Change is in the air: An update on efforts to tackle statelessness in the Netherlands

Whoever tells you that writing a doctorate thesis implies wasting four years of your life in the library is probably not researching statelessness in the Netherlands. Even if I wanted to lock myself up in an ivory tower, the cascade of events and developments in politics, legislation and civil society would lure me out.

On Monday the 2nd of March a Symposium was held at the University of Amsterdam entitled ‘What awaits the Dutch Stateless in 2015?’. As the title suggests, some major changes are expected to be introduced in the Netherlands in the near future that will affect the position of stateless persons.

First of all, after years of discussions, a new statelessness determination procedure was promised by the Dutch government in September last year. The need for such a procedure here has already been pointed out by the UNHCR in 2011 in its report ‘Mapping Statelessness in the Netherlands’. In response to the UNHCR, the responsible Minister at the time refused to consider the possibility of introducing a new procedure for determining statelessness, arguing that the existing system of civil registration is an adequate mechanism to comply with the obligations under the 1954 Convention. Two years later the national Advisory Committee on Migration Affairs confirmed the UNHCR’s findings in their advice on statelessness ‘No Country of One’s Own’. This finally led the government to change its mind. A prominent judgment from the highest administrative court of the Netherlands, as well as numerous events and publications on statelessness in the Netherlands, might have also played a role in this positive change of policy stance.

We do not know much at the moment about the form that the new procedure will take. It is hopeful that the government has explicitly acknowledged that such a procedure needs to be accessible for all stateless persons regardless of their residence status. One of the worrying signs, on the other hand, is that there is as of yet no indication that the recognition of a person as stateless would lead to residence rights. The Dutch government maintains that its current immigration regime is in compliance with the 1954 Convention, and that those stateless persons who cannot leave the Netherlands through no fault of their own can obtain the so-called ‘no-fault’ residence permit. Research shows, however, that ‘no-fault’ immigration procedure is in practice ineffective for stateless persons.

In not wanting to connect the statelessness determination procedure to residence rights, the Netherlands would go against the practice of most European states that have a statelessness determination procedure, such as Spain, France, Italy and the UK.  In its Handbook on the Protection of Stateless Persons the UNHCR also strongly recommends granting residence rights to those stateless persons for whom there is no appropriate protection available abroad. It is worth noting that the Netherlands does not necessarily need to design its statelessness determination procedure as an immigration procedure. In fact, this might not be the most appropriate solution for the Dutch context at all, as in many cases stateless persons might already have a residence permit, and need their statelessness recognized in order to access Dutch citizenship. This does not diminish the fact that numerous stateless persons who reside illegally in the Netherlands and who are unable to leave due to their statelessness need access to residence rights. The current immigration regime fails to provide a solution for those individuals. The usefulness of the new statelessness determination will depend on its ability to also address the problems of stateless persons without a legal residence permit. This can be achieved through a well-designed interaction between the determination procedure and the existing immigration procedures, where the latter may need to be adjusted to the peculiarities of the statelessness status.

The details of the statelessness determination procedure have not been worked out yet, and it will therefore still take some time before any changes become effective. During this time, there is perhaps an opportunity for advocacy. A number of expert meetings have been scheduled by the government for spring 2015 to work out the details of the new procedure. Even though the residence rights of stateless persons are not on the agenda of these meetings, the issue could re-emerge in the course of discussions.  

In addition to the statelessness determination, the government wants to make Dutch citizenship more accessible for stateless children born in the Netherlands without a legal residence permit. Under the current law, stateless children born in the Netherlands can only become Dutch after 3 years of legal residence. The requirement of legal residence violates article 1 of the 1961 Convention. This has been finally recognized by the Dutch government, after an initial round of denial which followed the same pattern as the discussion on the necessity of a statelessness determination procedure. The acknowledgement that stateless children born in the Netherlands without residence rights are also the responsibility of the Netherlands is certainly something to celebrate. However, the initial plans that the government put forward to address this issue are rather disappointing. Stateless children born in the Netherlands without residing here legally will only be able to access Dutch nationality if they comply with a number of conditions, some of which are quite problematic in light of international law. These conditions are:

1. 5 years of stable residence

2. the parents have done everything in their power to obtain a different nationality for their children

3. the parents have not resisted any immigration rules, regulations and deportations attempts

The first requirement does not violate international law, but the discrimination with the legally residing children who only need to deal with statelessness for 3 years is upsetting. The second requirement could be acceptable in light of the UNHCR’s Guidelines No. 4 if it refers to situations where the parent can transmit his or her own nationality to the child through a simple procedure of registration at the embassy. However, the formulation of this condition as put forward by the Ministry is not precise enough to exclude requirements that would go beyond what is allowed under the 1961 Convention. For example, denying Dutch nationality to a stateless child because his or her parent has a possibility to re-acquire a former nationality by re-establishing residence abroad is not acceptable in light of Guidelines No. 4.  The third requirement cannot be justified in any way under the 1961 Convention – nowhere in the Convention can a child be excluded from access to nationality based on uncooperative behavior of the parent vis-à-vis immigration authorities. In addition, such a requirement violates article 2(2) of the Convention on the Rights of the Child, as it discriminates (and perhaps even punishes) children on the basis of the status and actions of their parents. Luckily, this is just the initial proposal from the government, and the formal legislative amendment bill has not been submitted to the parliament yet. There is therefore enough time in the various stages of the legislative process to improve on this initial suggestion, so as to actually ensure compliance of Dutch nationality law with all relevant international standards.

The Symposium in Amsterdam provided a platform to exchange first impressions about the upcoming legislative changes, and led to a lively debate about the effects those may or may not have on the current situation of stateless persons in the Netherlands. It brought together university researchers, students, NGO’s, practicing lawyers, civil servants, journalists, and policy makers. A variety of topics were discussed, ranging from historical perspectives on the Netherlands’ own contributions to creating statelessness, to the prospect of any EU legislation on the protection of stateless persons being adopted in the future. Lawyers shared their experiences in litigating statelessness cases within the current system, and policy makers explained the main considerations behind the upcoming changes. The Symposium culminated in the opening of the photo-essay by Greg Constantine ‘Stateless in Holland’ that features images from the daily life of stateless persons in the Netherlands. The photography exhibition can be viewed at the University of Amsterdam in the month of March.

Education on Statelessness for Practicing Lawyers

As statelessness is hitting the Dutch political agenda, practicing lawyers and affected individuals are also becoming more aware of the problem. The interest in the topic of statelessness among practicing lawyers has prompted the University of Amsterdam to include statelessness for the first time into the curriculum of courses for legal practitioners. The course aims to analyse the existing Dutch legislation in the field of civil registration of personal data, immigration and nationality from the statelessness angle. How should one deal with gaps in national legislation around the topic of statelessness? How to adjust litigation strategies to possible upcoming changes in the future? In which way can the international treaties be invoked in national courts to address the deficiencies on the national level? The first such course will take place on the 12th of March. The participants come mostly from law firms, but also from the governmental institutions, such as municipalities and immigration authorities. Hopefully the course will set a good precedent for mainstreaming statelessness education into the standard curriculum for legal education.

New Website on Statelessness in the Netherlands!

Last but not least, a large body of research and information gathered on statelessness in the Netherlands in the last 5 years will be published on a new website: www.staatloosinnederland.nl. The (soon-to-be bilingual English/Dutch) website is the initiative of the Institute on Statelessness and Inclusion, the European Network on Statelessness and the Dutch organization supporting asylum seekers ‘ASKV’. The website aims to become an interactive research tool on statelessness in the Netherlands for academics, practitioners and affected individuals, containing information on relevant legislation, case law, current political debates, and latest research on statelessness in the Netherlands. The bilingual nature of the website will ensure that the national developments are also visible for the international community. We hope that this resource will support and encourage the current positive changes in the Netherlands, and perhaps become a source of inspiration for creating other country-specific websites on statelessness.