Statelessness in the migratory context

Asylum seekers from Syria in Belgium

Justine Raymond

I6044049

18.03.2016

EU Migration Law and Citizenship

Final Paper

Subjet: Nationality Law

words: 10038

Abstract

In 2014, the UNHCR started a campaign to end statelessness worldwide by 2024. However, since

2011, the conflict has escalated in Syria leading millions of Syrians to flee their country. In light of

those events, this research aims at identifying how the migratory situation of asylum seekers can

impair or provide a solution to statelessness reduction and prevention worldwide. Using Belgium as

the population fleeing Syria as a case study, this paper identifies four modes of protection against

statlessness that are relevant in the migratory context: children born in a country who would

otherwise be stateless, foundlings of unknown parentage, recognized refugees and stateless persons.

Based on four status an asylum seeker could hold under Belgian law, stateless, refugee, beneficiary

of subsidiary protection, or irregular migrant, this paper will assess how under each status Belgian

law provides for statelessness reduction through statelessness safeguards or opportunities for

nationality acquisition. The research showed that despite the important safeguards against

statelessness in Belgian Law, practice often impairs on the proper operation of those safeguards.

Also, it concludes that the Belgian framework is not adequate to facilitate the acquisition of

nationality by otherwise stateless persons.

Keywords : statelessness prevention - statelessness reduction - asylum seekers - Belgium - Syria

Table of Content

1. INTRODUCTION 5

2. DEFINING STATELESSNESS 6

3. METHODOLOGY 6

4. BELGIUM'S INTERNATIONAL OBLIGATIONS ON STATELESSNESS REDUCTION AND PREVENTION 7

5. SYRIA: IDENTIFYING STATELESS AND PERSONS AT RISK OF STATELESSNESS 9

5.1. Stateless in Syria 9

5.1.1. Stateless kurds 10 5.1.2. stateless palestinians 11 5.2. Persons at risk of statelessness based on gender discriminatory laws 11

6. STATELESSNESS IN THE MIGRATORY CONTEXT : PERSONS' STATUS UNDER BELGIAN LAW 12

6.1. Registered asylum seeker, refugee and subsidiary protection 12

Procedure 12 6.2. Stateless status 14

Procedure 14 6.3. irregular migrant status 14

7. STATELESS PREVENTION 15

7.1 Children born in a country who would otherwise be stateless 15

7.1.1. Legal framework applicable 15

Registered asylum seekers, recognized refugees and beneficiaries of subsidiary protection 18 stateless status 20 irregular migrants 20 7.1.2. Technical obstacles 20

birth registration 20 Ensuring filiation on the birth certificate 22 7.2. Foundlings found in a country of unknown parentage 23

8. STATELESS REDUCTION 23

8.1. Persons who are recognized refugees 23

8.2. Stateless persons or persons with unclear citizenship 26

8.3. irregular migrants 27

9. CONCLUSION 27

10. BIBLIOGRAPHY 29

1. INTRODUCTION

In light of the current conflict in the Syrian Arab Republic (Syria) , European Member States have 1

had to deal with high inflows of asylum seekers reaching their territories. The situation is portrayed

as a crisis in the media. However, the crisis that will be discussed in this paper is of another nature:

it is a stateless crisis. To mark the 60th anniversary of the 1954 Convention relating to the Status of

Stateless Persons, the Office of the United Nations High Commissioner for Refugees (UNHCR)

launched in 2014 an international campaign to end statelessness worldwide by 2024. However, the

current conflict in Syria and the consequent migration flows put Syrians fleeing their country at

greater risk of becoming stateless. On the other hand, migration can lead to new opportunities for

several hundreds of thousands stateless persons from Syria to obtain a nationality, as they move to

countries with higher safeguards against statelessness.

In line with the aim of the UNHCR campaign, this research tries to identify current safeguard

against statelessness of those fleeing Syria as a result of their migration to Europe, as well as

opportunities the migratory context offers to reduce the number of people from Syria currently

stateless.

As statelessness is directly dependent on the specific national laws of a country, especially

nationality laws, this paper will use Belgium as a case study. As highlighted by the recent report on

statelessness by the UNHCR , Belgium has important safeguards against statelessness in its 2

legislation, and is mostly in line with the 1961 Convention on the Prevention and Reduction of

Statelessness, Belgium it recently ratified on July 1, 2014. Belgium can therefore serve as an

example for current systems of prevention and reduction of statelessness in the migratory context

and help further improve national laws in order to end statelessness.

This research will therefore have as a research question: How do Belgian laws and practice

influence statelessness among asylum seekers from Syria ? Looking at the issue from two angles,

this paper will analyze how Belgian laws increase the risk of statelessness among asylum seekers

from Syria as well as how Belgian laws provide opportunities to decrease the number of current

stateless asylum seekers from Syria.

After highlighting important concepts relating to statelessness and the current international

framework, the paper will first analyse statelessness and Syrians at risk of statelessness based on

The simplified term of Syria will be used throughout this paper to refer to the Syrian Arab 1

Republic

United Nations High Commissioner for Refugees (UNHCR), Mapping Statelessness in Belgium - 2

Summary Report, October 2012, available at: http://www.refworld.org/docid/5100f3412.html

Syrian nationality law and their vulnerabilities due to their current situation as asylum seekers. The

paper will then moved to an analysis of statelessness prevention and reduction in Belgium among

persons of Syrian origin by analyzing both legal and practical issues.

2. DEFINING STATELESSNESS

When engaging with the issue of statelessness, it is important to pay attention to

terminology and to correctly define the term stateless. A stateless person is ‘a person who is not

considered as a national by any State under the operation of its law’. This definition is explicitly 3

found in Article 1 of the Convention relating to the Status of Stateless Persons of 1954 and is now

considered as being accepted as customary law. Another category includes people at risk of 4

statelessness. This category of persons is not yet considered as stateless but is at risk of becoming

stateless due to difficulties in providing the necessary evidence that they fulfill the nationality law

criteria to acquire a nationality. A third category of persons are de facto stateless. While stateless 5

persons according to the 1954 Convention are referred to as de jure stateless, as their statelessness is

defined by law, de facto stateless are persons who hold a nationality but whose nationality is

ineffective in practice. The persons find themselves in similar factual situations than de jure

stateless , where their rights as nationals are denied. 6

Research on de facto statelessness is relevant in the context of stateless protection, as it touches

upon the rights attached to a holding a nationality and thus on the protection granted such a person

on that basis. This category will not be addressed in this paper, the research focusing on identifying

ways to prevent or reduce statelessness. However, persons at risk of statelessness are important to

identify in the context of statelessness prevention and stateless persons are relevant in the context of

statelessness reduction. Therefore, this paper will seeks to identify both stateless and persons at risk

of statelessness.

3. METHODOLOGY

United Nations General Assembly (UNGA), Convention Relating to the Status of Stateless 3

Persons, 28 September 1954, United Nations, Treaty Series, vol. 360, p. 117., available at: http://www.refworld.org/docid/3ae6b3840.html

United Nations, Draft Articles on Diplomatic Protection with commentaries , 2006, available at: 4

http://www.refworld.org/docid/525e7929d.html

UN High Commissioner for Refugees (UNHCR), Self-Study Module on Statelessness, October 5

2012, available at: http://www.refworld.org/docid/50b899602.html p.8.

Ibid.6

As mentioned, this research uses Belgium as a case study for the identification of stateless

prevention and reduction among the asylum seekers from Syria.

In order to identify the people at risk of being or becoming stateless, the typology on modes of

protection against statelessness developed by the EUDO Citizenship Observatory in collaboration

with the UNHCR was used as a reference for potential categories of persons at risk. Four 7

categories from the typology relevant in the migratory context were selected: children born in a

country who would otherwise be stateless, foundlings found in a country of unknown parentage,

recognized refugees and stateless persons or persons with unclear citizenship. The category of

children born in a country who would otherwise be stateless is relevant as asylum seekers might

give birth in Belgium and will have no or limited access to their representative government

authorities in the country. Similarly, with about 10,000 refugee children unaccounted for in Europe,

the category of foundling is relevant for this research. The relevance of the refugee category is self-8

explanatory. Finally, the high proportion of stateless individuals in Syria explains the importance of

this last category.

Besides refugees, Laura Van Waas identified two other categories of persons at greater risk of

statelessness in the migratory context: irregular migrants and victims of trafficking. The national 9

laws regulating the status of victims of trafficking being too complex for the scope of this paper,

this specific category will not be addressed. However, irregular migrants will be added to the other

categories identified.

4. BELGIUM'S INTERNATIONAL OBLIGATIONS ON STATELESSNESS REDUCTION

AND PREVENTION

Even though this study aims to go beyond assessing the current application of international

standards on statelessness reduction and prevention by Belgium, these instrument are nonetheless

relevant to this study. Belgium is party to the Convention relating to the Status of Stateless Persons

of 1954 and to the Convention on the Reduction of Statelessness of 1961. However, Belgium has

not ratified the European Convention on Nationality of 1997, a relevant instrument in the context of

statelessness prevention and reduction, and is therefore not bound by it. Belgium is neither bound

EUDO Citizenship Observatory, comprehensive typology of modes of protection against 7

statelessness, http://eudo-citizenship.eu/docs/Modes%20of%20protection%20against%20statelessness%20typology.pdf

The Guardian, '10,000 refugee children are missing, says Europol', 30 January 20168

L. E. Van Waas, Nationality matters: statelessness under international law (Intersentia, 2008) p.9

152.

by the Convention on the Avoidance of Statelessness in Relation to State Succession of 2006, the

subject matter not being considered relevant by the Belgian authorities. On Belgium

implementation of its obligations under the Convention on the Reduction of Statelessness, the

report that the UNHCR published in 2012 on statelessness in Belgium concluded that ‘substantive

safeguards against statelessness exist’ and ‘that the law generally appears to meet international

standards’ including the draft law debated at the time of the report. The UNHCR however made a 10

number of recommendations to the Belgian State on its Belgian Nationality Code , which are 11

useful to address in this study as it aims at reducing statelessness cases.

One recommendation deals with the draft (now implemented) change in the Belgian Nationality

Code (BNC) preventing refugees from facilitated access to nationality through naturalization for

refugee population. Another recommendation concerns foundlings. Currently in the BNC, le 12

nouveau-né found on the Belgian soil can acquire Belgian nationality. However the term nouveau-

né translates into newborn, which therefore limits the personal scope of application the article

compared to the wording of the text of the 1961 Convention. The UNHCR suggested amending

Article 10(3) of the BNC to ensure an application broader than that of newborn only. A third 13

recommendation deals with birth on aircraft and ship, issue to which the BNC is silent and where

another current Belgian legislation specifies birth is considered on Belgian territory solely during a

flight, thereby excluding stop-overs. The Belgian government shall introduce a specific article on

birth on aircraft in its BNC. 14

The UNHCR also identified a problem with article 8(4) BNC, lacking a safeguard against

statelessness in situations where a filiation is no longer established. Another issue underlined in 15

the UNHCR recommendations was the lack of safeguard against statelessness where a person is

deprived of his or her nationality on the basis of a ‘serious breach of duties as a Belgian citizen’ but

this safeguard has now been introduced in the BNC. Another recommendation made by the 16

UNHCR was to take into account the period of legal stay between the application and the

UNHCR, Mapping statelessness, 2012, p.121.10

Belgium. Code de la Nationalité Belge (Belgian Nationality Code) [BNC], 198411

UNHCR, Mapping statelessness, 2012, p.122.12

Ibid.13

Ibid.14

Ibid.15

BNC, Article 23(1)(2°)16

recognition of the refugee status in the period of legal stay required to obtain nationality by

declaration. 17

On the new exception clause for acquiring Belgian nationality by birth on Belgian soil in order to

prevent statelessness, that the parents must not be able to undertake administrative steps to either

embassies or consulate of their country of origin in order for the child to acquire one of their

nationality , the UNHCR suggested the BNC clearly mentions that this exception clause would not 18

apply to recognized stateless parents. Finally the burden of proof of this exception clause should 19

be shared between the parents and the authorities, due to discretion in granting nationality, as

interviews have highlighted issues with obtaining written proof from authorities of the home

country of the parents that they do not register the child.

5. SYRIA: IDENTIFYING STATELESS AND PERSONS AT RISK OF STATELESSNESS

This section identifies the main population groups already stateless in Syria, who are likely to be

found among the asylum seekers in Belgium. Secondly, it looks at the persons at high risk of being

stateless as a result of their presence abroad, based on Syrian nationality law. The major problem

identified in this regard is gender discrimination in Syrian nationality law.

5.1. Stateless in Syria

As mentioned above, Syria has a high-level of stateless persons living in the country. The UNHCR

officially reported 160,000 stateless persons living in Syria in the past year. The number has

decreased by around half compared to statistics of 2010 according to the UNHC database in which

300,000 stateless were accounted for. Moreover, the statistics of the UNHCR exclude Palestinian 20

refugees, also stateless, who reside in areas of operations of the United Nations Relief and Works

Agency for Palestinian Refugees in the Near East (UNRWA). 21

Despite the Syrian Nationality Law (SNL) providing the acquisition of Syrian nationality to

children born in Syria of unknown parents or parents of unknown or without nationality and to any

UNHCR, Mapping statelessness, 2012, p.123.17

BNC, Art. 10(2)18

UNHCR, Mapping statelessness, 2012, p.123.19

UNHCR, Statistical Online Population Database, www.unhcr.org/statistics/populationdatabase;20

UNHCR, Self-study, 2012, p.8.

UNHCR, Statistical Online Population Database: Sources, Methods and Data Considerations 21

(2013), http://www.unhcr.org/45c06c662.html

child unable ‘to acquire a foreign nationality by virtue of his parentage’ , in practice Syrian laws 22

are not systematically implemented. This issue is best illustrated with two communities within

Syria, the Kurds and Palestinians.

5.1.1. Stateless kurds

The statelessness status of most of the Kurdish population has historical roots. When Syria declared

itself an Arab Republic in 1973, the constitution adopted emphasized the arab ethnic nature of the

Nation and the Kurdish ethnicity was therefore not in line with the Arabization of the country. The 23

current stateless status of many Kurds has its origins in the 1962 census in the al-Hasakah region

where most Kurds live. The census was originally organized to identify Kurds illegally entering

from Turkey. The census identified three categories of people: Syrian Nationals, who could proof 24

they held residence prior to 1945; Ajnabi , those who were unable to confirm such a residence; 25

and Maktoumeen , those who did not participate in the census. The conditions of the census were 26 27

however less than optimal to accurately determine the populations status: the census only took place

on one day; administrative documents difficult to obtain on short notice, such as proof of residence,

were requested on the spot; decisions to register were arbitrarily made; many residents were

illiterate; and many resident did not engage much with the authorities thus were neither informed

about the census or its procedure, nor that they could appeal. This led to about 20% of the kurdish 28

population rendered stateless at the time. The latter two status are in practice hereditary and the 29

safeguards provided for under Article 3C SNL that should prevent passing on statelessness status

are not activated. The Presidential Decree 49 adopted in march 2011 granting Syrian nationality to 30

Ajnabi from al-Hasaka partly reversed the trend and can explain the important drop in numbers of

Syrian Arab Republic, Legislative Decree 276 - Nationality Law, 24 November 1969, available at: 22

http://www.refworld.org/docid/4d81e7b12.html [Syrian Nationality Law - [SNL]] Articles 3C, 3D

Z. lbarazi, 'The Stateless Syrians', Tilburg Law School (2013), p.14.23

Human Rights Watch (HRW), Syria: The Silenced Kurds, October 1996, available at: https://24

www.hrw.org/sites/default/files/reports/SYRIA96.pdf

foreigners in arabic25

hidden in arabic26

Z. Ibarazi, TLS (2013), p. 14.27

Ibid.28

Z. Ibarazi, TLS (2013), p. 15-16.29

Z. Ibarazi, TLS (2013), p. 7.30

stateless individuals in the country. Substantiated testimonies have confirmed the legislation has 31

been put in practice but further details on the implementation and consistent application could not

be collected due to the start of tensions within the country. However, the maktoumeen were still 32

excluded from the decree and therefore statelessness among Kurds is still important.

5.1.2. stateless palestinians

Palestinian refugees are another important category of stateless persons in Syria, with about

526,744 registered Palestinian refugees as of January 1, 2011, therefore prior to the conflict. An 33

estimated 450,000 Palestinian refugees registered with UNRWA in Syria still remain inside the

country. Palestinian refugees are prevented by the authorities from acquiring Syrian nationality in 34

order to ensure their right to return to Palestinian territories in the future. Indeed, the right to vote 35

or be naturalized was excluded from the rights granted to Palestinians under Law 206 of 1957. 36

5.2. Persons at risk of statelessness based on gender discriminatory laws

In light of the migratory context, provisions of the nationality act were identified that put persons at

risk of statelessness. The Syrian nationality code discriminates women in passing along their

nationality to their child. Indeed, if born within the country, the Syrian mother can only pass along

her nationality to her child if the child is born to an unknown father. More relevant with regard to 37

Syrian asylum seekers is the fact that if born outside the country, a child can only receive Syrian

nationality if he or she is born to a Syrian Arab father. Therefore, a child born of a Syrian mother 38

but not of a Syrian father abroad would not acquire Syrian citizenship and be at risk of statelessness.

Furthermore, instances of marriage between a Syrian and a non-Syrians are more likely to occur in

the migratory context and Syrian laws on the subject are also discriminatory based on gender.

Nevertheless, with regard to the nationality status of a woman as a consequence of marriage, she

Z. Ibarazi, TLS (2013), p. 18.31

Ibid.32

United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA), 33

Where We Work: Syria, http://www.unrwa.org/where-we-work/syria

UNRWA, Syria Crisis, http://www.unrwa.org/syria-crisis#Syria-Crisis-and-Palestine-refugees34

35 Z. Ibarazi, TLS (2013), p. 7.

UNGA, Report of the Commissioner-General of the United Nations Relief and Works Agency for 36

Palestine Refugees in the Near East, (A/61/13), 2006, available at http://www.unrwa.org/resources/reports/report-unrwa-commissioner-general-un-general-assembly-2005, footnote 2.

SNL, Art. 2B37

SNL, Art. 3A38

will only loose Syrian nationality if she acquires the nationality of her husband. She will therefore 39

not be at risk of becoming stateless herself if she were to marry a non-Syrian. The latter information

was confirmed by a Syrian State official. 40

6. STATELESSNESS IN THE MIGRATORY CONTEXT : PERSONS' STATUS UNDER

BELGIAN LAW

Based on the relevant categories identified, this section aims at explaining how asylum seekers will

fall under one of the different status under Belgian law. Each status grants different rights to the

asylum seeker that will impact on the risks of statelessness.

6.1. Registered asylum seeker, refugee and subsidiary protection

Procedure

An asylum seeker already on the territory of Belgium must first submit an application at the

Immigration Office (the Office) in Brussels within 8 days of arrival. The Office is responsible 41 42

for the registration of the application and for verifying whether Belgium or another EU Member

State is responsible for examining the asylum application based on Regulation (EU) No 604/2013

of the European Parliament and of the Council of 26 June 2013 (Dublin III Regulation). The 43

asylum seeker is further interrogated on his or her identity, nationality, journey to Belgium and is

asked to fill in a form with the reasons for fleeing and seeking refuge in Belgium. His fingerprints 44

and picture are also taken. Those that applied at the Department will be hosted in a reception 45

center assigned by Fedasil (Federal Agency for the Reception of Asylum seekers). The registered 46

asylum seeker will be provided assistance and can ask to move out of the center after a stay of four

SNL, Art. 12 39

Australia. Refugee Review Tribunal, Jordan, 15 February 2011, JOR38235, available at: http://40

www.refworld.org/docid/4f5dec9f2.html, p.3.

Office des Etrangers41

S. Akram, and N. Al-Azza, Closing Protection Gaps: Handbook on Protection of Palestinian 42

Refugees in States Signatories to the 1951 Refugee Convention, 2nd edition, BADIL Resource Center for Palestinian Residency and Refugee Rights, 2015, p.91.

Office des étrangers (Immigration Office), Procédure d’asile (en vigueur à partir du 01/09/2013), 43

https://dofi.ibz.be/sites/dvzoe/FR/Guidedesprocedures/Pages/Procéduredasile.aspx

S. Akram and N. Al-Azza, Closing Protection Gaps, 2015, p.91.44

Office des étrangers (Immigration Office), Procédure d’asile45

S. Akram and N. Al-Azza (Eds),Closing Protection Gaps: Handbook on Protection of Palestinian 46

Refugees in States Signatories to the 1951 Refugee Convention, 2nd edition, 2015, BADIL Resource Center for Palestinian Residency and Refugee Rights, p.92

months. If following the preliminary investigation the Office concludes that Belgium is not the 47

responsible state according to the Dublin III Regulation, an order of denial of legal stay and an

order to leave the country will be issued and a only a pass will be granted in order to allow the

asylum seeker to reach the country responsible for his or her asylum application. The status of a

such person who stays in Belgium at this stage will therefore be of an irregular migrant. If the

preliminary investigation is positive and Belgium is responsible, the case is referred to the Office of

the Commissioner General for Refugees and Stateless Persons (CGRA) who is responsible to assess

the merits of the application. The CGRA is then competent to grant a refugee status or subsidiary 48

protection to the applicant according to the Aliens Act. Officially, the CGRA shall make the 49

decision within two months. However, no sanctions take place if the decision takes longer than 2

months. In 2012, prior to the sudden increase of asylum-seekers arriving in Europe, the length of 50

the cumulated procedure by the Office and the CGRA was of 101 days on average. It can be 51

expected that such procedure might currently take longer due to the recent acknowledgement of

overload by the competent authorities. Only when the CGRA has granted refugee status or 52

subsidiary protection can the person benefit from the rights attached to such status. In the meantime,

the asylum seeker's rights will be derived from his status as registered asylum seeker. In 2015, out

of 2.792 applications, the CGRA granted 2.443 asylum seekers refugee status and 283 obtained

S. Akram and N. Al-Azza, Closing Protection Gaps, 2015, p.92.47

Office des étrangers (Immigration Office), Procédure d’asile48

Belgium, Loi sur l'accès au territoire, le séjour, l'établissement et l'éloignement des étrangers, 15 49

December 1980 (last updated 19-02-2016) available at: http://www.ejustice.just.fgov.be/cgi_loi/change_lg.pl?language=fr&la=F&cn=1980121530&table_name=loi

Association Pour le Droit des Etrangers (ADDE), Procédure d'Asile (2015), http://www.adde.be/50

ressources/fiches-pratiques/asile/procedure-d-asile

European Migration Network (EMN), Le délai moyen pour les décisions des demandes d'asile 51

introduites en 2012 se monte, pour l'OE et le CGRA cumulés, à 101 jours, http://www.emnbelgium.be/fr/nouvelles/le-délai-moyen-pour-les-décisions-des-demandes-dasile-introduites-en-2012-se-monte-pour-lo

due to the larger inflows and evidence of delays in registration difficult to overcome with 52

thousands queuing while a maximum of 250 refugees can be processed by day. See for example : RTBF, 'Record d'affluence à l'Office des étrangers: plus de 1000 migrants', 31 August 2015, available at: http://www.rtbf.be/info/belgique/detail_record-d-affluence-a-l-office-des-etrangers-plus-de-1000-migrants?id=9067145

subsidiary protection. In total, only 2,36% of the applications for a protection status were rejected

for a number of 66 applications only. 53

6.2. Stateless status

Procedure

Contrary to the formal procedure to be recognized refugee, no such procedure exist in order to be

recognized stateless in Belgium. The CGRA does not have competence to recognize a person as

stateless but can only issue official documents, such as marriage, death or birth certificates, to an

already recognized stateless person. In order for their status to be recognized, a stateless person 54

must start a procedure before the Court of First Instance, who has competence to deal with matters

of civil status and nationality. The burden of proof is on the applicant. The judge usually only 55

considers the legislation of the country in which the person is born, the country in which he stayed

or the country of which his or her parents hold their nationality in order to determine the

statelessness of the applicant. There is no common procedure to be recognized both refugee and 56

stateless. A person can however cumulate the refugee and stateless status. Holding both status is

beneficial as it will increase the opportunities of the individual for stateless prevention and

reduction.

6.3. irregular migrant status

They are different situations in which asylum-seekers will fall into the irregular migrant category.

First, an asylum seeker not yet registered holds the status of irregular migrant if he or she does not

hold any document authorizing his or her presence on the Belgian territory. Secondly, asylum-

seekers can be denied refugees status and fall into the irregular migrant category at two stages of the

asylum procedure. As mentioned above, after the Office has assessed during its preliminary

investigation that Belgium is not the responsible state for the asylum application and issues an order

to leave the territory, the former applicant who stays in Belgium will be considered an irregular

migrant on Belgian territory. Second, if the CGRA denies the applicant refugee status or subsidiary

Commissariat Général aux Réfugiés et aux Apatrides (CGRA) (Office of the Commissioner 53

General for Refugees and Stateless Persons), Stastiques d'Asile: Bilan 2015, (2016), http://www.cgra.be/fr/actualite/statistiques-dasile-bilan-2015

CGRA, Apatrides, http://www.cgra.be/fr/apatrides 54

Service International de Recherche , d’Education et d’Action Sociale (Siéras), Analyses et 55

études: Quelques principes et questions pratiques sur l’apatridie (2004), http://www.sireas.be/publications/analyse09-2004.pdf

Ibid.56

protection, the person receives an order to leave the territory and if she decides to stay in Belgium,

she will also fall into the category of irregular migrants.

A third category of asylum seekers in Belgium can fall into the irregular migrant category. These are

persons in transit in a country, wishing to have their asylum procedure processed in another country.

Indeed, according to the Dublin Regulation, asylum seekers that registered their application in one

country cannot do so in another country. As an example, the unofficial camp in Calais, France, is

said to host a large number of asylum seekers who are not registered before the French authorities

as they wish to reach the United Kingdom and apply for refugee status in that country.

7. STATELESS PREVENTION

This section will look at the identified categories of people at risk of statelessness and assess, based

on their status under Belgian law, the risks of statelessness on the basis of Belgian legislation and

practice.

7.1 Children born in a country who would otherwise be stateless

7.1.1. Legal framework applicable

Article 10(1) BNC stipulates that a child born in Belgium who would be otherwise stateless at any

point of time before he is 18 or emancipated is Belgian. However, Article 10 BNC was amended 57

by Law of 27 December 2006 where a new provision, article 10(2) BNC, was added. The 58

provision reads : ‘However, the paragraph 1 will not be applicable if the child can obtain another

nationality by his legal representative or representatives initiating an administrative procedure

before the diplomatic or consular authorities of the country of origin of both representatives or one

of them’. This addition aimed at avoiding cases of aliens abusing the previous legislation by 59

consciously giving birth in Belgium and not registering their child before the authorities of their

country of origin in order for the child to satisfy the statelessness requirement and obtain Belgian

BNC Art. 10(1)57

Belgium, Loi portant des dispositions diverses (I), 27 December 2006, available at: http://58

www.ejustice.just.fgov.be/cgi_loi/change_lg.pl?language=fr&la=F&table_name=loi&cn=2006122732 Art. 380

BNC Article 10(2), author's translation59

nationality. A Ministerial Circular issued the following months gave guidance in interpreting the 60 61

new provisions of the Law of 27 December 2006. The circular gives interpretive guidance for the 62

application of Article 10(1) and 10(2) BNC to registered asylum seekers, recognized refugees, and

persons benefiting of subsidiary protection. Its content and the following implications for each of

the peculiar statuses will be discussed below.

Only a few judgements dealing with nationality are published online and it is therefore difficult to

find jurisprudence in this domain. Although none of them addressed situations of asylum seekers, 63

three national judgements discussing the granting of nationality based on article 10 BNC could be

found.

The most recent judgement was dated October 20, 2015 and interpreted the application of the

exclusion clause found in article 10(2) BNC. The case concerned parents of Brazilian nationality. 64

The child obtained Belgian nationality according to Article 10(1) BNC in order to avoid him

becoming stateless as a result of Brazilian law not authorizing him to obtain Brazilian nationality.

Following a marriage and recognition of the child by a Brazilian father, the municipal authorities

changed the nationality of the child and registered him as Brazilian. In court, the representatives of

the municipality argued that following the father's recognition of the child, the latter could obtain

Brazilian nationality by initiating an administrative procedure, which the municipality

representative claimed was falling under the exclusion clause to obtain Belgian nationality found in

article 10(2) BNC. However, the judge interpreted the clause as only applying in order to determine

whether the child could obtain Belgian nationality according to article 10(1) BNC and concluded

UNHCR, Mapping statelessness, 2012, p.96.60

As it signed by the Minister in charge, the circular belongs to the category of interpretative 61

circular and has therefore as primary aim to express the interpretation of the law of the Minister in charge of the application of such law. Its aim is to inform civil servants who must apply the law on the meaning of the law. However, the circular is not a primary source of law but can only help with the interpretation of law. It is however not binding for civil servants and tribunals even though the latter might use it as a formal source of law as a matter of legal safety to ensure the civil service does not deviate from the interpretation given. See http://www.vocabulairepolitique.be/circulaire/

Belgium, Circulaire relative aux modifications du Code de la nationalité belge introduites par la 62

loi du 27 décembre 2006 portant des dispositions diverses I , 25 May 2007, available at http://www.ejustice.just.fgov.be/cgi_loi/loi_a1.pl?sql=(text%20contains%20(''))&language=fr&rech=1&tri=dd%20AS%20RANK&value=&table_name=loi&F=&cn=2007052535&caller=image_a1&fromtab=loi&la=F

Information provided by Patrick Wautelet; See also, C. L. Closset, Traité de la nationalité en droit 63

belge. (Éditions Larcier, 2015). This reference book on Belgian nationality law does not mention any jurisprudence on Article 10 of the BNC.

Belgium, Court of First Instance, Brussels, 25 October 2015, N°14/3830/A64

that it did not apply in order to retrieve nationality from a person who had obtained Belgian

nationality according to this article. The argument of the municipality was therefore rejected.

The implications of the judgement are that nationality granted under article 10(1) can only be lost

based on article 10(4) BNC which guarantees the child has obtained another nationality before

being deprived of Belgian nationality. If the logic of the court is applied to children of former

asylum seekers whose status has been refused but whose child born in Belgium already obtained

Belgian nationality on the basis of article 10(1), it would entail that the Belgian nationality of the

child could not be revoked based on the fact that the former asylum seekers could now be expected

to undertake steps to obtain the nationality of origin for his or her child by contacting the authorities

of his or her country of origin, as the exception in article 10(2) provides. Only if the child obtained

another nationality could his or her Belgian nationality be revoked.

The second judgement was pronounced by the Constitutional Court. The question before the court 65

was whether the new provision of Article 10(2) BNC was discriminatory. In its ruling, the

Constitutional Court judged the provision to have a reasonable justification in light of the general

interest and declared the provision not arbitrary. It further added that article 10(2) of the BNC being

an exception to the rule it must therefore be interpreted restrictively, with due regard to the aim of

the legislator, to avoid abuses of such provisions.

The third judgement dealing with article 10 BNC predates the introduction of the exception clause

but is nonetheless relevant in situations where article 10(2) BNC would not apply. The Court of

Appeal of Bruxelles confirmed that the municipality cannot add additional requirements to the

granting of Belgian nationality on basis of Article 10(1) BNC that were not sough by the

legislator. In the present case, the municipality of Saint-Gilles had required a proof of stateless 66

status delivered by the Court in order to grant Belgian nationality to the child. The court ruled that

such proof could not be required by the municipality. Although the respect in practice of the

judgement by other municipalities is unknown as civil registries are responsible for the application

of article 10(1) and thus for the statelessness assessment, according to this judgement, an official

proof of statelessness through the stateless determination procedure seems not to be required for the

child in order for him or her to be granted Belgian nationality, simplifying the obtention of Belgian

nationality of children who would otherwise be stateless.

Another case not ruled by national courts but brought before the European Court of Justice (ECJ)

also shed light on the implications of article 10 BNC: The case Zambrano v. Office National de

Belgium, Constitutional Court, 24 April 2008, N°73/200865

Belgium, Court of First Instance, Brussels, 13 May 2005, unpublished; Belgium, Court of Appeal, 66

Brussels, 3 April 2009, unpublished

l'Emploi (ONEm). This case is very relevant in the refugee context as it deals with rights of former 67

asylum seekers, whose application has been rejected, granted based on the Belgian nationality of

their child, acquired on the basis of article 10(1) BNC. Despite the case dealing with acquisition of

nationality prior to the introduction of the exception clause under article 10(2) BNC, the judgement

is still relevant in the new context. In the case at hand, Colombian parents had had two children on

Belgian soil who therefore had acquired Belgian nationality on the basis of Article 10 of the Belgian

Nationality Code as the parents had not registered them at the Colombian Embassy. The parents had

been required to leave Belgian territory after their asylum application had been rejected. The ECJ

held in the judgement that by becoming Belgian citizens the children had also acquired Union

citizenship. The actions of the government should not lead to deprivation of the child of ‘the

genuine enjoyment of the substantive rights attached to the status of the citizen of the Union’ and

therefore prevented the parents from being evicted and furthermore put an obligation on the Belgian

State to provide them with working and residence permit in order to ensure they would not be

forced to leave the territory, which would deprive the children of their rights attached to citizenship

of the Union. The decision in Zambrano is relevant in the current refugee situation with 68

acquisition of Belgian citizenship being linked to the right of residence and right to a work permit

for parents with third country citizenship than that of EU member states. The provision under

Article 10 BNC entailing more than preventing statelessness could lead the authorities to be stricter

in their attribution of nationality based on this provision. This judgement therefore exemplifies how

an open policy on acquisition of Belgian nationality by stateless children can lead to reverse impact

on acquisition of nationality.

Registered asylum seekers, recognized refugees and beneficiaries of subsidiary protection

According to the Circular of 25 May 2007, registered asylum seekers, recognized refugees and

beneficiaries of subsidiary protection will not be requested to be unable to initiate a procedure

before the authorities of their country of origin. For registered asylum seekers and recognized 69

refugees, this is explained by the very nature of their status, as by seeking refuge from their

government, it is not expected from them that they contact those same authorities as long as the

procedure is ongoing. For those benefitting of subsidiary protection, this can be explained based 70

Case C-34/09 Gerardo Ruiz Zambrano v. Office national de l’emploi [2011] ECR I-01177.67

Ibid.68

Belgium, Circulaire relative aux modifications du Code de la nationalité belge introduites par la 69

loi du 27 décembre 2006 portant des dispositions diverses I , 25 May 2007

Ibid.70

on the expectations that their government authorities will not be functional. However, for the child

of a former asylum seeker whose application has been rejected, the latter will not be exempted from

the administrative steps to have his child recognized by the representative authorities of his or her

country, unless the time limit to be registered at the embassy has been exceeded, in which case the

child will be granted Belgian nationality. 71

However, as specified earlier, the circular does not have juridical value. Nonetheless, the

constitutional court considered its content in the case before it on whether the new provision was

discriminatory, based on the aim and purpose of the legislator and noted that Article 10(2) should

have a restrictive interpretation. It also recalled the exception for refugee and asylum seekers. It 72

therefore seems the Court's view is in line with the interpretation of the law found in the Circular.

Accordingly, the exception to the acquisition of Belgian nationality for otherwise stateless persons

provided for under Article 10(2) BNC will apply neither for registered asylum seekers nor for 73

recognized refugees or beneficiaries of the subsidiary protection. Thus, their otherwise stateless

children born in Belgium should be able to acquire Belgian nationality, as long as they do not

acquire another nationality before they turn 18 or are emancipated, in which case they would loose

Belgian nationality, as specified by Article 10(4) BNC. 74

Practice however tells another story. During a conversation with the head of the Birth and

Nationality Department in the city of Liège (the Liège Department), the head stated that asylum

seekers and refugees' children born in Belgium were not granted Belgian citizenship. The head 75

mentioned parents are advised to request refugee status for their newborn. She suggested that the

Liège Department would only consider granting Belgian citizenship on the basis of Article 10(1)

BNC to an otherwise stateless child of recognized refugees or registered asylum seekers born in

Belgium if the child was formally recognized as stateless by a Belgian Court of First Instance. It 76

therefore seems that in practice the statelessness safeguard is not activated for recognized refugees

or registered asylum seekers. Nevertheless, if the matter was to be brought before the Court, it is

likely that the Court will rule in favor of the recognized refugees or registered asylum seekers' child,

Ibid.71

Belgium, Constitutional Court, 24 April 2008, N°73/200872

BNC73

BNC74

Information by Sandrine Cremer75

Information by Sandrine Cremer76

due to the precedent mentioned above where the Court of Appeal declared that the additional

requirement applied by the municipality, requesting a proof of recognition of stateless status for the

child to obtain Belgian nationality, was unlawful. 77

stateless status

The UNHCR recommended the introduction in the BNC of an explicit statement that the exception

of Article 10(2) BNC would not apply to recognized stateless parents. This recommendation was 78

however not followed by the legislators in Belgium.

Nonetheless, the head of the Liège Department confirmed that a child born in Belgium was always

granted Belgian nationality on basis of Article 10(1) BNC if both parents had an official recognition

of their stateless status granted by a judge. Contrary to the case of refugees, practice in the district

of Liège confirms the application of the safeguard against statelessness for children of recognized

stateless parents.

irregular migrants

There is no obligation of legal stay in Belgium in order for Article 10(1) BNC to apply. However, 79

as opposed to asylum seekers and refugees, irregular migrant parents will not be exempted from the

exception under Article 10(2) BNC and will therefore need to prove they initiated steps to grant the

child the nationality of either of their country of origin and that the granting was refused by the

representative authorities in order for the child to be granted Belgian nationality.

7.1.2. Technical obstacles

birth registration

In order for the child to be able to acquire Belgian nationality based on birth on Belgian soil, the

parents must provide a proof of birth. As Van Waas highlighted, ‘In practice, what proves to be a

greater obstacle than this heightened risk of a conflict of nationality laws is the inability of irregular

migrants to register the birth of their child in the host state’. However, Belgian law provides for 80

means through which irregular migrants can obtain a birth certificate: either the hospital, sage-

femme or gynecologist inform the civil registry of the municipality where the birth occurred. This

Belgium, Court of Appeal, Brussels, 3 April 2009, unpublished 77

UNHCR, Mapping statelessness, 2012, p.123.78

Objectif, Attribution de la nationalité belge aux apatrides nés en Belgique (art.10), http://79

www.allrights.be/attribution-de-la-nationalite-belge-aux-apatrides-nes-en-belgique-art10

L.E. Van Waas, Nationality matters, p.170.80

must be done the first working day after the birth took place. Another possibility is for the parent 81

to declare the birth at the civil registry of the municipality where the birth occurred, that must be

done within 15 days following the birth. When they make the declaration, parents in irregular

situation receive the necessary documents in order to be able to retrieve the birth certificate at the

municipality in which the child is born. As the birth certificate mentions the date of birth, the 82

place of birth, the place of birth of the parents and their first and last names, official documents

from the country of origin of the parents are necessary in order to obtain the birth certificate. In 83

order to be valid, those documents must be legalized. However, if that is not possible, the birth

certificate will use the mention ‘declares being named’. Therefore the lack of official or legalized 84

document will not prevent an irregular migrant to obtain a birth certificate for his or her child.

Without a birth certificate, in case the mother gave birth without assistance, the mother must

recognize the child before the civil registry. Moreover, article 4 of the Royal Decree of 12 85

December 1996 on urgent medical aid mentions that confidential information collected while giving

medical attention cannot be used for other means that reimbursement of costs. Therefore, the 86

persons in illegal stay is not prevented from seeking medical aid to give birth in fear of being

reported to the authorities.

However, the case is different for the civil registry competent to deliver the birth certificate. As Van

Waas stated ‘the greatest practical and conceptual obstacle to birth registration for children of

irregular migrants relates to the fact that it is by definition an act of a government authority’ As 87

those authorities are also responsible for monitoring and enforcing immigration laws, the risk

occurs that birth registration might lead to the parents irregular situation identification. 88

Medimmigrant, Grossesse, Accouchement, Soins postnataux chez les femmes sans séjour 81

légal, (2010), http://www.medimmigrant.be/uploads/Publicaties/Folders/zwangerschap/Zwangerschap%2011-2010%20WEB%20FR.pdf

Ibid.82

Ibid.83

Ibid.84

Medimmigrant, Grossesse et accouchement (2013), http://www.medimmigrant.be/?85

idbericht=62&idmenu=4&lang=fr

Belgium, Arrêté royal relatif à l'aide médicale urgente octroyée par les centres publics d'aide 86

sociale aux étrangers qui séjournent illégalement dans le Royaume, 12 December 1996, available at: http://www.ejustice.just.fgov.be/cgi_loi/loi_a.pl

L.E. Van Waas, Nationality matters, p.171.87

Ibid.88

Such issue is exemplified by a circular of 2009, explaining how the municipality can help identify

persons in irregular stay in Belgium in order to facilitate their apprehension and return. This 89

practice can be problematic in preventing persons from declaring a birth by fear of repercussion on

their stay in Belgium.

With regard to registered asylum seekers, recognized refugees or those benefitting from subsidiary

protection, besides the common cultural and linguistic barriers that any alien would encounter on

Belgian territory, there does not seem to be other barriers to birth registration of their child in

Belgium.

Ensuring filiation on the birth certificate

The documents presented, such as a mariage certificates, must be legalized in the country of origin

even though exceptions apply while a country situation makes such steps difficult such as in the

case of war. Currently, the site of the FPS Foreign Affairs of Belgium gives four possibilities to 90

legalize a document from the Syrian Republic: legalization by the Foreign Affairs Ministry in Syria,

legalization by the Syrian Embassy in Beirut, legalization by the Lebanese Foreign Affairs Ministry

in Beirut or legalization by the Belgian Embassy in Beirut. None of those possible sites are 91

located in Belgium and therefore the legalization seems quite difficult to fulfill to prove the

marriage certificate. The head of the Liège Department however mentioned a recent judgement that

confirmed that the recognition of the child by the father by declaration was authorized by Syrian

laws. Since, the Department has allowed the father to be mentioned on the birth certificate 92

following such declaration, therefore preventing the lack of legalization of the marriage certificate

to be an obstacle. With due regard to the gender discriminatory laws of Syria, only granting Syrian 93

nationality to a child born abroad of a Syrian father but not of a Syrian mother, this judgement is

significant to avoid statelessness upon return of children born in Belgium who have been unable to

acquire Belgian nationality. Moreover, it is likely to simplify the child's life upon return, as a

Belgium, Circulaire relative à l’identification d’étrangers en séjour irrégulier, 23 November 2009, 89

available at https://dofi.ibz.be/sites/dvzoe/FR/Documents/20090529_f.pdf

FPS Foreign Affairs, Questions and answers about the legalisation of documents (2012), http://90

diplomatie.belgium.be/fr/Services/Legalisation_de_documents/faq/#5

Ibid.91

Information by Sandrine Cremer; Belgium, Court of First Instance, Liège, 11 December 2015, 92

RG 15/399/A, unpublished

Information by Sandrine Cremer93

national of the country will be granted more rights than an alien, if the child were only to be granted

Belgian nationality.

7.2. Foundlings found in a country of unknown parentage

This category applies regardless of the actual status of the parents of the child as the inherent

condition is for the child found not to have known parentage. The situation of foundlings found on

Belgian soil could potentially arise in the refugee context as many asylum seekers being

unaccounted for could eventually voluntarily abandon their child in hope he or she receives a better

life. No statistics are published on the number of foundlings found on Belgian territory, it is

therefore difficult to assess the occurrence of such case. However, if such a case was to arise, it is

still worth noting that according to Article 10(3) of the Belgian Nationality Code, a newborn found

on Belgian soil will be presumed being born in Belgium. Based on Article 10(1) BNC the 94

newborn could therefore obtain Belgian nationality. However, the use of the wording newborn in

the provision is quite restrictive as it those not include children older than a few days. The UNHCR

is of the view that the provision is more restrictive than that thought for in the 1961 Convention,

citing the Dakar Summary Conclusions in which experts concluded children unable to communicate

accurate information on their identity should be included in the foundlings safeguard in light of the

object and purpose of the 1961Convention. The more restrictive Belgian provision on the age of 95

the foundling could therefore leave some children stateless in Belgium.

8. STATELESS REDUCTION

8.1. Persons who are recognized refugees

The situation of children of recognized refugees born in Belgium being dealt with under chapter 7,

this section focuses on facilitation of acquisition of Belgian nationality by recognized refugees.

However, it is worth noting that acquisition of Belgian nationality for recognized refugees could

also prevent risks of statelessness for their children as Article 8(1) BNC provides that a child born

in Belgium of a Belgian parent is Belgian. By acquiring Belgian nationality, recognized refugees 96

could therefore automatically pass along Belgian nationality to their child without going through the

difficult process of acquiring Belgian nationality on basis of Article 10(1) BNC. Moreover, this

would be even more important in the case a child was not born in Belgium but did not acquire

BNC94

UNHCR, Mapping statelessness, 2012, p.110. ; UNHCR, Expert meeting, Interpreting the 1961 95

Statelessness Convention and Preventing Statelessness among children (Summary Conclusions), September 2011, available at http://www.unhcr.org/refworld/docid/4e8423a72.html

BNC96

another nationality, a situation not covered by Article 10(1) BNC. Such situation is likely to happen

in the migratory context as asylum seekers transit through many countries, usually illegally, before

reaching the ultimate country where they wish to introduce an asylum application. If one parent was

to acquire Belgian nationality, his or her minor child could obtain Belgian nationality on the basis of

Article 12 BNC, in which birth in Belgium is not required, as long as the child has his or her

principal residency in Belgium. 97

Following the reform of the law of 2012, the possibility for a recognized refugee to ask for

naturalization after 2 years of legal residency has been removed from Article 19 BNC. The current 98

law therefore does not offer any facilitation for a recognized refugee to obtain Belgian nationality. A

recognized refugee will only be able to obtain Belgian nationality through naturalization, on the

basis of Article 19(1) BNC, and such naturalization is nowadays rarely granted due to high

requirements for being qualified to only introduce a demand. The refugee should be 18 years of age,

reside legally in Belgium and must have shown exceptional merits for Belgium in the scientific,

sportive, socio-cultural domains and on the basis of which it can give a specific contribution to the

international prestige of Belgium. He or she must substantiate the exceptional merits and with 99

documents proving it, such as a PhD in the scientific domain or be rewarded on the international

stage for socio-cultural domains. Moreover, he must argue why it is almost impossible for him to

obtain the nationality through declaration. It is therefore very difficult for any refugee to satisfy 100

such high requirements.

Another possibility to obtain nationality is through declaration, and the refugee must therefore

fulfill a number of conditions set out in article 12bis BNC. They are different possibilities for a 101

refugee not born in Belgium to obtain Belgian nationality through declaration. The refugee can in

any case not pretend to the declaration before at least 5 years of legal residence and must be at least

18 years old. First, if he or she has a disability preventing him or her to work or if he or she has

reach the retirement age, the refugee can become Belgian after five years of legal residence in

Belgium. Secondly, subject to proofs of social integration and of knowledge of one of the three 102

BNC, Article 1297

P. Wautelet, Nationalité belge - Synthèse des modifications du CNB – réforme de 2012 (ULG, 98

2013), https://orbi.ulg.ac.be/bitstream/2268/142126/2/Note%20synthese%20nouveau%20CNB.pdf

BNC Article 1999

BNC Article 19100

BNC Article 12bis101

BNC Article 12bis(1)(4°)102

national languages, a refugee can become Belgian after five years if he either proves his economic

participation, marries a Belgian with which he or she lived for at least three years, or is the parent or

adoptive parent of a Belgian child who has neither reached 18 years nor is emancipated. After ten 103

years of legal residence, a refugee could obtain Belgian nationality through declaration by only

providing proofs of knowledge of one of the three national languages and of participation in the life

of his or her host community. A longer legal stay thereby lowers the requirements to obtain 104

Belgian nationality. However, the government recently announced its wish to change the legislation

to limit the residence permit of recognized refugees to five years. This change has however not 105

yet been voted upon by the Parliament and it is therefore unknown at the time whether or how it

would apply. Another issue is that despite recognized refugees having currently an unlimited right

of residence in Belgium, their status can be withheld by a decision of the CGRA if the

circumstances based on which the person was recognized as refugee cease to exist. Their right to 106

legal residence based on their refugee status would then cease to apply. Despite current assumptions

that the conflict in Syria is likely to last, it cannot be assumed that the conditions under which

Syrians obtained refugee status will still be present during the next five years.

A final obstacle to acquiring Belgian nationality through both procedures is the period to be

considered for legal stay. The ‘registration certificate’ is not mentioned in the list of residency 107

permits admitted for consideration for legal residence in the procedures to acquire Belgian

nationality. This means that the time during which an asylum seekers is awaiting the decision on its

refugee status will not be taken into account as time of legal residence, therefore lengthening in

BNC Article 12bis(1) (2°) and Article 12bis(1) (3°)103

BNC Article 12bis(1) (5°)104

Vivre en Belgique, La demande de protection, http://www.vivreenbelgique.be/9-statuts-de-105

sejour/la-demande-de-protection

Ibid. 106

The registration certificate (or A-card) is a temporary residence permit delivered to an alien of a 107

third country to the European Union. It proves the ongoing process of a application for international protection introduced in Belgium. Afterwards, a person recognized as refugee is given a card B for unlimited authorized stay while a person with subsidiary protection is given a card A with limited validity. " See, G. Aussems, les titres de sejours en belgique, (ADDE, 2012) http://www.adde.be/joomdoc/guides/les-titres-de-sejours-en-belgique-guide-pratique-dec12-g-aussems-pdf

practice the time necessary for a refugee to have legally lived in Belgium to be able to acquire

Belgian nationality. This was confirmed by two recent questions before the parliament. 108 109

As shown in this section, it can thus be concluded that since the facilitation for the naturalization

procedure of refugees has been removed from the Belgian Nationality Code, it is very difficult for a

refugee to obtain Belgian nationality through normal procedures, by either declaration or

naturalization, as the non-consideration of the registration certificate lengthens the process and the

high requirements in both procedures are unlikely to be met.

8.2. Stateless persons or persons with unclear citizenship

The children of recognized stateless parents have already been considered in chapter 7. Therefore,

this section only aims at looking at ways and facilitations for recognized stateless persons in

Belgium to acquire Belgian nationality. Contrary to recognized refugees, the reform of 2012 did not

modify the facilitation provided by Article 19(2) BNC to recognized stateless persons to introduce a

demand for naturalization after two years of legal residence. However, the decision of 110

naturalization is nonetheless discretionary and a stateless person has therefore no certainty that his

or her demand will be accepted by the Chamber of Representatives, the body responsible for

granting Belgian nationality by naturalization. Article 21(5) BNC mentions integration and the

knowledge of one of the three languages of the country as important elements taken into account to

reach a decision. Therefore, despite the discretionary nature of the decision, it is important for a 111

recognized stateless to be aware of such elements in order to increase his or her chances to be

naturalized.

The stateless can also use the same normal procedures as those available for recognized refugees

and any other aliens, by initiating a naturalization demand if he or she fulfills the high requirements,

or by declaration. Even though the requirements are therefore the same, recognized stateless face

different obstacles than refugees due to their different status. Indeed, a recognized stateless person

in Belgium is not automatically granted a right of legal residence in Belgium. The legal residence

requirements in both procedures might therefore be difficult to be met by a recognized stateless.

C. Apers, Quand l’effet déclaratif du droit de séjour «naturalise» le séjour sous AI ! (ADDE, 108

February 2016), http://www.adde.be/joomdoc/newsletters-2016/117-fevrier-2016/info-adde-fevrier-2016-pdf/download, p.2.

Ibid.109

BNC Article 19110

BNC Article 21(5)111

As highlighted in chapter 7, a child born of recognized stateless parents seem to acquire directly

Belgian nationality at birth on the basis of Article 10(1) BNC. This element could facilitate the

acquisition of nationality by his or her parents. First, stateless parents fulfill the criteria under

Article 12bis(1)(3°)(d) BNC as parents of a Belgian child and can rely on Article 12bis(1)(3°) BNC

to acquire Belgian nationality by declaration. Secondly, as a consequence of Zambrano, because the

child acquired Belgian nationality and is therefore considered an EU citizen, the parents should be

able to obtain a right of legal residence in Belgium as well as a working permit in order to ensure

their child is not deprived of enjoying his or her rights granted by EU citizenship. Even though in

general the absence of residence permit and working permit would not automatically mean the child

would have to leave European territory and be deprived of EU citizenship rights, recognized

stateless from Syria that are also recognized refugees are likely to be returned to Syria once their

refugee status is revoked, and such return would indeed deprive the child his or her rights as a EU

citizen.

8.3. irregular migrants

The final aspects to be considered are facilitations for stateless irregular migrants to obtain Belgian

nationality. As underlined in the previous sections, both acquisition of nationality by declaration and

naturalization require a lawful residence. By their nature, irregular migrants do not hold lawful

residence. Therefore Belgian nationality under the naturalization and declaration procedures is not

accessible to irregular migrants. The only hope for stateless irregular migrants is to initiate a

procedure to have their statelessness status recognized. In this case, they could benefit from the

opportunities for nationality mentioned in the previous section.

9. CONCLUSION

This research tried to assess how Belgian laws and practice influence statelessness reduction and

increase among asylum seekers from Syria. The most important vulnerabilities of the Syrian

population with regard to statelessness were highlighted, such as ethnic discrimination in obtaining

Syrian nationality and gender discrimination in passing it along. In the migratory context, those

vulnerabilities create more risks for newborns of asylum seekers to become stateless. Despite the

legal safeguard in the Belgian Nationality Code addressing such risks, this paper has shown that

nationality is still not granted easily by the authorities, probably due to common fear of threat to the

identity of the Nation. Both recent changes in the legislation and case law have shown a tendency

for the authorities to limit the granting of Belgian nationality to aliens, despite the consequence

risks of statelessness for the child. The practical examples highlighted in the city of Liège are a

further illustration of such limitation and fully contradict the interpretation of the law given by the

competent authorities, both by Court and legislators. Therefore, despite the current safeguards, it

seems that the law is difficult to interpret and apply in practice to ensure statelessness prevention.As

technical problems are added to the already difficult implementation of the law, it can be concluded

that Belgium has still a number of improvements to make in order to help prevent statelessness,

especially in the current geopolitical context.

This research also seeked to address whether Belgium could facilitate statelessness reduction among

the asylum seekers from Syria. The important number of stateless individuals reported as living in

Syria, as well as the important number of Palestinian refugees who are considered stateless makes

this case study interesting in seeking opportunities to reduce the number of stateless persons in

Syria. However, in this regard, Belgian law has proven deceiving for asylum seekers, regardless of

the status they hold. While a recognized refugee will benefit from the legal residence which could

facilitate his acquisition of nationality, a recognized stateless person will not have such advantage of

legal residence. However, as a recognized stateless person can still benefit from the facilitated

access to the naturalisation procedure, refugees do not have such facility anymore. Notwithstanding,

the research highlighted that cumulating both status, of recognized refugee and recognized stateless,

could facilitate the fulfillment of the conditions to acquire Belgian nationality.

10. BIBLIOGRAPHY

BOOKS

C. L. Closset, Traité de la nationalité en droit belge. (Éditions Larcier, 2015)

L. E. Van Waas, Nationality matters: statelessness under international law (Intersentia, 2008).

ARTICLES

Z. lbarazi, 'The Stateless Syrians', Tilburg Law School (2013).

ELECTRONIC SOURCES

C. Apers, Quand l’effet déclaratif du droit de séjour «naturalise» le séjour sous AI ! (ADDE,

February 2016), http://www.adde.be/joomdoc/newsletters-2016/117-fevrier-2016/info-adde-

fevrier-2016-pdf/download

Association Pour le Droit des Etrangers (ADDE), Procédure d'Asile (2015), http://www.adde.be/

ressources/fiches-pratiques/asile/procedure-d-asile

G. Aussems, les titres de sejours en belgique, (ADDE, 2012) http://www.adde.be/joomdoc/guides/

les-titres-de-sejours-en-belgique-guide-pratique-dec12-g-aussems-pdf

CGRA, Apatrides, http://www.cgra.be/fr/apatrides

Commissariat Général aux Réfugiés et aux Apatrides (CGRA) (Office of the Commissioner General

for Refugees and Stateless Persons), Stastiques d'Asile: Bilan 2015, (2016), http://www.cgra.be/fr/

actualite/statistiques-dasile-bilan-2015

EUDO Citizenship Observatory, comprehensive typology of modes of protection against

statelessness, http://eudo-citizenship.eu/docs/Modes%20of%20protection%20against

%20statelessness%20typology.pdf

European Migration Network (EMN), Le délai moyen pour les décisions des demandes d'asile

introduites en 2012 se monte, pour l'OE et le CGRA cumulés, à 101 jours, http://

www.emnbelgium.be/fr/nouvelles/le-délai-moyen-pour-les-décisions-des-demandes-dasile-

introduites-en-2012-se-monte-pour-lo

FPS Foreign Affairs, Questions and answers about the legalisation of documents (2012), http://

diplomatie.belgium.be/fr/Services/Legalisation_de_documents/faq/#5

Medimmigrant, Grossesse, Accouchement, Soins postnataux chez les femmes sans séjour légal,

(2010), http://www.medimmigrant.be/uploads/Publicaties/Folders/zwangerschap/Zwangerschap

%2011-2010%20WEB%20FR.pdf

Medimmigrant, Grossesse et accouchement (2013), http://www.medimmigrant.be/?

idbericht=62&idmenu=4&lang=fr

Objectif, Attribution de la nationalité belge aux apatrides nés en Belgique (art.10), http://

www.allrights.be/attribution-de-la-nationalite-belge-aux-apatrides-nes-en-belgique-art10

Office des étrangers (Immigration Office), Procédure d’asile (en vigueur à partir du 01/09/2013),

https://dofi.ibz.be/sites/dvzoe/FR/Guidedesprocedures/Pages/Procéduredasile.aspx

Office des étrangers (Immigration Office), Procédure d’asile

Service International de Recherche , d’Education et d’Action Sociale (Siéras), Analyses et études:

Quelques principes et questions pratiques sur l’apatridie (2004), http://www.sireas.be/publications/

analyse09-2004.pdf

UNHCR, Statistical Online Population Database, www.unhcr.org/statistics/populationdatabase;

UNHCR, Statistical Online Population Database: Sources, Methods and Data Considerations

(2013), http://www.unhcr.org/45c06c662.html

United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA), Where

We Work: Syria, http://www.unrwa.org/where-we-work/syria

UNRWA, Syria Crisis, http://www.unrwa.org/syria-crisis#Syria-Crisis-and-Palestine-refugees

Vivre en Belgique, La demande de protection, http://www.vivreenbelgique.be/9-statuts-de-sejour/la-

demande-de-protection

P. Wautelet, Nationalité belge - Synthèse des modifications du CNB – réforme de 2012 (ULG,

2013), https://orbi.ulg.ac.be/bitstream/2268/142126/2/Note%20synthese%20nouveau%20CNB.pdf

REPORTS

S. Akram, and N. Al-Azza, Closing Protection Gaps: Handbook on Protection of Palestinian

Refugees in States Signatories to the 1951 Refugee Convention, 2nd edition, BADIL Resource

Center for Palestinian Residency and Refugee Rights, 2015.

Human Rights Watch (HRW), Syria: The Silenced Kurds, October 1996, available at: https://

www.hrw.org/sites/default/files/reports/SYRIA96.pdf

UNGA, Report of the Commissioner-General of the United Nations Relief and Works Agency for

Palestine Refugees in the Near East, (A/61/13), 2006, available at http://www.unrwa.org/resources/

reports/report-unrwa-commissioner-general-un-general-assembly-2005

United Nations High Commissioner for Refugees (UNHCR), Mapping Statelessness in Belgium -

Summary Report, October 2012, available at: http://www.refworld.org/docid/5100f3412.html

UNHCR, Mapping statelessness, 2012.

UNHCR, Self-Study Module on Statelessness, October 2012, available at: http://www.refworld.org/

docid/50b899602.html

UNHCR, Expert meeting, Interpreting the 1961 Statelessness Convention and Preventing

Statelessness among children (Summary Conclusions), September 2011, available at http://

www.unhcr.org/refworld/docid/4e8423a72.html

ONLINE NEWSPAPER ARTICLES

RTBF, 'Record d'affluence à l'Office des étrangers: plus de 1000 migrants', 31 August 2015,

available at: http://www.rtbf.be/info/belgique/detail_record-d-affluence-a-l-office-des-etrangers-

plus-de-1000-migrants?id=9067145

The Guardian, '10,000 refugee children are missing, says Europol', 30 January 2016, available at

http://www.theguardian.com/world/2016/jan/30/fears-for-missing-child-refugees

CASES OF THE COURT OF JUSTICE OF THE EUROPEAN UNION

Case C-34/09 Gerardo Ruiz Zambrano v. Office national de l’emploi [2011] ECR I-01177.

TREATIES

United Nations General Assembly (UNGA), Convention Relating to the Status of Stateless Persons,

28 September 1954, United Nations, Treaty Series, vol. 360, p. 117, available at: http://

www.refworld.org/docid/3ae6b3840.html

United Nations, Draft Articles on Diplomatic Protection with commentaries , 2006, available at:

http://www.refworld.org/docid/525e7929d.html [accessed 17 March 2016]

NATIONAL LEGISLATION

Australia. Refugee Review Tribunal, Jordan, 15 February 2011, JOR38235, available at: http://

www.refworld.org/docid/4f5dec9f2.html, p.3.

Belgium, Arrêté royal relatif à l'aide médicale urgente octroyée par les centres publics d'aide

sociale aux étrangers qui séjournent illégalement dans le Royaume, 12 December 1996, available

at: http://www.ejustice.just.fgov.be/cgi_loi/loi_a.pl

Belgium. Code de la Nationalité Belge (Belgian Nationality Code) [BNC], 1984 BNC, 1984

Belgium, Loi sur l'accès au territoire, le séjour, l'établissement et l'éloignement des étrangers, 15

December 1980 (last updated 19-02-2016) available at: http://www.ejustice.just.fgov.be/cgi_loi/

change_lg.pl?language=fr&la=F&cn=1980121530&table_name=loi

Belgium, Loi portant des dispositions diverses (I), 27 December 2006, available at: http://

www.ejustice.just.fgov.be/cgi_loi/change_lg.pl?

language=fr&la=F&table_name=loi&cn=2006122732

Belgium, Circulaire relative aux modifications du Code de la nationalité belge introduites par la loi

du 27 décembre 2006 portant des dispositions diverses I , 25 May 2007, available at http://

www.ejustice.just.fgov.be/cgi_loi/loi_a1.pl?sql=(text%20contains

%20(''))&language=fr&rech=1&tri=dd%20AS

%20RANK&value=&table_name=loi&F=&cn=2007052535&caller=image_a1&fromtab=loi&la=F

Belgium, Circulaire relative à l’identification d’étrangers en séjour irrégulier, 23 November 2009,

available at https://dofi.ibz.be/sites/dvzoe/FR/Documents/20090529_f.pdf

Syrian Arab Republic, Legislative Decree 276 - Nationality Law, 24 November 1969, available at:

http://www.refworld.org/docid/4d81e7b12.html [Syrian Nationality Law - [SNL]]

NATIONAL CASES

Belgium, Constitutional Court, 24 April 2008, N°73/2008

Belgium, Court of Appeal, Brussels, 3 April 2009, unpublished

Belgium, Court of First Instance, Brussels, 13 May 2005, unpublished;

Belgium, Court of First Instance, Brussels, 25 October 2015, N°14/3830/A

Belgium, Court of First Instance, Liège, 11 December 2015, RG 15/399/A, unpublished

INTERVIEWS

Information provided by Patrick Wautelet, professeur at the University of Liège, communication via

e-mail on March 4, 2016

Information by Sandrine Cremer: , head of the Birth and Nationality Department of the city of

Liège, communication via telephone on March 16, 2016