Why Union Law Can And Should Protect Stateless Persons
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ness determination procedure that entered into effect in the United Kingdom
in April 2013 resulted in 226 applications in 2013 and 557 applications in 2014,
with only 2 and 14 statuses granted in those years, respectively.82 These (very)
low numbers take away fears that statelessness determination procedures
would create a pull-factor.
4
The Rationales for EU Action on Statelessness
In our view, there are two persuasive sets of arguments for promoting and consolidating the aforementioned trend by way of EU legislative action. The first
one centres on human rights and relates to the protection gaps and implementation failures of the 1954 Convention as identified in sections 2 and 3: the
lack of statelessness determination procedures in many EU Member States,
divergent interpretation and application of the definition of ‘stateless person’,
the silence of the UN Conventions on the issue of legal residence, the outdated
catalogue of rights of the 1954 Convention and the lack of effective supervision
and monitoring.
Union law can address all these issues. First, the EU is competent to set the
conditions of residence of third-country nationals, including stateless persons,
and to define the rights of third-country nationals and stateless persons residing legally in a Member State.83 Second, this competence includes the setting
of procedural guarantees for making those rights effective, which can take the
form of a statelessness determination procedure. Third, an EU legislative instrument can provide common interpretations of elements of the definition
of a stateless person, much similar as the EU Qualification Directive does in
respect of the refugee definition of Article 1A(2) of the Refugee Convention.84
Fourth, an EU legislative instrument could lay down a rights regime for stateless persons which integrates the rights of the 1954 Convention and those contained in other human rights instruments, in a similar fashion as the refugee
rights regime laid down in Chapter VII of the EU Qualification Directive. And
fifth, regulating the legal position of stateless persons in Union law ensures
more effective compliance by virtue of EU law having direct effect in the domestic legal orders of the Member States and EU institutional enforcement
mechanisms.
82
Ibid.
83 See further sections 5.1 and 5.2 below.
84 Art. 9–12 Directive 2011/95/EU.
European Journal of Migration and Law 19 (2017) 101–135