BARRIER
High standard of proof in Switzerland
By default, the standard of proof applied to the determination of
statelessness in Switzerland is ‘full proof’. Unlike in the asylum procedure,
where a lower standard of proof is applied, there is no provision in law
to acknowledge the challenges faced by applicants to evidence their
statelessness. The Swiss courts have endorsed this higher standard of proof
in recent judgments.
Lack of child rights-based statelessness determination procedures
SDPs are also essential to identify stateless children among migrant populations and
ensure that the rights they are entitled to are upheld until they acquire a nationality.
However, procedures are usually applied to children without adaptation from the
general SDP, and the burden of proof remains with the child. It is often unclear
whether unaccompanied children are provided with a guardian or granted legal aid
in any of the countries that have a dedicated SDP (except France, Hungary, and
Moldova).57
3.2.3. Procedural safeguards
There are several minimum procedural safeguards that must be provided for in an
SDP. Applicants should be offered free legal aid, interpreting, and translation services
on the same basis as asylum applicants. They should have the right to an individual
interview and necessary assistance to ensure they can present their situation and
clarify any questions material to their application.58 In particular, for child applicants,
there should be child-rights-based adaptations and procedural safeguards in place,
including ex officio initiation of the SDP, prioritisation in the processing of claims
and provision of adequately trained legal representatives, interviewers, guardians
and interpreters (where appropriate).59 The determination should be carried out
expeditiously and decisions issued in writing within an established, reasonable time
limit of no longer than six months (or twelve months in exceptional circumstances).60
There should be a mechanism for cross-referral between the SDP and asylum
procedures (giving primacy to the asylum claim), and procedures to recognise or
grant nationality, should an entitlement to nationality become apparent during the
procedure. The SDP should be subject to regular quality-assurance audits and UNHCR
should be guaranteed access to the procedure as an additional safeguard.
Good practice
In Hungary and Ukraine, free legal aid is available to all applicants at all stages of the
procedure. In Hungary, interviews are mandatory, interpreters are provided if required,
and legal aid representatives are permitted to attend and comment. Interviews are also
mandatory in Ukraine, Moldova, and Bulgaria, and interpretation is available in most
countries during the interview (except in Bulgaria, Italy, and Switzerland). In Ukraine
and Moldova, the authorities must examine an application within six months, although
this can be extended with reasoning. In Latvia, there is a time limit of three months,
but it is unclear whether this is adhered to in practice. In Hungary, the limit is 45 days,
but this can be extended where there is a delay on the part of a foreign authority,
which can result in lengthy delays.