The determination of statelessness
5.4.4
135
The procedural framework
In addition to the above structural issues, a number of procedural guarantees also need to be observed.70 First, the right to a personal hearing, which
provides the most adequate opportunity to collect oral evidence. Here,
national practices vary: the applicant’s personal hearing is mandatory in
Hungary, usual in France and optional in Spain and Italy. Second, given
the evident vulnerability of stateless persons, access to state-funded legal
aid (a right guaranteed in Hungary and Italy, but not in France) would be
crucial in most cases. Third, access by UNHCR to proceedings, governed
by its mandate to protect stateless people’s rights, would be important.71
This may include access to files and overall data, a possibility to intervene
in individual cases with expert opinions and assistance in establishing
facts and information from the country of origin. At the time of writing,
Hungarian regulation shows an exemplary practice in this respect.72
Fourth, effective judicial review also constitutes an indispensable procedural safeguard in statelessness determination (regardless of whether
the first-instance determination is administrative or judicial).73 Besides
evident due process and quality considerations, practice demonstrates that
judicial guidance is crucial in shaping protection mechanisms – particularly in such a ‘new’ area of protection, where only limited international
experience, soft law and academic literature is available. Rules and frameworks for judicial review differ greatly, even within the small group of
countries operating a statelessness-specific protection mechanism. A personal hearing is mandatory in Hungary, while Spanish and French courts
usually decide sur dossier. Spanish, Hungarian and Italian judges can
grant stateless status themselves, while their French colleagues can only
quash lower-instance decisions. Regardless, the increasing involvement of
70
71
72
73
See also UNHCR, ‘Guidelines on Statelessness No. 2: Procedures for Determining
whether an Individual is a Stateless Person’, paras. 19–21.
See in particular UN General Assembly, ‘Office of the United Nations High
Commissioner for Refugees: Resolution adopted by the General Assembly’ A/
RES/49/169 (24 February 1995); UN General Assembly, ‘Office of the United Nations
High Commissioner for Refugees: resolution adopted by the General Assembly, 9’ A/
RES/50/152 (February 1996); UN General Assembly, ‘Resolution 61/137 Adopted by the
UN General Assembly: Office of the United Nations High Commissioner for Refugees’
A/RES/61/137 (25 January 2007).
Act II of 2007 on the Admission and Right of Residence of Th ird-Country Nationals,
s. 81.
See UNHCR, ‘Guidelines on Statelessness No. 2: Procedures for Determining whether an
Individual is a Stateless Person’, paras. 24–5.
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