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
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