The Indefinite Statelessness of Refugees in Denmark and Sweden: Comparing the Impacts of the Temporary Asylum Laws

Year: 2017

Type of text: Working Paper

Published by: Malmö Institute for Studies of Migration, Diversity and Welfare (MIM) Malmö University

Language: English

Author: Jason Tucker & Anders Hellström

Pages: 28

Available at: https://mau.diva-portal.org/smash/record.jsf?dswid

Short description of text

The paper seeks to explore the nexus between statelessness and refugee-ness at global, national and individual level, by analysing the law and policy related to the identification and assessment of the statelessness of refugees, in the Danish and Swedish asylum procedures. It takes the gaps in law and policy that can lead stateless refugees to remain in a prolonged, or indefinite limbo of a stateless situation into consideration. The paper further aims to identify and compare the impacts of the temporary asylum laws in both states with regard to the barriers faced by stateless refugees in acquiring citizenship. Further, issues such as cessation of refugee status, the undeportability of some former refugees who are stateless and instances of arbitrary detention are discussed in relation to Denmark and Sweden’s international obligations under the 1951 Convention Relating to the Status of Refugees and the 1954 Convention Relating to the Status of Stateless Persons’ (abstract).

Most important results

– Neither Denmark nor Sweden have established a definition of statelessness in their law or policy and their assessment of statelessness cannot be considered formal of statelessness determination procedures. Neither does the state provide the migration authorities with policy and guidance on the assessment of statelessness. The substantial discretion in assessments resulting from the lack of guidance has led to many people being registered with various nationalities statues, and some with incorrect nationalities. This can be a possible barrier to securing permanent residence and eventually naturalisation, as they put the credibility of the applicant’s identity in question, and they may therefore lead to the prolonged or indefinite statelessness in both Denmark and Sweden.

– In both countries it is the responsibility of stateless refugees to raise their statelessness during the asylum procedure. There is no agreed shared burden of proof between the individual and the agencies making the assessment. In Sweden, unlike Denmark, refugees cannot appeal an incorrect decision on their nationality or statelessness. Proving statelessness is made more problematic as in Sweden there are restrictions on the use of documentation from certain countries/authorities who are known to host large stateless population. The inability to challenge incorrect assessments may lead to difficulties in securing a permanent residence permit or naturalisation, as both require a confirmation of the identity of the applicant. Further to this, residence in Sweden based on an incorrect identity is not considered to count towards meeting the residency requirement for naturalisation. Securing permanent residence itself requires that the applicant’s identity has been established.

– The high criteria for acquisition of permanent residence in Denmark, and following this, naturalisation, the temporary asylum laws will likely have little impact on increasing instances of indefinite statelessness. The introduction of the temporary asylum laws in Sweden will however have a more significant impact with regard to the prolongation of statelessness amongst refugees in the country. This is a result of the previously useful provision on facilitated naturalisation for refugees being undermined with the introduction of criteria for refugees who have received temporary residence status to meet in order to acquire a permanent residence permit, which would then lead to citizenship. Given that Sweden does not grant the right of residence to a person based solely on a person’s statelessness, such restrictions on access to permanent residence could lead to some stateless refugees seeing their right to temporary protection cease, though without being offered any other form of status. This will present Sweden with a new challenge. While previously all refugees received permanent residence, now the authorities will have to begin to consider cessation of refugee status for some of those with temporary residence, and to ensure that this is done in line with the demands of the cessation provisions for stateless refugees in the 1951 Convention. The Swedish Migration Agency extends the temporary residence permit if there continue to ‘be grounds of protection’. However, in contravention to its obligations under the 1954 Convention Sweden does not consider statelessness as grounds for protection. Further to this, the ‘grounds for protection’ must include consideration of the stateless refugee’s ability to return to their country of previous habitual residence, if Sweden is to meet its obligations under the 1951 Convention.

– There does not seem to be a consideration of the stateless refugees’ ability to return to their country of previous habitual residence, and an assessment of the rights they would receive upon return, contrary to UNHCR guidance. In addition to this neither state grant a protection status based solely on a person’s statelessness, in line with their obligations under the 1954 Convention. This would provide a safety net to avoid stateless former refugees being left with an uncertain status, in arbitrary detention or being caught in the ‘deportation gap’.

Method

A comparative national level law and policy analysis, using secondary sources with Denmark and Sweden as case studies.

Policy suggestions

The statelessness of stateless refugees must be initially ‘identified and their statelessness factored into considerations of cessation of refugee status’ if states are to ensure that they do not lose their refugee status in contravention of the 1951 Convention’ (p. 22).

Suggestions for further research

Assessment of ‘national asylum systems of states in order to identify gaps in law, policy or practice that would see stateless refugees remain indefinitely stateless’ (p. 22).