Chris Nash,
Director of the European Network on Statelessness*
*Reblogged from the Network website
As the number of refugees fleeing
Ukraine nears two million, we and our members on the ground have been
mobilising to try to get a handle on the particular protection needs of
stateless people forcibly displaced by the crisis.
We know from past experience,
including research under our Stateless Journeys initiative, that stateless people
fleeing conflict typically face additional issues and challenges crossing
borders and accessing protection. We also know that statelessness is both a
cause and a consequence of forced displacement.
Upon hearing anecdotal reports of
difficulties experienced by stateless people trying to escape the war in
Ukraine, we wanted to better understand the situation as quickly as possible.
This week we have published an initial briefing to
help inform refugee response actors on the ground so that problems can
hopefully be anticipated and addressed before they become entrenched.
Statelessness in Ukraine
The last census in Ukraine in 2001
recorded 82,550 stateless people, and UNHCR
estimated there to be 35,875stateless and people with ‘undetermined
nationality’ in 2021. Other sources suggest there could be many tens of
thousands more including a significant proportion of the Roma population as
well as children born in Crimea, Luhansk and Donetsk since 2014. The World Bank
recently estimated there to be 999,000 people aged over 15 in Ukraine
without a national ID card. Although not all of these individuals will be
stateless, many will be at increased risk of becoming so if the crisis becomes
more protracted.
It is estimated that 10-20% of
Romani people in Ukraine lack the civil documentation needed to acquire or
confirm their Ukrainian citizenship. Other profiles of stateless people include
former citizens of the USSR who were unable to demonstrate permanent residence
in Ukraine in 1991 and so could not acquire Ukrainian nationality. Some, who
have been unable to acquire any nationality, have since passed their statelessness
on to their children. People living in non-Government controlled areas, Crimea,
and those internally displaced in Ukraine have faced significant barriers to
obtaining or renewing personal documents since 2014, leaving an estimated
60,000 children born in these areas without birth certificates and at risk of
statelessness.
In addition to these significant
in-situ stateless populations, there are asylum-seekers, refugees, and migrants
(and their children) who were residing in Ukraine and were stateless before
leaving their countries of origin (e.g., Palestinians, Kuwaiti Bidoon, Kurds);
or who may have since become stateless due to displacement, discrimination or
gaps in nationality laws, State succession, or deprivation of nationality
practices.
In May 2021, Ukraine introduced a
statelessness determination procedure to determine who is stateless on its
territory and grant protection to stateless people, but this only recently
became operational, and by 31 December 2021 only 55 people had been granted a
temporary residence permit through the procedure. The vast majority of
stateless people living in Ukraine will lack any documentation proving that
they are stateless. This not only poses insurmountable barriers for stateless
people trying to move within Ukraine given current circumstances, but also
significantly impacts on their ability to move to relative safety within the
country, cross borders, and access protection.
Current situation at Ukraine’s Western borders
The initial response of Ukraine’s
western neighbours has been generous, with both government actors and civil
society doing their utmost to welcome and receive unprecedented numbers of
refugees. Hungary, Slovakia, Poland, Romania, and Moldova have all stated
that they are currently admitting everyone fleeing the war in Ukraine,
including stateless people, those at risk of statelessness and/or undocumented
people. A brief summary of policies in each of these countries is available in
our briefing.
However, the picture is
fast-moving and there is a need for vigilant monitoring given emerging evidence
of inconsistent practices and racial profiling at different border crossings
(e.g., in Hungary and Poland) with non-Ukrainians facing barriers to accessing
the territory, or additional ‘secondary screening’ procedures, including in
detention-like conditions in Poland.
Equally, early information from
ENS members suggests that stateless people and those at risk of statelessness
fleeing Ukraine are likely to face additional barriers and differential
treatment depending on their residence, nationality, and/or documentation
status. More time and further research are needed to understand the detailed
picture in terms of how different profiles of stateless people are likely to be
affected.
Application of the EU Temporary Protection Directive and protection
owed to stateless people
A big question mark about the
level of protection likely to be available to stateless refugees from Ukraine
centres around how the EU Temporary Protection Directive (TPD) will be
applied by different countries.
The Directive, invoked by EU
Member States on March 4, grants immediate protection in the EU (other than
Denmark) to Ukrainian nationals and those who had international protection in
Ukraine prior to 24 February 2022. Stateless persons who can prove they held a
permanent residence permit in Ukraine before 24 February and ‘cannot safely
return to their country or region of origin’, are also entitled to temporary
protection, but Member States can choose whether to apply the TPD or ‘adequate
protection under national law’. Member States may also extend temporary
protection to others, including stateless persons who were ‘residing legally’
in Ukraine. People granted temporary protection are entitled to a residence
permit (initially for one year, extendable up to three years unless safe return
is possible), access to the labour market, housing, social welfare, medical care,
and access to education for children.
EU Member States are not
currently required under EU law to extend temporary protection to most
stateless people and those at risk of statelessness who are/were living in
Ukraine. People without proof of permanent residence or international
protection in Ukraine may need to apply for asylum or another form of
protection according to the laws of their host country. This could pose serious
issues in terms of their access to rights and services and their ability to obtain
protection, if denied access to asylum procedures (e.g. as is the case in
Hungary), or, for example, if Ukraine was disputed as their country of origin.
So, even if able to escape Ukraine, stateless people are at particular risk of
subsequently finding themselves excluded or left in limbo, and, in some cases,
also at risk of arbitrary detention.
This in turn highlights the need
for greater awareness of the rights owed to stateless people under
international law. Almost all European States are Party to the 1954 Convention
on the Status of Stateless Persons and so must afford specific rights and
protections to stateless people on their territory. Some countries have
established a statelessness determination procedure to determine who is due
protection under the 1954 Convention and grant protection status or a residence
permit to recognised stateless people (other than refugee status or another
form of international protection). In other countries, stateless people may
access another form of protection or regularise their stay through other
routes. The
situation in terms of access to protection for stateless people in countries
across Europe is by no means uniform. Our Statelessness Index serves as a
tool to help stateless people and their legal representatives to understand and
advocate for their rights.
The way forward – addressing statelessness as part of the developing
refugee response
Our briefing makes a series of
recommendations to the EU, European States, international agencies and NGOs to
ensure that stateless people from Ukraine can access protection in line with
international law.
First and foremost, EU
Member States should use their discretion under the TPD to extend temporary
protection to all stateless persons and those at risk of statelessness
regardless of prior residence status in Ukraine, or at least ensure access to
equivalent forms of protection under national law. Linked to this, it is
critical that lack of identity documents or other documentation does not
prevent stateless people and people at risk of statelessness from accessing
international protection or other forms of protection under national law.
Where access to temporary
protection is not available, European States should ensure routes to
protection and rights for stateless people on their territory in line with
their obligations under the 1954 Statelessness Convention, as well as implement
safeguards to prevent arbitrary detention.
Critical to this, will be enhancing
the ability of border officials and refugee response actors to properly
identify statelessness and risk of statelessness among those displaced
from Ukraine so as to ensure their access to protection, including legal advice
and other services. There is an urgent need to improve the availability of
disaggregated data, using standardised guidelines and assessment tools at
registration points, in protection procedures, and during legal counselling.
Training will also be key, and
here there is a role for several actors, including UNHCR, the EU Asylum Agency,
and NGOs and civil society experts. The EU Asylum Agency recently published
a Registration Tool that has a section on identifying
statelessness, which could be useful in this context. We are also in the
process of developing a more extensive statelessness identification tool, which
we will make available to all actors in the next few months.
Finally, reports on the ground
suggest an important need for refugee response actors to identify and
monitor statelessness and risk of statelessness among unaccompanied and
separated children, as well as children born in transit and host countries, to
ensure their right to a birth certificate, legal identity, and nationality is
guaranteed. This is likely to become even more acute if the conflict and
related displacement becomes more protracted. UNICEF and other child rights
organisations will have a key role to play in this regard.
Next steps and looking beyond the conflict
Over the coming weeks and months,
we will continue to monitor the situation, as well as seek to update and expand
the scope of information available, including to understand how the Temporary
Protection Directive is being implemented for stateless refugees displaced
further across Europe. We will also explore other ways to support our members
working tirelessly on the ground, including by trying to engage the donor
community to support their efforts and to fund targeted assistance for
stateless people who otherwise find themselves excluded from Europe’s refugee
response.
Equally, there is still a lot we
do not know about the situation facing stateless people inside Ukraine. We know
from our Ukrainian member organisations working bravely and tirelessly inside
the country that stateless people without documentation are unable to move
internally or across checkpoints, so find themselves trapped. There have also
been disturbing reports of racial discrimination, antigypsyism, and/or
differential treatment based on documentation status at Ukrainian borders,
which may be preventing some stateless/people at risk of statelessness from
leaving Ukraine. More research is needed to better understand and try to
address this situation.
Finally, if we allow ourselves to
try to be optimistic in looking beyond this unspeakably awful conflict, there
will be a critical need to address legal identity, documentation, and
nationality issues as part of re-building efforts. The current situation is a
sobering reminder of how stateless people routinely suffer from being forgotten
and their needs ignored, especially in times of conflict. We cannot allow this
to happen, and we and our members stand ready to work with all actors to guard
against this.
Photo: Mirek
Pruchnicki, Creative Commons
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