This month, I was tasked with writing an introductory article for a special edition on statelessness of the journal “Asiel en Migrantenrecht” (Asylum and Migration Law) which will appear later in the summer. Published jointly by the Dutch Council for Refugees and FORUM Institute for Multicultural Affairs, the journal deals with developments in law, policy and jurisprudence in the field of migration and is widely read among legal practitioners, judges, policy makers and researchers in the Netherlands. The dedication of a special to the topic of statelessness comes in the wake of the publication of a mapping study by UNHCR on statelessness in the Netherlands (November 2011) and a subsequent one-day conference during which several issues which emerged from the mapping study were discussed in further detail (December 2012). Gradually, these initiatives are helping to expose the problem of statelessness in the Netherlands and with each new step, I am surprised, intrigued and concerned by what is discovered.
UNHCR’s mapping study was, to the best of my knowledge, the first piece of research that sought to comprehensively survey the extent to which statelessness arises in the Netherlands, in what context this occurs and whether it receives an appropriate response. Given that statelessness had not previously received much attention and that the Netherlands has been a state party to the two central international agreements on statelessness for several decades, one might have expected to find that it is a non-issue and/or that it is already suitably dealt with through an arsenal of law and policy responses. Yet this was not the message of the mapping report. Instead, it identified significant gaps in the implementation of the Netherlands’ international commitments, with regards to both the prevention and reduction of statelessness, as well as the protection of the fundamental rights of stateless people. For example, the mapping study identified a disconnect between the Netherlands’ obligations under the 1961 Convention on the Reduction of Statelessness with regard to the conditions for granting a nationality to an otherwise stateless child and those set out in the Dutch Nationality Act: Dutch law maintains an additional criteria that is not permitted under the 1961 Convention, such that less children will be able to benefit from this vital safeguard. With regards to protection, the report concluded that one of the most pressing challenges outstanding in the Netherlands is the absence of a statelessness determination procedure which would allow stateless people to be identified and treated in accordance with their rights under international law.
The mapping study thereby outlined a number of areas in which Dutch statelessness policy evidently needs to be reviewed and revised in order to meet the country’s international commitments. At the same time, the report also pointed to difficulties in establishing all the facts around the scale and impact of statelessness in the Netherlands. There was an acknowledgement that more work needed to be done to fully understand the issues around statelessness and the way in which current laws and policies contributed in practice to the avoidance of statelessness or protection of stateless people. Rather than serving as an immediate and complete road-map for addressing statelessness in the Netherlands, the publication of UNHCR’s mapping study can therefore perhaps better be seen as the first leg of a longer research journey that is yielding interesting new insights at every turn. The UNHCR report has succeeded in spurring others into action as a concerted effort is now underway to (finally!) learn all about statelessness in the Netherlands.
This is a process in which I am both a participant and an eager onlooker. The Statelessness Programme undertook a small study in 2012, picking up on one of the questions that was touched upon but not fully explored in the UNHCR mapping: the way in which stateless people are dealt with under the “no fault” immigration/return procedure. Sangita Jaghai and Caia Vlieks, two exceptional Tilburg Law School students, conducted an analysis of “no fault” case files with a view to discovering to what extent statelessness plays a role in the decision-making – i.e. although not the stated purpose of the policy, does the “no fault” procedure (also) allow for the identification of a stateless person and is adequate protection then provided in accordance with the 1954 Convention relating to the Status of Stateless Persons? In a nutshell, their conclusion was that statelessness played no part in the “no fault” assessment whatsoever – the fact of statelessness is not even established, so it was not actually possible to ascertain whether this procedure is providing a pathway for protection to stateless people in the Netherlands. One of the articles included in the journal mentioned at the outset of this blog discusses this piece of research further and I look forward to seeing what response it provokes.
Having been asked to write the introduction to the journal, I was privileged to get a sneak preview of the other contributions and some further pieces of the statelessness puzzle are starting to fall into place. What I found most interesting was an article discussing the enduring ramifications for the enjoyment of nationality of the emergence of an independent Suriname from Dutch colonial rule. It appears that despite a bilateral treaty settled between Suriname and the Netherlands, containing rules that should have prevented statelessness from arising, upon implementation, cracks developed between the Surinamese and Dutch nationality policies which appear to have left some people stateless. If this is the case, we can add ensuring that no one is rendered stateless by virtue of state succession to the list of challenges facing the Netherlands in the realm of statelessness, alongside effectively preventing statelessness among children born within the country’s borders and guaranteeing the fundamental rights of stateless people on Dutch territory. As I already hinted then, the situation with regards to statelessness in the Netherlands is far more interesting but also far more problematic than I first imagined. Many of the problems that arise in countries around the world – admittedly often with greater severity or on a greater scale elsewhere – can also, to some extent at least, be identified here “at home”. In view of this, my introduction to the journal introduces the Netherlands as a microcosm for contemporary challenges in the field of statelessness. I also look forward to seeing what response that assertion provokes.
This special edition journal is not the last stop in this voyage of statelessness discovery. Indeed, two further studies of relevance to this issue and due to be published this summer are also eagerly awaited. The Netherlands’ Advisory Committee on Aliens Affairs (ACVZ) is currently conducting an overall assessment of the aforementioned “no fault” policy, which should shed light on the general functioning – or dis-functioning – of this procedure as one of the tools of the Dutch immigration (control) regime. This is expected any day now, with a press conference scheduled for the 1st of July during which the chairwoman of the committee will explain the findings. A second, separate but no doubt complementary study also by the ACVZ is focused specifically on the Netherlands’ statelessness policy. Expected in September, this report will answer a request by the Minister for Immigration and Asylum for advice on whether the Netherlands is meeting its international obligations with regard to the prevention and reduction of statelessness and the protection of stateless persons. I would imagine that the report will be forced to conclude that policy reform is (over)due in some areas, but what solutions it suggests (including on the basis of a review of other European practices which is explicitly included within the purview of the study) will of course be the key question. All in all, it looks to be another good year for learning about statelessness in the Netherlands. Hopefully, armed with a better understanding of any policy deficiencies and their impacts, this enthusiastic analysis will then spur equally enthusiastic action to address the problems identified.