Why Union Law Can And Should Protect Stateless Persons
127
and whether it was consistent with the principle of proportionality. Rottmann
has not remained without criticism, including from the UK Supreme Court
in Pham; the critique centring especially on the applicability of Union law to
withdrawals of nationality where no cross-border element is at issue.99 Our
proposal for EU action does not, however, deal with national decisions to grant
or withdraw nationality, but is about solidifying the protected status attached
to the legal fact of statelessness.
5.2
Treaty Basis
Unlike its predecessors, the Lisbon Treaty specifically addresses the legal position of stateless persons. According to Article 67(2) TFEU, such persons are,
for the purposes of Title V TFEU (The Area of Freedom, Security and Justice),
to be equated with third-country nationals. This makes the Union competent to
set the conditions for entry and residence of stateless persons in a similar
fashion as it does for third-country nationals. Indeed, the definitional provisions contained in secondary legislation adopted on the basis of Article 78
TFEU (the common asylum policy) explicate that it applies equally to stateless persons and third-country nationals.100 This is also true for legislation adopted on the basis of Art. 79 TFEU (the common immigration policy), such
as the Family Reunification Directive, the Long-term Resident Directive, the
Returns Directive, the Students Directive and the Blue Card Directive: by negatively defining third-country nationals as ‘any person who is not a citizen of
the Union’, they include stateless persons in their scope.101 Although the heading of Chapter 2 of Title V TFEU suggests that it applies only to migrants, it
should be noted that Articles 78 and 79 pertain to all third-country nationals
and stateless persons, wherever they are born and whether or not they have
crossed any borders. Therefore, stateless persons born and residing in a single
EU Member State may fall within the ambit of secondary legislation ensuing
from Articles 78 and 79 TFEU.
The EU legislator has, accordingly, already regulated the position of stateless persons extensively on the basis of Articles 78 and 79 TEU and stateless
persons may well base rights of residence and guarantees on their treatment
on existing EU legislation. However, not all stateless persons necessarily fall in
the scope of any of the relevant directives. Moreover, none of the directives
99
Pham v Secretary of State for the Home Department [2015] UKSC 19, para 55 (Lord
Carnwath) and 69–71 (Lord Mance).
100 See eg Art. 1 Directive 2011/95/EU (Qualification Directive).
101 Art. 2(a) Directive 2003/86/EC, Art. 2(a) Directive 2003/109/EC, Art. 3(1) Directive
2008/115/EC, Art. 2(a) Directive 2004/114/EC, Art. 2(a) Directive 2009/50/EC.
European Journal of Migration and Law 19 (2017) 101–135