Update: 31.01.2018

Stateless persons in Switzerland

Switzerland has at yet been relatively untouched by the phenomenon of statelessness. There are comparatively few stateless people currently living in Switzerland. According to current data provided by the State Secretariat for Migration (SEM), 471 people were accepted as stateless persons in 2016.

The Office of the United Nations High Commissioner for Refugees (UNHCR) in Switzerland and the Principality of Liechtenstein lists people registered in Switzerland whose country of origin is unknown as stateless. Their number is therefore likely to be significantly higher than the number published by the SEM.

In 2017, the Office of the UNHCR in Switzerland and the Principality of Liechtenstein conducted a study to obtain better information on the phenomenon of statelessness in Switzerland in order to develop recommendations for action. The study, set to be published in 2018, aims to provide more clarity on the situation of stateless persons in Switzerland.

Legal protection for stateless persons

Persons accepted as stateless by Switzerland receive a residence permit and can apply for a travel document that allows them to travel within Switzerland and abroad. This residence permit also allows them to remain in Switzerland and gives them the right to work.

For a person to be accepted as stateless he/she must submit an application for stateless status to the State Secretariat for Migration (SEM), who verifies that the person is not considered a citizen of any country in the world. The Federal Administrative Court is the court of appeal. Its rulings may be appealed before the Federal Supreme Court. Applicants have no special right of stay during the determination process.

The determination process

Unlike the asylum procedure, the procedure for the determination of stateless persons does not have a legal precedent. Only some aspects are regulated on a legislative level or via federal decree, such the residence status of persons accepted as stateless, obtaining Old-Age, Survivors' and Invalidity Insurance, and easier naturalisation for stateless children. The application process for the recognition of statelessness, however, is based largely on common administrative procedures and jurisdiction derived from international treaties.

Without a special law recognition process, more stateless persons will go unidentified and therefore not receive social protection. Today’s procedure is also problematic because the affected persons have to prove a legitimate interest in the recognition, meaning that they have to prove that they would be legally better off as accepted stateless persons than without such recognition. In addition, questions of proof in particular are unsettled in the determination process. It is therefore unclear if applicants must provide proof that they are stateless persons or if they only need their statelessness to seem credible, like with the asylum procedure.

Narrow definition of statelessness

There is no definition of statelessness in Swiss law. The definition in Art. 1 of the 1954 UN Convention relating to the Status of Stateless Persons technically applies, and says that a person is stateless if they are “not considered a national at any State under operation of its law”. Swiss authorities apply a narrower definition. People are only accepted as stateless if they have lost their citizenship through no fault of their own and do not stand any chance of regaining it.

Switzerland also excludes all persons from protection of the UN Convention who may theoretically profit from the protection of a UN organisation. Therefore, Palestinians are generally not accepted as stateless persons because they fall under the UNRWA mandate. This Swiss practice goes against Switzerland’s international obligations. The SEM also denies people statelessness status if they have already been accepted as stateless in another country.

Legal guidelines

The topic of statelessness is mentioned in various sources of law, although there is no specific legal basis for it:

Art. 31 of the Foreign Nationals Act (FNA) provides the authoritative regulation for the right of residence of stateless persons in Switzerland. It states that a recognised stateless person has the right to a residence permit in Switzerland (B permit). Stateless persons can apply for a permanent residence permit (C permit) if they have lawfully resided in Switzerland for ten years just like other foreign nationals. Stateless offenders are temporarily admitted (F permit).

In addition, according to Art. 38, Para. 3 of the Federal Constitution, the Confederation simplifies the naturalisation of stateless it is easier for children to gain stateless status. This is implemented in Art. 23 of the Swiss Citizenship Act (SCA) which states that a stateless minor can apply for facilitated naturalisation if they have lived in Switzerland for a total of five years.

Further SCA regulations also make it clear that Switzerland is interested in minimising statelessness. For example, Art. 37 of the SCA only allows a discharge from civil rights if the person has another nationality or has one assured. Art. 3 of the SCA states that naturalised orphans retain their Swiss citizenship after parentage is established, if they become stateless as a result.

Problematic loopholes in Swiss law

The provisions mentioned show that Switzerland is willing to prevent statelessness in this country as far as possible. But the head of the Swiss UNHCR office pointed out in an interview a few years ago that Switzerland should also work towards signing the 1961 UN Convention on the Reduction of Statelessness and to legally regulate more clearly the procedures for stateless persons. The Federal Council supported two respective postulates from 2005 and 2015, calling for a ratification of the 1961 Convention since it is also in Switzerland’s interest to take steps against statelessness. Parliament took a different stand on this issue and abandoned the first postulate after a two-year suspension, and the second attempt failed in September 2015. In the parliamentary debate on this second postulate, Federal Councillor Simonetta Sommaruga stated that she would review joining the Convention irrespective of the postulate and present a respective motion to parliament. This has yet to happen. Switzerland has not ratified the European Convention on Nationality of 1997  either, which would offer stateless persons additional protection.

In addition to the lack of specific legal recognition procedures and the narrow definition of statelessness (which is contrary to international law), there is another problem: stateless children only receive Swiss citizenship upon request. This implies that the children inherit the statelessness from their parents. This cannot prevent later facilitated naturalisation.

Adult stateless persons do not have the option of facilitated naturalisation but instead must undergo the very restrictive standard naturalisation procedure. There is also a lack of protection for people who are not identified or accepted as stateless and therefore run the risk of being repeatedly placed in coercive detention while their nationality cannot be verified. Since stateless person cannot be deported, such imprisonment is arbitrary and unlawful. A first important step in protecting stateless persons would be to improve the statistical registration and understanding of stateless persons. In Switzerland, for example, there are no reliable statistics on the number of stateless children living in the country. Accordingly, the United Nations Committee on the Rights of the Child expressed concern in its February 2015 final report on Switzerland, stating that “there is no guarantee that children born in the contracting state who would otherwise face statelessness will obtain citizenship.” Hope remains that the 2018 UNHCR study will provide further information in this respect.

Together with other organisations, humanrights.ch submitted a shadow report on the rights of stateless persons in Switzerland for the third UPR review of Switzerland in November 2017 that identified some problematic issues of the Swiss practice. The report provides specific recommendations to improve the legal situation of stateless persons in Switzerland. In reaction to a recommendation from Hungary, Switzerland promised to introduce formal recognition procedures and to adjust the definition of statelessness used by authorities to match the international legal definition. However, Switzerland rejected a recommendation from Panama to register stateless children at birth.

Current case law

Statelessness is only rarely addressed in Swiss case law. For the first time in May 2014, the Federal Administrative Court granted a woman stateless status who had previously been granted temporary admission. This judgement is particularly important for people with temporary admission since they have a particular interest in a status as stateless persons. The reasoning therefore is that accepted stateless persons, compared to recognised refugees and persons granted temporary admission, had the legal right to a permanent residence permit after a period of five years according to old legal practice. After Art. 31, Para.3 of the FNA was removed as of 1 January 2018, it remains to be seen whether or not the legal interest in proceedings for the recognition of stateless persons will continue. The future will show how courts rule in new cases.

Statelessness accepted

IIn a different case from 2014, the Federal Supreme Court annulled the naturalisation of a native Montenegrin who had been living in Switzerland for ten years and was married to a Swiss woman after it came to light that he had committed various drug-related crimes immediately prior to marriage and that he had provided false information on the marriage license. In this context, the Federal Supreme Court considered the seriousness of the offences and granted the man stateless status as a result of the annulment.

No recognition after voluntary denaturalisation

In addition, in 2008 the Federal Administrative Court decided that Swiss authorities would not accept the statelessness applicants who had voluntarily denaturalised before.

Lacking registration without recognition

In 2010, the Federal Administrative Court also decided that a Tibetan refugee who had been born in Nepal would not accepted in Switzerland as stateless even though Nepali authorities say she does not have Nepali or Chinese citizenship and no registration exists in China. She is considered a Chinese citizen due to descent, but the lack of identity cards, documents, or registration does not necessarily grant her status as a stateless person. A further line of argument was that Nepal never signed the Refugee Convention or the Convention relating to the Status of Stateless Persons of 28 September 1954. It was also stated that the woman will shortly be eligible for simplified naturalisation because she is married to a Swiss citizen.

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