“Everyone has the right to a nationality”

Proposal for legislation on statelessness in the Netherlands: A bittersweet victory

12 October 2016 | Katja Swider, PhD researcher (University of Amsterdam) and Caia Vlieks, PhD researcher (Tilburg University)
Inage © Greg Constantine

Six years of research, reports, publications, consultations, advocacy, negotiations, conferences, informal meetings, litigation and lots of waiting have culminated in the Dutch government publishing a proposal for a legislative package of amendments on statelessness. The victory is bittersweet, as the proposal is full of major drawbacks. However, the good news is that the proposal is now available online and open for public consultation so there is still time to try to positively influence it. In this blog we focus on a number of changes suggested by the government, pointing out the strengths and weaknesses of each. Our main aim is to inform the international community of statelessness experts about developments in the Netherlands, and to encourage their participation in the open consultation.

The legislative amendment package consists of two main parts: the introduction of a statelessness determination procedure (SDP), and the new ground for acquisition of Dutch nationality for stateless children born in the Netherlands who do not have a residence permit.

Statelessness Determination Procedure

a. Responsible authority – a court

The new statelessness determination procedure is to be conducted by the District Court of The Hague. The upside is that this Court has an exclusive jurisdiction in deciding disputes about possession of Dutch nationality, and thus has extensive expertise in nationality matters. The downside is that this is a single court, and even though the Netherlands is a small country with functional public transportation and postal services, accessibility of a single court in The Hague can never be as good as the accessibility of, for example, municipal administrative authorities, which would be a lot more approachable geographically, legally and structurally.

There are arguments for and against having the Court of The Hague as the responsible authority for the Dutch SDP. In our view this is not ideal but equally we consider there to be more serious deficiencies with the current legislative proposal (discussed below) on which it would be better to focus attention.

b. Residence rights - none

The legislative proposal explicitly excludes the possibility of obtaining a residence permit as a result of the SDP, and does not grant any residence rights for the duration of the procedure. Here, the Dutch proposal clearly differs from other SDPs in Europe, which all have the possibility of granting residence rights to a stateless person. Stateless persons who do not have a legal residence permit can theoretically access such a procedure, but they will not be able to obtain a residence permit as a result of it. This puts the Dutch SDP at odds with other existing state practice, and in some respects undermines the whole rationale for introducing a SDP.

What’s the point of having such a procedure, one may wonder? Well, there are stateless persons in the Netherlands who have a legal residence permit, but have problems accessing naturalization, because their statelessness is not recognized. A naturalization candidate in the Netherlands needs to show a foreign passport, unless he or she is a refugee or a recognized stateless person. The proposed amendment may resolve the situation of such individuals, and help them become Dutch if their statelessness is recognized, as they no longer need to show a foreign passport which they do not have in order to be able to naturalize. Also, stateless children born in the Netherlands, who do not have a residence permit, may benefit from such a procedure if the amendments on the children’s right to a nationality (see below) become functional. These would be important gains. Such children, however, will not get any residence rights or any protection for the duration of the procedure.

However, the most vulnerable of the stateless, those without any residence rights, do not seem to be served by such a procedure at all. They do not have much to gain, as residence is often practically the first step to any other rights. Creative lawyers may (and probably will, if they have to) rely on other 1954 Convention rights (such as the right to identity documents) to secure some form of decent existence for their stateless clients. Such battles are, however, not easily won, and offer only a faint glimpse of hope for possibly a few lucky ones, and by no means offers a structural solution for those who need it most.   

Our advocacy efforts should therefore focus on at least deleting the phrase “do not give rise to residence rights” from the legislative proposal. Additionally, there is a need to lobby for an amendment to the Aliens Act (Vreemdelingenwet), which would introduce an explicit ground for a residence permit on the basis of having been identified as stateless.

c. Definition – altered in the most unhelpful way

A stateless person is currently defined in the Dutch Nationality Act (Rijkswet op het Nederlanderschap) as a person ‘who is not considered as a national by any State according to its law’, which is more or less in line with the definition of the 1954 Convention. The legislative amendment will change it to a person ‘who can be considered as stateless on the basis of the determination procedure’. In an awkward circular way, a stateless person is thus redefined as someone who has been identified as stateless on the basis of a SDP.

Such a definition is highly problematic, not only from the point of view of circularity of logic (a court needs to establish whether a person is stateless, and a person is stateless if he or she has been identified as stateless by that court). Statelessness determination, in the words of the UNHCR Handbook, is a declaratory and not a constitutive act. The District Court of The Hague does not MAKE someone stateless by declaring him or her to be stateless; it merely recognizes the already existing fact of statelessness. It is therefore essential to adhere to the 1954 Convention definition of statelessness, and advocacy efforts should try to prevent the currently proposed amendment of the definition.

d. Requirement of “immediate interest”?

Last, but not least, the new SDP seemingly innocently requires the person who accesses it to have an “immediate interest” in being identified as stateless. On the one hand, such a requirement may appear reasonable – the District Court of The Hague does not want to be burdened with arbitrary requests for status determination. On the other hand, this requirement, combined with the ban on deriving residence rights from the SDP may amount to a requirement of already enjoying residence rights in order to access the procedure. What kind of “immediate interest” in establishing statelessness can an undocumented stateless person have aside from gaining residence rights? Would a person be able to access a SDP to argue that his or her detention is arbitrary, because the prospect of deportation is not assessed properly? Would that count as “immediate interest”? What about wanting to obtain identity documents on the basis of the 1954 Convention, to generally be able to prove legal identity?

The status of statelessness is a significant part of legal identity of a person, which may have wide implications in a variety of legal and practical circumstances. Stateless persons should simply be able to establish that status in the jurisdiction where they reside, without having to justify a specific immediate interest for wanting to do so.

The gravity of problems that may be caused by requiring stateless persons to demonstrate an “immediate interest” for establishing their statelessness, in particular for the undocumented stateless persons, would heavily depend on the Court’s interpretation of this requirement, but as a matter of principle it is important to keep the procedure as accessible as possible, and therefore to argue against the requirement of “immediate interest” being retained in the final proposal.

Children’s right to nationality – a right for ALL children?

A new ground for acquisition of Dutch nationality for children born stateless in the Netherlands but who have no legal residence would be introduced in the Dutch Nationality Act. This is meant to ensure the right to nationality also for children who are not legally resident in the Netherlands.

Current legislation already contains a ground for acquisition of Dutch nationality for children born stateless in the Netherlands, but requires legal residence in the Netherlands for three years to access nationality on that basis, which is contrary to the 1961 Convention. UNHCR, the Dutch Advisory Committee on Migration Affairs (ACVZ), as well as the authors of this blog (see their article in Dutch) had hoped that the requirement of having to reside legally in the Netherlands would simply be dropped, thus adapting the existing provision to enable ALL stateless children born in the Netherlands, and not only those with legal residence, to acquire Dutch nationality. Instead, the government opted to introduce different procedures for children with and without legal residence rights. While the former only need to have resided in the Netherlands for three years, the latter need to demonstrate five years of ‘principal stable residence’. Children without legal residence also need to prove that they cannot acquire another nationality. Earlier the government was considering introducing another problematic condition, namely that the child’s parents have cooperated with the immigration authorities, discussed extensively in an earlier blog, but that condition happily does not appear in the new proposal. This is to be welcomed.

However, the conditions mentioned in the current proposal still raise questions. What is meant by “stable residence”? How will the inability to acquire another nationality be assessed? The exact implications of these conditions, and to what extent they would in practice impede children’s access to nationality, would depend on the Court’s interpretation of the new law. One problem is apparent: this amendment would lead to differences in treatment between children who are legally resident and those who are not. It is questionable whether it is in the best interests of the child and in line with the principle of non-discrimination to leave these children who are born stateless and are not legally resident – through no fault of their own – longer in a situation of statelessness.

Even if the introduction of the possibility of acquisition of Dutch nationality for stateless children born in the Netherlands who do not have a residence permit is to be welcomed, the present proposal is a complicated solution to a question that could be easily answered by just dropping the legal residence requirement in current law.

How can you add your voice?

The proposal for a legislative package of amendments on statelessness has been published online and is open for consultation here (only in Dutch unfortunately, but responses in English are welcome too). Dutch civil society organizations, lawyers, researchers and activists – as well as the European Network on Statelessness - are preparing a joint response to this proposal, to try to bring it more in line with international standards, and maximize its usefulness for all persons affected by statelessness in the Netherlands. Our voice would be much stronger if the international community engaged constructively with this debate, so we invite everyone to express their ideas about the proposal through the consultation procedure.

                                   

Share

Get weekly updates

Latest news & events

Latest blog

Latest resources