4 December 2015
“Imagine what life would be like if you did not have a passport and were not considered to belong anywhere.”
The ECRE Weekly Bulletin has spoken to Chris Nash, Director of the European Network on Statelessness (ENS), a civil society alliance with 103 members in 39 countries. ENS is committed to ending statelessness and ensuring that the estimated 600,000 people living in Europe without a nationality are protected under international law. ECRE interviewed Chris on the occasion of the Brussels launch of ENS’s report “No child should be stateless” at the European Parliament and spoke about the main challenges affecting stateless people in Europe, including arbitrary detention.
Research has shown that statelessness is poorly understood, and is sometimes referred to as an ‘invisible problem’. Could you briefly explain what is statelessness and what are the issues caused by statelessness?
A stateless person is someone who has no nationality – they do not enjoy the legal bond of citizenship with any state. Statelessness occurs for a variety of reasons – for example discrimination against minority groups in nationality legislation, failure to include all residents in the body of citizens when a state becomes independent (state succession) and conflicts of laws between states. Among the millions of stateless people worldwide it is estimated that there are more than 600,000 in Europe alone.
Whatever the cause of statelessness, the impact on those afflicted is profound, and often enduring. Imagine what life would be like if you did not have a passport and were not considered to belong anywhere. Stateless people face numerous difficulties in their daily lives: they can lack access to health care, education, employment opportunities, property rights and the ability to freely move across borders. It may be impossible to get married, open a bank account or get a driving license – many of the things that most people take for granted.
One pressing challenge is the need to stop statelessness being passed on through the generations. A recent ENS report “No Child Should be Stateless” reveals that across Europe today, children are still born into statelessness. Yet this is thoroughly preventable if all European states were to comply with their existing obligations under international law – which protect a child’s right to acquire a nationality. This is why we’ve launched our #StatelessKids campaign dedicated to tackling this issue, and which is intended to support UNHCR’s global #ibelong campaign which seeks to end statelessness by 2024.
“Whatever the cause of statelessness, the impact on those afflicted is profound, and often enduring.”
Why did ENS choose to embark on research about the arbitrary detention of stateless persons in Europe?
Back in 2011, while working on the study Mapping Statelessness in the UK, I was struck by the fact that a third of the stateless persons I interviewed for this research had experienced immigration detention, some for periods as long as five years. A similar picture emerged through mapping studies conducted by UNHCR in other countries. Therefore after setting up ENS in 2012 we immediately identified this issue as a thematic priority. With support from the Oak Foundation we designed a three year project combining research, advocacy and strategic litigation.
What immediately comes across when interviewing stateless detainees or former detainees is the destructive impact that detention has had on their lives – in many cases exacerbated by the terrible uncertainty of not knowing when their incarceration would end. I have also often heard individuals describe their frustration at doing everything they can to cooperate with efforts by governments to re-document them but still being blamed if this proves impossible. So through our project we wanted to delve deeper to better understand this problem and how to solve it.
“What immediately comes across is the destructive impact that detention has on the lives of stateless detainees or former detainees”
What are the key findings and recommendations that emerged from your research?
Working with our members, so far ENS has published research on Malta (with aditus foundation), Poland (with the Halina Niec Legal Aid Center) and the Netherlands (with ASKV Refugee Support). This involved detailed analysis of the law and policy framework as well as a series of stakeholder interviews to gain a more in-depth understanding of practice on the ground. Finally, and perhaps most importantly, personal testimonies were gathered from stateless persons themselves. All the reports conclude with a series of recommendations. For country-specific reflections you can also read blogs by the respective authors, Neil Falzon, Katarzyna Przybyslawska and Karel Hendriks.
The research confirmed the risk of detention faced by stateless persons. Because there is no prospect of removal, once detained, the detention is likely to be arbitrary, repeated and prolonged, leaving people in limbo and exposed to the emotional and psychological stress of lengthy detention. The failure of immigration regimesto deal with the phenomenon of statelessness, identify stateless persons and ensure they don’t discriminate against them often results in detention. Stateless persons are seldom recognised as victims of injustice and are often unfairly labelled as refusing to cooperate with state authorities.
Similar gaps in immigration systems can be found in countries across Europe. Despite a range of international standards, including the fact that all but four EU States have ratified the 1954 Statelessness Convention, only a handful of States have introduced statelessness determination procedures. As such there currently exists a huge gulf between notional protection provided under relevant legal standards and the actual realisation of those rights in practice. The lack of protection on the one hand, and the growth of the immigration detention industry on the other, has left many stateless persons vulnerable to arbitrary detention. Those individuals affected face lengthy and repeated detention simply because there is no country to which they can be returned but equally no prospect of regularisation in the country hosting them.
“Because there is no prospect of removal, the detention is likely to be arbitrary, repeated and prolonged”
What is ENS’ strategy to address the issues identified through the research?
Our strategy combines detailed follow-up in countries where we have conducted research (including through national-level training and advocacy) alongside efforts to equip stakeholders across Europe to identify and address this issue. That is why in order to support this we researched and developed our toolkit “Protecting Stateless Persons from Arbitrary Detention”, intended to serve as a resource to a range of European actors who collectively are well placed to enhance the protection of stateless persons, and those at risk of statelessness, from arbitrary immigration detention.
Lawyers who are likely to represent stateless clients and/or those in immigration detention; NGOs that provide legal and other services to stateless persons and/or other immigration detainees; legislators and policy makers; state authorities that make and implement decisions to detain; administrative officers and judges with jurisdiction to review detention, hear appeals and order the release of detainees; border guards and private contractors who run detention centres; academics and teachers researching and teaching in this area, all may find this toolkit useful and relevant to their work. Stateless persons and those at risk of statelessness may also find in this toolkit, the reassurance they need that states are under obligation to treat them fairly and to protect them and the arguments they need to secure their rights.
The toolkit is also intended to support efforts to challenge unlawful detention and secure release and stay-rights for detainees; to improve existing national law and policy and bring it in line with regional and international standards; and to provide guidance to make correct decisions to detain (or not), to release and to compensate those unlawfully detained. Information is categorised by issue and by type of resource/jurisdiction (United Nations, Council of Europe, European Union and other resources). Although the content in the toolkit has been selected to highlight and cater to the specific context of statelessness, some of these sections (e.g. on conditions of detention, vulnerable groups etc) would equally apply to non-stateless detainees.
The ENS toolkit addresses the detention of children, families and vulnerable groups. Do we need to be wary of the current levels of global displacement creating a new generation of stateless children? How can European states prevent this?
It is true that the link between forced displacement and the risk of childhood statelessness is an often overlooked aspect of the current humanitarian crisis. Take for instance the example of the children of Syrian refugees who are at particular risk of statelessness due to gender discriminatory laws that do not allow Syrian mothers (e.g. where the father is missing or deceased) to pass on nationality to their children.
When you consider that many of the top asylum producing countries – not just Syria but also Afghanistan, Iraq and Eritrea to name but a few – have large stateless populations as well as defective/discriminatory nationality laws, this is clearly something which needs careful monitoring.
European States can avoid creating a generation of stateless children by honouring and implementing their obligation to grant nationality to children born on their territory who would otherwise be stateless. Half of all European States already operate full safeguards to ensure this, which illustrates that it is not only necessary, but also entirely achievable.
“The link between forced displacement and the risk of childhood statelessness is an often overlooked aspect of the current humanitarian crisis”
How can ECRE members and other organisations or stakeholders get involved?
In his foreword to our toolkit, François Crépeau, the UN Special Rapporteur on the human rights of migrants, spoke of the immigration detention of stateless persons as being one of the silent tragedies of our globalised world.Given that so many stateless persons remain hidden and unprotected, it is vital that all stakeholders working in an immigration detention context are able to identify where a detainee is stateless and how this impacts on the lawfulness of their detention. At a very practical level, sharing the ENS toolkit as widely as possible is itself of real importance.
For any individuals or organisations interested to engage more closely then next year ENS will be looking to support research through its members in additional countries prior to holding a pan European conference in early 2017 as a platform for concerted advocacy and campaigning aimed at tackling the issue. Information about joining ENS is available on the ENS website and you can stay in touch by signing up to our mailing list where we will announce more details about our training and strategic litigation programmes.
“The immigration detention of stateless persons is one of the silent tragedies of our globalised world”
For further information:
- European Network on Statelessness, Protecting Stateless Persons from Arbitrary Detention, November 2015
- European Network on Statelessness, No Child Should Be Stateless, September 2015
This article appeared in the ECRE Weekly Bulletin of 4 December 2015. You can subscribe to the Weekly Bulletin here.