Growing support for establishment of statelessness procedure in the Netherlands

At the end of 2011, UNHCR published the findings of a mapping project which looked at the situation of stateless people in the Netherlands. While the country has been a party to both UN conventions on statelessness for several decades, this study uncovered a number of gaps in the implementation of these international norms. Perhaps the strongest recommendation to come out of the research conducted was the need for the establishment of a statelessness determination procedure, which is currently lacking in the Dutch context. Due to this gap, the report suggested, it was unclear whether the Netherlands was meeting its international commitments towards stateless people. Indeed, there were indications that - for some stateless people at least - the protection fell some way short of the international standard. 

When the Netherlands mapping study was launched, it attracted some interest from the national media and subsequently also an official response from the Dutch Cabinet to the recommendations made. However, the former was short lived and the latter was in the form of a confidential letter directed to UNHCR, so there was no further public debate on the way forward. Now, one year on, there is a renewed effort to generate discussion on what legal or policy measures are needed to improve the protection of stateless people in the Netherlands.

On 13 December 2012, a symposium entitled “International developments in the field of statelessness and the situation in the Netherlands” was held at Tilburg University. It was convened by the Statelessness Programme of Tilburg Law School, in cooperation with the universities of Leiden and Maastricht and the office of UNHCR in the Hague. The programme offered participants the opportunity to learn about and reflect on the many currently unfolding developments relating to statelessness across the globe and, in particular, those elsewhere in Europe. On the specific issue of statelessness determination procedures, three international experts offered different perspectives on the value and the various practical considerations of establishing such a mechanism:

-          Inge Sturkenboom, Statelessness Protection Officer for Europe with UNHCR, explained what the approach to this question is in the recently established UNHCR guidelines on statelessness, which provide authoritative interpretation of how the 1954 Convention relating to the Status of Stateless Persons is to be implemented in practice.

-          Gábor Gyulai, Chairman of the European Network on Statelessness, demonstrated some of the ways in which statelessness determination procedures have taken shape across Europe and discussed some of the pros and cons of different approaches.

-          Tamás Molnár, Senior Legal Advisor for the Hungarian Ministry of Interior, offered a government’s perspective by describing the process by which a determination procedure was adopted in Hungary and how it functions in practice.

During the afternoon, the symposium participants divided into a number of workshops to discuss the situation in the Netherlands in greater detail. Two of the groups dealt specifically with the question of when and how statelessness is currently established in the Dutch context and debated whether there is a need for a dedicated procedure.

The first of these workshop sessions took a closer look at the procedure for establishing a person’s nationality for the purposes of registration with the municipal authorities. A consensus was quickly reached that the Dutch municipalities do not currently have clear guidelines on the establishment of statelessness for individuals who approach the office for registration, nor are the municipalities the most suitable site for statelessness determination. The participants - who included civil servants from several municipal authorities and lawyers with many years of experience in dealing with relevant cases - raised a variety of concerns. These included doubts as to the level of expertise and the tools available to municipal officials for the purposes of statelessness determination, as well as the observation that there is already a wide divergence in practice when it comes to registering a person’s nationality.  

The second workshop to consider the question of statelessness determination procedures was that focusing on the Dutch ‘no fault’ policy. The Statelessness Programme has been conducting research over the past few months on the functioning of this non-statelessness specific protection mechanism, which offers an avenue to protection (and a residence status) for some stateless people, but on the basis of a finding that they cannot be expelled from the country rather than specifically on the ground of statelessness. One of the main findings of the analysis of ‘no fault’ case files that was presented during the working group was the fact that statelessness appears to be neither a matter for investigation during this procedure nor of influence on its outcome. Thus, as the workshop participants from the Migration Policy Department of the Dutch Ministry for Security and Justice confirmed, the ‘no fault’ procedure does not lead to the determination of statelessness. The Statelessness Programme researchers pointed out that this makes it difficult to draw conclusions as to the effectiveness of the ‘no fault’ policy as a means for securing protection for stateless people.

Meanwhile in one of the other workshops, where the European Court of Human Rights’ role in addressing statelessness was the subject of debate under the guidance of Prof. Egbert Myjer (former Dutch judge at the ECtHR), the issue of determination procedures also came up. Participants questioned whether the lack of an evident procedure for claiming recognition as a stateless person in order to enjoy the specific entitlements that are attached to that status – such as access to a travel document or to facilitated naturalisation under Dutch law – could be deemed a violation of the European Convention guarantees relating to the right to an effective remedy.  

The various discussions during the symposium and the aforementioned workshops highlighted the need to re-open the discussion on the establishment of a clear procedure for the determination of statelessness in the Netherlands. On the occasion of the symposium, the Netherlands Institute for Human Rights made a call, echoing the recommendation from last year’s UNHCR report, that effort be made to remedy this significant gap in Dutch law. The Institute points out that effective statelessness determination is of great importance both to the individual who is seeking to enjoy a minimum standard of living and to the Dutch state which has made specific commitments to the protection of stateless people through its ratification of the 1954 statelessness convention. The Netherlands Institute for Human Rights therefore called for the establishment of a dedicated statelessness procedure that incorporates all necessary due process guarantees.

The Statelessness Programme will continue to follow this debate closely and provide an update on any relevant developments through this blog. In the meantime, some snapshots and video extracts of the 13 December symposium can be found on our facebook page: www.facebook.com/StatelessnessProgramme.

Laura van Waas, Senior Researcher and Manager, Statelessness Programme

A Call to Include the Stateless on International Human Rights Day

This statement was issued on Monday the 10th of December - on the occasion of Human Rights Day - by the European Network on Statelessness, a civil society coalition of which the Statelessness Programme is an active member. For more information on the work of the network, please visit the website at www.statelessness.eu.

Today, as the world marks international human rights day, millions of stateless persons continue to live in silence and exclusion, unable to participate in public life as equals, to freely organise and express themselves and to associate with others. The focus of this year’s celebration - ‘inclusion and the right to participate in public life’ – is consequently particularly pertinent to the stateless among us. Under this theme, the provisions in the Universal Declaration of Human Rights (UDHR) which enshrine the freedom of assembly and association (Article 20), the right to take part in elections, in public life and decision-making (Article 21) and the freedom of expression and opinion (Article 19) are being celebrated, scrutinised and reflected upon worldwide.

All persons in Europe should benefit from the protection of these rights provided for by the UDHR, the International Covenant on Civil and Political Rights (ICCPR) and the European Convention on Human Rights. However, hundreds of thousands of stateless persons in Europe continue to have little or no access to these and other fundamental rights despite the region’s advanced human rights framework. The daily exclusion and voicelessness experienced by over 600,000 stateless persons in Europe and 12 million worldwide, bring into stark perspective the importance of human rights which guarantee our ability to be heard, to associate with others and to participate in democratic processes.

Decades after ‘universal and equal suffrage’ has been achieved through long and difficult struggles to secure the rights of women and minorities in Europe, stateless persons remain without a right to vote – politically voiceless and democratically irrelevant.

Stateless persons are entitled to freedom of association and expression under international law. However, in practice they face significant barriers in realising these two fundamental freedoms which are cornerstones of both human rights law and democratic participation. The voice of stateless persons has largely been rendered mute, as they are excluded from mainstream society. Stateless migrants in Europe are often viewed as illegal immigrants and criminals who must be dealt with harshly, through detention and futile efforts at removal. Equally, stateless populations that have lived in Europe for generations are likely to be minorities that are discriminated against, treated with suspicion and shunned by society at large. Stateless people often lack resources to organise themselves into effective movements, and human rights law has not been adequately enforced to ensure that they too enjoy their fundamental rights.

The European Network on Statelessness (ENS) is a civil society alliance with over 60 members in over 30 countries committed to address statelessness in Europe. We believe that all human beings have a right to a nationality and that those who lack nationality altogether are entitled to adequate protection – including the freedom to speak and be heard, to associate with others and to partake in democratic processes. In light of strong pledges made by many European countries to end statelessness, identify and protect stateless populations and ensure their enjoyment of human rights, ENS marks international human rights day by drawing attention to the hundreds of thousands of stateless persons in Europe, whose voices should count as much as our own, but do not.

As Europe and the world mark the importance of the right to take part in elections and public life and the freedom of expression and association, celebrate the individual and collective struggles that have secured these rights for all, and recognise the positive impact they have made on countless individuals and entire nations, we call on countries in Europe and elsewhere to end statelessness and ensure that those without a nationality are not also deprived of a voice and a stake in our collective future.