What a judge cannot see: statelessness determination in the Netherlands

Case law analysis is one of my favourite methods of understanding legal problems. My previous blog discusses judgments from the Statelessness Case Law Database about the citizenship status of children who are born with the help of surrogacy and/or in LGBTQ+ families in jurisdictions where such family constellations are outlawed. Not every legal problem, however, finds a reflection in case law. In this blog I consider a legal issue that may never make it into the courtrooms – and is therefore unlikely to feature in the Case Law Database, or have a chance at being resolved through strategic litigation.  I look at the situation of stateless persons who live in the Netherlands without a residence permit and without the formal acknowledgement of their statelessness. The judicial statelessness determination procedure (SDP) which is currently being introduced by the Dutch government, if passed in its current form, will reinforce their the legal invisibility, and their exclusion from the courtrooms.

Background: statelessness “determination procedure” in the Netherlands

The Netherlands has been working on its SDP for a record time of nearly a decade, during which numerous ENS blogs and other publications have commented on various consecutive versions of the law. One may think that within this time frame an exemplary SDP would be developed. Unfortunately, this is not the case in the Netherlands. The lengthy legislative process has been an exercise in doing the absolute minimum to formalistically meet the threshold of compliance with international standards (which the latest version of the law still fails to do), with as little as possible positive substantive change for stateless persons. This includes the design of the so-called “statelessness determination procedure” – in quotation marks, because the ENS Index does not qualify a procedure as an SDP if it does not lead to residence rights for stateless people. The Netherlands is about to introduce a legal procedure where statelessness can be established as a legal fact, while everything possible is being done to prevent this legal fact from leading to the regularisation of residence. This legislative proposal has been approved by the main parliamentary chamber, and is now being debated in the upper chamber of the Dutch Parliament.

How exactly are undocumented stateless persons to be excluded from the new SDP?

In theory, the new SDP allows any person, regardless of their residence status, to ask a civil law judge to establish their statelessness. In practice, however, without the legal residence rights guaranteed during the procedure, and without the prospect of acquiring residence rights upon a successful establishment of the statelessness status, an undocumented stateless person will in most cases actually be barred from accessing the procedure.

This exclusion happens in two ways. Firstly, without a right to stay at least for the duration of the procedure there is an obvious risk of detention and deportation, which prevents undocumented individuals from braving contact with the authorities. Secondly, there is another less obvious way through which the exclusion happens. Applicants under the SDP are required by law to show the existence of an “immediate interest” (onmiddelijk belang) in having their statelessness established (Art. 2(1) of the proposed Law). What interest may an undocumented stateless person have in formally establishing their statelessness, if the status determination cannot lead to the regularisation of their residence? This requirement, in combination with lack of residence rights attached to the procedure, is a roundabout way of saying that if your residence has not been authorised by the government, the law does not really care whether you are stateless or not.

The Explanatory Memorandum to the Legislative Proposal makes this more explicit by stating that the procedure is primarily intended for “individuals who are legally resident in the Netherlands, but lack certain documentation and cannot be registered as stateless in the civil registry”. The memorandum also points out that  the procedure is formally “also open” for undocumented stateless individuals, but does not explain how the latter may be able to meet the “immediate interest” requirement, and manage the risk of deportation, to access the procedure in practice. 

Of course there are conceivable scenarios where undocumented stateless individuals can claim a certain “immediate interest” in establishing the legal fact of their statelessness, while also not being practically deterred by the risk of deportation – for example, if they are already in immigration detention, and are disputing the feasibility of the prospect of deportation, and thereby the legality of their detention. However, for the overwhelming majority of the most marginalised stateless persons in the Netherlands who live their lives despite the law, the new “statelessness determination procedure” is not only useless, but reinforces their invisibility by creating an illusion of the existence of a legitimate solution.

International standards on access to a determination procedure

Excluding people from statelessness status determination based on whether they have a right of residence goes against some well-established international standards. The UNHCR Handbook on Protection of Stateless Persons emphasises that “[t]here is no basis in the Convention for requiring that applicants for statelessness determination be lawfully within a State. Such a requirement is particularly inequitable given that lack of nationality denies many stateless persons the very documentation that is necessary to enter or reside in any State lawfully.” This principle is reflected in the practice of states. Hungary used to impose a lawful residence requirement on applicants for statelessness determination, until in 2015 its own Constitutional Court found this requirement to be incompatible with international law, and lawful residence is no longer a condition to access the SDP in Hungary. Of the 12 European states included in ENS’ Statelessness Index that have some form of a procedure to determine statelessness, none require the applicants to have prior regularised residence. The new Dutch procedure does not directly impose a lawful residence requirement either, not in the way the Hungarian procedure used to before 2015, but it effectively excludes the same group through other indirect means.

Not represented in jurisprudence

The example of undocumented stateless persons in relation to the new judicial status determination procedure that is being introduced in the Netherlands illustrates that not all statelessness-related problems manifest themselves in jurisprudence. In order for an issue to reach a judge, it needs to be framed as an issue by law to begin with, which is not always a given with statelessness. Individuals affected by this issue also need to be legally and practically able to access the courtroom. If the new Dutch procedure becomes law in its current form, the overwhelming majority of stateless individuals without residence rights will still not be able to have their status formally established, get their stories heard by a judge, and ensure that the injustices they suffered are formally acknowledged by law. This consequently distances the prospect of effective legal solutions.

Lack of an issue in case law does not mean the issue does not exist, or that it is not legal in nature. Any instance of statelessness, whether recognised or not, and any consequences of that statelessness, are created and continuously sustained by legal systems. However, the same legal systems may be putting mechanisms in place to avoid acknowledging their own creations. 

The blog is based on my earlier publication titled “What do the legislative changes on statelessness mean for the stateless?”, in Dutch.