As mentioned in section 1 of this chapter, there is greater statistical coverage on statelessness in Europe than in any other part of the world. In recent years, there has also been an increase of research and mapping initiatives on statelessness in the region. UNHCR has published mapping studies and scoping papers of the situation of stateless persons and the law and policy framework in place in a multitude of countries, including in 2014-2016 in Ireland, Malta, Iceland, Finland, Norway, Lithuania, and Sweden. In the same period, the European Network on Statelessness has also been the driving force behind a wealth of research, with a particular focus on childhood statelessness (8 country studies and two regional reports) and the detention of stateless persons (6 country studies and a regional toolkit). Within academia there has also been a growing interest in research relating to statelessness in Europe, including under the Involuntary Loss of European Citizenship project which ran from 2013-2015 and through the EUDO Citizenship Observatory.
This rapidly growing body of analysis on statelessness in Europe provides a powerful resource for understanding the problems and opportunities faced. The following paragraphs take a closer look at selected challenges, legislative reform and advances in jurisprudence that have occurred in the region in the past few years.
Not much is known about statelessness in Bulgaria as no comprehensive mapping study has been undertaken yet. The UNHCR-reported figure for the number of stateless persons in Bulgaria stands at 67 persons. The issue has nevertheless now come onto the domestic agenda and steps are underway which may lead to a better picture of the state of statelessness in the country. Specifically, as 2016 was drawing to a close, the Bulgarian Parliament adopted a law that introduces a statelessness determination procedure, published in the State Gazette on 6 December. While the introduction of such a procedure is very much welcomed, the law comes with some difficulties that threaten its utility for all stateless persons. The law allows the authorities to decide to refuse statelessness status to applicants who entered the country or attempted to pass through it not through the established entry border points or using false or forged documents; reside unlawfully on Bulgarian territory; or have resided legally and continuously in Bulgaria for less than five years. Without a determination procedure that is open to everyone on Bulgarian territory (not just those who are there legally) the law fails not only to adequately identify statelessness but also to put in place an effective protection regime. The systematic identification of stateless persons is needed to protect people from arbitrary and protracted detention, as without it stateless persons may be put in detention without any or only little prospect for removal.
There are just over 85,000 stateless persons in Estonia, almost 6% of the total population. This makes Estonia home to one of the largest stateless populations in Europe. With the restoration of independence of Estonia in 1991, many former citizens of the Soviet Union lost that citizenship and were unable to acquire Estonian nationality. Estonia’s new nationality law pursued a strict jus sanguinis based approach, restoring citizenship to those who were Estonian prior to the country’s incorporation into the Soviet Union and their descendants. Others could apply for naturalisation, but the process was cumbersome. In Estonia, those left stateless in the wake of state succession are known as ‘persons with undetermined citizenship’ and hold a special status under domestic law. A strong package of rights accompanies this status, but not all of the rights and entitlements that Estonian nationals hold are extended to this population.
Many children born to ‘persons with undetermined citizenship’ in Estonia faced statelessness themselves, even if born in the country, due to the way the nationality law was constructed. Over the years, the law did make access to nationality for such children steadily easier, but it was still conditional on the parents’ having resided for at least 5 years in the country and them taking action on behalf of their child for the granting of nationality. According to the Estonian Ministry of Interior, some 300 children were still being born stateless in Estonia each year. In January 2015, Estonia passed a new amendment to its Citizenship Act that further improved access to nationality for these children. Any child born after the amendment entered into force at the start of 2016, children would automatically acquire nationality if the parents are stateless and meet the residence criteria. The amendment also made provision for retroactively granting citizenship to stateless children who were still under the age of 15 when the law entered into force. It also took positive steps in terms of facilitating access to naturalisation for some people who continued to find this a challenge. People over 65 can now take an oral language exam instead of a written exam, highly improving their chances of fulfilling the required language conditions. Nevertheless, concerns remain about both the content of the law and its implementation.
Statelessness in Italy primarily concerns Roma children: around 15.000 such children reportedly live at risk of statelessness. While nationality legislation provides positive routes through which to reduce and prevent childhood statelessness, difficulties remain regarding the practical application of the law. Over the course of the last two years several court rulings have achieved positive progress for the prevention and reduction of statelessness.
On 22 January 2016, the Civil Court of Rome held that held that Italian authorities were too strict in interpreting the ‘legal residence’ as contingent on a person meeting two conditions: uninterrupted registered residence and the continuous possession of a residence permit. On 17 March 2016, the same court overturned a negative decision on an application for citizenship that had been based on a woman’s parents’ failure to complete all registration formalities for her when she was a child. Both cases dealt with difficulties that are common barriers to acquiring nationality among young Roma living in Italy. Uprooted by war in the former Yugoslavia, many Roma came to Italy several decades ago but still cannot meet all administrative formalities for access to nationality—including for their children, even if statelessness threatens—due to their precarious situation before and after relocating to Italy. These court rulings promise to help prevent these problems from becoming a recurring obstacle for such families.
There has also been progress in respect of the protection of stateless persons in Italy. The implementation of the framework for statelessness status determination in Italy is not without its challenges. Italy saw an important judgement on 3 March 2015. The Italian Court of Cassation ruled on a case relating to the Italian determination procedure, effectively lowering the burden of proof for applicants in proving their statelessness and relocating part of this burden to a bigger role for Italian judges in searching evidence in statelessness determination procedures.
In November 2011, UNHCR published a mapping study of Statelessness in the United Kingdom (UK). The report concluded that the UK lacked “specific law, policy and procedures to address many of the challenges confronting stateless persons”. A central problem in the country, as elsewhere in Europe, was the absence of a specific statelessness determination and protection framework. The adoption, in April 2013, of a procedure for granting statelessness leave under Part 14 of the Immigration Rules was therefore a much-welcomed development. Stateless persons can now seek recognition of their stateless status and acquire a residence permit based on that recognition. The exact procedure for granting statelessness leave was elaborated upon further by the government in a related policy instruction, which was updated and published by the government in February 2016.
While the determination procedure is designed to offer a pathway to protection for stateless persons, in practice problems remain. Between the introduction of the procedure and April 2016, almost 1600 persons had submitted application under the Immigration Rules in relation to statelessness. Only 5.2% of decisions (39 decisions) were positive, and 715 applications were refused. More than half of all applications remain pending. There are problems particularly with the practical implementation of the criteria to grant stateless people lawful permission to stay including lack of legal aid, legal errors by UK Home Office staff, slow decision-making by the Home Office, and the lack of right of appeal in case an application gets refused. The reality continues to be that being stateless in the UK often means hardship, with high vulnerability to destitution, depression, exploitation and homelessness. It even may lead to repeated and/or extended periods of detention. Recent research shows that at least 108 stateless persons were detained at the end of 2015. Without their stateless status properly determined, stateless persons remain in migration detention for extended periods, without the prospect of removal.
Civil society in the UK continues to undertake efforts to secure better protection for stateless persons in the country. For instance, on 2 November 2016, the Immigration Law Practitioner’s Association and Liverpool Law Clinic jointly published a tool for legal practitioners to help with offering the highest qualitative legal representation by pressing for the best possible implementation of the statelessness determination procedure.
Brexit and the Scottish independence referendum
When the (first) referendum for Scottish independence took place in 2014, questions were raised as to the potential nationality implications of an independent Scotland. When the vote was ‘no’, the discussion of options for regulating nationality post-succession remained a theoretical one. However, following the ‘yes’ vote for the withdrawal of the United Kingdom from the European Union (Brexit), not only may a second Scottish independence referendum be on the cards, but Brexit itself raises questions on the enjoyment of EU citizenship and its benefits. That nationals of the UK may lose their status of EU citizen once the withdrawal from the EU happens will not create an issue of statelessness (they will still hold British citizenship). However, the ongoing debate about their post-Brexit status raises broader questions about the relationship between nationality of a member state and EU citizenship that are potentially relevant to the status of long-term stateless residents in the EU. Could they, too, make a claim to EU citizenship that bypasses nationality of an EU member state?