“Everyone has the right to a nationality”

Mobilising to address statelessness in the Netherlands

9 November 2017 | Marlotte van Dael, ASKV Refugee Support

It’s Friday night in Amsterdam and I’m on my way home after the UNHCR’s #iBelong campaign event and the spin-off event organised by ASKV Refugee Support, the European Network on Statelessness and the Institute on Statelessness & Inclusion, being once again reminded about the most important element which remains at the forefront of the statelessness campaign work in the Netherlands: the importance of a well-functioning and accessible statelessness determination procedure.

On 3 November, UNHCR celebrated the three year anniversary of its #iBelong campaign, aiming to end statelessness worldwide by 2024, at the Rijksmuseum in Amsterdam. This venue would have been a slightly peculiar choice, if it weren’t for a new exhibition by Anoek Steketee called ‘Staatloos’ (‘Stateless’) which is currently on display. It exhibits a number of photos of stateless people living in the Netherlands. But the anniversary and the exhibition have not been the only factors creating great momentum to address statelessness in the Netherlands. Namely, the Ministry of Security and Justice published its legislative proposal for a Statelessness Determination Procedure in September last year and opened it for online consultation, a long awaited policy development by the civil society and those in need of protection.

The UNHCR event on Friday also meant that there were a great number of people working on the issue worldwide present in Amsterdam. Even in our current age of globalisation and digital connectivity, it can still be pleasant to be able to sit together in the same room. To take advantage of this ASKV, ENS and ISI decide to host an event at Amnesty International ahead of the UNHCR event. Considering the profile of the participants the event was designed as an expert meeting, bringing together statelessness and migration experts.

The event reflected on the current situation in the Netherlands while considering how we can mobilise civil society, academics and lawyers to take further action. Having said this, the event also considered wider regional context and recent developments across Europe. This was facilitated by  Chris Nash (Director of ENS), discussing the Europe wide #LockedinLimbo campaign to end arbitrary detention of stateless people and the need for a well-functioning SDP, and Zahra Albarazi (Senior Researcher at the Institute on Statelessness & Inclusion) examining the nexus between statelessness and forced displacement.

The following presentations focused more specifically on the Dutch context with the help of Jelle Klaas (Human Rights Lawyer and Director of the Public Interest Litigation Project), diving deeper into the problem that rights are only attributed to people recognised as stateless. Everything discussed up till then has been leading up to the main topic of the day: the absence of a statelessness determination procedure.

Our fourth speaker, Stans Goudsmit (Deputy Member of the Netherlands Institute for Human Rights), accordingly discussed the legislative proposal for a SDP and the flaws in the current legislation (you can also read the joint ASKV/ENS submission on the proposed law). What is clear is that the current legislative proposal does not comply with neither the 1954 and 1961 Statelessness Conventions nor the Convention on the Rights of the Child, all of which the Netherlands has ratified. More specifically, there are four considerable flaws in the law that need to be amended:

1. No legal stay is provided pending the procedure

The fact that no legal stay is provided for applicants who wish to enter the SDP pending the outcome of the procedure severely impedes the access to the procedure for people without legal stay. There is a risk that they avoid the procedure because of the fear of being known to immigration services and the ensuing risk of being detained. A SDP should be freely accessible for whoever wants to make use of it and its access needs to be guaranteed. Moreover, all attempts to detain and deport individuals should be suspended pending the procedure.

2. No legal stay is provided following statelessness determination

With its proposal for a SDP, the Netherlands will be the first and only country to not establish a right of residence for those recognised as stateless. Thereby the proposal runs counter to a primary rationale for introducing a procedure, and essentially disregards the suffering of stateless people, namely that they commonly do not enjoy a right of residence. Also, in this way the procedure is likely to become merely a symbolic measure for many applicants. Not only is this interpretation of the 1954 Convention extremely controversial, but the fact that the Netherlands would break with established good practices runs the risk of setting a dangerous precedent for those countries to follow. Moreover, practice shows that the fear of the Dutch government that this would create a “pull effect” and “stacking” of residence proceedings has no grounds.

3. Burden of proof is on the applicant

The expectation of the new law is that the burden of proof in the SDP will lie with the applicant. However, given the nature of statelessness, applicants are often unable to substantiate the claim with much, if any, documentary evidence. As one could understand, it can be extremely difficult to prove that you “don’t have documents with documents”. Therefore, a shared burden of proof would facilitate better decision-making (i.e. by establishing all relevant facts) and take account of the substantial difference in power/influence (including when communicating with other countries) between the applicant and the rewarding party (the State).

4. Stateless children born in the Netherlands without legal stay have to wait longer (5 years instead of 3) to opt for Dutch nationality and are required to have a ‘stable principal residence’

Firstly, creating separate grounds for legally and illegally residing children is highly problematic. Moreover, the requirement of a ‘stable principal residence’ obliges a cooperation requirement for the parents of stateless children, who must not have withdrawn from the supervision of the authorities during their stay in the Netherlands. This requirement is not allowed under the 1961 Convention and is in breach of article 2 of the Convention on the Rights of the Child, which prohibits the discrimination of children on the basis of circumstances or activities of the parents. It is therefore paramount that the same rights are granted to children with and without legal residence.

A discussion which followed the presentations focused on actions needed to push against the current proposal. This is one of the reasons why a coalition has been formed last year consisting of a number of refugee support organisations and law firms aiming for law and policy reform to improve the situation of stateless persons in the Netherlands with the help of strategic litigation advocacy and lobby. More specifically, with our lobby partner Kompass we are now actively addressing the shortcomings in the legislative proposal in The Hague before its being discussed in Parliament.

 After our event, we moved on to the Rijksmuseum. Before the main event guests were given the opportunity to enjoy the ‘Gallery of Honour’. It was hard not to notice the surreal transition from an extravagant gallery full of old masters like Rembrandt to the harsh reality of the plight of the stateless Rohingya, Roma, Iraqis and Kenyan minorities. However, the evening also offered a spark of hope as I listened to the story of Jirair Chichian, a young stateless man from Georgia who has been provided with a nationality and the accompanying rights because he was able to make use of a statelessness determination procedure. I went home feeling both hopeful and anxious. While the new law for a SDP holds so much potential, it can’t be stressed enough that the legislative proposal needs considerable rewriting for it to make a notable difference in the lives of stateless people in the Netherlands and relieve them from their life in limbo. And this is exactly why we will continue our efforts to achieve this.

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