Why Union Law Can And Should Protect Stateless Persons
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meaning of not being recognised as a national by any state under the operation of its law, as defined in the 1954 Convention.
A second concern is that neither of the two UN Statelessness Conventions
place an explicit obligation on Contracting States to establish a statelessness
determination procedure. The identification of stateless persons has only recently been recognised by the UN as an issue requiring separate attention.26
It is widely agreed that it is impossible to effectively implement many of the
provisions of these Conventions without having a mechanism for the identification of their beneficiaries. By analogy, the 1951 Refugee Convention neither
contains an explicit obligation to establish a refugee determination procedure,
but the implicit duty to do so has been recognised for decades already.27
A third issue is that the 1954 Convention, similar to the 1951 Refugee
Convention, does not entail a right of entry or residence. The starting point
for the treatment of stateless persons is Art. 7(1), which stipulates that stateless persons are to be treated as aliens generally, unless the Convention states
otherwise. Therefore, the 1954 Convention does not place stateless persons in a
more favourable position than aliens generally in respect of immigration rules.
Almost all States operating a statelessness determination procedure, however,
provide for residence based on recognition as a stateless person.28 In States
without such a procedure, stateless persons may receive permission to stay
on humanitarian grounds, often disconnected from a formal determination of
statelessness.29 The UNHCR Handbook on the Protection of Stateless Persons
suggests that many of the rights guaranteed to stateless persons in the 1954
Convention can be realised most effectively through granting them a legal residence status.30 Indeed, legal residence is in most countries a prerequisite for
26
U NHCR, Conclusion on Identification, Prevention and Reduction of Statelessness and
Protection of Stateless Persons, 6 October 2006, No. 106 (LVII).
27 See, for example, 1979 UNHCR, Handbook on Procedures and Criteria for Determining
Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of
Refugees, as re-edited in January 1992, HCR/IP/4/Eng/REV.1, (Geneva, UNHCR, 1992), in
particular para. 189.
28 Belgium is an exception. See, European Network on Statelessness (ENS), Statelessness
Determination and the Protection Status of Stateless Persons: A summary guide of good
practices and factors to consider when designing national determination and protection
mechanisms (London, ENS, 2013), p. 36.
29
Batchelor, C., ‘The 1954 Convention Relating to the Status of Stateless Persons:
Implementation Within the European Union Member States and Recommendations for
Harmonization’, 22(2) Refuge (2005) 44.
30
U NHCR, Handbook on Protection of Stateless Persons (Geneva, UNHCR, 2014), paras.
147–150.
European Journal of Migration and Law 19 (2017) 101–135