Why Union Law Can And Should Protect Stateless Persons
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Directive (2011/95/EU) can serve as a point of reference. Indeed, in view of
the minimal differences in content of protection established under the 1951
Refugee Convention and the 1954 Convention on Stateless Persons, the most
practical solution would be to equate the content of protection of stateless
persons with that of refugees under the Qualification Directive, except for
those rights that specifically address the plight of refugees, i.e. the prohibition
of refoulement and protection against penalties for illegal entry.
6.3
Conditions for Residence
The 1954 Convention does not entail a right of residence for stateless persons.
As we argued above, however, a right of residence is for many stateless persons
the only avenue to secure a country of stable residence. Moreover, the absence
of a right of residence is problematic in view of the practice in most Member
States of making the enjoyment of socioeconomic rights conditional on lawful residence. Union law also presumes that fair treatment needs to be accorded only to legally resident third-country nationals.116 In most EU Member
States that operate a statelessness determination procedure, including France,
Hungary, Spain, and the United Kingdom, statelessness is a conditional ground
for a residence permit.117 In line with the solution chosen in the EU’s asylum
regime, this right may initially be temporary and renewable but lead to permanent residence after five years of legal residence.118
Statelessness should not, however, in all situations be a ground for residence. First, stateless persons can be excluded from the right to residence
based on the exclusion clauses of Article 1(2) of the 1954 Convention. Second,
the 1954 Convention allows for the expulsion of stateless persons on grounds
of national security and public order.119 As in the EU’s asylum regime, this
may be formulated as a ground for refusing protection and residence, without,
however, denying the recognition their status of being without a nationality.120
Third, there may be good reason to refuse residence to a stateless person if
he has previously enjoyed residence in another country (which can be a third
116 See e.g. Art. 79(1) TFEU and Art. 15(3) Charter of Fundamental Rights of the EU.
117 Adviescommissie Vreemdelingenzaken (ACVZ), Geen land te bekennen (Dutch Advisory
Committee on Migration Affairs, ‘No country of one’s own’) Dec. 2013 (Den Haag, ACVZ,
2013), pp. 63–67. The Belgian government has announced that the recognition of statelessness will as a rule lead to a grant of temporary residence: Regeerakkoord België
1 December 2011, para 2.7.8.
118 Directive 2011/95/EU, Art. 24; Directive 2011/51/EU.
119 Art. 31(1).
120 Cf. Art. 14(4) Directive 2011/95/EU.
European Journal of Migration and Law 19 (2017) 101–135