Office, <http://treaties.un.org>, accessed on 6 Nov. 2013. See also the EU Pledge of 19 September 2012 that Member States which have not done so yet will accede to the 1954 Convention, text available here: <www. unrol.org/files/pledges%20by%20the%20european%20union.pdf>. 23 In the UK the new statelessness determination procedure took effect on the 6 of April 2013, see: <www.ukba. homeoffice.gov.uk/sitecontent/documents/policyandlaw/statementsofchanges/2013/hc1039.pdf?view=binary>, Belgium pledged to introduce the procedure in the near future, and Hungary pledged to improve its existing procedure, see UN Ministerial Intergovernmental Event, Pledges 2011, available here: <www.unhcr.org/commemorations/pledges2011-preview-compilation-analysis.pdf>. 24 See, for example, Directive 2013/32/EU of 26 June 2013 on common procedures for granting and withdrawing international protection, Art. 36. 25 See various UNHCR research projects on statelessness in Europe, in particular Mapping Statelessness projects on UK, the Netherlands and Belgium, available here: <www.refworld.org/statelessness.html>. See also C. Sawyer and B. K. Blitz Statelessness in the European Union, Cambridge University Press, March 2011. 67
the EU has made a pledge that all its Member States who have not yet done so will ratify the 1954 Convention on Status of Stateless Persons and consider the ratification of the 1961 Convention on Reduction of Statelessness. 26 This research project explores the possibility of more concrete action on the part of the EU, namely with regard to statelessness determination procedures. 26 See note 7 above. 68
What role for the European Union in protecting stateless people and avoiding statelessness? Stocktaking of current EU migration law and new tendencies Tamás Molnár, Corvinus University of Budapest tamas.molnar@bm.gov.hu Millions of people still continue to be denied the right to nationality. In Europe, as a consequence of the dissolution of the Soviet Union and the state successions in Central-Eastern Europe during the 90s, lots of people having no nationality arrived to the EU from the ex-yugoslav countries or from the Commonwealth of Independent States. Moreover, with the 2004 EU enlargement, countries having considerable number of stateless persons residing on their territory (e.g. Baltic States) became Member States of the Union. Europe is one of the regions being highly affected by this phenomenon, with around 640 thousand stateless individuals. This paper aims at drawing a picture on how EU law deals with the protection of stateless people as well as the reduction and avoidance of statelessness and how the EU should address this issue in the post-stockholm period of JHA strategic planning. From the protection point of view de lege lata, the EU s migration and asylum acquis even in an implicit manner has already dealt with stateless people. Primary EU law and some secondary law instruments assimilate them with third-country nationals [e.g. Article 67(2) TFEU, the long-term residents directive or the readmission agreements], and some grant them rights under EU law similar to recognised refugees or EU citizens (social security legislation). As for the definition of stateless person, EU law refers to the 1954 Convention, thus the substance of this status is not altered, simply reflecting international obligations already undertaken. However, in course of time, a number of their rights have been expanded by EU law [see Reg. No 883/2004/EC granting them social benefits or Reg. No. 1932/2006/EC on facilitating their entry to/move within the EU (possibility for Member States exempting them from visa requirement)]. In addition to that, some jurisprudence has also been developed concerning their intra-eu status (judgment of the CJEU in C-95/99 Khalil and others). From the point of view of reducing and avoiding statelessness, the general rule is that the EU does not have competence in matters of acquisition ad loss of nationality, this falls purely within the traditional competence of Member States. However, since Michelletti in 1992, the CJEU elaborated possible limitations on the exercise of this sovereign right, namely all these national powers shall be used having due regard to Community law. Subsequent jurisprudence confirmed this principle, and then most recently in the Rottmann case the Court elaborated more on it, requiring an extra condition beyond international law, derived from EU law, in the context of the avoidance of statelessness. The EU-funded EUDO citizenship project has already provided expertise and academic knowledge as a firm theoretical and evidence-based ground for further initiatives on the policy-making level, too. 69
Nevertheless, provisions of European Union law only lay down sporadic rules; a well-developed European system as in case of refugees and beneficiaries of subsidiary protection does not exist with regard to stateless persons. However, tacking statelessness is also an issue of international protection. My conclusion is the EU legislator should put more emphasis on their legal protection; there are already some promising signs, such as EU pledges in this regard at the September 2012 UN High-Level Rule of Meeting. Given that the 1954 Convention does not provide a comprehensive regulation (old treaty new challenges, lack of detailed rules, no procedural rules), the EU should make steps with a view to strengthening the status of these legal ghosts (e.g. extension of EU citizenship to resident stateless people), parallel with more active advocacy role of the EEAS mainstreaming the protection of stateless people on the international agenda, too. 70