Legal Ghosts: the rights of stateless people in International and Italian law

Aug 07, 2020

This article is written by Sara Bocci and contributed to our publication on Medium.com.

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Statelessness is a violation of human rights that affects millions of people worldwide and entails a strong potential to lead to further human rights violations. Stateless people can be found in all regions of the world.

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Sigmund Freud, the great Austrian psychologist with Jewish origins recognized as the “father of the psychoanalysis”, was deprived, following the annexation of Austria to the Third Reich, of his Austrian citizenship and became stateless.
Like him, many famous artists, actors and writers were forced during their life to seek refuge away from their country of origin to escape persecution, mostly political and/or racial, thus becoming stateless. Among them, Isabel Allende, Pablo Neruda, Niccolò Machiavelli, Marc Chagall, Victor Hugo, Bertolt Brecht, Milan Kundera and Hanna Arendt.

The international instruments against statelessness

The difficulties of stateless people in access to fundamental rights such as equality before the law, the right to work, education or health, led the UN, after the world conflicts, to adopt two international conventions: the first one, the Convention on the Status of Stateless Persons, was adopted in New York in 1954; the second one, the Convention on the Reduction of Stateless Persons, was also adopted in New York in 1961. The first Convention is the only international treaty aimed at establishing standards of treatment for stateless persons, while the 1961 Convention deals with the avoidance of statelessness, through the provision of specific guarantees in citizenship legislation (and thus to achieve the objective of reducing the statelessness referred to earlier). Italy has ratified both of these Conventions: the first with the law of 1 February 1962, n. 306, the second, thanks to the UNHCR campaign, with the law of 29 September 2015, n. 162.

The Human Right Council has addressed the enjoyment of the right to a nationality, which is a fundamental human right and implies the right of each individual to acquire, change and retain a nationality, and the avoidance of statelessness in several resolutions on “Human rights and arbitrary deprivation of nationality” (Resolution 7/10 (2008), Resolution 10/13 (2009), Resolution 13/2 (2010), Resolution 20/4 (2012) on the Right to a Nationality: Women and Children, Resolution 20/5 (2012), Resolution 26/14 (2014), Resolution 32/5 (2016)).

Who is a stateless person?

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While the exact number of stateless people is unknown, it is estimated that millions of people are stateless worldwide. Under international law, pursuant to art. 1 of the Convention of New York related to the Status of Stateless Persons of September 28, 1954, ratified in Italy by the Law n. 306/1962, a stateless person is “a person who is not considered as a national by any State under the operation of its law”. As elaborated in UNHCR guidance, this means that a person who is not recognized as a citizen of the states with which he or she has relevant ties — either because the legal framework explicitly excludes the person, or because the competent authorities of the state implement (or fail to implement) the law so as to deny nationality — is stateless. Nationality, in this context, refers to a particular type of legal bond between an individual and a state. A stateless person is seen and treated as a foreigner everywhere, as a national nowhere. Each state sets the conditions for acquisition and loss of its nationality — an act which is an expression of self-determination and a legitimate exercise of sovereignty — within the limits set by international law. Since States have significant freedom to set out their own membership criteria, they also have a responsibility to protect against discrimination and arbitrariness, and to uphold international standards. Statelessness most often occurs when states fail to do so.

The causes of statelessness

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There is often an element of discrimination and/or arbitrariness, when individuals or entire groups become stateless. Discrimination and arbitrariness can manifest itself in an obvious, aggressive and even persecutory manner, such as when large communities are deprived of their nationality based on ethnicity or religion; or it can be more subtle and latent, such as the failure of states to prioritize legal reform that would plug gaps in the law which could cause statelessness. There are a variety of circumstances that give rise to statelessness at birth or in later life, and some of the most common causes are the following:

  • Conflict of nationality laws, which is usually a consequence of state succession or colonization
  • Arbitrary deprivation of nationality
  • Administrative barriers and lack of documentation
  • The inheritance of statelessness

Stateless persons difficulty in accessing human rights

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The lack of a nationality is not only a matter of an individual’s legal status or identity documents; it has a serious and lasting impact on the enjoyment of fundamental human rights that are usually taken for granted. The impact of statelessness, in fact, can be extremely severe, hindering access to fundamental human rights that are usually taken for granted while contributing to keep entire communities invisible and marginalized from the rest of society. In the second half of 2017 and in early 2018, the UNHCR Regional Office for Southern Europe (ROSE) conducted a participatory assessment with stateless persons, persons at risk of statelessness, civil society and authorities in Italy, Portugal and Spain (1). Drawing from the testimonies of the persons consulted, this report examines how statelessness affects access to fundamental rights, with particular attention to how it can pose an often insurmountable barrier to obtaining an education, renting a house, registering property, finding formal employment, having full access to health and social protection schemes, moving freely or starting a family. It exposes the concrete impact of statelessness on the daily lives of the persons affected, revealing how it can create challenges that prevent them from achieving their full potential and playing an active role in society. The testimonies collected for this report confirm that statelessness takes an extremely high toll in terms of access to fundamental rights, affecting the possibility to study, find an adequate job, move freely or have a family. While statelessness is a human rights violation in and of itself, it also inevitably results in further human rights violations and hinders an individual’s opportunity to realize his or her full potential and actively contribute to society. In almost all cases of statelessness, the best solution is for persons to be given the nationality of the country with which they have the strongest ties.

Stateless people in Italy

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Italy has joined the group of countries that have acceded to the 1961 Convention on the Reduction of Statelessness. Welcoming this announcement, UNHCR’s Representative in Southern Europe, Laurens Jolles, called the accession “an important step forward by Italy in guaranteeing human rights and reducing statelessness. It is an example for countries that have yet to accede to the Convention.” The 1961 Convention provides concrete and detailed safeguards that states must implement to prevent and reduce statelessness. In Italy, there are officially 732 stateless persons. However, due to the difficulty of identifying them, the actual number could be between 3,000 and 15,000 people. Most of them came from former Yugoslavia and arrived in Italy when they were very young; or they were born in Italy to Yugoslavian migrant parents.

An interesting judgment of the Court of Rome were the status of stateless woman is granted to a woman born in Italy from parents of Bosnian origin is that of 21 October 2019 n.20182: the Court of First Instance rightly considers decisive that the applicant was born after 6 April 1992 and before the entry into force of the 1995 Constitution, on the basis of Article 37 of the Bosnian Citizenship Law, by excluding also the possibility that the applicant may have acquired Bosnian citizenship ius sanguinis or for other reasons.

Italian rules on statelessness

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The Italian legislation, which is based on the principle of ius sanguinis (according to which it is Italian the Italian parent’s child, art. 1, paragraph 1, lett. a, Law 91/1992), provides that who was born in the territory of the Republic and whose parents are unknown or stateless, or who does not follow the citizenship of the parents according to the law of the State to which they belong is an Italian citizen (art. 1, paragraph 1, lett. b, Law 91/1992). In order to apply this rule in the case of a child which has stateless parents, it is necessary that they have both obtained the formal recognition of the stateless status; otherwise, the statelessness will be transferred to the child. Also the child of unknown persons found in the territory of the Republic, if the possession of other citizenship is not proved, is considered a citizen by birth (art. 1, paragraph 2, Law 91/1992).

Both the aforementioned provisions are intended to prevent a minor born in Italy from being in statelessness. Again, the Italian Constitution, in art. 22, states that no one may be deprived, for political reasons, of legal capacity, citizenship and name. This kind of provisions make it possible to reduce situations of statelessness: however, if the Italian legislation seems interested to avoid the creation of new stateless persons, there is a lack of organic rules for the protection of persons who are deprived of any citizenship.

In an ideal situation, if all States adopt legislation on citizenship careful to avoid conditions of statelessness (for example, if a new State is created, should be taken actions to avoid the statelessness of citizens of the old State), statelessness could also be eliminated. Legal questions relating to stateless persons should be resolved thanks to international law and instruments as well as domestic rules regarding foreign people. States shall introduce safeguards to prevent statelessness by granting their nationality to persons who would otherwise be stateless and are either born in their territory or are born abroad to one of their nationals. States shall also prevent statelessness upon loss or deprivation of nationality (2).

Therefore, the Italian jurisprudence during the decades has issued rules and created principles for the ascertainment of statelessness, for this reason and in order to protect stateless persons; the Italian legal system is identified as a positive model in the international panorama in which the protection of stateless persons is still ensured only by a minority of countries.

How a stateless can obtain the Italian citizenship?

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Italian law, in line with the Convention, provides that stateless persons can apply for naturalization after 5 years of legal residence in the territory, against the 10 years provided for the foreigner. This provision shall apply only to stateless persons who have been formally recognized as stateless persons. The procedure, which is discretionary, has a cost of about 250 € plus stamp duty and the duration is set at a maximum of 48 months. The application must be submitted online on the dedicated website of the Ministry of the Interior, accompanied by:

  • Identity card
  • Certification of stateless status
  • Self-declaration of the birth certificate
  • Self-declaration of criminal certificates of countries of habitual residence
  • Self-declaration of the historical residence of the last 5 years
  • Self-declaration of family status
  • Tax returns for the last 3 years
  • Receipt of payment of the contribution of 250 €

Can a stateless be expelled from Italy?

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As established by the Supreme Court with the judgment n. 16489 of 2019, statelessness is a factual situation which leads to the impossibility to expel people. According to the Court, in fact:

  • a stateless is someone who is in a country of which is not a citizen, coming from another country of which has formally or substantially lost citizenship: every individual who fulfills these requirements, set forth by the Convention of 1954, is to be considered stateless;
  • the nature of the judicial recognition of stateless status is declarative and not constitutive: in other words, even if the stateless status has not yet been the subject of judicial review, but its assumptions have clearly emerged from the administrative and documentary verification carried out by the competent authorities, cannot be recognized the importance of the condition of a person who is in a foreign country coming from another one of which he has lost citizenship.

(1) https://www.unhcr.it/wp-content/uploads/2019/11/UNHCR_Impact-of-Statelessness-ITPTES_def_web.pdf

(2) https://www.ohchr.org/EN/Issues/Pages/Nationality.aspx

Sara Bocci

Law Diploma at University of Siena (2016), Master at SIOI (The Italian Society for International Organization) in Rome in "International relations and International Protection of Human Rights", she completed an internship at The Permanent Mission of Italy to the UN in New York (2017)

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