On the 6th of June 2023, Dutch Parliament finally passed a legislation package on statelessness that has been in the making since 2014. It introduces among others a procedure for identifying stateless people, and a pathway to Dutch nationality for stateless children born in the Netherlands but without legal residence rights. In this blog we comment on these two legal developments in the Netherlands, highlighting the progress made, as well as what still remains a challenge in terms of the Netherlands complying with its international obligations on statelessness.
Statelessness Determination Procedure?
As far as global statelessness determination procedures go, the Netherlands wins the prize for “the longest in the making”. As has already been discussed in this blog, the long-awaited outcome is not even good enough to be classified as an actual statelessness determination procedure according to the ENS StatelessnessINDEX, because it does not offer a clear pathway to legal residence and other rights for those identified as stateless.
The procedure has been situated by the legislator in the domain of civil law, not migration law, and determination of statelessness is treated as a determination of a civil status, which does not lead to residence rights. The responsible authority primarily tasked with status determination are judges in the civil chamber of the Court of the Hague. Municipalities are also able to determine statelessness in the context of civil registry legislation, but that option is restricted to instances of “obvious statelessness” – for example, when statelessness has already been established through a statelessness determination procedure abroad. Subsidiary legislation provides an exhaustive list of what types of cases fall under “obvious” or “evident statelessness”, so municipalities have a very limited discretion in registering statelessness.
While the procedure follows many of the UNHCR guidelines in terms of types of evidence, as well as the standard and the burden of proof, the most commonly expressed point of criticism is the lack of residence rights attached to the procedure – not only during the procedure, but also not upon being officially recognised as stateless. The Netherland’s own Council of State has advised the government against a procedure for statelessness status determination without residence rights. Unfortunately, despite numerous lobby efforts, and persistent attempts of some political parties to amend the legislative proposal, the legislation that was passed on the 6th of June leaves the statelessness identification process fully de-coupled from any residence rights. This is problematic not only for not providing a durable solution to those stateless people who do not already have legal residence rights in the Netherlands, but may also hinder practical access to the procedure by stateless people without residence rights. While in theory legal residence is not a formal requirement for asking a judge to determine one’s statelessness, in practice stateless people without residence rights may not want to risk contact with the authorities if they are not protected against deportation during the procedure, and have little to gain in terms of regularising their stay even after having been recognised as stateless. This factual exclusion of undocumented stateless people from the new identification procedure in the Netherlands, as well as its incompatibility with international norms, have been previously discussed in this ENS blog. Undocumented stateless people in the Netherlands are thus left in more or less the same legal limbo they were in before the new legislation, having to rely on either asylum procedures or the so-called “no-fault” procedure to attempt and regularise their status, without a dedicated legal residence status that recognises their unique protection needs as stateless individuals and allows them to access some of their fundamental rights.
The legislation also provides for an evaluation of its effectiveness five years after the law enters into force, which could be an opportunity for lobby efforts. However, five years is a long time for undocumented stateless to continue to survive in the Netherlands in legal limbo, so hope lies with more immediate measures, such as strategic litigation efforts.
Access to Dutch nationality for stateless children without residence rights
As part of the legislative package passed on the 6th of June, an amendment to the Dutch Nationality Act was introduced, which extends the right to acquire Dutch nationality also to stateless children born in the Netherlands who do not enjoy legal residence rights. Prior to the new law, stateless children born in the Netherlands were only able to access Dutch nationality after 3 years of legal residence. Now the law also allows children without legal residence rights to acquire Dutch nationality, but they need to demonstrate they have “uninterrupted stable residence” in the Netherlands for a minimum of 5 years. The original legislative proposal even included a 10-year residence requirement, but this got negotiated down to 5 years by left-leaning political parties. There remains, however, a problematic difference in treatment between children with and children without a legal residence permit.
Another unresolved point of concern is the requirement of “stable residence”. The Explanatory Memorandum interprets it as residence where neither the child nor the parents have shown any resistance to being removed from the Netherlands, or any lack of cooperation with the authorities. This is a very worrying interpretation, with potential to violate several international norms. Article 1 of the 1961 Convention allows for no such conditions related to stability of residence or cooperation by the child or their parents with immigration authorities. The Advisory Division of the Council of State has also pointed out this problem to the government, and recommended to stick to the requirement of “habitual residence”. This recommendation was unfortunately rejected. Aside from clearly violating the 1961 Convention, the requirement of “stable residence” and its suggested interpretation is also highly problematic in light of the Convention on the Rights of the Child, which protects the right of all children to acquire a nationality (Article 7) without discrimination on the basis of their parents’ status or actions (Article 2). Moreover, Article 2 strictly prohibits punishing children for the actions of their parents, which the Netherlands would be violating if it withholds Dutch citizenship from children whose parents are deemed insufficiently cooperative with the immigration authorities.
It remains to be seen how the municipalities, which are primarily tasked with implementing this form of access to Dutch nationality, will go about interpreting the requirement of “stable residence”, and whether the two parallel regimes for children with and without legal residence rights can be meaningfully contested in the future.
Was it worth the wait?
The legislative package on statelessness passed on the 6th of June is riddled with problems, which means that it unfortunately fails to secure meaningful protection for stateless people and to prevent statelessness among children born in the Netherlands in accordance with Dutch international obligations. The two major points of concern discussed above are (1) the lack of residence rights for stateless people during and after the determination procedure, and (2) the discrimination between stateless children with and without legal residence in their access to Dutch nationality (and in particular the requirement of “stable residence” imposed on the latter). It has been nearly 12 years since the first critical report by UNHCR about statelessness in the Netherlands was published. The first substantive legislative response from the Netherlands to this report may benefit those stateless people who already enjoy residence rights in the Netherlands on other grounds, but is very disappointing for the overwhelming majority of the most marginalised stateless people – namely those without regularised residence.
Now that the laws have been passed, its future course of development, including its contestation, lies with the implementing authorities (courts, municipalities, migration authorities), but also legal practitioners, NGO’s, lobbyists, commentators, and hopefully also stateless people who are affected by it. Many questions remain to be answered, such as: what will the interplay be between the new status determination procedure and the regularisation of residence through a no-fault procedure or other immigration procedures? How will the requirement of “stable residence” be further interpreted and operationalised? Who will end up benefitted from these legislative developments, and who may end up further marginalised by them?