Een van onze vrijwilligers, Katherine Skinner (LL.M University of Amsterdam), heeft een onderzoek gedaan naar de vaststellingsprocedure van staatsloosheid in Nederland. Lees het onderzoek hieronder (in het Engels).
Statelessness Determination Procedures: Deficits in the 2016 Dutch Proposal and European Solutions
The 2016 submission of ENS and ASKV as part of the consultation to the proposed Dutch statute on a statelessness determination procedure has proven indispensable for the following analysis, along with the Statelessness Index and ENS collaborative project found here.
Over half a million people in Europe are affected by statelessness. It has been identified that approximately only a dozen jurisdictions internationally, incidentally very few within Europe, have committed to implementing recognized statelessness determination procedures (SDP). SDPs are legal or policy mechanisms to identify and define individuals as stateless. The Netherlands is currently lacking such a procedure and although there is currently a legislative proposal being considered by the Dutch government, it is highly problematic. A shortage of international realisation of SDPs does not excuse the international obligations imposed on jurisdictions party to the respective international treaties. The Netherlands should amend the current proposal and aim to set a higher standard internationally in the protection of human rights with respect to stateless individuals.
The following comparative analysis will reveal that a few European jurisdictions have adopted either dedicated SDP’s or national policies which, in practice, provide solutions to the current problems identified in the proposal by the Ministry of Security and Justice in the Netherlands. Although the Netherlands does provide for a statelessness status, the procedures for the determination of such a status have remained severely lacking. One example of this deficit is disclosed on the Dutch government’s website which declares that only 4,000 people identify as stateless and a shocking 80,000 as nationality unknown. In reality, ‘nationality unknown’ is essentially a category for civil servants to classify individuals in the case they have not received adequate documents to register them as anything else. Therefore, removing an obligation for further investigation into the case of that individual’s nationality status, which is often likely to be stateless. An establishment of the status stateless allows that person to apply for a travel document and provides access to apply for Dutch nationality, whereas ‘nationally unknown’ does not. Interestingly, external unpublished reports from the Central Bureau of Statistics (CBS) described by a Dutch media source in 2017 illustrate a much different picture, claiming the numbers of stateless individuals are well over 12,000, largely due to the mass displacement cause by the ongoing conflict in Syria.
The following analysis hopes to provide some direction on how the Netherlands can meet its international obligations for the determination and protection of stateless individuals and shed light on how other European jurisdictions are finding effective ways to fulfill such obligations. If the Dutch government fails to improve the current proposal, it may signal to other jurisdictions to behave in a similar manor. This in turn could drive down the standard globally, resulting in far reaching negative impact for the international stateless population.
Legal Grounds for the Obligation of SDP’s
The Netherlands is party to all of the international and regional treaties that exist for the protection of stateless people. The international legal basis for the creation of statelessness determination procedures is found in an implicit obligation of countries party to the UN Convention Relation to the Status of Stateless Persons 1954 to identify stateless persons within their jurisdiction in order to provide them with appropriate treatment in compliance with the Convention. The 1954 Convention also establishes the international legal definition of a “stateless person”, but is silent on how States are to determine whether an individual is stateless. Regardless of this it has become evident that the most efficient and effective means for signatories to identify the beneficiaries of the Convention is to form an SDP.
Statelessness Determination in the Netherlands
It has been acknowledged by the High Court in the Netherlands, in the Denny Zhou case, that Dutch national laws violate the Netherlands’ commitment to UN statelessness treaties, yet despite this the court claimed its hands were tied due to legislative gaps and deficiencies. The Netherlands is taking steps to fulfilling the promised made in 2014 to enact an SDP. Unfortunately, there are obvious inadequacies within the current legislative proposal. A report released by the European Network on Statelessness (ENS) and ASKV Refugee Support, two institutions deeply knowledgeable on the issue of statelessness and dedicated to the rectification of statelessness determination within the Netherlands, have identified these issues. According to these organizations the current proposal is lacking in the following aspects:
- Article 2(1) of the proposal requires that a request for statelessness determination can only be submitted in the case of an “immediate interest”.
- No legal stay is provided following statelessness determination.
- The burden of proof is on the applicant.
- Stateless children born in the Netherlands without legal stay have to wait longer (5 years instead of 3) to opt for Dutch nationality and are required to have a “stable principle residence”.
Furthermore, the Statelessness Index developed by the ENS is one of the most operative tools established in the recent years. It compares the deficits in law and policy on statelessness between European countries. The tool makes this assessment based on five relevant themes; international & regional instruments, stateless population data, detention prevention and reduction, and statelessness determination and status. Each of these categories are essential to understanding how a country’s policies affect the risk of statelessness. However, as mentioned before, we will primarily be looking at SDP’s which fall under the category of statelessness determination and status.
Statelessness determination procedures may be developed in various ways to fit a national system while remaining operational. The Netherlands could take guidance from a number of European jurisdictions who have created adequate procedures through legal, administrative or judicial processes. Specifically, we will point to countries highlighted within the index: the United Kingdom, France, Moldova and Switzerland, as well as including some other European good practice policies. The following section will address the policy deficits listed above and provide examples of better practices found in European jurisdictions as possible solutions.
Access to Determination Procedure
The Netherlands: Policy Deficits
One of the most glaring insufficiencies in the current proposal published by the Ministry of Security and Justice is the accessibility of the SDP. As introduced earlier the current proposal relies on a concept that a request for stateless determination can only be submitted in case of ‘immediate interest’, as stated in article 2(1).
The concept of ‘immediate interest’ has not been defined further within the legislative proposal, which will cause a great amount of legal uncertainty. In past case law, unfortunately the courts have very narrowly interpreted what would be deemed an ‘immediate interest’ in this sense. More specifically, the court in The Hague could not understand what the immediate interest of an individual in that case could be when a claim for statelessness determination would not legally result in the issuing of a Dutch residence permit.
From this standpoint, the court seemingly views the inherent nature of the concept ‘immediate interest’ as an impossible threshold to reach, creating a substantial barrier to access the procedure and undermining the development of such a procedure in the first place.
Many European jurisdictions have found effective ways to make the SDP much more accessible to vulnerable individuals.
- One of the longest standing SDP’s established in law in the 1950’s.
- The process is concentrated in the hands of the The French Office for the Protection of Refugees and Stateless Persons (Office Français de protection de réfugiés et des apatrides – OFPRA).
- The OFPRA is the only body competent in these SDP’s and must consider all submitted applications.
- This process does not require that the applicant has lawful stay in France and is free of charge. Furthermore, there does not exist any time limit within the law that could restrict access to the SDP.
- Well established and dedicated SDP with the Home Office as the centralised authority to deal with such procedures.
- Mandatory form which must be completed in English and the authorities are obliged by law to consider this application. Once completed and submitted, this application is free of charge.
- Similar to the French procedure, there is no requirement of lawful stay to access the SDP and no time restrictions to access to the application.
- One of the most comprehensive and detailed legislative SDP’s established in law in 2011 under the Bureau of Migration and Asylum (BMA). The responsibility of such procedures is allocated to the Statelessness Unit.
- The level of accessibility provided by this procedure should serve as a model to any jurisdiction which is seriously developing an SDP. Going beyond the good practices above (free of charge, no time limits, no requirement of legal stay, obligation to consider the application).
- The process may be started at the request of an individual or ex officio by the competent authority, submitted either orally or in writing with the provision of an interpreter if the individual does not speak the native language.
- There is no specific form, nor instruction on how to make an application. Any information and evidence necessary to support the application may be presented. During the interview, an officer will complete all the mandatory forms.
- An approach that does not include a formalized procedure within the law. Instead it is governed by a general administrative procedure which is initiated upon application.
- The guidelines on the application are fairly open, it is free of charge and requires that it be a well reasoned submission including all available evidence, submitted in one of the Swiss official languages (German, French, or Italian).
- However, the possibility exists to submit an application in the native tongue of the applicant as long as it includes a certified translation. The Swiss authority responsible, the State Secretariat for Migration (SEM), is obligated to consider each application.
- To access the SDP no requirement of lawful stay is required.
- Sets a great example of how to balance between the centralization of expertise to conduct statelessness determination within a specialized administrative or judicial area of government, while still providing reasonable access to application procedures and government representatives across a country. This ensures easy geographical access to procedures while still ensuring the civil servants making the decisions are knowledgeable of the SDP and its consequences.
- Applications can be made written or orally in any language. There is no fee for the procedure or a time limit for access to the SDP. There is an obligation for authorities to consider the application and the entire procedure is conducted by the same national authority for administrative coherence.
The requirement of an ‘immediate interest’ introduced in the current proposal, until there is access to residency post-determination, is pointless and only upholds the barriers that are already in place within the Dutch system. The aforementioned jurisdictions all provide unlimited access to their SDP’s and if the Netherlands wants to invoke an effective procedure that complies with its international treaty commitments, it would be advised to do the same.
Legal Stay Post Determination
The consequences of statelessness determination are, of course, only helpful if they substantively change an individual’s legal status. The obvious result of such a determination should be access to nationality in the country of residence.
The Netherlands Policy Deficits
Unfortunately, the identification of a person as stateless in the Netherlands does not result in permission to stay. Statelessness is merely an administrative category in Dutch law, not an immigration status or protection status. Of the thirteen countries the Dutch proposal claims to follow, it will be the only country thus far to not establish a right of residence for individuals determined as stateless.
The current administrative procedure (BRP) only allows legally staying persons to be registered as stateless. If a person is provided with a statelessness registration they can:
- Request a travel document.
- Naturalize through a simplified procedure (after three years of legal stay, foreign passport not required, lower costs).
A child (if legally residing) may be able to access the right of option to Dutch nationality. Were the 1954 Convention to be applied directly, there is also a right to identity documents, however, stateless persons are currently not able to enforce that right in court and no competent authority is appointed to issue these identity documents.
In the case Kuric and Others v. Slovenia, the European Court of Human Rights recognized that a refusal to grant residence rights to identified stateless individuals possibly constitutes a violation of Article 8 ECHR, namely the interference with the exercise of the applicants’ rights to respect for their private life and/or family life.
- The recognition of statelessness leads to the permission to stay under a ‘private and family life’ stay permit at a cost of 19€.
- The Prefecture of residence of the individual has the autonomy to grant this permit and it may be withheld on the grounds of public order and safety if the applicant is deemed a threat.
- Stateless individuals can naturalise after 5 years of legal stay, shortened to two years if they receive a Masters degree in France.
- Naturalisation costs 55€ and will include a citizenship and language test at a B1 spoken level (this is the requirement for all applicants for French nationality).
- Has enacted a habitual rather than legal residence policy.
- Limited leave to remain with be granted for 30 months, this will be continually granted if the stateless person fulfills their obligations as an immigrant. They can apply for indefinite leave to remain after 5 years of legal habitual residence and after 1 year indefinite leave to remain residence, may begin naturalisation procedures.
- The one downside is that the costs of naturalization for individuals in the UK are prohibitively high.
- Recognition of statelessness results in a legal status which grants permission to stay. This status is granted immediately and indefinitely without any other requirements.
- Accelerated naturalisation procedures exist for stateless individuals in 8 years rather than the standard 10 (although accelerated this is comparatively a long time to wait). For persons married to a citizen it is 5 years and 3 for minors.
- A residence permit is not granted immediately but after an application process. This is mostly due to the different authorities authorised for each decision. The local canton of residence must be the authority to grant the residence permit.
- This is a one-year renewable permit including a travel document which permits access to health care, social security and employment.
- There is an accelerated naturalization procedure for individuals married to Swiss citizens and stateless children.
- Otherwise, stateless individuals are able to naturalize by way of ordinary naturalisation after 10 years of legal residence.
- After three years of long-term or permanent residence stateless individuals have the right to apply for citizenship. This is a reduction from the standard 5 year naturalization procedure.
It is recommended in the report that once stateless individuals have been recognized, this should be a decisive factor in issuing a residence permit. This could fulfil the objective to provide a solution to stateless persons who cannot reside legally in any other country in the world. It is also strongly suggested that the failure to grant the right of residence for stateless persons in the current proposal also obstructs access to, among other things, education, health care and the labor market. It is plainly in the best interest of both the individual and Dutch society to afford these basic rights which are fundamental to integration and economic independence. If this is not reconsidered it is likely some individuals will remain—unable to contribute to society or leave due to lack of documentation—in perpetual limbo in the Netherlands.
Burden of Proof
The Netherlands Policy Deficits
In the Netherlands, the burden of proof for evidencing statelessness is entirely on the applicant. When they request to change their registration from ‘nationality unknown’ to ‘stateless’, the applicant is asked to provide documents to support the claim. This is confirmed by a judgment from the Court of Utrecht on 19 February 2013 (SBR 12/3509, para. 6), and by the Raad van State (High Court, para. 4.2-3), where it has been stated that the applicant is responsible for supplying documents to prove a statelessness claim. There is no responsibility on the municipality to research the statelessness of the applicant. This is very problematic due to the specific nature of statelessness applications. Individuals who are stateless by definition lack documentation and likely the resources to obtain any supporting evidence. Unfortunately, the explanatory memorandum of the current proposal does not require any further improvement or assistance to applicants.
- Authorities adopt a shared burden of proof with applicants. The guide for the authorities never mentions an applicant’s obligation to ‘prove’ statelessness, but rather the authority’s methodology in establishing the facts.
- It is enough for the applicants to show they have tried to obtain the nationality they would otherwise be entitled to, if this is relevant in the circumstances.
- The standard of proof is slightly higher than for asylum applicants.
- Although the burden of proof is on the applicant, decision makers are obliged to assist by carrying out research and enquiries on the applicant’s behalf. This obligation is exemplified for child applicants. Essentially this works out to be similar to a shared burden of proof.
- The overall standard of proof is ‘balance of probabilities’. This is slightly higher than the standard for asylum seekers.
- The burden of proof is shared between the applicant and the State.
- Although not established by law the standard of proof tends to be the same as for asylum seekers.
- The burden of proof is on the applicant to provide documents, however, the relevant authority (SEM) has an obligation to determine the facts, and the applicant has a duty to cooperate with this process.
- The standard of proof remains fairly inconsistent because there is no special provision on this standard. It seems the default in this regard is ‘full proof’ that the applicant is stateless.
- The burden of proof is shared. The authority entitled to make a decision on a statelessness case is authorized to do so regardless of missing documents from the applicant. The standard of proof in this case is equal or lower to that of an asylum seeker.
In Spain and Hungary, the burden of proof for all applicants is also shared with the relevant authority. A best practices recommendation would require the applicant to present all information they can reasonably acquire and for the state to execute supplementary research. The Dutch government is in a much better position to request information (particularly from other countries) and generally has superior access to resources.
Protection of Stateless Children
The Netherlands Policy Deficits
Positively, in the new proposal it has been decided to revoke the legal residence requirement for children. Unfortunately, in light of this change it was opted to create separate grounds for legally and illegally residing children. This discrimination will require children without a residence permit to wait longer to opt for Dutch citizenship. Furthermore, for illegally residing children criteria of ‘stable principal residence’ have been developed. The main issue is that this requires a cooperation requirement for the parents of stateless children, who must not have withdrawn from the supervision of the authorities during their stay in the Netherlands. This requirement is not allowed under the 1961 Convention and is in breach of Article 2 of the Convention on the Rights of the Child, which prohibits the discrimination of children on the basis of circumstances or activities of the parents.[43
A system of automatic conferral of nationality to an otherwise stateless child at the moment of birth is the most effective way to ensure that childhood statelessness and its harsh consequences are entirely avoided. In Europe out of 41 countries considered, 17 have procedures where a child born on the territory who would be stateless, automatically obtains the state’s nationality which is in line with the international standards: Belgium, Bosnia and Herzegovina, Bulgaria, Finland, France, Greece, Ireland, Italy, Kosovo, Luxembourg, Moldova, Montenegro, Poland, Portugal, Serbia, Slovakia, and Spain. There are numerous states which provide for an application procedure to allow otherwise stateless children born on their territory to acquire a nationality. However, only two of these states have a system which is completely in line with the standards outlined in the 1961 Convention – the United Kingdom and Malta.
Statelessness is a legal fact and the aim of an SDP is to determine whether a person is stateless in each individual case. Assigning rights through a procedure which puts weight on the behavior of the parents is wrong and should be legally irrelevant. Dutch nationality law recognizes nationality to a foreign national that has been born stateless in the Netherlands and has had admission and principal stay for a continuous period of at least three years. For compliance with international standards it is strongly recommended that the Dutch government revise the proposal in a way that stateless children born in the Netherlands, without legal status, will also fall under this law. If this policy remains unchanged, the objective of the SDP is strongly undermined, as it does not proactively move towards eliminating statelessness in the Netherlands.
The purpose of the above analysis was to show that the Netherlands has considerably failed in its international obligations for the protection of stateless individuals. Although there are aspects of the current proposal for a dedicated statelessness determination procedure that are positive, a number of key aspects remain suboptimal and will prevent improvement to the current regime. ASKV and the European Network on Statelessness have provided a solid response in their recommendation to the Dutch government by highlighting the practical policy deficits.
The good practice examples provided here from other European jurisdictions should help inform the Dutch government on how to improve the current proposal and encourage the Netherlands to raise the standard for the protection of the rights of stateless persons. Essentially these policy changes would entail: unlimited access to SDP’s, stateless determination as a legal basis for issuing a residence permit, implementing a shared burden of proof in the determination process and finally, to treat all stateless children equally and independently of their parents’ actions.
 UNHCR, Global Trends; Forced Displacement in 2015, Annex Table 1; available at http://www.unhcr.org/statistics/unhcrstats/576408cd 7/unhcr-global-trends-2015.html
 Find the government statement in English at https://www.government.nl/topics/dutch-nationality/statelessness
 For further insight into the issues of ‘nationality unknown’, see Katja Swider, ‘Statelessness Determination in the Netherlands’, Amsterdam Center for European Law and Governance Working Paper Series 2014-04, 18 for further detail.
 Lamsvelt V, ‘Aantal staatlozen in Netherland neemt toe’ eenVandaag (2017) The article can be accessed (in Dutch) at <https://eenvandaag.avrotros.nl/item/aantal-staatlozen-in-nederland-neemt-toe/>
 ASKV/Refugee Support and the European Network on Statelessness joint submission for consultation of the proposed statue law for a statelessness determination procedure by the Ministry of Security and Justice in the Netherlands, 25 Nov 2016
 UN Convention Relating to the Status of Stateless Persons 1954; UN Convention on the Reduction of Statelessness 1961; European Convention on Nationality 1997; European Convention on Human Rights 1950; Council of European Convention on the Avoidance of Statelessness on Relation to State Succession 2006; Directive 2008/115/EC of the European Parliament and of the Council (EU Returns Directive); Convention on the Rights of the Child 1989; International Covenant on Civil and Political Rights; International Covenant on Economic, Social and Cultural Rights 1966; Convention on the Elimination of all Forms of Discrimination Against Women 1979; Convention Against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment 1984; International Convention on the Elimination of All Forms of Racial Discrimination 1965
 UN Convention Relating to the Status of Stateless Persons 1954; UNHCR, ‘Establishing Stateless Determination Procedures to Protect Stateless Persons’, Good Practices Paper Action Plan 6 (2016) 2
 __ v Executive of the Municipality of Utrecht, Council of State (Administrative Law Division), Judgement of 21 May 2014 (with English trans.), at paras 4.1-44
 Supra note 5
 The Statelessness Index can be accessed at <https://index.statelessness.eu/>
 Rechtbank Den Haag, JV 2015/158, r.o. 4.2, 4.3
 ENS Index Survey France (2018) 16-17
 UK Visas and Immigration, Asylum Policy Instruction, Statelessness and Applications for Leave to Remain, Version 2.0, Feb 2016
 Immigration Rules, Part 14: stateless persons: https://www.gov.uk/guidance/immi-gration-rules/immigration-rules-part-14-stateless-persons
 Law 200/2010 on foreigners in the Republic of Moldova, available in English at: http://www.refworld.org/docid/3ae6b4f520.html
 ENS Survey Index Moldova (2018) 13; Law 200/2010 on foreigners in the Republic of Moldova, available in English at: http://www.refworld.org/docid/3ae6b4f520.html
 ENS Survey Index Switzerland (2018) 13-15
 Good Practices Paper, Ending Statelessness Within 10 Years, UNHCR, Action 6, 4
 Act II of 2007 on the entry and stay of third-country nationals, Section 76 (1)-(2) (HU); Government Decree 114/2007. (V. 24.) on the execution of Act II of 2007 on the entry and stay of third-country nationals, Section 159 (1) (HU)
 European Network on Statelessness, Statelessness Determination and the Protection Status of Stateless Persons, October
2013, p. 36
 Rechtbank Den Haag, 19 February 2014 (SGR 12/2490)
 Kuric and Others v. Slovenia [GC], no. 26828/06
 CESEDA Article L.313-11 10°, CESEDA Article L.313-11 10°, CESEDA Article R 812-3
 Immigration Rules, Part 14: stateless per-sons, paras. 402, 403(c) & 404: https://www.gov.uk/guidance/immigra-tion-rules/immigration-rules-part-14-state-less-persons
 British Nationality Act 1981, Chapter 61, Section 6 & Schedule 1 (naturalization), Section 1 & 3 (registration of children), Schedule 2 (rights of those born stateless to parents holding a form of British nationality or born stateless in the UK)
 Law 200/2010 on foreigners in the Republic of Moldova
 Law 1024/2000 on Citizenship of the Republic of Moldova, Art. 17
 Article 59(2)(b) Foreign Nationals Act
 Article 9 Citizenship Act (2014)
 Supra note 5, 3-4
 Katja Swider, 2014, Statelessness Determination in the Netherlands, Amsterdam Centre for European Law and Governance, Working Paper Series 2014, 12-16
 Guide of Procedures, 2016, p.40-41
 Ibid, 41
 Home Office, UK Visas and Immigration, Asylum Policy Instruction, Statelessness and applications for leave to remain, Parts 4.2 & 1.4
 Law 200/2010 on foreigners in the Republic of Moldova
 Article 12 ff. Administrative Procedure Act (APA); Judgment of the Federal Administrative Court, F6073/2014, 6 April 2017 of 2017/04/06
 Law on Stateless Persons, 2007, Art. 4(2): https://likumi.lv/ta/en/en/id/84393-law-on-stateless-persons; Administrattīvā procesa likums (Administrative Procedure Law), 2017: http://likumi.lv/doc.php?id=55567
 Supra note 5, 5
 ASKV/Refugee Support joint submission, supra note 4
 Convention on the Rights of the Child, article 2
 European Network on Statelessness, ‘Preventing Childhood Statelessness in Europe: Issues, Gaps and Good Practices’, 2014, 11
 Article 6(b) of the Dutch Nationality Law
 Supra note 5, 6