5 March 2003
Propiska system applied to migrants, asylum-seekers and refugees in Council of Europe member states: effects and remedies
Recommendation 1544 (2001)
Reply from the Committee of Ministers
adopted at the 829th meeting of the Ministers’ Deputies (27 February 2003)
1. The Committee of Ministers has given careful consideration to the concerns expressed by the Parliamentary Assembly in Recommendation 1544 (2001) – The propiska system applied to migrants, asylum-seekers and refugees in Council of Europe member states: effects and remedies.
2. In doing so, it was prompted to ask for comments from the European Commission against Racism and Intolerance (ECRI), the Ad Hoc Committee of Experts on Legal Aspects of Territorial Asylum, Refugees and Stateless Persons (CAHAR) and the European Committee on Legal Co-operation (CDCJ) in conjunction with the Committee of Experts on Nationality (CJ-NA). The Assembly may consult the opinions expressed by these committees in Appendices 1, 2 and 3 to this reply.
Freedom of movement and choice of place of residence
3. Freedom of movement and a choice of place of residence within national frontiers, as guaranteed by Article 2 of Protocol No.4 to the European Convention on Human Rights, are fundamental rights. The Committee of Ministers considers that Council of Europe member states should make sure that these rights are respected and that any registration system is devised and applied in such a way as to ensure that certain population groups are not disadvantaged and that it does not lead to any form of discrimination against them. The Committee of Ministers also wishes to highlight the importance of fully applying the 1951 Convention relating to the Status of Refugees and the 1967 Protocol to it and points out that under no circumstances should access to the refugee status determination procedure depend on possession of the propiska.
Intergovernmental co-operation and assistance programmes
4. Member states regularly exchange views and share experience and information within the CAHAR, and this contributes to the reform efforts of the states concerned in this field. The committee also facilitates co-operation over the monitoring of member states’ compliance with international legal instruments in respect of refugees’ right to freedom of movement and to choose a place of residence within national frontiers.
5. The CDCJ, through the CJ-NA, is continuing to consider the appropriateness of the conditions for the acquisition of nationality, not least in the case of migrants, asylum-seekers and refugees who wish, in due course, to obtain the nationality of the host country. In the course of its work it looks at the obstacles that are a hangover from the propiska system, which are also taken into account in the bilateral co-operation programmes with the various states concerned and consultancy work in the legislative, administrative and training fields in connection with nationality.
Preparation of guidelines concerning principles governing registration of the place of residence
6. The Committee of Ministers acknowledges the importance of drawing up such guidelines, particularly in connection with the acquisition of nationality and access for the persons concerned to fundamental rights.
6.1 The existence of a system for registering the place of residence may, in certain cases, be a prerequisite for determining whether the “lawful and habitual residence” requirement laid down in the European Convention on Nationality1, as a precondition for obtaining nationality, has been met.
6.2 In the case of recognised refugees, registration of the place of residence may be necessary either in order to control access to benefits relating to refugee status, and thus avoid multiple applications, or for the purposes of participation in integration schemes.
7. The Committee of Ministers will bear in mind the measures advocated in the Assembly recommendation when it considers its future programmes of activities.
on Recommendation 1544 (2001) of the Parliamentary Assembly
1. In the framework of its country-by-country work, ECRI has addressed the issue of the existence, in some member States of the Council of Europe, of a system of control over population movements within internal borders, inherited from the old propiska system, as described in Recommendation 1544 (2001) of the Parliamentary Assembly. ECRI is aware that the difficulty in guaranteeing respect of a person’s freedom of movement and choice of place of residence within internal borders in those countries where such systems of control are in place poses a general problem.
2. However, in accordance with its sphere of activity, which is to combat racism, xenophobia, antisemitism and intolerance, ECRI’s concern as regards such systems of control over population movements stems particularly from the possible discriminatory effects they may have on specific groups, such as migrants, including forced migrants, asylum seekers and refugees but also members of ethnic and national groups who often do not fall within these categories of persons.
3. Members of the above-mentioned groups encounter especially serious difficulties in securing residence registration. Even in those countries where the old propiska system has formally been abolished and replaced with a system of residence registration based on simple notification to the relevant authorities, such difficulties often persist, due either to regulations still in force or to lingering administrative practice.
4. Furthermore, in practice and sometimes in law, residence registration is necessary for the enjoyment of many political, social and economic rights, including: participation in elections; access to health care; access to education; pensions and allowances; right to work; marriage registration; acquisition of citizenship; access to refugee determination procedures; obtaining passports, driving licences, etc. Members of groups who suffer discrimination in securing registration are therefore often effectively excluded from the enjoyment of such rights.
5. ECRI furthermore stresses that the members of those groups who experience especially serious difficulties in obtaining residence registration are also disproportionately affected by the activities of the agencies (generally, the police) entrusted with the enforcement of the residence registration system. Thus, members of these groups are often disproportionately subject to personal checks, search of their homes, fines, arrest and detention.
6. ECRI shares the view that member states of the Council of Europe must ensure that any residence registration system do not impinge on a person’s freedom of movement and choice of place of residence within internal borders. In addition, ECRI stresses that any registration system should be designed and applied in a way that does not impact disproportionately or lead to any form of discrimination against particular groups.
Opinion of the CAHAR
on Parliamentary Assembly Recommendation 1544 (2001)
on the propiska system applied to migrants, asylum-seekers and refugees
in Council of Europe member states : effect and remedies.
1. In its Decision No. CM/809/21112001, the Committee of Ministers gave ad hoc terms of reference to the CAHAR to give an opinion on the above recommendation of the Parliamentary Assembly. The CAHAR adopted the following opinion at its 53rd Meeting held in Strasbourg on 17-19 April 2002.
2. The CAHAR recognises the specific difficulties faced by refugees and asylum seekers in those Member states where aspects of the propiska system remain in place.
3. The CAHAR constitutes an appropriate forum for Member states to initiate exchanges of views, experience and information with the aim of contributing to the efforts made by concerned Member states to reform their system of registration of citizens’ place of residence in respect of the rights of asylum seekers, refugees and other persons in need of international protection. It also facilitates co-operation on the assessment of Member states’ compliance with international legal instruments with reference to refugees’ right to freedom of movement and the choice of the place of residence within a particular state’s internal borders.
4. The CAHAR recalls that, in accordance with Article 2 of Protocol No. 4 to the European Convention on Human Rights, “everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence”. Restrictions to these rights must respect the conditions set forth in paragraphs 3 and 4 of Article 2.
5. In connection with paragraphs 7 ii and iii, the CAHAR would consider favourably the development and implementation of activities in the framework of the Council of Europe’s assistance programme. Such activities will seek to address the negative impact of the propiska system on asylum seekers and refugees, notably access to the refugee status determination procedure.
6. The CAHAR considered the list of measures suggested to the Member states concerned by the Assembly in paragraph 7 vii of its Recommendation. With regard to paragraph 7 vii. g of the Recommendation, the CAHAR wishes to underline the importance of ensuring that in no circumstances should access to status determination procedures be dependent on the presence of the propiska. In this respect, the importance of the full implementation of the 1951 Convention and 1967 Protocol relating to the Status of Refugees should be stressed.
7. As regards to recognised refugees, the CAHAR is of the opinion that registration of residence may be required either to have access to benefits linked to refugee status in order to avoid multiple claims or for the reason of participating in an integration programme. Such registration should however not be contrary to the freedom of a person to choose his residence as guaranteed by the European Convention on Human Rights.
8. The CAHAR deems as highly appropriate the establishment of specific awareness-raising and information programmes for national, regional and local administrations with a view to the full observance of the applicable international obligations as well as the fostering of specialised training of civil servants, in particular of those civil servants who first come into contact with asylum seekers and those in charge of processing or deciding asylum applications. In this regard it recalls Recommendation No. R (98) 15 of the Committee of Ministers to Member states on the training of officials who first come into contact with asylum seekers in particular at border points.
Opinion of the CDCJ
on Parliamentary Assembly Recommendation 1544 (2001)
on the propiska system applied to migrants, asylum-seekers and refugees in the
Council of Europe member states: effects and remedies
1. In the light of Parliamentary Assembly Recommendation 1544 (2001) on “the propiska system applied to migrants, asylum-seekers and refugees in the Council of Europe member States: effects and remedies”, the Committee of Ministers adopted ad hoc terms of reference for the CDCJ (Decisions No. CM/810/21112001 of 21 November 2001 and No. CM/810/21112001 of 10 October 2002), in which it was requested to give an opinion on the Recommendation in consultation with the Committee of Experts on Nationality (CJ-NA). The Bureau of the CDCJ, after consulting CDCJ delegations in writing on the Opinion prepared by the CJ-NA, adopted the Opinion of the CJ-NA as set out in paragraphs 3 to 7 below.
2. In the course of its deliberations the Bureau of the CDCJ sympathised with the general aim of the Recommendation of the Parliamentary Assembly.
3. The CJ-NA confines its opinion to the obstacles which the remains of the propiska system create in some of the countries of the former Soviet Union for migrants, asylum-seekers and refugees who wish to acquire the nationality of the host State.
4. According to the European Convention on Nationality, residence in the country is an important criterion for the acquisition of nationality of that country. The CJ-NA recalls that in particular Articles 6.2 b, 6.3 and 6.4 e, f and g of the Convention refer to the condition of “lawful and habitual residence” on the territory of a country for the granting of the nationality of the country in question. The CJ-NA therefore considers as important the proposal to draw up guidelines for member States on the principles of registration of foreigners’ place of residence since the existence of a residence registration system may, in some cases, be a pre-requisite for determining whether the condition of “lawful and habitual residence” is fulfilled so as to meet the criteria of acquisition of nationality. The CJ-NA will keep this item on its agenda for further consideration during its future work.
5. The CJ-NA points out that it recently finalised a report on conditions for the acquisition and loss of nationality which examines, inter alia, whether the current standards concerning acquisition of nationality are sufficient and whether there is a need for further action with a view to facilitating the application the European Convention on Nationality. The report suggests to further study the issues raised in the above Recommendation of the Parliamentary Assembly.
6. The CJ-NA has also taken account of the Recommendation in its current work on preparing proposals for one or more additional instruments on the avoidance of statelessness in relation to state succession since systems of registration of the place of residence may in the situation of state succession in some cases lead to de jure or de facto statelessness when a stable factual residence is not taken into account for the acquisition of nationality.
7. Finally within the framework of co-operation on the bilateral level with individual countries, the issue of propiska and similar systems was discussed on several occasions when providing advice for the drafting and implementation of nationality legislation, as well as for the setting up of administrative procedure and staff training in the field of nationality. The CJ-NA will continue to give its support to raising this issue, whenever appropriate, during future co-operation activities organised by the Council of Europe. It will also seek to ensure co-operation concerning the replacement of propiska and similar systems of registration by other procedures relating to individuals’ place of residence which comply with European standards.
1 See Article 6, paragraph 2.b, Article 6, paragraph 3, and Article 6, paragraph 4.e, f and g of the convention.