How the Dutch immigration office prevented a strategic litigation case from unfolding in a decisive court decision for stateless individuals without legal stay

Marlotte van Dael (Project coordinator & researcher, ASKV Refugee Support)
/ 9 mins read

It all started in 2009. The then 22-year-old Nayif Negim travelled from Qatar, where he was born and raised, to Sweden. He had a valid visa to stay with his then fiancée. His marriage ended abruptly and so did his permit to stay. Soon afterwards, he tried to return to his family in Qatar, but found out that his temporary residence permit in Qatar had expired, because he had left the country for more than six months.

Nayif is a stateless Palestinian. His ancestors fled from Gaza to Egypt and his parents ultimately settled in Qatar, where Nayif and his six siblings were born and raised. As a Palestinian, Nayif never held a permanent residence document, having to continuously extend his temporary residence permit, which was sponsored by his father.

After Nayif realised that return to Qatar had become impossible he decided to submit an asylum request in Sweden. He received a negative decision and not knowing what to do, he travelled to the Netherlands, where he submitted a new asylum application in January 2016. His request was rejected - the Dutch immigration office (IND) noted that the assessment of whether someone can return to his or her country of origin is not a relevant factor in the asylum procedure.

After his asylum procedure came to an end, Nayif moved to the government’s freedom restricting location (VBL) in the small village of Ter Apel in October 2016. People staying in this location are not allowed to leave without formal consent while awaiting their deportation. Normally, the stay is limited to a maximum of 12 weeks, at the end of which return should have been facilitated. Nayif stayed in this location for more than a year and a half with no change in his return prospects.

Seeking help, Nayif got in touch with ASKV in December 2016. Given that the IND had suggested that he had to file his ‘unreturnability’ in a separate case (and that ASKV already had experience litigating on this topic) we started new a proceeding with our partner lawyer Frank van Haren (Hamerslag & van Haren Advocaten in Amsterdam). ‘Unreturnability’ can be addressed through the so called ‘no-fault procedure’ (buitenschuld procedure). Before the individual submits an application, extensive cooperation with the Dutch Return & Repatriation Service (DT&V) should have taken place.

From the beginning we knew that the no-fault procedure is likely to be fraught with potential issues, including a high burden of proof (applicant is expected to provide identity documents with their request for a travel document), that the DT&V needs to confirm the fact that the applicant is unable to return, and that statelessness is not considered as a relevant factor in decision making. No clear criteria exist to assess whether someone did everything possible or after what period can they apply, leaving people in an endless battle. This is the main reason why we decided to litigate - to address the shortcomings of the no-fault procedure in court, with the aim to create positive jurisprudence which would benefit other stateless individuals in similar circumstances living in the Netherlands. 

Nayif’s case proved to have all the characteristics of a good case for strategic litigation. He is in possession of documents to substantiate his identity and statelessness, including an original birth certificate from Qatar, a valid Palestinian passport, a verified UNRWA registration, and an expired Egyptian refugee passport for Palestinians (including an expired Qatari visa). His statelessness and Qatar as the designated country of origin had never been doubted by the Dutch immigration office (a requirement in the no-fault procedure) and had been confirmed by the Dutch court in his previous asylum procedure. In addition, Nayif had already started actively working with the DT&V to facilitate his return to Qatar and had been doing so since his residence permit was withdrawn in Sweden, as did his family from within Qatar. Despite the unlikeliness of it succeeding, Nayif tried everything to reunite with his family. This included multiple visits to the Qatari and Egyptian Embassies and the Palestinian Mission in The Hague.

His efforts received different responses. Qatar confirmed the absence of Qatari nationality and noted that Nayif did not meet the requirements to obtain a residence permit and had therefore no right to reside in Qatar. The Palestinian Mission confirmed his status as a Palestinian refugee born and living outside of Palestine, but stated that he cannot return to Palestine under the current Oslo interim agreement. They’ve provided him with a Palestinian passport, but this document does not allow him to travel anywhere without a valid visa. His attempts with the Egyptian authorities proved even less fruitful. They refused to renew his Egyptian refugee passport (since he was now in possession of a Palestinian passport), or to issue a visa to enter the country.

In our further preparation for the case multiple actions have been taken to further substantiate his unreturnability, including additional contact with the Qatari authorities and UNHCR on his prospects for return as a stateless Palestinian. This confirmed once again, that as a male adult over 25 years he does not meet the requirements for a family visa, leaving the only possibility to obtain a visa through the sponsorship of a local employer in Qatar, a rather hopeless effort.

During all this time, Nayif remained in the freedom restricting location, having almost weekly meetings with the DT&V regarding his return. His statelessness did not seem to be a relevant factor and the fact that his return prospects were unlikely as a result were not considered on individual basis. His lawyer also remained in close contact with the DT&V, reaffirming his clients attempts to cooperate and trying to obtain further information about what the DT&V might expect from him. The aim was to comply with DT&V’s requests, while leaving no room for doubt about Nayif’s willingness to cooperate in facilitating his return.

On 13 November 2017 Nayif’s lawyer formally submitted a request under the no-fault procedure on humanitarian grounds. This was subsequently rejected on 1 March 2018, stating that the applicant did not receive positive advice from the DT&V that his return proceedings have not been successful, due to no fault of his own. In practice, the IND only grants a residence permit when positive advice by DT&V has been submitted, however in Nayif’s case the DT&V did not provide neither negative nor positive advice. At the same time, the DT&V decided to end his mediation and ordered him to leave his accommodation at the freedom restricting location, practically referring him to the streets. The reason given was that because he did not manage to obtain a travel document, he should have provided more identity documents / proof to successfully continue mediation, something Nayif could not do.

Nayif’s lawyer appealed the negative decision by the IND as well as the decision to end the mediation by DT&V and his accommodation. During the appeal proceedings the lawyer filed more grounds regarding the ambiguity surrounding the responsibilities of the IND and DT&V and the lack of correspondence between the two. Moreover, the lawyer argued the absence of an effective remedy, considering the IND and DT&V are preventing the case to be considered substantively in court by referring back to the necessity of a positive advice by the DT&V. When the advice is missing, most details of the actual case and the circumstances surrounding someone’s unreturnability are not addressed.

As Nayif’s case unfolded, ASKV advocated with local and national politicians using it as an example of the problems faced by other stateless individuals without legal stay in the Netherlands. We’ve also done outreach to the national media who covered the case. On the day of the hearing in November 2018, the small court room was filled with organisations working on statelessness showing their support, along with the national newspaper Trouw which covered it with a full-page story. Rather frustratingly, the IND informed the judge last-minute that they were not intending to attend the court hearing in person, not uncommon in cases they consider do not need further discussion. Positively, the judge was understanding but without the IND present, no discussion was possible leaving many of the judge’s and lawyer’s questions unanswered.

Having initially scheduled the judgment to be published in December 2018, the court re-opened the case and ordered it to be handled by a full-bench panel of three judges in February 2019. Initially positive about the importance given to the case and a court hearing in which the IND can be questioned, the IND decided to withdraw its negative decision from the 1 March a week before the court date while informing that the DT&V wished to re-open mediation for return (lasting 10 weeks), ultimately concluding that no court hearing was necessary anymore. Nayif’s lawyer argued for the court hearing to proceed as planned, not seeing what 10 further weeks of mediation for return would change in Nayif’s situation, aiming for the IND and DT&V to argue their positions in court. The court date remained planned with media and civil society once again attending, but only with one presiding judge. Moreover, because the IND had withdrawn its negative decision to Nayif’s request for legal stay, again no substantive discussion could take place. Having said that, the judge did not see either why the DT&V would need 10 more weeks of mediation. Rather ironically, the IND was present in court partly on behalf of the DT&V, and wasn’t able to offer an explanation for this either but agreed that a new decision could be made quicker. The judge subsequently ordered the IND to take a new decision in this case within two weeks after the judgment. The newspaper Trouw wrote again about the case, now writing how the IND tried to prevent a principled decision by the court impacting stateless persons in the Netherlands by withdrawing its decision.

Four weeks later, Nayif received a positive decision from the IND, granting him a (renewable) 12 month residence permit to stay in the Netherlands. The DT&V had provided the IND with the long-awaited positive advice that they did not see any return prospects despite all Nayif’s efforts. While this resulted in a positive outcome for Nayif, the victory was bittersweet, as it prevented a substantive judgment by the court that could have potentially helped other stateless people in the Netherlands. Working on other cases, Nayif’s lawyer however remains determined on using this experience in future proceedings, continuing to strive for improvements for stateless people in the no-fault procedure.

Photo credit: Martijn Gijsbertsen

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For more information on law, policy and practice in the Netherlands check our StatelessnessINDEX, where you can compare data across 18 European countries.
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