Monday, June 23, 2014


Mr Uustalu was granted the first declaration of statelessness in Ireland by the Minister for Justice in March 2014. Mr Uustalu is from a town located in Estonia, which, at the time of his birth, was in the territory of the USSR. In 1991, Estonia became an independent state and Mr Uustalu was issued an “Alien’s Passport”, identifying his citizenship as undefined. He was entitled to apply for Estonian citizenship, however, this entailed the applicant to pass an Estonian language exam, which Mr Uustalu and his parents, as Russian speakers, would have been unable to pass. 

Mr Uustalu first came to Ireland in 2002 and unable to acquire lawful residence status as a stateless person because of the lack of such a procedure. Unable to leave the state since then, because his “alien’s passport” expired, Mr Uustalu made an application for a stateless travel document last year. This failed because he could not provide a declaration from the Minister confirming his stateless status. Subsequently, there was an application for this declaration made under the 1954 Convention, but this application was unanswered. This led to high court proceedings seeking a declaration that the failure by the State to have in place a procedure by which Mr Uustalu could apply for and obtain a declaration of statelessness and a 1954 Convention Travel Document constituted a breach of his rights and the State’s obligations under the 1954 Convention relating to the Status of Stateless Persons. A few days before the hearing, the proceedings were settled and Mr Uustalu was issued with the first declaration of Statelessness in Ireland.

The 1954 Convention relating to the Status of Stateless Persons sets out a framework for the protection of stateless persons. This is the principle international instrument to regulate and improve the legal status of stateless persons and to ensure to stateless persons fundamental rights and freedoms. Article 1 of this convention defines a stateless person as “a person who is not considered as a national by any State under the operation of its law.” This definition describes a particular type of statelessness, which is characterized by the formal lack of nationality, this is known as “de jure statelessness”. There are also persons who are “de facto stateless”, that is, people who formally hold a nationality but experience the associated problems with statelessness because that nationality is ineffective. The Convention also distinguishes between non-refugee stateless persons and a stateless refugee. 

A declaration of statelessness is important because this recognition by a State provides a person with a legal status and basic entitlements, including a right to work and travel, among others. If a person is stateless without formal recognition, they will not have any legal protection or automatic rights to healthcare, education and employment, which puts them at risk of exploitation. 
The assessment of stateless status is complicated because of an overlap between statelessness and refugee status, and also the sometimes unclear distinction between de jour statelessness and de facto statelessness. The Convention does not provide for specific procedures for the assessment of statelessness.

For a fair and efficient status determination procedure, there must be a clear and transparent legal framework, access to legal advice and information and an effective appeal system. Decisions must be made in a timely manner and there should be a provision of accommodation and welfare through the determination process. A stateless person who also has grounds for asylum is not eligible for protection under the 1954 Convention , thus, the application for asylum must be considered first.

Ireland has failed to meets its obligations under the 1954 Convention, as there exists no formal procedure for determination in stateless. The few applications that have been made for recognition of stateless status have been made as submissions included in an asylum application, submissions included in an application for humanitarian leave to remain and sometimes as submissions at the deportation stage when it emerges that an applicant has nowhere to be deported to. Though some persons have has their stateless status recognized by ORAC and the Refugee Appeal Tribunal, the Minister has not afforded them the declaration to recognize their stateless status. Therefore, unless the stateless person can fit their case successfully in the asylum application process, or acquire legal status through other means, they are left in a legal limbo. 

The Irish State has, however, has implemented some of the derivative rights for stateless persons found in the Convention, such as application procedures for stateless travel documents and procedures for naturalisation of stateless persons. Yet, these are meaningless unless the applicant can be formally recognised by the State as stateless.

With the proposed introduction of the single procedure to the asylum application procedure, it is necessary to include stateless persons in this discussion. It is crucial that a durable solution for stateless people is put in place now. If there are to be further long delays in the creation of the single protection procedure, than a temporary procedure must be implemented for Stateless persons imminently. It is now imperative to address the failings of the Irish State to date to fulfill the obligations under international law by setting up a legal framework in which stateless persons can access a declaration of their status and the rights which accrue from this. 

I wish Nasc, the Immigrant Council of Ireland and the UNHCR the best of luck in their current campaign to ensure that stateless persons do not continue to be ignored in this way.

Karen Berkeley
Brophy Solicitors

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