Who may be considered ‘stateless’?
Stateless individuals are people who have no nationality and thus, are often denied the right to access the most basic of rights since their lack of evidence of a legal status disallows them from benefitting from their fundamental rights such as the right to education, medical care as well as employment. Various human rights treaties establish the right to nationality and for this to be enjoyed in a non-discriminatory and non-arbitrary manner. However, as evinced by the recent Statelessness Index published by the European Network on Statelessness (ENS), progress in this area is quite slow-moving in both Malta as well as the remainder of Europe.
What is the purpose of the Statelessness Index? What does it set out to do?
The Statelessness Index is a comparative tool which empirically assesses and compares the performance of 27 countries in Europe against international norms and good practice. It also examines how these States are protecting stateless people in their territory and what they are doing in order to reduce statelessness. This Index updates the profile of each State on a yearly basis; through updated statistics, amendments to law and policy, Government statistics, new norms and evidence of emerging trends from practice provided by country experts.
The primary aim of this Index is that of monitoring and celebrating progress as well as allowing States to be held accountable when they fail to live up to their commitments. As considered by Nina Murray, the Head of Policy and Research at the ENS, what can be identified through reviewing the data collected over the past three years is the fact that progress is evidently slow, there are apparent protection gaps and violations of rights that remain unaddressed.
Above all, far too many States are yet to take any action at all in order to fulfil their duties under the International Conventions they have signed up to. It is quite telling that the most positive assessments can be found under the theme that evaluates whether States have acceded to relevant International or Regional human rights Treaties.
Malta is a party to the 1954 Convention, as of December 2019, and all but seven Index Parties are also party to the 1961 Convention on the Reduction of Statelessness, with Malta being one of the latter seven Index Parties. This remains a serious issue since this Convention is of paramount importance in creating a framework which actively tackles, and strives to diminish, statelessness.
We need to use the Index to set out a clear roadmap for reform. Although there are several areas where international obligations are being neglected, it is important to highlight four particular challenges encountered in accordance with the current Maltese position:
Only 10 of the 27 Index countries have Statelessness Determination Procedures in place. Malta still has no dedicated Statelessness Determination Procedure at the moment. However, discussions are ongoing in a bid to introduce new procedures in this regard.
What does the Statelessness Determination Procedure do? According to UNHCR, such a procedure contributes to the assessment of the size and situation of the stateless population present within the migrant populations on the territory concerned. Therefore, this very specific procedure is geared at identifying and documenting stateless individuals in a bid to enable their stay to become legalized.
Malta is currently in discussions to create such a Determination Procedure however nothing has yet come to fruition. The other States in possession of a SDP have only limited, if any, means of identifying who they owe specific international obligations to on their territory. Therefore, amelioration of this Procedure is required all around.
No country in the Index is assessed positively in this regard, whereby stateless people are invisible in immigration detention across Europe and data is extremely patchy in this area. We do not know how many stateless people are affected by immigration detention. However, what we do know is that legal safeguards on paper are inadequate to prevent arbitrary detention for stateless people.
Only a handful of countries require a country of removal to be identified prior to detaining someone for removal.
Statelessness is not considered a factor in increasing vulnerability and is rarely considered juridically relevant in decisions to detain.
Although detention data is recorded in Malta, it is not published and due to this, we are unaware of whether the recorded data actually includes statelessness as a category contingent upon the exercise of detaining an immigrant. We know that the use of detention around Europe is increasing and stateless people are undoubtedly caught up in this trend along with others.
In Index updates of recent years, we have seen increasing grounds for detention and increasing use of detention in Malta, specifically. This 2020 Report has seen an increase of automatic detention on public health grounds or no legal basis whatsoever, with detained individuals not being provided with any information on their situation nor with any access to legal assistance or remedies.
Back in 2015, ENS published a report which revealed that half the European countries were not meeting their obligations to ensure that all children, who would otherwise be stateless, born on the territory required a nationality. Nearly six years on, only Norway and Albania have slightly tipped this inequity towards the balance. Even where states do have safeguards in place, these are not always being used in practice, and Malta has been considered a prime example of this.
The second proviso to Article 5(1) of the Maltese Citizenship Act expressly states that:
Provided further that the preceding two provisos of this subarticle shall not apply in the case of a new-born infant found abandoned in any place in Malta who would in virtue thereof be stateless, and any such infant shall remain a citizen of Malta until his right to any other citizenship is established.Maltese Citizenship Act, Article 5(1), second proviso.
All of this means that States in Europe are complicit in permitting children to grow up stateless in Europe.
The only way to resolve a person’s statelessness is for them to acquire a nationality. Under the 1954 Convention, States are required, as far as possible, to facilitate naturalization for stateless individuals on their territory. Unfortunately, the Index shows the opposite of that happening whereby there are significant barriers to naturalization in several countries.
Under Maltese law, a stateless individual may apply for naturalisation on the basis of the same conditions as other non-Maltese nationals, as considered under Article 10(1) of the Maltese Citizenship Act. Therefore, on paper, stateless individuals seeking to become naturalized are not discriminated more than other non-Maltese nationals in their application to attain such a naturalization.
According to UNHCR data from 2014, 94 stateless individuals obtained nationality in Malta between 1991 and 2008, and it is estimated that this figure has not increased much since then. When considering the major time gap between the year 2008 and 2020, such a dearth of data on this issue hinders several entities (including NGOs) from evaluating how this issue is affecting our country, over time, and whether our State’s efforts are sufficient to combat it.
Other crucial aspects to reduction include how States are progressing towards reducing their in situ statelessness populations. This is not about granting protection and providing for discretionary naturalization but about measures to identify and eliminate discriminatory laws, policies and practices that perpetuate inter-generational statelessness as well as risk of statelessness among minoritized and marginalized populations. It is essentially about confirming and issuing proof of nationality to those who lack it.
It is evident that statelessness, as well as the lack of safeguards implemented in the law and practice, remains an issue under the Maltese system. The mere fact that these inadequate mechanisms are also identified in the majority of European States, does not make its evident presence in Malta any more acceptable or any less concerning.
The 2020 Index has not showed much improvement in the Maltese system on statelessness and this has to change in a bid for statelessness to be eradicated in its entirety.
We have bene working on the Statelessness Index for several years, in partnership with the European Network on Statelessness. We do this with a mission to see the rights of stateless persons, or persons at risk thereof, duly recognised by the State through the adoption of a legal regime that conforms to Malta’s international obligations. Although we believe Malta’s stateless population to be a relatively small one, Malta is still called upon to identify this population and guarantee their enjoyment of their fundamental human rights through the creation of a stateless status and association rights.
For more information on our work on the Index, visit our Advocacy Initiatives page.