Blog post written by Sandra Mantu, Assistant Professor (Radboud University, the Netherlands) and forms part of a series of blog posts examining the implementation of the Global Compact for Safe, Orderly and Regular Migration.
The right of all individuals to a legal identity has been included among the objectives of the Global Compact for Safe, Orderly and Regular Migration (GCM) as a means to empower migrants to effectively exercise their human rights as well as to ensure effective migration procedures, efficient service provision and improved public safety. As discussed in a previous post, Objective 4 has many layers that stretch from improving civil registry systems to harmonizing travel documents, to providing access to consular services and documentation, to reducing statelessness and ensuring that the delivery of services is not impaired by a persons’ lack of legal identity or proof of nationality, to introducing alternatives to standard documents certifying nationality or legal identity. Its realisation is a complex endeavour that requires the intervention of states of origin as well as of states of destination in varied legal fields.
This post analyses state reports submitted as part of the regional review of the implementation of the GCM in the UNECE region. The question that informs this blog is what can we learn from the national reports about the realization of Objective 4 in terms of measures taken at the national level and their effectiveness.
2. Legal identity: A bedrock for effective rights protection?!
Generally speaking, the national reports pay little attention to legal identity with 10 state reports making no express mention of Objective 4. The 17 state reports that explicitly mention measures linked to legal identity contain only limited information (Albania, Belarus, Belgium, Croatia, Denmark, Germany, Ireland, Kazakhstan, Macedonia, Malta, Moldova, Portugal, Russia, Serbia, Spain, United Kingdom, and Turkey).
Possible explanations for this relative lack of interest in legal identity may be linked to states’ approaches to implementation, more generally. Some countries chose for the progressive integration of the GCM objectives into new legislation, policies and practices, whereas other states established new mechanisms to implement the Compact. Different reporting styles linked to states’ priorities in the implementation of the GCM may also be relevant. Some states prioritised only some GCM objectives as part of their implementation strategies, while others clustered objectives to achieve best results.
When clustering takes place, ‘legal identify’ falls under two different clusters. For example, in its own report on implementation, the UN Secretary-General addresses legal identity under the topic of ‘improving the social inclusion and integration of migrants’ because lack of legal identity in the country of residence has negative effects for accessing rights and protection. This is the approach taken by the UK that clusters Objectives 4 (legal identity), 5 (enhance regular migration), 6 (decent work), 15 (access to basic services), 16 (inclusion and social cohesion) and 17 (eliminate discrimination towards migrants). Likewise, Turkey clusters legal identity with objectives 15, 16 and 22 (portability of social security entitlements) under the heading of improving the social inclusion and integration of migrants. At the opposite end of the spectrum, Belarus and Serbia, include legal identity in a cluster of objectives designed to achieve migration and border management, including return and readmission. None of the national reports explain the choice for including legal identity in a particular cluster of objectives.
3. Common themes
A number of common themes emerge from the national reports, which are addressed below. They include ‘statelessness’, ‘registration’ and ‘return’ which correspond to actions listed in the text of Objective 4 itself. Due to the far-reaching implications of the Corona-pandemic, specific info was provided by several states on measures affecting migrants’ documentation and access to rights. It is noteworthy that the national reports hardly mention some aspects of Objective 4, such as consular protection and documentation (except for a passing reference from Portugal), discrimination, gender equality in the context of nationality procedures, and developing alternatives to legal documentation to allow migrants to participate in community life.
While there is no set definition of ‘legal identity’, nationality or the lack thereof (statelessness) are generally seen as elements of this notion. The text of Objective 4 mentions the reduction of statelessness as an important element thereof. The situation of persons resident in North-Macedonia but whose citizenship status remains unresolved some 30 years after the proclamation of independence of the former Yugoslav Republic serves as a reminder of the complexities of statelessness and its intergenerational and longitudinal effects. North-Macedonia reports that this group continues to be in the attention of national and regional bodies, yet a solution is missing.
Several state reports discuss measures taken to reduce statelessness for nationals and migrants alike. Positive developments include the ratification of the 1954 UN Convention on Statelessness by Belgium, Malta and Spain. Another important step towards the reduction of statelessness is identifying persons without nationality and attempting to clarify their legal situation. Kazakhstan, for example, mentions that as part of the implementation of Objective 4 it has identified 1051 persons with no identification documents: 759 persons received nationality attesting documents and 127 persons received certificates of statelessness. It is not unusual for states to steer efforts on the reduction of statelessness towards ending child statelessness. For example, Croatia notes that under its national legislation a child born or found on its territory with unknown parents or whose parents are stateless or of unknown citizenship acquires Croatian nationality. The child’s Croatian nationality is terminated, if by the time the child turns 14, the parents prove to be foreign nationals.
States, such as Ireland and Russia, consider that their national legislation is compliant with UN nationality and statelessness standards. The Russian reports also mentions rules aimed at simplifying the acquisition of Russian citizenship for stateless persons who used to be citizens of the former USSR or resided in former USSR states and upon independence failed to acquire their nationality. Such persons are exempt from paying fees upon acquisition of nationality. Between 2014 and 2020, about 45,000 stateless persons were granted Russian citizenship. Former USSR citizens who due to objective circumstances, such as lack of documentation or housing, failed to acquire legal residence status in the Russian Federation have the possibility to choose between acquisition of Russian citizenship and a residence permit.
3.2 Registration and adequate documentation
It is not unusual for states to consider that their civil registration systems meet the standards advocated by the GCM in respect of own nationals (Belgium) or address the topic of adequate documentation primarily in relation to regular migrants (UK, Malta, Germany). Since many states link access to rights with possession of state nationality or regular legal status, lacking adequate documentation of one’s legal status constitutes in practice a barrier to rights. Efforts to ensure access to rights irrespective of nationality or legal status are mentioned in the Irish and Belgian reports. However, access is limited to basic social services, such as healthcare and education for minors.
Info on improving birth registration, which is closely linked with state efforts to reduce stateless at birth, is mentioned in several reports. For example, Germany issues all children born on its territory with a birth certificate or a certified register printout where the identity/name of the parents is unknown. The two types of certificates are legally equivalent and serve as proof of birth registration which is needed to access basic rights such as healthcare, education and social welfare. Croatia registers migrant children’s birth at the competent registrar’s office according to the place of birth and includes information on their parent’s nationality.
The most important development captured by the national reports is a generalised move towards digitalization and e-services as the main mode of delivery of documents for migrants and nationals alike (Belarus, Greece, UK, Portugal, Albania, Armenia). For example, the UK is set to transition to a system where all migrants are provided with evidence of their immigration status online which can be accessed through ‘accessible, easy to use and digital services’ and replace all physical immigration documents. Currently, only non-EU migrants who stay longer than 6 months are issued with biometric documents. The Portuguese report emphasises measures designed to ensure the regularization of migrants, such as the extension of periods for the concession and renewal of residence permits, creating a special program that allowed more than 800 vulnerable migrants in rural areas to regularize their situation, and the development of electronic platforms to improve existing procedures and speed up the issuance of documents. Spain lists efforts to enhance migrants’ access to information on conditions for documentation and administrative services provided by public bureaus for citizens’ documentation as part of its implementation of Objective 4.
3.3 Legal identity and Corona related measures
Measures taken by states to contain the Corona pandemic have had a stronger impact on migrants when, for example, their permission to stay or work expired or where due to border restrictions and travel bans, they were unable to leave their host state. Several states (Portugal, Greece, Belgium, Azerbaijan, Kazakhstan, Ireland) opted to extend the validity of documents that expired during the pandemic to ensure that migrants do not become irregular and do not lose access to rights. Portugal went further and considered all migrants and asylum seekers with pending applications to be regularly staying in Portugal. In some cases, the extension of residence permits was automatic (Ireland, Azerbaijan). In Greece and Azerbaijan such measures are coupled with a move towards the digitalization of immigration services.
Several national reports address the return of irregular migrants in relation to questions of legal identity, such as proof of nationality and possession of adequate documentation, which are seen as necessary to implement return decisions. The Belgian report mentions efforts to establish and enhance civil registry systems in countries of transit, such as Mali and Senegal. Croatia addresses the transposition and implementation of the EU Return Directive as part and parcel of Objective 4, such as the issuance of documents attesting irregular stay and the obligation to leave. Denmark has created an Inter-Ministerial Migration task force to contribute to change the incentives for irregular migration, including by developing capacities in third countries to better managed mixed migration flows. The work of this new task force is seen as implementing among others Objective 4 on legal identity but the report does not detail the exact type of measures or projects undertaken by the new body. However, there is a clear anchoring of objective 4 with migration management as well as return and readmission policy and initiatives.
Belarus clusters several objectives, including legal identity under the heading ‘border management and human rights’ and links it to measures aimed at border management, irregular migration, migrant smuggling and human trafficking, return and readmission and detention. The only measure directly concerned with legal identity is the creation of a unified electronic service portal for foreigners free of charge. Serbia includes legal identity among the objectives whose implementation should lead to ‘protecting migrants through rights-based border governance measures’. Similar to Belarus, migrants’ identification is relevant in the context of border management and especially return. The creation of a single biometric database used by the Serbian police to identify and register foreigners’ biometric data which is also harmonised with international police records is presented as a positive development.
While it is generally accepted that in practice (proof of) legal identity is paramount to enjoying a life in dignity, equality and liberty, we can question the extent to which states in the UNECE region have placed legal identity at the top of their priority list. While the national reports show positive steps in relation to statelessness and adequate documentation, they also highlight problematic aspects that can impair state efforts to realize Objective 4. Firstly, there is no clear standard of review to which states should aspire in their implementation efforts which is evidenced by very different implementation strategies and the ‘pick and choose’ approach used by some states in deciding what objectives to focus on. What is most disappointing is the lack of transparent explanations as to why certain objectives are prioritised and others not. Secondly, the lack of generally agreed upon indicators in respect of GCM Objectives makes it difficult to pass judgment on national implementation efforts, especially where states declare their own laws to be conform with Objective 4, yet fail to provide information on how they reached this conclusion. Thirdly, and linked with the above point, there is very little critical reflection upon national measures. For example, in most reports, the move towards e-services is presented as a positive, migrant and citizen-friendly development without any discussion of its impact on vulnerable groups and potentially exclusionary effects. Justly or not, based on the national reports, discrimination in the context of Objective 4 appears to be a non-issue. Fourthly, linking legal identity with return and readmission risks reducing Objective 4 to a question of migration management while diluting its human rights dimension. There is a clear interest and appetite for policies and measures that further return and readmission, and far less consideration for measures that ensure access to basic rights for everyone irrespective of their legal identity.
 B. Manby (2020) ‘Legal Identity for All’ and Statelessness: Opportunity and Threat at the Junction of Public and International Law, Statelessness &Citizenship Review 2(2), pp. 248-271
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