Statelessness Working Paper Series No. 2017/08 There is a well-established link between statelessness and further displacement.49 If states do not approach the definition of ‘stateless person’ with a common interpretation or application, it will cause the applicant to move from one state to another in hope of a more favourable outcome.50 In refugee law, this phenomenon is called ‘asylum shopping’; in the situation of non-refugee stateless persons, it may be rephrased as ‘protection shopping’.51 Harmonising the standards on national SDPs may prevent secondary migration, which is one key aim of the EU acquis communautaire on migration and asylum. Given the legal and institutional background of both organisations, there is a large scale of tools that can be utilised to promote the adoption of harmonised SDPs, from adopting EU legislation to the utilisation of Council of Europe soft law tools. 3.2. Adopting European Union legislation on the identification and protection of stateless persons In December 2015, the European Council and the Representatives of the Governments of the Member States adopted the European Council Conclusions on Statelessness.52 The document begins by recalling the pledges of the Council made in recent years, and welcomes UNHCR’s 10-year campaign to end statelessness by 2024. It recalls that the Asylum, Migration and Integration Fund 2014-2020 can be used for implementing measures addressed to stateless persons. Most importantly, it acknowledges the importance of identifying stateless persons and takes note of the current SDPs some Member States have in place.53 In their research, Swider and den Heijer argue that SDPs should be addressed at the EU level because, although most Member States are party to the 1954 Convention, only a few have adopted SDPs yet. Thus, the majority of the Member States are violating international standards.54 While, legally speaking, this is a solid argument, the author views it from a different angle: with 24 Member States party to the 1954 Convention and six Member States55 with functioning SDPs, the EU area is the leading region in the identification and protection of stateless persons. Advocates of EU-harmonised SDPs have already worked out possibilities of adopting an EU legislative act on the subject matter by picking the right treaty basis for regulation. Molnár argues that the ground for the identification and protection of stateless persons is Article 67(2) TFEU, read in conjunction with Article 352 TFEU, the ‘flexibility clause’.56 The latter allows the Union’s competences to be adjusted to the objectives laid down by the TFEU where it has not provided the powers of action necessary to attain them. Since Article 67(2) TFEU mentions stateless persons as of the same status as third-country nationals, it brings them in its scope.57 49 Norwegian Refugee Council, ‘Statelessness and Displacement: Scoping Paper’ (2014), available at: http://www.institutesi.org/stateless_displacement.pdf [accessed 27 March 2017] 50 Carol Batchelor, ‘The 1954 Convention Relating to the Status of Stateless Persons: Implementation Within the European Union Member States and Recommendations for Harmonization’ (2004), Refuge, Vol. 22, No. 2 (2005), p. 32. 51 Katalin Berényi, ‘Statelessness and the refugee crisis in Europe’ (2016), Forced Migration Review 53, October 2016, p. 70. 52 European Council, ‘Conclusions of the Council and the Representatives of the Governments of the Member States on Statelessness’ (4 December 2016), available at: http://www.consilium.europa.eu/en/press/pressreleases/2015/12/04-council-adopts-conclusions-on-statelessness/ [accessed 26 March 2017] 53 Ibid. 54 Maarten den Heijer and Katja Swider, ‘Why Union Law Can and Should Protect Stateless Persons’, Amsterdam Centre for European Law and Governance Research Paper No. 2016-03, available at: http://ssrn.com/abstract=2823627 [accessed 18 April 2017] 55 France, Hungary, Italy, Latvia, Spain and the United Kingdom. 56 Tamás Molnár, ‘Moving Statelessness Forward on the International Agenda’ (2014), Tilburg Law Review 19 (2014), footnote 21 on p. 198. 57 Ibid. 11