Tuesday, 24 January 2012

Stateless and detained in the Netherlands

On December 16, the UNHCR brought out a report on statelessness in relation to the Netherlands. Reading it, it is quickly apparent that much improvement is needed in the interest of effectively addressing statelessness in this country and the report indeed makes a number of valid recommendations. What struck me most about the findings of the study however, are the often degrading and inhumane conditions that stateless people who find themselves here may be faced with. In particular the lack of a specific procedure to determine statelessness contributes to this situation. The result is that many stateless people have nowhere to go after being through every procedure possible. In many cases, according to the report, these people end up in illegal detention.

If a stateless person is not able to prove that his/her stay in the Netherlands is legal, this person can be detained. The detention is a vicious circle: detention, no prospect of deportation, with a release command to leave the country, arrest and potential declaration of undesirability for illegal presence, again detention. Before 2010, when the EU Return Directive took effect, there was not even a legal restriction on the maximum duration of detention. Despite the Directive, today it is still possible to continue the detention for up to 18 months. Arguments for this are often that "the third country national concerned does not cooperate," or that "the necessary documentation from third countries has been delayed.

Of the 24 interviewees in the report, 20 have gone through this disturbing process. They describe the detention conditions heavier than or similar to criminal detention. The idea of not having an outlook on deportation or knowledge of the length of detention causes psychological disturbance. Even when one is released, the anxiety becomes so great that the person does not dare to leave the shelter or the house. As an identification requirement exists since 2004 – meaning that everyone is expected to carry an official form of identification and proof of legal status with them at all times - further discouraging people from leaving the house, because the risk is greater to be detained again.

The issue is if a stateless person is not regarded as stateless he/she cannot effectuate the rights preserved in the 1954 Convention. A stateless person has great difficulty in proving his/her status as a stateless person due to several factors. An IND document that indicates citizenship may not be accepted as valid, or the state where the person comes from does not provide assistance in the clarification of nationality. The Dutch state also does not provide the necessary help, creating a tunnel without light for the stateless person.

In the Netherlands there is not a particular procedure that determines statelessness. Because of the lack of a procedure like this stateless individuals are always placed in the wrong corner.  A frequently made mistake is that stateless persons are put in the category of "unknown nationality”. Only after it becomes clear of what nationality the person is, their status is modified. But the burden to prove the nationality – or indeed statelessness - is entirely on the shoulders of the stateless individual. At present, the no-fault procedure offers a solution for some by recognising them as “non-removable”. While doing this you can claim a residence permit, it is no substitute for a statelessness determination procedure because it does not formally recognize stateless people as stateless. It is only a temporary solution, because the state cannot remove people who have nowhere to go, plus the procedure has a high burden of proof that can be very difficult for people to satisfy.

The absence of a legal process to determine statelessness creates degrading and inhumane conditions. To prevent more people ending up in a hopeless situation with psychological problems, to which the current Dutch government policy contributes, it is important to intensify measures to protect stateless persons. At the very least, a temporary residence permit could offer a solution until a statelessness determination procedure has been completed. In this way, at least the waiting will go by in acceptable humanitarian circumstances.    

Moshgan Wahedi, Intern, Statelessness Programme

No comments:

Post a Comment