International protection of stateless people
Worldwide, it is estimated that more than 12 million people are stateless. Stateless people possess no nationality and thus are not recognized as their nationals by any State in the world. Statelessness can have several causes, for example: gaps or inconsistencies in the nationality laws of countries, arbitrary, discriminatory denial of nationality to a particular population group by a State, disintegration of a State, lack of registration at birth, or loss of identity documents.
Missing a nationality has enormous consequences. Namely, without citizenship you have no access to rights and legal protection of the State in question. Since stateless persons are not recognized citizens anywhere, there is no country to take care of them. To fill this legal gap, dozens of countries, including the Netherlands, have signed two important statelessness treaties (the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention Limiting Statelessness). These treaties oblige States to protect stateless persons, and to prevent and eliminate statelessness.
Statelessness in the Netherlands
Over 4,000 stateless people live in the Netherlands, who are recognized as such by the government. In addition, there are over 80,000 people in the Netherlands who are registered as “nationality unknown. They can neither prove with documents that they have a nationality nor prove that they have no nationality, so their status remains unknown. Among these people are many stateless people. However, in the Netherlands we lack a procedure to legally establish statelessness, so the step to established statelessness cannot be made. This creates many problems. For example, they do not claim the Statelessness Conventions, since these only apply to recognized stateless persons.
The UNHC wrote a report on this issue, and the Advisory Committee on Immigration Affairs (ACVZ) also addressed the extremely vulnerable position of both recognized and unrecognized stateless persons in 2013. The reports urgently recommended that the Dutch government establish a determination procedure for statelessness and better protect the legal position of stateless persons.
Bill on determination procedure for statelessness
In response to the recommendations in the two reports, State Secretary of Security and Justice Dijkhoff wrote and drafted a bill on a determination procedure for statelessness in December 2016 for comments.
The fact that there is a bill is a positive development. Still, Denny’s PILP case (about which more below) shows that the bill needs to be adjusted in a number of ways if the proposed law is to actually provide the protection intended. Under the bill, the burden of proof to prove statelessness is entirely on the applicant and, in addition, the burden of proof is not specified. Currently, case law shows that this makes the burden of proof unreasonably heavy for undocumented persons. It is extremely difficult to prove with official papers that you belong to no state. We therefore advocate a shared burden of proof. In addition, under the current bill, recognized stateless persons do not receive the legal protection they deserve. The Netherlands is the only country of the 13 other European countries that have a statelessness determination procedure that does not want to link a right of residence to the determination of statelessness. Once again, stateless people will then lack crucial rights and legal protection.
The case of Denny
6-year-old Denny is a good example of the complexity surrounding the situation of undocumented migrants. Denny was born in the Netherlands and has a Chinese mother. The family has no residence permit and the father has never been in the picture. Despite several unsuccessful attempts to establish Denny’s nationality by his mother, the Red Cross and Refugee Council, the Chinese government would not cooperate in establishing Denny’s nationality, or statelessness. A request was therefore made to register Denny in the Municipal Basic Administration (then GBA, now BRP) as stateless. The municipality rejected this and the Dutch courts agreed. In the meantime, Denny continues to face the reality of not having a nationality. He, as a child, cannot resolve this situation and is completely stuck.
To help Denny, human rights lawyers Jelle Klaas (of PILP) and Laura Bingham (of the Open Society Foundations) together with Denny filed a complaint and attached letter for consultation against the Dutch State with the United Nations Human Rights Committee in November 2016. PILP considers Denny’s situation in violation of international law, which states that everyone has the right to a nationality. For more information on the complaint, see the Open Society Foundations website.
The Denny case demonstrates well the concrete problems for a child without nationality in the Netherlands. That is why we want the case to become part of the political process. The case was submitted in the consultation round for the bill, in November 2016. We also want to use the case to organize an expert meeting for Lower House members once the bill is on their agenda.
In late 2020, the United Nations Human Rights Committee issued a landmark ruling in the Denny case. The Committee ruled that the Netherlands is doing too little to guarantee children’s right to nationality. Within six months, the Dutch state must justify to the UN what actions have been taken to rectify this. To comply, the House of Representatives would have to amend the recently introduced bill on child statelessness. For more information, see an extensive blog by Jelle Klaas and Laura Bingham here.
Stateless people in detention
In January 2017, PILP, in collaboration with DLA Piper, began a legal investigation into stateless persons detained in immigration detention centers. The law states that an alien may be placed in detention for the purpose of deportation to his or her country of origin. According to established case law, this must be a “real prospect” of deportation, and precisely this prospect is lacking in the case of stateless persons. They have no country to return to because they are not recognized as nationals by any country. This makes the detention of stateless persons meaningless, arbitrary and unlawful in many cases.
A manual emerged from the legal research. The manual was created by PILP, ASKV and some legal scholars. This manual is intended for lawyers who take care of stateless persons in immigration detention. In July 2017, immigration lawyers received an email offering the manual on the condition that the immigration lawyers involve PILP and ASKV in proceedings that will be conducted in which the manual will be used.
This way we can see if the (human) rights mentioned in the manual have an effect in proceedings and if we should and can do more to support proceedings on statelessness and detention.
