International rights of the stateless

Worldwide, more than 12 million people are stateless. Stateless people do not have access to proof of nationality, and are therefore not recognised by any State as a citizen. Statelessness can have many causes, including gaps or contradictions in a state’s law, discriminatory rejection of citizenship for a certain group, the dissolution of a state, or the loss of identity documents.

Being stateless has far-reaching consequences. Without citizenship, you do not have access, nor are you entitled to the rights and legal protections that come with being a citizen of a state. To close this legal gap, dozens of states, including the Netherlands, have signed and ratified two important conventions: the 1954 Convention Relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness. These conventions demand of the signees to prevent and protect against statelessness.

Statelessness in the Netherlands

More than 4,000 stateless people are currently living in the Netherlands. In addition, another 80,000 people are registered as ‘nationality unknown’, demonstrating that they can neither prove their nationality nor prove that they do not have one. Among this group many are indeed stateless, however the Netherlands lacks the procedures to legally determine statelessness. The lack of such procedures is the source of many problems, as those with unknown nationality are further denied the protections available under the conventions to those with stateless status.

The UNHCR released a report addressing this issue. The Advisory Committee on Migration Affairs (ACVZ) also published a report on its findings on the vulnerable position of stateless persons in the Netherlands in 2013. In the report, ACVZ stated that a procedure to determine statelessness is necessary to give effect to certain rights under the conventions and recommended the establishment of such a procedure for the protection of stateless people in the Netherlands.

Legislative proposal on the determination of statelessness

In 2016, in response to the recommendations, State Secretary of Security Klaas Dijkhof presented a legislative proposal for a procedure to determine statelessness. Though an encouraging development, the draft requires further adjustment to ensure the necessary legal protections for stateless people. For example, the proposal currently holds that the burden of proof to show statelessness is on the applicant, a burden disproportionately extensive for those who are stateless. Furthermore, the proposal fails to specify the extent of the proof necessary. It is the PILP’s position that the burden of proof should be shared in these cases.

Moreover, those recognized as stateless are often not provided the legal protections they are entitled to. Of the 14 European countries that ratified the conventions on statelessness, the Netherlands is the only country that does not provide a residence permit for those with stateless status.

What does the PILP do?

The case of Denny

The case of 6-year-old Denny is an excellent example of the complex situation for undocumented people. Denny was born in the Netherlands, his mother is from China and his father is not present in his life. The family does not have a permit to stay in the Netherlands. Despite several attempts to establish his nationality by his mother, the Red Cross, and Vluchtelingenwerk, the Chinese government refuses to cooperate in establishing his nationality. A request was therefore made to designate Denny as stateless in the Municipal Personal Records Database. The municipality then declined the request and a judge supported that decision. In the meantime, a child is facing the reality of not having a nationality without any responsibility for or control over his situation.

The PILP considers Denny’s situation in violation of international law, which states that everyone has the right to a nationality. As such, the PILP and Open Society Foundations have filed a complaint with the UN Human Rights Committee on Denny’s behalf. Laura Bingham, an American human rights lawyer, and Jelle Klaas, Denny’s Dutch human right lawyer, wrote the complaint and letter of consultation. For more information on the complaint, take a look at our news message or the website of Open Society Foundations.

Denny’s case demonstrates the legal issues faced by those without documented nationality in the Netherlands. As a measure of influence, the case was submitted during the consultation round of the legislative proposal in November 2016. In order to raise awareness, we hope to invite parliamentarians to an expert meeting on statelessness.

At the end of 2020, the UN Human Rights Committee has taken a ground breaking decision in the Denny case. The 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. To read more, please see our press statement or the blog by Jelle Klaas and Laura Bingham.

Statelessness and detention

In January 2017, the PILP began working with DLA Piper, a multinational law firm, on a legal inquiry into stateless people in detention centres. Domestic law states that a foreigner can be placed in a detention centre with the purpose of being extradited to his or her country of origin. According to established case law, the prospect of deportation needs to be attainable – criteria inherently unattainable in the case of stateless people with no documented country of origin. There is therefore neither purpose nor legal ground for detention in these cases.

The legal research concluded with the production of a manual developed by the PILP, ASKV, and legal scholars. The manual is meant to assist lawyers that help stateless people in detention. In July 2017, migrant lawyers in the Netherlands received an e-mail offering the manual under the condition that they will involve the PILP and ASKV in any litigation in which the manual is used. That way, the PILP can evaluate whether the human rights mentioned in the manual have any impact on the litigation, and whether more could be done to support litigation on statelessness and detention.