Chris Nash, Director of the European Network on Statelessness*
*Reblogged from the Network website
As the number of people seeking refuge from the conflict in Ukraine approaches two million, our organization and our members working in the region are working to understand the specific needs of stateless individuals displaced by this crisis.
Based on previous experiences, including our research from the Stateless Journeys initiative, we know that stateless people fleeing from conflict encounter additional obstacles when crossing borders and seeking asylum. Our research shows that statelessness can be both a contributing factor to and a consequence of forced displacement.
We have received anecdotal accounts of difficulties encountered by stateless individuals attempting to leave Ukraine and are working quickly to develop a deeper understanding of the situation. This week, our organization published an initial brief to provide information to refugee support organizations so that they can anticipate and address these challenges.
Statelessness in Ukraine
The most recent census in Ukraine from 2001 counted 82,550 stateless persons, and the UNHCR estimated this number to be 35,875 in 2021. Other sources propose a significantly higher figure, potentially tens of thousands more, including a large portion of the Roma population and children born in Crimea, Luhansk, and Donetsk since 2014. The World Bank recently approximated that 999,000 individuals over the age of 15 in Ukraine lack a national identification card. While not all of these people are stateless, a significant number are in danger of becoming stateless if the conflict continues.
It is estimated that 10-20% of Romani people in Ukraine do not possess the necessary documents to acquire or verify their Ukrainian citizenship. Another demographic of stateless persons includes former citizens of the USSR who were unable to provide proof of permanent residence in Ukraine in 1991, disqualifying them from obtaining Ukrainian citizenship. Many of these individuals, unable to obtain any nationality, have subsequently passed down their statelessness to their children. Additionally, residents of non-government-controlled regions, Crimea, and those internally displaced within Ukraine have faced substantial barriers in securing or renewing personal identification since 2014. It is estimated that 60,000 children born in these regions lack birth certificates, placing them at risk of statelessness.
In addition to the substantial stateless populations within Ukraine, there are asylum seekers, refugees, and migrants (and their children) residing in Ukraine who were already stateless before leaving their home countries (e.g., Palestinians, Kuwaiti Bidoon, Kurds); or who may have become stateless as a result of displacement, discrimination, gaps in nationality laws, state succession, or the loss of nationality.
In May of 2021, Ukraine implemented a statelessness determination process to identify stateless individuals within its borders and grant them protection, but this procedure only recently became active. By December 31, 2021, only 55 people had received a temporary residence permit through this new procedure. The vast majority of stateless individuals living in Ukraine do not have any documentation to prove their statelessness. This lack of documentation not only poses significant obstacles for stateless persons attempting to travel within Ukraine under the current circumstances but also greatly impacts their ability to relocate to safer areas within the country, cross borders, and access protection.
Current situation at Ukraine’s Western borders
Neighboring countries to the West of Ukraine, including both government entities and civil society organizations, have responded to the influx of refugees with generosity, but the situation remains fluid. Continuous monitoring is essential given emerging accounts of inconsistent practices and racial bias at different border crossings (e.g., in Hungary and Poland) with individuals who are not Ukrainian encountering barriers when attempting to enter the country or facing extra “secondary screening” processes. In Poland, this includes being held in detention-like conditions.
Furthermore, initial data from ENS members indicates that stateless individuals and those at risk of statelessness escaping from Ukraine are more likely to experience additional obstacles and different treatment depending on their residency status, nationality, and documentation status. Additional time and research are required to fully grasp how various demographics of stateless people are being affected.
Application of the EU Temporary Protection Directive and protection owed to stateless people
A significant question concerning the level of protection stateless refugees from Ukraine will receive centers around how the EU Temporary Protection Directive (TPD) will be applied in different countries.
The Directive, enacted by EU Member states on March 4, grants immediate protection within the EU (excluding Denmark) to Ukrainian citizens and individuals who were receiving international protection in Ukraine prior to February 24, 2022. Stateless persons who possess documentation of permanent residency in Ukraine before February 24 and “cannot safely return to their country or region of origin” are also eligible for temporary protection. However, individual Member States can choose whether to apply the TPD or “adequate protection under national law”. Member states also have the option to provide temporary protection for others, such as stateless individuals who were “legally residing” in Ukraine. Those granted temporary protection are entitled to a residency permit (valid for one year with the possibility of extension up to three years, unless a safe return is possible), access to the workforce, housing, social welfare benefits, medical care, and access to education for children.
Currently, EU member states are not mandated by EU law to extend temporary protection to most stateless persons and those at risk of statelessness living in Ukraine. Individuals without documentation proving permanent residency or international protection in Ukraine are required to apply for asylum or a different type of protection based on the laws of their host country. This process could pose challenges in accessing services, rights, and obtaining protection, particularly if they are denied access to asylum-seeking procedures (e.g. as is the case in Hungary) or if Ukraine is contested as their country of origin. So, even after escaping Ukraine, stateless individuals risk being excluded or trapped in a bureaucratic system, and in some cases, arbitrarily detained.
Consequently, it is essential to increase awareness of the rights afforded to stateless individuals under international law. Nearly all European nations are signatories to the 1954 Convention on the Status of Stateless Persons and are obligated to provide specific rights and protections to stateless individuals within their borders. Some countries have a determination process in place to identify individuals who qualify for protection under the 1954 Convention and provide protection status or a residency permit (separate from refugee status or another form of international protection) to recognized stateless individuals. Other countries allow stateless individuals to access protection or legalize their stay through different channels. Access to protection for stateless persons in various countries throughout Europe lacks consistency. Our Statelessness Index acts as a guide to help stateless individuals and their legal representatives advocate for their rights.
The way forward – addressing statelessness as part of the developing refugee response
Our briefing outlines a series of recommendations for the EU, European states, international agencies and NGOs to ensure that stateless individuals from Ukraine are granted access to protection under international law.
First and foremost, EU Member States should exercise their authority under the TPD to extend temporary protection to all stateless persons and those at risk of statelessness, regardless of their previous residency status in Ukraine, or at the very least, ensure access to comparable forms of protection under national law. Additionally, it is crucial that a lack of identifying documentation or other documentation does not prevent stateless persons and those at risk of statelessness from obtaining international protection or other forms of protection under national law.
In cases where access to temporary protection is not possible, European nations need to guarantee avenues for protection and rights for stateless individuals within their borders, in accordance with the 1954 Statelessness Convention. They should also implement safeguards to prevent instances of arbitrary detention.
A key component of this process will involve strengthening the ability of border officials and refugee assistance programs to effectively identify statelessness and risk of statelessness among individuals who have been displaced from Ukraine. This will be critical to ensure access to protection, including legal counsel and other services. It is essential to improve the availability of disaggregated data. This can be done by using standardized assessment tools and guidelines at registration points, during legal consultations, and throughout the protection process.
Training is also crucial, with a role for various stakeholders including the UNHCR, the EU Asylum Agency, NGOs, and specialists from civil society. The EU Asylum Agency recently released a Registration Tool which features a section on statelessness identification that could be beneficial in this situation. We are also creating a more comprehensive identification tool for statelessness, which we will distribute to all participating organizations in the upcoming months.
Finally, on-the-ground reports highlight the pressing need for refugee support organizations to identify and monitor instances of statelessness and the risk of statelessness among unaccompanied and separated minors, as well as children born in transit and host countries. This monitoring is necessary to protect their right to a birth certificate, legal identity, and nationality. The need for this will become even more urgent if the conflict and displacement continue. UNICEF and other child rights organizations will play a critical role in these efforts.
Next steps and looking beyond the conflict
In the coming weeks and months, we will continue to track the situation, update and expand on the available information, and strive to understand how the Temporary Protection Directive is being used for stateless refugees relocated across Europe. We will also research additional ways to support our members diligently working on the ground, including engaging the donor community to support their work and to secure funding for targeted assistance to aid stateless individuals who are at risk of being excluded from Europe’s refugee response.
There is still much that we do not know about the situations faced by stateless individuals within Ukraine. Our Ukrainian member organizations are courageously and tirelessly working within the country, and they have informed us that stateless individuals lacking documentation are unable to travel internally or cross checkpoints, leaving them stranded. There have also been alarming reports of racial discrimination, anti-gypsyism, and/or differing treatment based on documentation status at Ukrainian borders. These issues may be preventing stateless individuals and those at risk of statelessness from leaving Ukraine. More research is needed to understand and address this issue.
Finally, if we allow ourselves a moment of optimism to envision a time beyond this devastating conflict, it is clear that issues related to documentation, legal identity, and nationality must be addressed as part of the rebuilding process. This situation reveals how stateless people are routinely overlooked, and their needs ignored, especially during times of conflict. We cannot allow this to continue and our organization and its members are ready to work with all involved to prevent this from happening.