“Everyone has the right to a nationality”

Is The Netherlands next to introduce a statelessness determination procedure?

6 December 2013 | Maxim Ferschtman, Open Society Justice Initiative

On 4 December 2013 the Netherlands Institute for Human Rights (College Mensenrechten) and UNHCR held a seminar on the protection of stateless persons in the Netherlands. It was the first of its kind in the Netherlands to be organized by these institutions together and was attended by government officials, academics and NGOs. UNHCR had earlier examined the situation in the Netherlands in its report Mapping Statelessness in the Netherlands. It concluded that

“In dealing with statelessness in the Netherlands, it is the identification of cases of statelessness that is the most problematic area. There is, as we have seen, no explicit obligation under the 1954 Convention for State parties to put in place a determination procedure. Nevertheless, without some form of determination mechanism it is difficult to see how contracting parties can fulfil their obligations under the Convention. UNHCR therefore considers the creation of a statelessness determination procedure to be a practical consequence of ratification of the 1954 Convention.”

 The current practice in The Netherlands

The situation for stateless person in the Netherlands to date can, at best, be characterised as one of limbo. Lacking a statelessness determination procedure, the only action taken by the authorities is to register a person based on his or her identity papers in the Municipal Basic Administration (GBA). Whenever someone’s nationality status cannot be readily determined upon registration with the GBA, e.g. if the person does not have identity documents, a birth certificate etc, the individual is registered in the GBA as being of unknown nationality. People are rarely registered as “stateless” in the GBA, as documentary evidence of statelessness for registration as such is required by law. The GBA does not investigate a claim of statelessness. The onus is on the applicant to prove that he is stateless. Given that stateless people generally have no country willing or able to issue such documentation, it is often impossible for them to fulfil this condition. Moreover, the GBA also only registers persons with a valid residence permit, which will often not be possible for stateless persons, leaving many of them entirely invisible.

Efforts to change the registration from nationality ‘unknown’ to stateless have proved fruitless. The municipalities continue to insist that for such a change of registration the burden of proof is on the individual that he or she is NOT a national of another State. This imposed a probatio diabolico on the affected person, to at worst go around asking any possible, remotely eligible state whether they are its national, or by attributing an unproven nationality without a proper factual basis to that effect. This is contrary to UNHCR guidelines which indicate that the best way of implementing the 1954 Convention is for the burden of proof to be shared between the individual and the State, and that a specifically designated authority be assigned the task of assessing the evidence.

Also the Dutch authorities have partly relied on assumptions surrounding the potential to acquire another nationality and have thus not considered people as stateless, which is contrary to the definition of a stateless person under the 1954 Convention. In the recent UKSC Al-Jedda case, the UK Supreme Court provided helpful guidance in this respect when it held that it would leave the law ‘mired in deeper complexity’ if states could rely on possible future acquisition of nationality to defeat claims to statelessness status (paras 16 and 32). In that case the issue was whether deprivation of British citizenship would render the applicant stateless. See earlier blogs on this case by Simon Cox and Laura Bingham.

Official national statistics from 2010 indicate that there are more than 83.000 persons in the Netherlands of unknown nationality {http://statline.cbs.nl/}. Approximately a quarter of these people are children. This position is not tenable: either you have a nationality and this nationality can be established, or you are stateless.

 It seems that this situation is now ready to be addressed. The Dutch NHRI/UNCHR seminar coincided with the release of a report by the Dutch Advisory Committee for Migration Affairs (ACVZ). In this report, named “No Country of one’s own” (full report in Dutch here) the commission asserted that the situation in the Netherlands need to be brought into conformity with the 1954 Convention by introducing a statelessness determination procedure. It advised that good faith interpretation of the 1954 Convention would entail the following:

  1. Establish a statelessness determination procedure backed by guarantees.

    1. Adopt for the purposes of the procedure the definition of ‘stateless persons’ as in the 1954 Convention (de jure stateless persons).

    2. Open the procedure to all aliens on Dutch territory.

    3. Permit aliens to stay in the Netherlands during the procedure.

    4. Refer aliens who raise asylum issues as well as statelessness first to the asylum procedure.

    5. Adopt a shared burden of proof in the determination procedure. 

  2. Incororate in the Aliens Act a new residence ground for the purpose of statelessness. Categorise this residence permit for stateless aliens under the regular temporary or non-temporary humanitarian residence permit.

  3. Include in the procedure the exclusion grounds contained in article 1, para- graph 2 of the 1954 Convention. Additionally, an analogous application of article 31 of the 1954 Convention allows for the exclusion of persons that pose a risk to national security and public order. Also, persons who have residence rights elsewhere can be excluded from protection.

  4. Waive the birth certificate requirement for naturalisation in the case of recognised stateless persons.

    5. Drop the legal residence requirement for stateless children born in the Netherlands who wish to acquire Dutch nationality by option.

Incidentally, for a comparative perspective the advice relied on information provided to the ACVZ by ENS on existing determination procedures in Europe. Based on that, and assessing the existing structures, both the ACVZ and the Netherlands NHRI expressed a preference for a procedure in which it would be the civil law judge who will establish, upon an application of the person concerned , whether a person is stateless or not. During the seminar, however, other actors expressed the view that perhaps the Immigration and Naturalisation Service is better placed to conduct such determinations. This is a point which will, no doubt, be subject to further discussion.

Outlook

The 4th December 2013 was a very positive step towards resolving the problem of stateless persons in the Netherlands. Firstly, it is very encouraging to see the issue being taken up by the Netherlands NHRI and UNHCR together. It is good to see an explicit advice from an advisory body to the government to put a statelessness determination procedure in place with the necessary safeguards, including not in the last place a proposal to drop the lawful residence requirement for a person applying to have his statelessness determined. And most importantly it is a huge achievement that the discussion is now being held in the Netherlands as to how a determination procedure should look like and seemingly no longer whether there is a need for such a procedure at all.

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