Strategic litigation has always been a priority for the European Network on Statelessness (ENS) and its members. Having previously practised in the UK as an asylum lawyer, I recognise that part of the fight to end statelessness must take place in the courts. An important new weapon in our armoury is the recently launched ENS Statelessness Case Law Database.
Europe’s patchy record on statelessness
Europe is home to a surprising number of stateless people: at least half a million, many born in Europe itself but also more recent arrivals. Equally, statelessness is not a new phenomenon. An international legal framework that guarantees protection to stateless people and sets clear rules for preventing statelessness has been in place for at least a generation. If all signatories had translated this into effective national law, the problem would have been eradicated in the region by now.
The problem is that most haven’t. Less than a quarter of Council of Europe members have in place dedicated statelessness determination procedures. These are essential if countries are to be able to identify who in their territory is stateless and therefore owed protection under the 1954 Statelessness Convention. And less than half of European countries have full safeguards in their nationality laws to prevent childhood statelessness in line with their obligations under the 1961 Statelessness Convention.
Statelessness in the UK
Law, policy and practice on statelessness in the United Kingdom is a mixed picture. A statelessness determination procedure was introduced in 2013, and the UK is party to most relevant human rights treaties. The UK also has safeguards in place to prevent childhood statelessness in most cases, although these now risk being seriously undermined by proposals in the Nationality and Borders Bill.
Prohibitively high fees for registration and naturalisation (with no possibility of exemption or reduction) are a major barrier for stateless people to acquire British nationality. The UK government also has far-reaching powers to deprive British nationals of their nationality, in some cases even if this results in statelessness.
Despite the UK having joined the relatively small club of European countries with a dedicated statelessness procedure, there remain several protection gaps. For example, the definition of a stateless person in the UK Immigration Rules contains exclusion criteria that go beyond the 1954 Convention. Other shortcomings include a lack of legal aid, limited appeal rights, detention of stateless people and a high standard of proof.
All that being said, the availability of a regularisation route is an important and welcome step forward which can be further built upon.
Advocacy and awareness-raising to hold governments to account in meeting their international obligations towards stateless people is essential. But as an isolated strategy it is unlikely to bridge the current protection gap faced by stateless people in the UK or across Europe. Strategic litigation looks at the bigger picture by pursuing cases that have the potential to set important precedents, influence policy, and ensure that governments are carrying out their responsibilities.
Despite its potential, strategic litigation can be challenging for relatively under-resourced organisations. High-risk and resource-intensive, strategic cases require specific legal expertise and often span many years, with no guarantee of securing a positive outcome.
The Statelessness Case Law Database
The Statelessness Case Law Database is a key pillar of ENS’s strategy to increase the capacity and expertise of lawyers. It’s a free online resource containing jurisprudence from individual European countries, as well as from the European Court of Human Rights, the Court of Justice of the European Union and UN human rights treaty bodies. It is searchable by country, legal instrument, key theme and keyword, and currently includes over 190 case summaries.
We set up the database in direct response to feedback from our members that this was the key tool they needed to support their work. They told us that being able to access relevant case law from other countries, or European and international bodies, was vital to assist and help stimulate their litigation efforts.
Another key function of the database is to promote effective partnership and to engage a new generation of lawyers motivated to work on statelessness. A key component of our litigation strategy is to develop pro bono partnerships to help us maintain and develop the database. We are excited to be working with several international law firms, including Akin Gump Strauss Hauer & Feld, DAC Beachcroft, Freshfields Bruckhaus Deringer, Skadden, Hogan Lovells and DLA Piper. Over time we intend to further develop these partnerships, and to connect with lawyers working on intersecting and nexus issues such as forced migration, child rights and anti-discrimination.
Another key partnership for us is working with the AIRE Centre to submit joint interventions before regional courts, including the European Court of Human Rights. Earlier this year we intervened in Pham v UK, in particular focussing on the obligation to assess whether statelessness or risk of statelessness would result from a decision to deprive a person of their nationality.
Building a Europe where everyone has a nationality
Ultimately, our litigation strategy is cognisant of the fact that statelessness is exacerbated by states’ failure to live up to commitments they have made at international and European levels, as well as by a lack of clarity in how those commitments should be implemented in line with international and human rights law. These are gaps that the courts are well positioned to address.
We do not pretend that a few high-profile judgments will solve statelessness in Europe. But we know that without litigation we will not meet our change objectives. Armed with our database and a growing network of lawyers litigating on statelessness, we are determined to achieve further judicial landmarks over the coming years, around which we will build a future Europe where everyone has a nationality.