Legal briefing: Statelessness and the right to respect for private and family life October 2024 statelessness status and a permanent residence permit, and the other two applicants to obtain a five-year temporary residence permit and subsequently apply for long-term permanent residence permits. The Court found that such measures would enable the applicants to remain in Latvia and to exercise their right to respect for private and family life. In Konstatinov, the ECtHR affirmed that Article 8 ECHR requires that a balancing exercise be carried out in immigration cases between the competing rights of individuals and the community of the country in question.82 The ECtHR referred to, inter alia, the applicant’s precarious immigration status, noting that the applicant’s family life (the relationship of the applicant and her husband and the birth of their child) was created at a time when they were aware of their precarious immigration status. It also found that the applicant’s criminal convictions further rendered her immigration status precarious.83 Overall the ECtHR was satisfied that the national authorities had struck a fair balance between the applicant’s interests of enjoying the right to family life and the wider interests of controlling immigration and in the prevention of crime and disorder. Finally, in Dabetic v. Italy,84 the applicant was unable to regularise his status as a stateless person in Italy for over seven years due to shortcomings and delays in the statelessness determination procedure. The ECtHR declared the application inadmissible as it found that the applicant was not a victim of a violation of the ECHR because, after the application was submitted, the Italian court recognised his statelessness status. Summary and analysis While the ECtHR case law mandating Contracting States to offer an effective, accessible and foreseeable route to regularisation is promising, the Court has not gone so far as obligating States to establish a statelessness determination procedure.85 Yet, there is scope for the Court to further develop positive obligations for States to ensure more certainty for stateless persons and determine statelessness. The ECtHR itself may have opened the door to this development, as it stated in Sudita Keita that it cannot subscribe to the “Government’s arguments revolving around the consideration that Article 8 of the Convention cannot be interpreted as requiring the State to grant stateless status to a person”.86 As case law shows, stateless persons who remain unidentified are left in an uncertain status that prevents them from leading a normal private life. Therefore, the lack of statelessness determination by the State often interferes with their private and family life, in which case identification and determination of statelessness becomes a necessity for the person to access solutions. The requirement to establish a procedure to 82 ECtHR, Konstatinov v. The Netherlands (application no. 16351/03), 26 April 2007, paragraph 46. See also ECtHR, Tuquabo-Tekle and Others v. the Netherlands (application no. 60665/00), paragraph 42. 83 ECtHR, Konstatinov v. The Netherlands (application no. 16351/03), 26 April 2007, paragraphs 48-49, 51. See also ECtHR, Üner v. the Netherlands (application no. 46410/99), 18 October 2006, paragraph 54. 84 ECtHR, Dabetic v. Italy (application no. 31149/12), 18 October 2022. See also AIRE Centre and ENS Third Party Intervention, 24 January 2022. 85 The principle of subsidiarity underpinning the ECHR system, see e.g. ECtHR, Handyside v. The United Kingdom (application no. 5493/72), 7 December 1976, paragraphs 48-49 should be taken into consideration, as well as the principle of effectiveness, which provides the ECtHR with important guidance on ensuring that rights are practical and effective. See e.g. ECtHR, Airey v. Ireland (application no. 6289/73), 9 October 1979, paragraph 24. 86 ECtHR, Sudita Keita v. Hungary (application no. 42321/15), 13 May 2020, paragraph 36. 17