Identification of statelessness
The obligation on states to identify stateless persons within their territory or jurisdiction is implicit in international human rights law. Where states are party to the 1954 Convention, this obligation is well established. But, even where states are not party to the Convention (or individuals are excluded from its protection), the identification of stateless persons may be necessary to protect their human rights. For example, in the context of removal and detention, being stateless is likely to present significant barriers to removal, which could render their detention arbitrary. So, without a procedure in place to identify and determine statelessness, authorities risk making unlawful decisions to detain.
While a handful of European countries do have statelessness determination procedures in place, none routinely consider statelessness as part of the decision-making process to remove or detain. Furthermore, very few countries make their statelessness determination procedures easily accessible to people being held in immigration detention. The identification and determination of statelessness is essential to preventing arbitrary immigration detention. To ensure that people have access to justice, and improve accountability and the quality of decision making, there should be investment in establishing and implementing robust procedures and training decision makers.
States should put in place statelessness determination procedures and ensure that:
- Statelessness determination procedures are developed in line with established guidance including the UNHCR Handbook on Protection of Stateless Persons.
- Anyone on the territory or subject to its jurisdiction has access to a statelessness determination procedure at any time, including those who are undocumented, without lawful residence, or in detention.
- Decisions to detain or remove an individual consider statelessness: if someone claims to be stateless or is suspected of being stateless (or is unable to establish their nationality), they should be provided with information and legal aid, and referred to a Statelessness Determination Procedure that can formally recognise their status and grant them the appropriate protection.
- People going through a statelessness determination procedure have a right of appeal and review, access to legal aid and advice, and information about their rights in a language they understand.
“The documents I do have tell me I’m of 'unknown nationality'. Officially I still don't exist”Angela is an ethnic Armenian from Azerbaijan. She fled to the Netherlands seeking asylum with her family in her early teens, but they were refused protection. Countless efforts to obtain new travel documents failed and both Armenia and Azerbaijan refused to facilitate their return. Angela was detained in 2012 during an attempt to forcibly remove her family, which had a huge emotional impact on her. A court ruled her detention unlawful and suspended forced return, but this did not end her limbo.
Ahmad was born in a refugee camp in Lebanon to a family of Palestinian refugees. He has been stateless since his birth. With no prospects for a future in Lebanon, Ahmad embarked on a journey to seek refuge in Europe, but was apprehended by border-guards while attempting to cross from Ukraine into the EU. Ahmad spent three months in detention while attempts were made to deport him. He was released after applying for asylum with the help of an NGO, but with no job or means of subsistence, he lived in destitution. He was later convicted for theft and sentenced to four and a half years’ in prison. Ahmad remains in Ukraine, undocumented and unreturnable, while he seeks a legal remedy to his situation. He lives every day under threat of being re-detained and subject to removal proceedings despite being stateless.
Sergei sought asylum in Bulgaria after being detained and tortured by the authorities in Russia. Despite having claimed asylum, he was issued with removal and detention orders. His asylum application was only formally registered by the authorities later, after Sergei attempted to commit suicide; but, the authorities deemed it to be manifestly unfounded. Bulgaria sought to confirm Sergei’s Russian nationality and remove him, but Russia refused to recognise his citizenship. Sergei spent more than three years in immigration detention in Bulgaria before being released following an intervention by the European courts.
“I am aware of the fact that I am registered as stateless here but no one conducted a specific interview regarding that with me”Abigail was born in Nigeria. Her family is Muslim and Abigail is Christian, leading to divisions in the family. Abigail arrived in Ukraine on a student visa, but did not sign a contract with her university as the fees were expensive and she felt the facilities and teaching were poor. Abigail was detained while attempting to cross the border into the EU with an emergency Belgian travel document that allegedly contained false information about her date of birth. Neither the Nigerian nor the Belgian Embassies in Ukraine could confirm Abigail’s identity and she remains in detention.