Written by Esjaba Messaoud
Immigration Lawyer
Under Article 1 of the Convention Relating to the Status of Stateless Persons of 28 September 1954, a person is stateless when they are "not considered as a national by any State under the operation of its law".
According to the Office of the United Nations High Commissioner for Refugees, millions of people currently have no nationality.
Statelessness may be original or acquired:
- It is original when a person is born stateless — that is, no State recognises them as a national at the time of their birth.
- It is acquired when a person becomes stateless as a result of subsequent events — most commonly political or social upheaval. In such cases, the person was recognised as a national of a given State at birth and up to the point those events occurred, but ceases to be so thereafter — for example, because the international community withdraws recognition of the State of which they were considered a national.
Article 15 of the Universal Declaration of Human Rights — which marks its 75th anniversary on 10 December — provides that:
- "1. Everyone has the right to a nationality.
2. No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality."
Article 2 of the same instrument provides that "Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty."
The reality for stateless persons, however, is very different. Being stateless has a decisive impact on their lives, often severely compromising their access to the most basic services of the welfare system.
They also face, among other challenges, discrimination on grounds of race, ethnicity, religion, gender or language; displacement due to conflict; gaps in nationality legislation; and cases of loss or deprivation of nationality.
REGULATION OF STATELESSNESS IN SPAIN:
In Spain, recognition of stateless status is governed by the Regulation adopted by Royal Decree 865/2001, of 20 July 2001.
Its adoption responds to the mandate set out in Article 13(4) of the Spanish Constitution and to the conclusion that the content of Article 1 of the Convention Relating to the Status of Refugees — commonly known as the Geneva Convention — is applicable to stateless persons.
Notwithstanding the above, Spain draws a significant distinction between persons with recognised asylum status and stateless persons. For instance, when applying for Spanish nationality, those with recognised asylum status must demonstrate 5 years of legal and continuous residence, whereas stateless persons must demonstrate 10. The former may engage in regular employment from 6 months after their formal interview, while the latter may not do so until their stateless status has been officially recognised.
Furthermore, the Spanish regulatory framework requires not only that the individual is not considered a national by any state, but also that they expressly declare that they hold no nationality.
RECOGNITION AND RIGHTS OF STATELESS PERSONS IN SPAIN:
For the purposes of recognition, the procedure may be initiated by the authorities acting on their own motion or upon application by the individual, with the applicant declaring "in all cases" that they lack any nationality, as provided for in Article 2 of the aforementioned Regulation.
Once stateless status has been recognised, the individual will have the right to reside and work in Spain in accordance with the applicable immigration legislation, as well as the right to family reunification — although this last point continues to be contested by certain public authorities.
To put this in concrete terms: according to data published by the Spanish Ministry of the Interior, in 2022 a total of 1,084 applications for recognition of stateless status were submitted to the OAR (Office for Asylum and Refuge). Of that total, 95.4% were filed by individuals of Sahrawi origin, and 98.6% of all favourable decisions were granted to members of that same group.
It is therefore unsurprising that recognition for persons of Sahrawi origin has been settled case law for well over a decade. This was not always the case, however — it was not until 2007 that this route became widely used to regularise administrative status, and prior to that point the relevant authorities were generally disinclined to grant it.
The majority of refusals centred on two main grounds: the essential protection that these individuals enjoyed in the Sahrawi refugee camps in Algeria, and/or the presumption of Algerian nationality arising from the submission of applications accompanied by a passport issued by the Algerian authorities.
On the first point, the Supreme Court held in a consistent line of case law that, with regard to MINURSO (the United Nations Mission for the Referendum in Western Sahara), a refusal of stateless status could not be sustained on this basis, since "with such specifically defined powers, that Mission cannot be said to be in a position to afford Sahrawis the protection and assistance which the Convention requires in order to exclude them from being granted stateless status."
Regarding the second ground of appeal, the line of argument has remained consistent in the following terms:
"The same applies with respect to Algerian nationality, given that Algeria has never made any declaration — express or implied — aimed at recognising or conferring Algerian nationality upon Sahrawi people who, as refugees, reside in the camps at Tindouf. What has occurred in the case of the appellant — and of other Sahrawis in similar circumstances — is that Algeria, on humanitarian grounds, issues documentation to Sahrawi refugees on its territory — specifically, in the desert near Tindouf — for the sole purpose of enabling them to travel by air to countries that — such as Spain — do not recognise the Sahrawi Arab Democratic Republic as a state. This documentation consists of the issuance of a passport to which the Spanish Consulate in Algiers appends the corresponding visa. However, such action does not in any way constitute recognition of Algerian nationality for Sahrawis — a nationality which, moreover, as is also the case with the Kingdom of Morocco, is neither sought nor desired by them. This is not, therefore, the conferral of a nationality bond, but merely a documentary measure taken in respect of an undocumented individual, for the stated humanitarian purpose of enabling travel — as occurred in this case — in order to receive medical treatment."
(…) "what occurs — consists in documenting a person who, for various reasons, lacks the documentation that prevents them from simply travelling and being identified; and this is something altogether different from the granting of nationality by a country. The former is a formal administrative measure: it does not require the request or consent of the individual concerned and does not give rise to a relationship of dependency with the documenting state. The latter — the granting of nationality — by contrast, requires compliance with a series of conditions set out in the domestic legislation of the granting country, and entails a prior application followed by voluntary acceptance — expressed through acceptance of, or an oath of allegiance to, the country's constitutional text — thereby establishing a legal bond of rights and obligations with the new country, which is what nationality implies and represents."
(…) "in accordance with the New York Convention, the appellant cannot be "considered — by Algeria — as one of its nationals, under its legislation".
GROUNDS FOR APPLYING FOR STATELESSNESS RECOGNITION:
In conclusion, recognition of stateless status should not be treated as yet another regularisation pathway, for two main reasons:
- First, although Law 12/2009, of 30 October, governing the right to asylum and subsidiary protection, does apply, there are several differences in how the International Protection regime operates when it concerns stateless persons — particularly at the application stage.
- Second, because of the implications involved, particularly from an identity perspective: applicants must declare, "in all cases", that they have no nationality. This amounts to a denial of belonging — set down in a form as a route to acquiring rights — yet which, paradoxically, simultaneously entails the renunciation of certain other rights.
That said, given the profound impact that statelessness has on people's daily lives, it remains essential to establish mechanisms that simplify the process and reduce the barriers faced by applicants — particularly in light of the excessively long timeframes that the competent authority takes to resolve these applications.
*For illustrative purposes: Judgments of the Supreme Court 4119/2011 (ECLI:ES:TS:2011:4119), 5616/2011 (ECLI:ES:TS:2011:5616), 6589/2011 (ECLI:ES:TS:2011:6589), 8753/2011 (ECLI:ES:TS:2011:8753), 3212/2012 (ECLI:ES:TS:2012:3212), 3754/2012 (ECLI:ES:TS:2012:3754)
