Oleksandra Zmiyenko
Saggi – DPCE online, 2020/4
ISSN: 2037-6677
EU’s competences in the field allows for the identification of the reasons of that
approach. A comparative analysis of a selection of EU Member States’ legislation
results in a nuanced understanding of the fragmentation of the system across
several policies, from the prevention of new statelessness cases to the identification
and protection of stateless persons.
Regardless of the interpretation of the concept of ‘legal identity’ and its
components, there is already a clear diversity in the practices related to birth
registration in the selected Member States. As the above comparison has shown,
not only the (lack of) adherence to key international instruments differs across the
countries, but also the practical obstacles in obtaining legal status, even if it
concerns a status of a de jure stateless person, should be taken into consideration
while assessing the access to legal identity.
Providing legal identity would be a first step, or even the main step to grant
the ‘right to have rights’ to the ones who are stateless, and whose numbers are
growing.
4. Conclusion.
5269
Statelessness remains a hidden phenomenon among the challenges caused by
forced displacement. International recognition of the necessity to address this
legal vacuum led to the adoption of instruments that have, however, a limited
impact. The 1954 and 1961 Conventions have not been ratified by a significant
amount of the countries, including by several EU Member States.
Given the apparent lack of competence in Member States’ nationality
matters, the role of the EU in addressing statelessness in the context of forced
migration seems to be negligible. This impuissance is not constant: not only has
the CJEU pronounced on a number of cases related to citizenship, therefore
restricting absolute state discretion in the matter, there are also provisions in the
Treaties related to immigration and asylum that might serve as a legal basis for
the EU involvement in statelessness issues.
Considering the context of forced migration, a comparative analysis of the
legal framework and practice related to prevention of new causes of statelessness
and identification and protection of stateless persons in four selected Member
States showed a lack of coherence in addressing statelessness in the EU. The case
studies of Germany, Italy, Hungary and Poland illustrated gaps in the legislative
framework related to statelessness. Imperfect legislation combined with an
inconsistent application of the law may imply a possibility of being born stateless
in the ‘area of freedom, security and justice’. A lack of harmonized statelessness
determination procedures allows for incoherence in the identification of
statelessness and further obstacles in the protection of stateless persons. Even
without thorough conceptualisation of ‘uncertainty’, entire matter reflects
Commission, Sustainable Development Goals), therefore only the latter refers to internal
measures.