150 Social Identity and the Right to Belong – The ECtHR’s Judgment in Hoti v. Croatia from the ruling in the case of Ramadan v. Malta31 where the Court doubted whether the applicant was stateless, required him to present proof and rejected statelessness as a factor of particular vulnerability.32 Stateless migrants, according to Hoti v. Croatia, had to be distinguished from both erased persons as well as settled migrants. Mr Hoti, the Court noted, complained about the uncertainty of his situation and the impossibility to regularise his residence status after an uninterrupted stay in the country—sometimes legally, sometimes tolerated—of almost forty years.33 The case was not about access to the territory but concerned the situation of a stateless migrant who after decades of residence had no legal status and no effective means of acquiring such legal status. It concerned, according to the Court, ‘private life and immigration lato sensu, both of which had to be understood in the context of the complex circumstances of the dissolution of the former SFRY’.34 The judges thus suggested having a broad view on the immigration and private life issues brought to the fore by the case. Unlike stateless persons erased from the registers like the applicants in Kurić and Others v. Slovenia,35 Mr Hoti neither had SFRY nationality nor registered domicile or residence in Croatia at the time of independence.36 ‘Settled migrants’, on the other hand, were ‘persons who had already been formally granted a right of residence in a host country and where a subsequent withdrawal of that right, with a possibility of expulsion, was found to constitute an interference with his or her right to respect for private and/or family life’.37 Further, the case was different from the situation of persons seeking admission to a country on the basis of family ties.38 This recognition of stateless migrants as a particular category of non-citizens acknowledges the particular vulnerability of stateless migrants when it comes to access to a legal status or even citizenship.39 3.2 A Right to an Accessible, Fair and Effective Regularisation Procedure and a Stable Residence Status The main dispute in Hoti v. Croatia was whether Croatia had violated its positive obligations under Article 8 ECHR to ensure everyone within their jurisdiction with an effective enjoyment of their private and family life by failing to allow Mr Hoti to regularise his stay in the country.40 The ECtHR recalled that Article 8 ECHR protects the totality of social ties between a migrant and the community in which he or she lives.41 Even though the Convention does not guarantee non-citizens a right to enter or reside in a particular state or a right to a particular residence permit, it may entail a positive obligation to ensure effective enjoyment of the right to private and family life by providing a concrete and accessible solution for the individual concerned. It then referred to its case law according to which the positive obligation under Article 8 imposes on states an obligation to provide for an effective and accessible means of protecting the right to respect for private and family life.42 With regard to the case at hand, the Court then noted that the uncertainty of the applicant’s residence status in Croatia has adverse repercussions on his private life. He is dependent on the authorities to prolong his residence permit every year, his prospects of finding employment are hampered without a stable legal status, and he has difficulties securing normal health insurance and pension rights.43 In addition, the Court has identified four features which made the situation of Mr Hoti unique: the breakup of the former SFRY, Mr 31 32 33 34 35 36 37 38 39 40 41 42 43 Ramadan v. Malta [2016] ECtHR Application No. 76136/12. See Marie-Bénédicte Dembour, ‘Ramadan v. Malta: When Will the Strasbourg Court Understand That Nationality Is a Core Human Rights Issue?’ (Strasbourg Observers, 22 July 2016) <http://blogs.brighton.ac.uk/humanrights/2016/07/22/ramadan-v-maltawhen-will-the-strasbourg-court-understand-that-nationality-is-a-core-human-rights-issue/> accessed 3 December 2019. See also the Dissenting Opinion of Judge Pinto de Albuquerque in Ramadan v. Malta (n 4). Hoti v. Croatia (n 1) para 117. Hoti v. Croatia (n 1) para 117. Kurić and Others v. Slovenia (n 22). Hoti v. Croatia (n 1) para 111. Hoti v. Croatia (n 1) para 115. Referring to landmark cases such as Üner v. The Netherlands [2006] ECtHR Application No. 46410/99; Maslov v. Austria [2008] ECtHR Application No. 1638/03 and Jeunesse v. the Netherlands [2014] ECtHR 12738/10. Hoti v. Croatia (n 1) para 116. See on the lack of documentation as an impediment to regular migration for stateless persons Sophie Nonnenmacher and Ryszard Cholewinski, ‘The Nexus Between Statelessness and Migration’ in Alice Edwards and Laura Van Waas (eds), Nationality and Statelessness under International Law (Cambridge University Press 2014) 254 ff. Hoti v. Croatia (n 1) para 75. Hoti v. Croatia (n 1) para 119. Hoti v. Croatia (n 1) para 123. Hoti v. Croatia (n 1) para 126.