Back to square one for Dutch authorities after UN Committee finds violations of the right to nationality for children in the Netherlands

Last week, the UN Human Rights Committee found that the Netherlands does too little to guarantee the right to nationality for children. The Dutch State must now report back to the UN within six months, stating which actions have been implemented to right this wrong. In order to meet the requirements as laid down in several international legal documents, Dutch authorities must amend their recently proposed draft legislation on child statelessness.

January 4th, 2021 – If you are stateless, you are in big trouble, considering that your nationality grants you access to rights, legal protection, a place to call home and the possibility to participate in society. This is why the right of every child to a nationality has been laid down in several international treaties, to which the Netherlands is a party as well. As a result of shortcoming legislation and far-reaching bureaucracy, children born in the Netherlands are insufficiently protected from statelessness.

A groundbreaking verdict

A few days before the turn of the year, the UN Human Rights Committee has taken a ground breaking decision in the case of 10-year-old Denny and other people without a nationality in the Netherlands. This decision brings new hope to all those that were born in the Netherlands and whose nationality has been registered as ‘unknown’.

The Human Rights Committee not only ruled that Denny’s nationality status must be reconsidered, it also decided that Dutch legislation on the matter must be amended to prevent similar situations in the future. Too many children in the Netherlands are currently stuck in a vicious cycle as a result of impossible requirements that are set for the recognition of statelessness. For example, the Dutch State does not take into account the barriers that inherently exist in proving that you do not have something. For many, this results in a registration as ‘nationality unknown’, such as in the case of Denny and 6.303 other children under the age of 14 in 2019. The ‘nationality unknown’ status denies access to a special procedure that grants Dutch nationality to stateless children. Additionally, Dutch legislation currently demands that the child has enjoyed a minimum of three years of legal residence before a stateless child who is born in the Netherlands can acquire the Dutch nationality. This requirement stands in stark contrast to international norms.

According to Jelle Klaas of PILP-NJCM, one of the lawyers that represents Denny and the organisations that fight for the position of stateless people in the Netherlands, the verdict of the UN Human Rights Committee is:

‘a great victory for human rights. The Committee does not only say something about the mistakes that have been made in Denny’s case, but also clearly stipulates what can and must be different for Denny and all other stateless children in the Netherlands’.

Dutch authorities’ turn again

A set of two pieces of draft legislation that are meant to improve the treatment of stateless people in the Netherlands have recently been submitted to the Dutch House of Representatives. The contents of this legislation is, however, currently highly inadequate, according to the UN Human Rights Committee and Dutch experts. The draft legislation for instance proposes the introduction of a waiting period of 10 years before a child that was born in the Netherlands can file a request to obtain Dutch nationality. That means 10 years of living in uncertainty, mostly without rights and a nationality. The main criterion that will be taken into account is whether a child enjoys a ‘stable main residence’ in the Netherlands.

According to Laura van Waas, co-director of the Institute on Statelessness and Inclusion, an expert centre based in the Netherlands that is committed to the rights of stateless people at home and abroad,

‘This is an attempt by the Dutch State to facilitate stateless children without a legal residence status, but with the additional requirement of a ‘stable main residence’ nothing really changes and the right to a nationality of children will still depend on the behaviour of the parents.’

Van Waas continues:

‘The interest of the child must be prioritised and Dutch authorities must not settle for a measure that is only symbolic.’

The recent verdict of the UN Committee does not stand alone. The recently proposed legislation on stateless children is not in line with an advice from the highest Dutch administrative court (Raad van State), nor with recommendations made by, amongst others, the UN Committee on the Rights of the Child. It is thus clear that these pieces of legislation must be revised.

The Dutch government has promised the House of Representatives that the verdict of the UN Committee will be discussed in Parliament. The organisations, experts and lawyers that are active on the topic of statelessness in the Netherlands (see below) are happy to think along with the Dutch authorities in what ways the Netherlands can stop the violation of human rights within this context.

Institute on Statelessness and Inclusion, ASKV, Defence for Children Nederland, Nederlands Juristen Comité voor de Mensenrechten (NJCM) en VluchtelingenWerk Nederland.