In the state but not of the state – stateless or nationality unknown in the Netherlands

Stateless or nationality unknown

In this blog I want to look at what it means to be stateless or of nationality unknown 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’ ¹. The Dutch government gives an individual the label ‘nationality unknown’ for a variety of reasons. Most commonly it applies to those who are undocumented refugees or persons from collapsed states awaiting a new nationality. Or it might be applied to stateless persons unable to meet the high standard of proof to register as stateless in the Netherlands.

The Dutch government on its website states that those that are of ‘nationality unknown’ are not in fact stateless, rather:

“Most migrants with this designation do actually have a nationality, but do not have any documents to prove it. Most do hold a residence permit.”

What the Netherlands currently lacks is a Statelessness Determination Procedure. According to the UNHCR in its publication ‘Establishing statelessness determination procedures to protect stateless persons’ ²:

“It is an implicit obligation of States party to the 1954 Convention to identify stateless persons within their jurisdiction in order to provide them with appropriate treatment in compliance with the Convention.  […] Establishing a statelessness determination procedure is the most efficient means for States Parties to the 1954 Convention to identify the beneficiaries of that Convention.”

The proposed Statelessness Determination Procedure

It is difficult to see how the claim that most migrants have a nationality can be substantiated without a dedicated and accessible procedure to determine statelessness. Statelessness is defined in the 1954 Convention relating to the Status of Stateless Persons and under international customary law ³. As the UNHCR Report on Mapping Statelessness in the Netherlands points out ⁴, without such a procedure and a binding outcome, it can be difficult to accurately estimate the number of stateless people in the Netherlands.

To comply with its international obligations under the Statelessness Conventions, a Statelessness Determination Procedure has been proposed by the Dutch government.  The Dutch Ministry of Justice and Security told the Dutch Parliament ⁵ that the draft law was expected to be presented to the House of Representatives in the spring of 2018. However, as of September 2018 it does not appear to have passed into law. Nor can I find any evidence of it in the Dutch Parliamentary system, having looked here and here.

Will this version of the Statelessness Determination Procedure address the real problems?

A lot has already been written by the European Network on Statelessness about the shortcomings in the proposed Procedure ⁶. The joint submissions by ASKV / Refugee Support and the European Network on Statelessness ⁷ and those by the Institute on Statelessness and Inclusion ⁸ in response to the 2016 consultation on the Procedure provide a good summary of its shortcomings. It is not clear whether amendments will be made to address or mitigate the issues raised.

I do not repeat here the shortcomings identified with the draft Procedure. But I do want to highlight one key problem with the proposal. Following a Statelessness Determination, the Dutch government will not give a right of residence for those recognised as stateless.

No residence permit, no access to rights

If the statelessness determination procedure law passes unamended on the granting of residence permits, it will be in line with current domestic laws. Under current laws, statelessness itself is not considered a ground for acquiring a residence permit ⁹. As at 2010, 65% of registered stateless people did not hold a residence permit (although it is to be noted that some may not need a residence permit to reside lawfully in the Netherlands.This leaves the percentage at about 27%). Many are children born in the Netherlands.

Stateless or nationality unknown persons are at a heightened risk of detention and attempted removal from the country without a residency permit. I have written about the importance of residency permits, lawful residence and its impact on an individual’s human rights here.  The problem, for those who are deemed stateless, or who should be deemed stateless under an effective and consistent procedure, is compounded by the fact that currently many individuals are also not given identity documents by the state. Without a residency permit, no identity document or alien’s passport is granted ¹⁰. And without identity documents, evidencing entitlement to healthcare, for example, becomes problematic.

Is the Dutch proposal in line with its international obligations?

The Netherlands has signed up to the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness and agreed to protect and promote the rights enshrined in the two Conventions.

There is little point, however, to a Statelessness Determination Procedure that leaves a stateless person exposed to the risk of removal proceedings, detention and other arbitrary and discriminatory treatment. A procedure that does not result in residency rights and tangible legal rights cannot offer protection for stateless people. Nor can it ensure that the rights set out in the 1954 Convention are guaranteed by the state. Those rights include, among others, the right to employment (Article 17), housing (Article 21), education (Article 22), social security (Article 24), freedom of movement (Article 26), obtaining travel documents (Article 28) and to facilitated naturalisation (Article 32).

It also potentially leaves people worse off than if they had remained under the ‘nationality unknown’ label, since some individuals with that label are entitled to a residence permit and many have such a permit.

Back to political will?

In this blog, I again focus on the importance of political will to mitigate, reduce and eradicate statelessness and to enhance the protection given to stateless people.  The attitude of the Dutch government towards stateless people and their basic rights, including the right to lawful residence and to a legal identity, can make all the difference. Instead the government is choosing to do the bare minimum. As such, it falls short of its obligations under the two statelessness conventions to which it is signatory.