While the 1954 Convention defines a stateless person, it does not elaborate a procedure for identifying who is stateless. It is thus in the interests of States, and of the individuals to whom the Convention might apply, that States adopt legislation that guides the manner in which a stateless person is identified. Such legislation should also designate a decision-maker and establish the consequences of identifying a person as stateless.
Some States have adopted implementing legislation that designates specific agencies within the government – offices that deal specifically with asylum, refugees, and stateless persons, or the Ministry of the Interior, for example – that will examine and adjudicate claims of statelessness. Other States that have no specific legislation establishing a procedure to recognise statelessness have instituted an administrative or judicial authority that is tasked with determining whether an individual is stateless. Many more States, however, have no specific procedure in place. In many of these cases, the question of statelessness often arises during refugee status determination procedures. Stateless persons may then be “processed” within that framework, which includes humanitarian or subsidiary protection. Stateless persons may, in fact, be obliged to channel their application through the asylum regime simply because there is no other procedure available to them.
Some countries do not have specific recognition procedures for stateless persons, but the issue may arise when an individual applies for a residency permit or a travel document, or if an application for asylum is rejected and a claim is made to remain in an asylum country on other grounds.
Without specific procedures to identify stateless persons, it is impossible to determine how many cases of statelessness remain unidentified, and it is thus impossible to determine the exact magnitude of the problem.
In France, the procedure for recognising stateless status is conducted within the French Office for the Protection of Refugees and Stateless Persons (OFPRA), which is mandated to provide judicial and administrative protection to stateless persons. Applicants must apply directly to OPFRA.
In Spain, the Aliens law provides that the Ministry of Interior will recognise the status of statelessness in a procedure regulated by Royal Decree. Applicants may approach police stations or the Office for Asylum and Refugees (OAR). Upon completion of the investigative phase, the OAR conducts the procedure then forwards its reasoned assessment to the Ministry of Interior.
In Italy, the 1993 implementing decree of the amendments to the Nationality Law adopted the previous year gives the Ministry of Interior the authority to recognise stateless status.
It is generally up to the applicant to provide documentation from the embassy or consular offices of his/her “country of origin” – the country of birth or a country that issued a prior travel document – confirming that the individual is not a national. As described earlier, this may not always be possible. If complete documentation is unavailable, some States may accept other elements of proof, such as reviews of relevant nationality laws and declarations made by witnesses and other third parties. The search for information may require a collaborative approach among various departments and ministries within a government and among other States.
At the time of writing, there is no harmonised approach to identifying stateless persons among States. Since the criteria for establishing proof of statelessness may vary from State to State, an individual who might be recognised as stateless in one country might not be so recognised in other countries.
In 2005, UNHCR issued a Report on the Implementation of the 1954 Convention within the European Union Member States. The study found that most EU States had not yet established specific mechanisms to identify and recognise stateless persons; instead, asylum procedures were generally used for this task. As a result, it is impossible to determine the magnitude of the problem of statelessness within the European Union.
However, in producing the report, UNHCR highlighted best practices at the national level which could be used to harmonise identification and recognition procedures among the States of the European Union and to guide States that have already ratified the 1954 Convention.
Who should decide if an individual is stateless?
Qualified personnel who are specialised in the field of statelessness and who can impartially and objectively examine the application and evidence supporting it should be designated to make determinations of statelessness. A central authority responsible for such determinations would reduce the risk of inconsistent decisions, would be more effective in obtaining and disseminating information on countries-of-origin, and would, by its focused work, be better able to develop its expertise in matters related to statelessness. The determination of statelessness status requires the collection and analysis of laws, regulations, and the practices of other States. Even without a central authority, decision–makers benefit from collaborating with colleagues knowledgeable about nationality legislation and the issue of statelessness both within the government and in other States.
Individuals access to the procedure
The 1954 Convention doesn’t oblige States to grant a legal stay to an individual while his / her request for recognition as a stateless person is being assessed. However, once an individual is on a State’s territory, a determination of his/her nationality status may be the only way to identify a solution to his/her plight. If the individual is determined to be stateless, and if there is no possibility of return to the country of former habitual residence or if there is no such country, then admittance to the State and some type of legal stay may be the only solution.
If an individual has made an application to be recognised as stateless, or if the authorities are trying to determine whether or not an individual is stateless, then it may be necessary to provide for temporary stay while the process is underway.
The Convention is silent on whether a legal stay shall be granted while the request for recognition of stateless status is being assessed. Practices among the States with dedicated procedures vary.
The principle of due process requires that applicants be given certain guarantees including:
• the right to an individual examination of the claim in which the applicant may participate;
• the right to objective treatment of the claim;
• a time limit on the length of the procedure;
• access to information about the procedure in language the claimant can understand;
• access to legal advice and an interpreter;
• the right to confidentiality and data protection;
• delivery of both a decision and the reasons that underlie the decision; and
• the possibility to challenge the legality of that decision.
Some categories of applicants for stateless status, particularly unaccompanied children, have special needs that require distinct procedural provisions. These provisions may include the appointment of a guardian to represent or assist the unaccompanied child during the administrative procedure.
Detention of stateless persons
Stateless persons should not normally be detained. Individuals who are stateless often lack identity documents, such as national identity cards or passports, which can establish their identity. Even if the country of former residence has been identified, often that country will not immediately accept the readmission of the individual. In these situations, detention should be avoided and only be resorted to if clearly based on national legislation that conforms to international human rights law. Alternatives to detention should be explored first, unless there is evidence to suggest that the alternatives will not be effective for the individual concerned.
Stateless persons without a legal stay should be detained only after considering all possible alternatives. In making the exceptional decision to detain, authorities should determine whether detention is reasonable and proportional to the objectives to be achieved. If judged necessary, detention should only be imposed in a non-discriminatory manner for a minimal period of time. UNHCR can advise on these cases, if requested.
Naturalisation procedure available to persons recognised as stateless
States Parties to the Convention are requested to facilitate the assimilation and naturalisation of stateless persons to the greatest extent possible. (The word “assimilation” here does not mean loss of the specific identity of the persons involved, but rather integration into the economic, social, and cultural life of the country.) In particular, they are required to make every effort to expedite naturalisation proceedings, including by reducing fees and costs whenever possible.
After Timor-Leste declared independence from Indonesia, all East Timorese living in Indonesia were given the option of retaining Indonesian citizenship or acquiring Timor-Leste citizenship with which they could remain in Indonesia as aliens with a valid residence permit.
Some countries have included in their nationality legislation reduced terms of legal residence for refugees and stateless persons who want to apply for naturalisation.
The 1997 European Convention on Nationality (ECN) further develops this recommendation by requesting that domestic law contain rules that make it possible for foreigners lawfully and habitually resident in the territory to be naturalised. The ECN additionally limits any residency requirements to a maximum of 10 years before an individual would be entitled to lodge an application for naturalisation. The Convention also encourages States to consider using expedited naturalisation procedures for stateless persons and recognised refugees.
IMAGE CREDIT: IOM