von Rütte 151 Hoti’s statelessness, his lack of ties to any state other than Croatia and the fact that the applicant was always tolerated by the Croatian authorities even if he had no residence permit.44 In its assessment of the regularisation procedures open to Mr Hoti, the Court criticized the national authorities for failing to take into account the applicant’s private-life considerations. Moreover, contrary to the principles of the 1954 Convention the authorities were requiring the applicant to provide documents which by virtue of his statelessness he was unable to provide and did not offer any assistance in acquiring these documents.45 Finally, it found that the discretionary procedure to be granted a temporary residence permit on humanitarian grounds could not provide the necessary accessibility, effectiveness and stability required by the right to private life. Taking all these factors into consideration, the Court concluded that Croatia had not complied with its positive obligation to provide an effective and accessible procedure or a combination of procedures that would have enabled Mr Hoti to have the issues of his further stay and status in Croatia determined with due regard to his private-life interests.46 This failure to provide for a regularisation procedure, so the conclusion of the ECtHR, amounted to a violation of Article 8 ECHR.47 3.3 A Unique Situation? The Status of Stateless Migrants after the Dissolution of Former Yugoslavia In its judgment, the Court repeatedly hinted at the complexity of the situation after the dissolution of the SFRY and Mr Hoti’s statelessness that distinguish the case from other migration cases. In particular, the complexity of the situation after the dissolution of the former SFRY created a ‘very specific factual and legal situation’.48 The collapse of the SFRY, the succession process and the subsequent wars in the successor states had additional negative effects on Mr Hoti’s residence status.49 The argument of the ECtHR of the exceptionality of the context of state succession seems to imply that the case of Mr Hoti is unique, and the Court’s ruling does not have implications for non-citizens in other situations. This exceptionality-argument is not entirely convincing. While the particular circumstances of the case explain why Mr Hoti is stateless, his statelessness is not alone decisive for the failure of Croatia to fulfil its positive obligations under Article 8 ECHR. Even though the Court distinguishes the situation of stateless migrants from persons, who were erased from registers, or from persons who are threatened with withdrawal of their residence permit and removal, the right to private life applies to everyone alike, provided that a person has established a private life which is to be protected. What ultimately seems decisive in the case of Hoti v. Croatia is the fact that the applicant had lived in Croatia for more than forty years; that he has no social or other links with any other country that his presence had been tolerated by the Croatian authorities; and that he was able to make a living and build a life in Croatia during all those years.50 In other words, what was decisive was that Mr Hoti had such close ties to Croatia and none to any other country. Given that he is stateless, he, moreover, had no other country to turn to. Therefore, the ECtHR concluded, not having access to a regularisation procedure that would allow the applicant to stay in the country lawfully and permanently would violate Mr Hoti’s right to private life. Coming to the conclusion that not the particular circumstances of the case and the applicant’s statelessness as a consequence of the dissolution of the SFRY was ultimately decisive for the finding of the violation of Article 8 ECHR, also sheds a new light on the question of the relevance of the judgment in the context of access to citizenship. Not being called upon to examine whether the applicant should be granted Croatian citizenship, the Court was able to leave this question open in the judgment. Consequently, it also rejected the argument of the government that Mr Hoti could have tried to acquire Croatian citizenship and underlines that an alien may wish to continue living in a state without necessarily acquiring its nationality.51 Does this mean that Mr Hoti would also have had a legitimate claim to acquire Croatian nationality under Article 8 ECHR if that would have been the subject of the case? Even though the Court implicitly states that 44 45 46 47 48 49 50 51 Hoti v. Croatia (n 1) para 127 ff. Hoti v. Croatia (n 1) para 138. Hoti v. Croatia (n 1) para 141. The 1954 Convention, by contrast, does not oblige states to provide stateless persons with a right to enter or remain, see Laura van Waas, Nationality Matters: Statelessness under International Law (Intersentia 2008) 248 f. Hoti v. Croatia (n 1) para 109. Hoti v. Croatia (n 1) para 127. See for a similar argument David Owen, ‘On the Right to Have Nationality Rights: Statelessness, Citizenship and Human Rights’ (2018) 65 Netherlands International Law Review 299, 314. Hoti v. Croatia (n 1) para 131.