Updated 17 October 2023: European Network on Statelessness: Are Stateless Claimants Disadvantaged Within Asylum Procedures? New Evidence from the UK Context
Thomas McGee, PhD researcher at Peter McMullin Centre on Statelessness (Melbourne Law School) and the MENA Statelessness Network (Hawiati)
This blog post introduces new research, conducted as part of the #StatelessJourneys project, into the challenges faced by stateless claimants within asylum procedures in the UK context. The study focuses on the experiences of stateless Kurds from Syria in the UK, revealing hurdles related to civil documentation, cultural understanding, and language analysis. These findings emphasize the need for more statelessness-sensitive procedures and policy changes, both in the UK and within other countries of asylum across Europe.
Updated 7 November 2022: United Nations News: UN refugee chief urges stronger action to end ‘legal limbo’ of statelessness
Stronger Action Needed to End ‘Legal Limbo’ of Statelessness
Statelessness is “a pervasive and grave human rights violation”, “Deprived of the fundamental right to a nationality, those who have been born or left stateless face a devastating legal limbo. They are prevented from accessing their basic human rights and from fully participating in society. Their lives are marked by exclusion, deprivation, and marginalization.”
The UN High Commissioner for Refugees, Filippo Grandi made the appeal as Friday marked the eighth anniversary of #IBelong, a campaign launched by the UN refugee agency, UNHCR, aimed at ending stateless within a decade, or by 2024.
Read more: UN News, https://rb.gy/zti36n
Updated 24 June 2022: European Network on Statelessness: : BRIEFING #3: Protection gaps for stateless refugees from Ukraine
Our analysis of routes to protection for refugees from Ukraine in 17 European countries1 shows that there are significant protection gaps across Europe for stateless people. To prevent discrimination, avoid over-burdening asylum procedures, and facilitate eventual safe return to Ukraine, it is imperative that these gaps are addressed by national and regional authorities.
United Kingdom: Information for stateless people and those at risk of statelessness fleeing Ukraine Although the UK authorities have expressed support for those arriving in the UK from Ukraine, the immigration rules are complex and restrictive. A visa is needed to enter the UK. The UK has set up the Ukraine Family Scheme and the Homes for Ukraine Scheme, which allow people fleeing the war in Ukraine to join their family members in the UK (or their family members) or a person who has offered to sponsor them. The schemes are mostly applicable to Ukrainian nationals. Although some stateless people and people at risk of statelessness may be eligible if they meet the family member criteria for the Ukraine Family Scheme, or if they have evidence of a Ukrainian immediate family member for the Homes for Ukraine Scheme, people who lack documentation may face practical difficulties in accessing the scheme.
Stateless persons and persons at risk of statelessness, unless they are eligible to enter through another avenue (e.g. if they are family members of a Ukrainian national who may apply for a scheme or visa) may only enter the UK by applying for asylum. No data has been published on entry and protection granted to stateless persons fleeing Ukraine. Applications for asylum cannot be made from outside the UK, applicants should inform a Border Force Officer on arrival that they wish to claim asylum.
Updated 2 June 2022: European Network on Statelessness: Netherlands adopts new bills on statelessness
Most European countries still lack an effective procedure to be able to identify and determine whether an individual is stateless and grant them protection. Without a dedicated statelessness determination procedure (SDP) that is fair, efficient, and easily accessible, stateless people cannot access their rights.
In the Netherlands, where civil society has been pushing for the introduction of an SDP for over a decade, this means that tens of thousands of stateless people face daily discrimination, the threat of detention, and rights violations. However, after years of joint advocacy by ENS members and partners, on Tuesday 31 May, the Dutch Parliament passed two bills on statelessness.
WHAT IS CHANGING?
The first bill paves the way for the introduction of a judicial procedure to determine statelessness. The second modifies various other laws including an amendment to the Dutch Nationality Act to allow stateless children without legal residence in the Netherlands to opt for Dutch nationality after five years’ ‘stable and habitual’ residence.
But, while a positive step, the bills do not go far enough in resolving the issues experienced by stateless people in the Netherlands and much work remains to be done. Importantly, the proposed procedure to determine statelessness does not lead to residence, or other rights. Other aspects of the procedure also fall short of international norms and good practice too. The requirement that stateless children have ‘stable and habitual’ residence to opt for Dutch nationality is also not in line with international standards.
Updated 28 April 2022: European Network on Statelessness: Open letter to EU Commissioner for Home Affairs calling for action to ensure access to temporary protection for stateless people fleeing the war in Ukraine
The latest information from our members suggests that stateless people and those at risk of statelessness fleeing Ukraine are facing significant barriers to protection due to their lack of nationality, documentation, or residence status. Most European countries have not extended temporary protection (or other protection schemes for Ukrainian refugees) to stateless people. If able to flee, stateless people and those at risk of statelessness face being stuck in limbo in the EU with options limited to applying for asylum, humanitarian protection, or statelessness status (if available). Such procedures are lengthy, subject to stringent evidentiary requirements that are difficult for stateless people to meet, and do not provide immediate protection. Applying for these procedures may also prevent onward movement and/or return to Ukraine. The Temporary Protection Directive was introduced precisely to avoid people fleeing the war in Ukraine having to resort to such burdensome procedures and to facilitate return once it is safe to do so.
Updated 10 March 2022: European Network on Statelessness: Stateless people and people at risk of statelessness forcibly displaced from Ukraine
The last census in Ukraine recorded 82,550 stateless people, and UNHCR estimated there to be at least 35,000 stateless and people with ‘undetermined nationality’ in 2021.
Other sources suggest there could be many thousands more including a significant proportion of the Roma population as well as children born in Crimea, Luhansk and Donetsk since 2014. People fleeing the conflict in Ukraine who are stateless or at risk of statelessness may face significant extra barriers when seeking safety abroad because of their lack of nationality or lack of civil documentation. It is imperative to ensure that they are afforded equal access to protection and that their rights are guaranteed.
In this new briefing, we explain why statelessness is important in the Ukraine refugee response and how frontline responders can identify statelessness as well as avenues for stateless people to access protection, support, and services. The briefing also makes a series of recommendations to the EU, European States, international agencies and NGOs to ensure that routes to protection for stateless people from Ukraine.
We are compiling a list of organisations providing advice to stateless people fleeing Ukraine and we have created a special page on our website which we intend to update with resources as the situation develops. Please share this and get in touch if you would like us to add additional information.
The briefing draws on information from ENS members and partners working on the ground to provide assistance to people fleeing Ukraine in neighbouring countries as well as the Statelessness Index
European Network on Statelessness: an article from SNN member Liew Teh: “Everything is stuck”: Left in limbo and stateless as a British Overseas Citizen
[There are updates with other relevant articles below]
I arrived in the UK in 2001 at the age of twenty from Malaysia, with feelings of excitement as I embarked on an Engineering Degree at the University of Wolverhampton. I went on to complete a master’s degree in Advanced Technology Management and became a member of the Institution of Engineering Technology and Institution of Mechanical Engineering. My positive experience of the UK inspired me to stay here, living and working to pursue my chartered engineer’s training. I have, however, ended up experiencing life in limbo as a stateless British Overseas Citizen, trying to resolve my status and my right to work.
The beginning of a nightmare
In 2004, by chance, I saw a notice outside a legal firm advertising that Malaysians who were born in Penang or Malacca before 1983 and whose fathers were born in Penang or Malacca before Malaysian independence in 1957, were eligible for British citizenship or right of residence in the UK by virtue of claiming British Overseas Citizen status (BOC). In 2005, I decided to visit a solicitors’ firm for a consultation about BOC status. They advised that they could make an application for a BOC passport given my connection with Penang and I was assured that, based on the firm’s experience at the time, after getting a BOC passport I would be granted leave to remain and/or be given British Citizenship within nine to twelve months by virtue of Section 4B of the British Nationality Act 1981 (BNA 1981).
A year later, I was advised that the Home Office would not consider my application without written confirmation by the Malaysian Government that I was no longer a Malaysian citizen, and so I renounced my Malaysian citizenship, trusting the legal advice that I had been given. The nightmare began after reading the 2009 Asylum and Immigration Tribunal’s determination. I was shocked to discover that the legal advice I had been given was misleading and that renouncing my Malaysian citizenship violated the Section 4B rules. In fact, since 4th July 2002 BOCs will not be eligible for British citizenship if they renounce, voluntarily relinquish or lose their Malaysian citizenship. By then, I was stuck, as I was no longer a Malaysian citizen and my British Overseas Citizen status does not allow me to work or permanently reside in the UK.
A ten-year struggle
Since 2009, I have written to the UK and Malaysian Authorities, and sought new solicitors, as well as support from UNHCR and a number of different charities. Despite writing to the Malaysian Federal Government several times, their only reply in 2009 confirmed that I am no longer a Malaysian citizen. In 2012, I visited the Malaysian High Commission to try to apply for settlement back to Malaysia. It was only last year – seven years later – that the High Commission confirmed to me in writing that anyone who had renounced their Malaysian citizenship after 4th July 2002 would not qualify for a Residence Pass. Even if I had been eligible, my application would not necessarily have been approved, and so I would not have been guaranteed to be able to return to Malaysia. A Residence Pass is also not a form of permanent residence. I have written to my local MP in the UK, who has taken some action to help and now insists they have done what they can, but that there is nothing further they can do to support my case.
British Overseas Citizens
Anyone who was a citizen of the United Kingdom and Colonies on 31 December 1982 and did not become either a British citizen or a British overseas territories citizen on 1 January 1983, became a British overseas citizen on 1 January 1983. Stateless people who meet certain criteria may also be eligible to register as British overseas citizens. Although we are British Nationals, and are able to hold a British passport and get consular assistance and protection from UK diplomatic posts, BOCs are granted limited rights, as we are not automatically granted the right to live or work in the UK and are still subject to immigration controls.
UNHCR and Asylum Aid’s 2011 “Mapping Statelessness in the UK” report describes the unique situation of BOCs from Malaysia in the UK, a number of whom are stuck in uncertain situations similar to mine. It is thought that a number of BOCs from Malaysia have found themselves in limbo, having renounced their Malaysian citizenship as a result of incorrect legal advice, wrongly informing them that they would then be eligible to register under Section 4B BNA 1981. They have since been unable to return to Malaysia or reacquire Malaysian nationality.
In 2018, the High Court made a decision on my case. They found that I am stateless but that, in order to be granted permission to stay in the UK as a stateless person, I would need to provide further evidence that I am not ‘admissible’ to Malaysia with a Residence Pass. In my view, it is clear that I am not admissible to Malaysia for the purposes of permanent residence, and I shared all evidence of my correspondence with the Malaysian authorities, and the fact that they did not respond to my requests, with my solicitor at the time.
The Home Office has responded to the Law Commission’s “The simplifying of Immigration Rules” report with an announcement that by January 2021, there will be changes to the existing Immigration Rules. One of the changes is on statelessness, referring to ‘a status leading to permanent residence’. However, there is no clear definition of what this means. Instead of simplifying the Immigration Rules, I believe this will reduce certainty and the level of protection for stateless migrants. UNHCR, and Liverpool Law Clinic as a stakeholder in the Home Office policy group on statelessness, have now raised the concern to the Home Office and will be highlighting the potential risks presented for stateless people if these changes are passed through.
Applying for statelessness status
Last year, I submitted a new application to stay in the UK as a stateless person. I did this on my own, as I cannot afford a solicitor. The 3 following key areas govern my application under Immigration Rules, policy and guidance: whether I am a stateless person; whether I am admissible back to Malaysia for the purposes of permanent residence; and whether I have deliberately renounced my Malaysian citizenship. In 2012, the Home Office acknowledged that former Malaysian citizens have renounced their Malaysian citizenship in error, not deliberately, and has been aware since 2014 that I cannot return to Malaysia for the purposes of permanent residence. In an email correspondence last year, the Home Office stated that “to qualify for stateless leave in the UK, an applicant must demonstrate that they are stateless and that they will not be admitted to another country for the purposes of permanent residence there”.
The UK government has always maintained that the country has a critical shortage of Science, Technology, Engineering, and Maths skills. I have a bachelor’s degree in Engineering and a master’s degree in Science. I have no criminal record and have never claimed any benefits. I have tried to get permission to return to Malaysia, but there is no legal route eligible for me to apply to return to Malaysia for the purposes of permanent residence nor re-acquire my Malaysian citizenship with immediate effect. I strongly believe that I meet all the requirements of the UK’s immigration rules and guidance on statelessness. I don’t understand why the Home Office has left me stateless for many years when they are aware that I cannot be readmitted to Malaysia for the purposes of permanent residence and I only renounced my Malaysian citizenship on the basis of legal advice, fully expecting that this would mean I would be eligible to stay lawfully in the UK under Section 4B BNA 1981. If I had known the consequences at the time, I would not even have applied for a BOC passport. I have even made a complaint against my former solicitor to the Legal Complaints Service who found that the solicitor failed to advise me of the change in immigration law and the risks involved in my initial application in 2005. I never would have chosen to live in limbo, neither in the UK nor in Malaysia.
Despite my predicament, I continue to contribute and integrate into British society by volunteering with Oxfam’s Wellington shop, Amnesty International Telford Group, and the Wolverhampton Refugee and Migrant Centre. I have also joined badminton, cycling, and Morris Dancing Groups. I am grateful to my friends who have supported me throughout. I want to take back control of my life, be able to live with dignity, and contribute to the UK.
Please help me end this nightmare by signing my petition calling on the Home Office to honour and abide by their Immigration Rules and Policy and guidance on statelessness, and grant me leave to remain as a stateless person.
|WEBINAR: Is Europe falling behind on statelessness determination and protection? 14 September (14-15:00 CET)
Register your place for upcoming webinar marking the publication of a new Statelessness Index briefing on statelessness determination and protection in Europe.
ABOUT THE WEBINAR Stateless people face the risk of rights violations every day. The main reason for this is that most European states still don’t have an established process to identify stateless people and provide them with a route out of limbo.
All states should have a formal statelessness determination procedure that is fair, efficient, and easily accessible. This would allow them to identify and determine who is stateless, and then grant them adequate protection status and rights. Our new briefing shows that some countries have recently taken positive steps towards this goal, but many are falling behind in fulfilling their international obligations.
The speakers will discuss good practice and challenges with examples from countries around Europe. We will hear about the impact on stateless migrants and refugees of not having adequate routes to protection in place, about some of the challenges of introducing new procedures, and the benefits of having a procedure. The event will also discuss how to galvanise action at national and regional levels to ensure that States and regional institutions take steps to improve the protection available to stateless people and resolve statelessness.
The event and our new briefing are intended to help prepare the ground for a major regional intergovernmental conference on statelessness organised by the Council of Europe and UNHCR which will take place in Strasbourg on 23/24 September.
The webinar and briefing are aimed at those working on statelessness, with migrants and refugees, as well as representatives of refugee, migrant and stateless communities, lawyers, civil society, regional institutions, State authorities, UN agencies, and others with an interest in the issue. SPEAKERS
|Lynn Khatib Individual ENS Member & Stateless Activist, Sweden/
Christophe Poirel Director of Human Rights, Council of Europe
Nina Murray Moderator, Head of Policy & Research, the European Network on Statelessness
Marlotte Van Dael ASKV Refugee Support, The Netherlands
Patricia Cabral Legal Policy Officer, the European Network on Statelessness
|ABOUT THE BRIEFINGThis webinar will launch a thematic Statelessness Index briefing examining how law, policy, and practice in the 27 countries featured in the Statelessness Index perform against international norms and good practice on statelessness determination and the protection of stateless people, and recommends key actions needed to improve the protection of stateless migrants and refugees in Europe.
The briefing is the third in a series of thematic briefings developed by the European Network on Statelessness using data from its Statelessness Index, a comparative online tool that assesses European countries’ law, policy and practice on the protection of stateless people and the prevention and reduction of statelessness.
Updated 14 September 2021: European Network on Statelessness: Stateless Index: Statelessness determination and protection in Europe: good practice, challenges, and risks
THEMATIC BRIEFING | SEPTEMBER 2021
To be stateless is to have no nationality. For the millions of stateless people around the world, this can mean denial of basic rights most people take for granted: to go to school or work, get married or register the birth of your child, to legally ‘exist’. In Europe, statelessness affects both recent migrants and those who have lived in the same place for generations. It can be intertwined with other root causes of displacement, such as the persecution of minority groups, armed conflict, discrimination and gaps in nationality laws, and deprivation of nationality practices. Many in Europe are also stateless in situ, or “in their own country”. In situ statelessness is often linked to State succession and discriminatory laws or practices against certain communities trapped in intergenerational statelessness. For example, thousands of Romani people in Europe lack any identification documents to assert their nationality, and hundreds of thousands of people among Russian-speaking minority groups are excluded from citizenship in the Baltic States.
The only way to resolve statelessness is to acquire a nationality. However, it is important to distinguish between the solutions required to address in situ statelessness and statelessness in a migratory context. For people who are stateless in situ, who have long-established ties to the countries where they are living, the solution is not to grant a protection status that prolongs their statelessness. Instead, States should resolve in situ statelessness by confirming or granting nationality to those who lack it, including through targeted nationality campaigns or nationality verification efforts. States should
also work to identify and eliminate discriminatory laws, policies, and practices that perpetuate intergenerational (risk of) statelessness affecting minoritized and marginalised populations.
In the case of stateless migrants or refugees, States should first identify who is stateless on their territory, formally determine their statelessness (giving primacy to any asylum claim), and then grant them an adequate protection status and rights in line with the 1954 Convention relating to the Status of Stateless Persons (1954 Convention) and international human rights law. The determination of statelessness is best fulfilled through a dedicated statelessness determination procedure (SDP) that is fair, efficient, and easily accessible, in line with UNHCR guidelines. Statelessness status should include a residence permit, access to economic, social, civil, and political rights, the right to administrative assistance, exemption from requirements they cannot meet because they are stateless, and other rights protected by international law. States should also establish a facilitated route to naturalisation so stateless people can acquire a nationality and resolve their statelessness.