Why Union Law Can And Should Protect Stateless Persons
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for determining statelessness affect the rights conferred and protected by the
legal order of the Union, such procedures lie within the scope of Union law
and must take due regard of the principles of Union law.86 Although it will
normally not matter for the application of those directives whether a person
is stateless or a third-country national, rendering it unnecessary to make a formal distinction in individual cases, some provisions in these Directives do have
different legal effects for persons with and persons without a nationality. For
example, Article 36 of the Asylum Procedures Directive (2013/32/EU), laying
down the ‘safe country of origin’-concept, sets forth that for persons with a
nationality, only the country of nationality can be a safe country of origin. The
country of origin of stateless persons, however, is defined as any country where
they have been formerly habitually resident.
Not only the distinction between stateless persons and third-country nationals is relevant under existing Union law. Even more consequential would
be a failure to properly identify whether someone is stateless or in fact a Union
citizen. If France, for example, wishes to forcibly evict Roma from illegally set
up camps and expel them from its territory, it makes quite a difference for their
position under EU law whether they are treated as stateless or as a national of
another Member State and thus an EU citizen.87 A lack of clarity in such cases
bears with it the risk that persons are treated under the wrong legal regime. It
could well be argued that in those cases, the principle of giving useful effect
to EU law already obliges Member States to have in place fair procedures for
determining whether a person is stateless.
Finally, increasing the level of protection of stateless persons and ensuring
their participation in socioeconomic life squares fully with the foundational values of the Union, namely respect for human dignity and other human
rights, combatting social exclusion and discrimination, and promoting integration policies which foster social cohesion and economic dynamism.88
86 See, mutatis mutandis, Case C-135/08 (Rottmann), para 42, 48.
87 For a comparable case in The Netherlands, see District Court The Hague 5 August 2009,
ECLI:NL:RBSGR:2009:BJ6433, concerning a person with an ineffective nationality of former Czechoslovakia, whose residence right in the Netherlands depended on whether he
was to be recognized as stateless or as a Slovak national.
88 Art. 2 and 3 TEU. Also see Conclusions of the European Council of 26/27 June 2014,
para 1.6.
European Journal of Migration and Law 19 (2017) 101–135