Nationality Status Determination in Asylum Procedures under the CEAS and the Potential Impact of the ‘New Pact on Migration and Asylum’

Abstract

The determination of asylum seekers’ nationality, or lack thereof, is a key component of assessments of applications for international protection, and can prove difficult when asylum seekers do not submit any valid identity or travel documents, or are stateless or at risk of statelessness. This article investigates how nationality status determination is relevant and how it is regulated in the Common European Asylum System (CEAS) and in the ‘New Pact on Migration and Asylum’ (the Pact), that is currently under negotiation in the European Union (EU). Under the CEAS, the determination of nationality is not only critical to assessing whether the applicant qualifies for international protection, but can also determine the type of procedure through which their application is examined, and accordingly the level of procedural guarantees to which they are entitled. Under the Pact, with the introduction of a pre-entry screening and the obligation to process asylum applications lodged by individuals from countries with low recognition rates through border procedures, the determination of the applicant’s nationality becomes even more critical. In fact, the Pact institutionalizes the channelling of asylum seekers into substandard procedures based on their nationality, a practice that has been widely used in ‘hotspots’ in Greece and Italy. This is even more problematic considering that the Pact, like the current CEAS, provides only very general rules relevant to establishing a claimant’s nationality status. This article sheds light on an overlooked aspect of asylum procedures, and calls for the development of specific guidance on nationality status determination in asylum procedures at the EU level.