OAS Course on Statelessness: Procedures for Determining Statelessness Status Laura van Waas - Statelessness Programme - [email protected].

OAS Course on Statelessness: Procedures for

Determining Statelessness Status

Laura van Waas - Statelessness Programme - [email protected]

Setting the Scene

You work at a civil registry office and a man approaches the desk, claiming that he is stateless. He explains that he needs to travel abroad to seek specialised healthcare and asks for your help to get him a travel document.

What can / should you do?

You are an immigration officer who oversees expulsion proceedings. You are worried about a case of a woman who has been held in immigration detention for 7 months now because you are unable to find a country willing to admit her.

What can / should you do?

Statelessness Programme

Statelessness Status Determination?

Statelessness status determination procedures can…

Be a precursor to issuing a stateless person travel documentHelp states to find an appropriate solution for people trapped in immigration detentionBe key to ensuring that stateless people enjoy rights to which they are entitled under international lawFacilitate the application of safeguards that prevent new cases of statelessness [e.g. where a parent’s statelessness has been established]Increase visibility of issue of statelessness

Statelessness Programme

SSD: General Considerations

Who should determine statelessness status?

Who should initiate the procedure?

Who should be obliged to establish statelessness?

What kind of evidence should be admitted?

How much evidence is needed to establish statelessness?

What should be the status of applicants awaiting status determination?

Statelessness Programme

Competent Authority

Who should determine statelessness status?

Centalised vs. decentralised authority

New / separate vs. existing body [e.g. integrate into asylum or immigration

procedures?]

Specialised expertise and training

Binding effect of determinations

Right to an effective remedy

Statelessness Programme

Who should initiate the procedure?

Determination upon the request of the applicant

Determination at the initiative of the state, ex officio?

Procedures should be simple and accessible

[e.g. reasonable fees, availability of legal aid]

Determination should be on individual basis

Statelessness Programme

Initiating the Procedure

Burden of Proof

Who should be obliged to establish statelessness?

Necessity of sharing burden of proof, between applicant and state what can each contribute?

Applicant’s role: to cooperate to establish relevant facts State’s role: to facilitate search for evidence

Burden of proof may also shift during procedure, e.g from applicant to state

Statelessness Programme

Evidence

What kind of evidence should be admitted?

Assessment of nationality law and practice

All available evidence should be considered

Contacting foreign authorities

[not appropriate if there are protection concerns]

Non-response from foreign authorities as evidence?

Hearing the applicant

Statelessness Programme

Standard of Proof

How much evidence is needed to establish statelessness?

Any state vs. all states with which state does applicant have links?

Substantiate vs. prove

Evidentiary requirements should not be so onerous as to prevent stateless people enjoying protection

Statelessness Programme

“Applicant Status”

What should be the status of applicants awaiting status determination?

Minimum set of rights

Avoidance of arbitrary detention

[alternatives to detention]

Statelessness Programme

“Statelessness Status”

What should be the status of persons recognised as stateless? Stable legal status residence and rights

Pathway to nationality?[link to facilitated naturalisation for stateless persons]

Statelessness Programme

Final Observations

Statelessness Status Determination not just relevant to state parties of 1954 Statelessness Convention practical solution for any state facing cases

Expert meeting conclusions on Statelessness Status Determination Procedures and Status (Dec. 2010)

UNHCR Guidelines (forthcoming 2012)

Technical support from UNHCR

Examples of existing state practice

Statelessness Programme