Every downside has its upside: run-up to a statelessness determination procedure in the Netherlands?

Hana M.A.E. van Ooijen, Lawyer with Prakken d’Oliveira Human Rights Lawyers
/ 7 mins read

On 9 July 2014, the loss to Argentina signalled the end of another period of patriotic sentiments in the Netherlands. Unlike any other event, the FIFA World Cup celebrates the existence of nation states, and accordingly, the heroes of the game come to the fore as representatives of a state.[1] The laws of nationality are sometimes called on to yield for the laws of sports.[2] However, where rules are seemingly bent in the name of the game, outside the World Cup, the nationality rules continue to apply rigorously.

 Just weeks before the Dutch team advanced in the World Cup competition, the Administrative Jurisdiction Division of the Council of State in the Netherlands (“Council of State”, Afdeling Bestuursrechtspraak van de Raad van State) issued an important ruling on statelessness, on 21 May 2014.[3] The impact of this ruling may be described by Johan Cruijff’s adage:  “Every downside has its upside”.[4] The downside is clear: the ruling was negative for the applicant. The upside is that the long-term implications of the ruling may signal opportunities for stateless persons in the Netherlands. In order to clarify this puzzling statement, a brief summary of the facts and the ruling follow below.

Facts of the case

The applicant[5] in the case and his wife were born in China. They were assumed to have Chinese nationality. Their two children who were born in the Netherlands, were registered as having “unknown nationality”.[6] The applicant requested the (Executive Council [College van Burgemeester en Wethouders] of the) municipality of Utrecht to change the nationality registration of his two children to “stateless”.

 The municipality rejected the request in considering it plausible that the children were of Chinese nationality. The municipality required the applicant to substantiate his assertion that his children were not recognised as Chinese citizens. The District Court accepted that the Act on the municipal registration (hereinafter: “Registration Act”, Wet Gemeentelijke Basisadministratie personen, currently Wet Basisregistratie Personen) required evidence of a resident’s nationality in order to include a particular nationality. Mutatis mutandis, evidence of statelessness is required for a registration as a stateless person.

Ruling of the Council of State

Before the Council of State, the applicant claimed that the registration “unknown nationality” could not be maintained, in light of human rights, children’s rights and more specifically the 1961 Convention on the Reduction of Statelessness. The Council of State was not tempted to adopt a human rights approach and instead pursued the formalistic line of the Registration Act which requires the production of documents.

That said, the Council of State did dedicate a paragraph in its considerations to noting recent publications which are critical about the state of affairs in the Netherlands regarding statelessness, more specifically the absence of a statelessness determination procedure. Moreover, the Council of State notes that the lack of such a procedure precludes persons without a nationality from claiming protection of the statelessness conventions and ensuing national legislation.

Lack of guidelines

How to prove something you do not have? Which state could provide evidence of a person’s statelessness? Which state would be willing to actually register someone as stateless and consequently endow this person with the rights to which stateless persons are specifically entitled? The very problem which individuals run into, concerns the documents which a municipality requires in order to tick the boxes in registering a resident. If an individual does not quite fit into these boxes, such as stateless persons, the paper mills of the municipality get stuck.

 It is no news that the major shortcoming in the Netherlands is the lack of a statelessness determination procedure. As a consequence, the possibility of a registration as “stateless” instead of the much-used “unknown nationality” is just as certain as who will win a game of football. Put bluntly, it can depend on the individual employee of a municipality to register statelessness. This is not so much unwillingness of employees as it is a lack of guidelines on the registration of statelessness.

 It was described above that the Registration Act is basically applied analogously: the provision regarding the registration of a foreign nationality is referred to when determining whether to register someone as stateless. Accordingly, the documents required for registering a foreign nationality are used in registering a stateless person as well. There is no specific provision on how to register statelessness, and accordingly, specific and useful guidelines for municipal employees to register statelessness are not in place. In practice, this means that there is a lack of consistency amongst municipalities in registering statelessness.

Current practice

For instance, person A may be registered in municipality A as stateless by having submitted evidence including a statement of an embassy that person A is considered as being stateless. Person B may not be able to be registered as stateless in municipality B although person B has similar documents. After all, the registration is at the discretion of the municipality, and each municipality may apply this discretion differently in the issue of statelessness. There is also discrepancy between the practice of municipalities and other authorities such as the immigration authorities (“IND”, Immigratie-en Naturalisatiedienst). As a result, a person can be qualified as stateless on his/her IND papers, but be registered as having an “unknown nationality” in the municipality register.

 The current practice creates inequality and a lack of legal certainty for individual residents. Because the rules are unclear, and the municipal employees lack specific knowledge about statelessness, stateless persons face the daunting, if not impossible and frustrating task to submit documents of something which may seem so obvious to themselves. For instance, despite the generally known fact that Palestinians are often stateless, they are nonetheless required to submit evidence of their nationality according to the standard list.

Significance of the ruling

The ruling of the Council of State does not provide easy answers or a short term solution for individuals grappling with their municipal registration. The ruling is disappointing in endorsing a strict approach, and leaving the burden of proof with individuals. In so doing, it does not provide ground to call on municipalities to adapt their registration practices. Therefore, individuals will remain confronted with the standard documentation demands. They will be asked for a passport, and when they try to explain that they do not have one, will be met with incomprehension. They will be sent to an embassy for a statement, and will wait in vain for a response. Chances are that they will be registered as being of “unknown nationality” as this is the catch-all category for individuals who do not fit the boxes or are considered not to have sufficiently proven which nationality they do (not) have. In turn, this categorization will bar them from being entitled to the protection of stateless persons.

 Then again, adaptation of registration practices would not necessarily provide a structural solution for stateless individuals. In the end, the municipal registration does no more than registering. Certainly, it may help a person in the mills of bureaucracy to be registered as “stateless”, but the municipal registration is not a formal acknowledgement of the state that this someone is stateless.

 The upshot of the ruling may be described by stating “it could have been better, but it could also have been worse”. It would have been interesting if the Council of State had dared to be critical of the current practice. At the same time, it clearly sends the message that something needs to be done regarding the determination of statelessness which has been so acutely and ably conveyed by several authoritative institutions.[7] It is to be hoped that the State Secretary pays due attention to this message when taking the official Government position[8] and moreover will act on it. Who knows, stateless persons can have their share of patriotism in their own way[9] by the time the next World Cup arrives.[10]

[1] In contrast to the World Cup of the ConIFA which organises a separate competition for regions which cannot be represented in the FIFA, see <http://www.conifa.org/>, last accessed on 8 July 2014, like all website mentioned, unless mentioned otherwise.

[2] Such as in the Netherlands in 2005-2006, where a football player from the Ivory Coast attempted (in vain) to naturalise more quickly, see e.g. < http://news.bbc.co.uk/sport2/hi/football/world_cup_2006/4513492.stm>.

[3] ABRvS, case no. 201302776/1/A3, available in Dutch only on <http://www.raadvanstate.nl/uitspraken/zoeken-in-uitspraken/tekst-uitspra....

[4] “Ieder nadeel heb zijn voordeel”.

[5] Appellant before the Council of State.

[6] When a resident cannot provide sufficient evidence of his/her nationality, s/he is being registered as having an “unknown nationality”. This classification is also used for stateless persons who are often unable to submit evidence of their (lack of ) nationality.

[7] Cf. UNHCR (2011), K. Henriks and O. Vonk a.o., Staatloosheid in Nederland, The Hague; Adviescommissie voor Vreemdelingenzaken, Geen land te bekennen. Een advies over de verdragsrechtelijke bescherming van staatlozen in Nederland, Den Haag.

[8] Expected in the summer of 2014.

[9] E.g. when stateless persons are granted easier access to nationality.

[10] This blog was written by the author in her personal capacity. 

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