By Jason Tucker
Over the last decade, slow and steady progress has been made in Europe towards the goal of preventing and addressing statelessness. However, the failure of states and regional and international organisations to respond to the rise in the number of stateless refugees entering Europe threatens to derail these efforts. Most European states do not have the legal or policy frameworks in place to identify, prevent or address statelessness. For this reason, many states already had several thousand stateless people residing in their territory before the current migration crisis, some of whom were born in these states.
Statelessness should not be a peripheral issue in policy related to refugees. In 2014 it was estimated that there were at least 6 million stateless refugees globally. This number is set to increase as we see further displacement from countries with large stateless populations, such as Syria and Myanmar. In 2015, 12 out of the 28 top countries of origin of asylum applicants in EU states were countries with either a known statelessness problem, gender discriminatory nationality law, or a combination of the two. Therefore statelessness is a real and ever present danger for many refugees seeking asylum in Europe.
With no end in sight to the migration crisis in Europe, it seems pertinent to ask if Europe’s failure to comprehensively prevent and reduce statelessness, combined with the migration crisis, means it is now sleep walking into a ‘crisis of statelessness’? If so what can states, the European Union (EU) and the UN Refugee Agency (UNHCR) do at a practical level to reduce the impacts of this looming crisis?
A stateless person is someone who is not considered a citizen of any state in the world. Not all refugees are stateless, but some stateless people are refugees. Statelessness can be the cause, or a major contributing factor to forced migration. It can also arise as a consequence of forced migration for the individuals concerned or their descendants. Further to this, their statelessness impacts protection concerns as well as the implementation of durable solutions for these refugees.
Statelessness in Europe before the migration crisis
State succession is the primary cause of statelessness in Europe. It is reported by UNHCR that 670,828 people in Europe were stateless in 2015. This number does not include stateless refugees, who UNHCR records as refugees, as well as those unknown to UNCHR – a consequence of most governments not being able to accurately identify stateless people and UNHCR not undertaking identification themselves. This number also does not include the tens or possibly hundreds of thousands of stateless people recorded as being of ‘unknown nationality’, or variations thereof, across a number of European states. Other stateless people have been registered as a nationality that they do not have, a result of the authorities’ lack of understanding of issues related to nationality and statelessness. We can therefore assume that the number of stateless people in Europe is considerably higher than UNHCR reports suggest and that the full scope of the issue remains unknown.
While the majority of Europe’s stateless people were born and raised in the states within which they currently reside, this population also includes some stateless migrants and refugees. Further to this, there are also children born in European states to parents who are stateless migrants or refugees who did not acquire a nationality at birth, for a variety of reasons. Statelessness in the EU is therefore not just a relic of the past (state succession) or a result of external factors (stateless migrants), but is caused and perpetrated by European states themselves, through their lack of legal safeguards to identify, address and prevent statelessness.
Why unrecognised statelessness amongst refugees is problematic
First, at a state level, if states are not aware of who is a stateless refugee they cannot ensure that they provide the appropriate protection and solutions for these people. Stateless refugees often end up in legal and administrative limbo. Solutions are regularly hampered by the lack of identification or acknowledgement of their statelessness. This not only prolongs the individual’s need for protection, but can also be very costly for the state. Repatriation is often not possible as the person does not have a nationality or the right to reside in a state. As statelessness often stems from discrimination in the country of origin, these states are often unwilling to allow these people to return, or even acknowledge their previous link with the state. This can lead to a situation where stateless people become ‘unreturnable’, languishing in detention centres for extended periods of time. Others, due to the state’s failure to provide them with an alternative, become classified as illegal migrants, being forced onto the peripheries of society, with minimal access to basic services or the protection they deserve.
Stateless refugees can also find local integration problematic if law and policy do not account for and address their statelessness. When their refugee status ceases if stateless individuals cannot become citizens they remain stateless. In the three European states that receive the most refugees, only one, Hungary, grants protection based solely on a person’s statelessness. If a stateless person’s refugee status ends in Sweden and Germany they are unable to receive protection as a stateless person. Without proper identification and recognition of their statelessness, these people could end up hidden in administrative and legal blinds spots.
States should also identify stateless refugees to ensure they meet their international and regional obligations to prevent childhood statelessness. If the statelessness of the parent(s) is not known, children can be incorrectly registered as having the nationality that the parent(s) is assumed to have. Worryingly, the three European states to receive the vast majority of refugees only have partial safeguards to prevent childhood statelessness. As such we will continue to see new cases of statelessness arising in these states until full safeguards to prevent childhood statelessness are put in place.
At the regional and international level, both the EU and UNHCR need to centralise considerations of statelessness into their response to the current migration crisis. The ongoing policy position of UNHCR is that a stateless refugee should be treated as a refugee, with their statelessness being seen as secondary to their need for international protection as a refugee. This is claimed to be the most pragmatic way to secure protection for these people (refugees generally receive better protection than stateless people). However, with more and more European states only granting temporary forms of protection to refugees arriving in Europe, this pragmatic approach is increasingly under strain.
Having both the international mandate for the protection of refugees and stateless persons, and temporary protection for refugees only lasting for one year in some states, UNHCR must realise that they are going to be faced with a serious statelessness problem in Europe very soon. This is because while there will be a decrease over time of those rendered stateless by state succession, as this generation dies out, UNHCR will be faced with a new generation of stateless refugees whose refugee status has ended and require, though will by and large not be afforded, protection as stateless persons. These people will also have children who are rendered stateless due to many European states having no, or only partial safeguards, against childhood statelessness.
While the majority of Europe’s stateless people can be found in a handful of states, this new trend will see an increase in stateless people in all refugee receiving states which do not have the appropriate law and policy to identify, address and prevent statelessness. Soon there will be tens of thousands of cases of former refugees who are still stateless, each with their own complicated individual cases. These people may be hidden in administrative loopholes, recorded as the wrong nationality or labelled as illegal immigrants. If these people’s statelessness is not addressed many will pass their statelessness to their children. A European wide crisis of statelessness is looming, a crisis that will require considerable human, financial and technical resources to even understand, let alone to begin to address.
How do we prevent statelessness in Europe now?
Pragmatically there is a desperate need to act immediately to prevent the current movement of stateless refugees into Europe turning into as a crisis of statelessness. Stateless refugees and refugees who are at risk of statelessness need to be identified. Either states, Frontex, the EU or UNHCR need to do this. This should not necessarily take the form of a separate stateless determination procedure (SDP). Statelessness or risk of statelessness should however be raised and the findings recorded during refugee determination/registration procedures. This is crucial in the states on Europe’s borders that offer the first opportunity to identify a refugee as stateless and whose determination procedures influence where a refugee could be reallocated under the EU reallocation scheme.
This identification is necessary as a stateless refugee should not be sent to a country where, due to the national legal framework, their statelessness is unresolvable, or their children would be at risk of being born stateless. If we do not know which of the refugees are stateless this cannot be achieved.
Ideally states should undertake this identification. This seems unlikely as their asylum systems are being stretched, especially those of states on Europe’s borders. If UNHCR is unwilling to undertake stateless determination or assessments in states where this is not provided, they should at least endeavour to provide better information to states on how to identify statelessness amongst these refugees. The guidelines on the protection needs of their persons of concern that UNHCR developed need to be updated with information on statelessness. Currently the International Protection Considerations with Regard to People Fleeing the Syrian Arab Republic Update IV does not mention either the large and well documented stateless populations from Syria, or the gender discrimination in the nationality law. Both of these considerations are major contributing factors to statelessness amongst Syrian refugees and their children. These form the very basic foundations of understanding statelessness in Syria, yet have been omitted in this guideline. Despite this, UNHCR has recently claimed that within this document “detailed attention to issues related to statelessness, risks of statelessness and access to documentation” are included. Such oversights should be addressed immediately to ensure states can make accurate assessments of the statelessness of refugees and their children.
The collective response of states, the EU and UNHCR to Europe’s migration crisis has been, by and large, a failure. Claiming that amid this time of strained asylum systems and a political climate of disunity and fear, we should introduce procedures to identify statelessness seems naively optimistic. However, while states can continue to bury their heads in the sand regarding the future crisis of statelessness in Europe, UNHCR cannot afford to do the same if they want to meet their goal of ending statelessness globally by 2024. At this rate they will be hard pushed to halt the growth of statelessness in Europe, let alone reduce it.
 1.5 million stateless refugees under UNHCR’s mandate and 4.5 million stateless refugees under UNRWA’s mandate. See Institute on Statelessness and Inclusion, 2014, The Worlds Stateless, pp.11
 Institute on Statelessness and Inclusion, 2016, https://www.facebook.com/instituteonstatelessnessinclusion/?fref=ts
 Institute on Statelessness and Inclusion, 2014, The Worlds Stateless, pp. 115
 European Network on Statelessness, 2015, No child Should Be Stateless, http://www.statelessness.eu/sites/www.statelessness.eu/files/ENS_NoChildStateless_final.pdf, pp.34
 UNHCR, 2014, Handbook on the Protection of Stateless Persons, http://www.unhcr.org/uk/protection/statelessness/53b698ab9/handbook-protection-stateless-persons.html pp.31-32
 UNHCR, 2016, In search of solutions: addressing statelessness in the Middle East and North Africa , http://reliefweb.int/sites/reliefweb.int/files/resources/InSearchofSolutions-AddressingStatelessnesintheMiddleEastand….pdf, pp.14