Oleksandra Zmiyenko
Saggi – DPCE online, 2020/4
ISSN: 2037-6677
5259
of securitization of migration, while the worldwide changes anticipate legislative
developments. Against this backdrop, the phenomenon of statelessness, invisible
as stateless persons in a citizen register, becomes more apparent. The legal
vacuum, which represents the gravest violation of human right to a nationality,
gradually emerges on the policy-making agenda.
Considering the instances of unresolved endemic statelessness, the question
is whether the European Union can address de jure statelessness in the context of
forced migration, given the fact that this context retains a prominent place on the
political scene. Acknowledging the methodological challenges of interdisciplinary
research, this paper limits its scope to mainly legal analysis. Aiming to identify
policy (in)coherence between the EU and its Member States and the policy gaps
in addressing statelessness, the paper compares four legal systems: German,
Italian, Hungarian and Polish. The data for the case studies is derived from the
Statelessness Index3 – a comparative tool established and managed by the
European Network on Statelessness.
Notwithstanding uncertainty in governance raising from the complex issue
of EU competence that is not explicitly listed in the ‘catalogue’ of the Treaty of
the Functioning of the European Union4, up to the uncertainty of the status of the
persons concerned with a great variability depending on the legal systems, there
is a space to regulate. An analysis of the fragmentation of policies and actions
across the EU Member States indicates possible field for supranational or
intergovernmental action. The approximation of certain parts of the legislation,
such as statelessness determination procedures, might be addressed at the EU
level. In spite of an apparent lack of EU competences in the field of nationality,
there are both international obligations and a legal basis which empowers the EU
to take an active role in addressing statelessness.
The UNHCR-defined framework includes 10 actions to end statelessness,
however not all of them relate to statelessness in the context of forced migration.
An overview of the selected EU Member States requires narrowing the actions
described by UNHCR. The present paper thus structures the analysis around the
policies related to the prevention of new cases of statelessness from emerging, and
to the identification and protection of stateless persons. In these areas subjectmatter uncertainty may be resolved with tangible harmonised measures.
Prior to analysing the cases of the selected Member States, the paper first
describes the international legal framework and the EU’s place in it, including the
judicial developments that limited an absolute state discretion in nationality
matters. After reviewing the policies of the chosen countries related to
statelessness prevention, and to statelessness determination procedures, the paper
concludes on the necessity to achieve the Sustainable Development Goals’ (SDG)
3 Statelessness Index, available at https://index.statelessness.eu/, accessed on 7-7-2020.
4 See Consolidated versions of the Treaty on European Union and the Treaty on the
Functioning of the European Union (TFEU), art. 3-6.