No Country of one’s own
An advisory report on treaty protection for stateless persons in the Netherlands
Worldwide, an estimated 12 million people have no nationality. In other words, they are stateless. Statelessness is a problem because possessing a nationality means that there is at least one country where one has the right to reside. Nationality confers a number of other important rights too: the right to identity documents, for example, or the right to return to your own country. Without papers proving who you are, it can be difficult to marry, enter into contracts or acquire diplomas. In addition, possessing a nationality makes a person a member of a particular political community. For all these reasons, the right to nationality is enshrined as a fundamental human right in the Universal Declaration of Human Rights.
To protect the stateless and to prevent statelessness, the international community con-cluded two major instruments: the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness. The Netherlands is a party to both. This means that it has obligations towards stateless persons living in the Netherlands and towards stateless children born on Dutch territory. In addition, it means that, with certain exceptions, the Netherlands may not deprive people of their Dutch nationality if they would then become stateless.
The United Nations has mandated UNHCR to protect the rights of stateless people and to prevent and reduce statelessness. Within this framework, it published in November 2011 a report entitled Mapping Statelessness in the Netherlands
. The report’s main con-clusion was that the identification of stateless persons in the Netherlands is problematic and that, as a result, the rights of such persons living in this country are not guaranteed. The then Minister of the Interior and Kingdom Relations and the Minister for Immi-gration, Integration and Asylum Policy refuted this conclusion in August 2012. The UNHCR report and the ministers’ response prompted the ACVZ to draw up an advisory report on statelessness. The State Secretary of Security and Justice supported this deci-sion with a letter requesting an advisory report on 14 November 2012.
This advisory report relates solely to persons who are not considered as nationals by
any state under the operation of its law. These people are also known as ‘de jure
persons’. Earlier this year the ACVZ published its advisory report Where there’s a will but
on the policy concerning aliens who, through no fault of their own, are unable to
leave the Netherlands. The Committee considers these people to be de facto
stateless.Question addressed by study and methods used
In this report the ACVZ answered the following question.
How does Dutch legislation and practice concerning the protection of stateless persons and the prevention and reduction of statelessness relate to the internatio-nal obligations of the Netherlands in this area?
To answer this question a literature and case-law review was carried out, relevant con-ventions, statutes and secondary legislation were studied and interviews were conducted with academics, the staff of ministries, municipalities and implementing bodies, NGOs, interest groups and UNHCR. Statistics Netherlands (CBS) supplied data on persons
registered as ‘stateless’ or as ‘nationality unknown’ in the Municipal Personal Records Database (GBA). The data on people registered as of unknown nationality were requested because this category also includes stateless persons. The European Network on State-lessness supplied information on procedures relating to statelessness in other countries.
The results of the study are reproduced in chapters 2 to 4 of the full report.
Determination of statelessness
To assess whether a person is eligible for protection under the conventions on stateless-
ness, a procedure for determining statelessness is a practical necessity. Only through such
a procedure can a state clarify whether someone is stateless or does in fact possess a natio-
nality. Furthermore, a good faith interpretation of the 1954 Convention obliges states to
establish such a procedure. That is the only way to ensure that the provisions of the Con-
vention are put into effect. At present, the Netherlands has no proper determination pro-
cedure. In 2012, the Minister of the Interior and Kingdom Relations and the Minister for
Immigration, Integration and Asylum Policy argued that statelessness was determined in
the Netherlands through registration in the GBA. However, registration as stateless per-
son in the GBA requires that statelessness is already apparent and documented. Therefore
this registration cannot be qualified as a determination procedure. In addition, only per-
sons who are permitted to stay in the Netherlands can be registered in the GBA, despite
the fact that the Convention also enshrines rights that do not require lawful stay.
Though the no-fault procedure used to be called the ‘stateless procedure’, statelessness is no longer a condition for obtaining a no-fault residence permit under current policy. As a result, whether a person is stateless or not is no longer assessed in the no-fault proce-dure. For this reason, it cannot be regarded as a determination of statelessness. The ACVZ therefore recommends that a statelessness determination procedure be established.
Residence rights of stateless persons
The Preamble to the 1954 Convention states that the aim of the Convention is ‘to assure
stateless persons the widest possible exercise of [.] fundamental rights and freedoms’.
The same sentence, but this time with reference to refugees, can be found in the Preamble
to the 1951 Refugee Convention. This is no coincidence as both Conventions were conclu-
ded around the same time, in the aftermath of the Second World War. Both conventions
had the aim of providing international protection to people who found themselves outside
their own country and who could not rely on that country’s protection. The Refugee Con-
vention can therefore serve as an aid in interpreting the 1954 Convention, though no abso-
lute value should be accorded to such interpretations. With certain exceptions, recognition
as a refugee is nowadays usually accompanied by residence rights. In most countries this is
not or not yet the case for stateless persons. The difference is often explained as a result of
the absence in the 1954 Convention of two important articles (31 and 33) in the Refugee
Convention. These articles state that no penalties may be imposed on refugees who enter a
Contracting State illegally and that it is prohibited to return a person without first determi-
ning whether he or she is a refugee within the meaning of the Convention (also known as
the principle of non- refoulement
). It is in fact argued that the absence of these articles is the
reason why residence rights need not be accorded to stateless persons, unlike refugees. The
ACVZ does not agree with this reasoning. According to the committee, the interpretation
of the 1954 Convention cannot be based solely on the Refugee Convention. It argues that
the question of what follows or does not follow from an autonomous interpretation of the
provisions of the Convention itself needs to be addressed.
In the opinion of the ACVZ, it follows from an autonomous interpretation of the Con-
vention that a residence permit should be granted to persons who are recognised as sta-teless, unless exclusion grounds apply. Many of the rights accorded to the stateless in the 1954 Convention would otherwise be a dead letter and would only be granted to those persons who held such rights anyway because they already possessed a residence permit. This would not be in accordance with the aim of the Convention. Through the grant of a residence permit, recognised stateless persons in the Netherlands are able to exercise their rights. Stateless persons cannot, after all, solve problems arising from irregular residence in the Netherlands by returning to the state of which they are a national, as other aliens in this situation generally can. As a result of the Benefit Entitlement (Residence Status) Act (Koppelingswet
), the refusal of a residence permit to recognised stateless persons in the Netherlands drives them into the margins of society, where they lack the means to build a decent life. Furthermore, the EU Return Directive obliges the Netherlands to take mea-sures to prepare for return, when in fact this is often impossible in the case of stateless persons and is moreover incompatible with the protection of the stateless. For all these reasons, the ACVZ recommends incorporating a new purpose of residence for stateless aliens in the Aliens Act.
Naturalisation of stateless persons
The 1954 Convention urges states to facilitate the naturalisation of stateless persons as
far as possible. In the Netherlands stateless persons may apply for naturalisation after
three years of legal residence instead of the five years that applies to other aliens. Howe-
ver, they can only do so if they are registered as stateless in the GBA, which for a number
of them is impossible as they have no documents attesting to their statelessness. Because
there is no effective way to determine statelessness in the Netherlands, this option of
fast-track naturalisation for the stateless loses much of its practical significance. Stateless
persons who have a regular residence permit and are not registered as stateless in the GBA
must in addition submit a passport in order to obtain naturalisation, which is of course
But even persons who are registered as stateless encounter problems with naturalisa-
tion. Although they need not submit a passport, they do have to prove their identity by
means of a birth certificate. As a result, stateless persons in possession of a regular resi-
dence permit often cannot be naturalised, first because there is no proper determination
procedure, and second - if their statelessness has been recognised - because they have
to submit documents they do not possess and in many cases have never possessed. The
ACVZ therefore recommends that persons who have been recognised as stateless under
the future determination procedure should not be required to submit documents for the
purpose of naturalisation. This means that stateless persons will be treated in the same
way as refugees in the process of acquiring Dutch nationality. Stateless children born in the Netherlands
Dutch nationality is largely acquired on the basis of parentage: if one of the parents is a
Dutch national, a new-born child automatically acquire Dutch nationality. This is known
as the ius sanguinis
principle. In some countries every child born in the territory of that
country automatically acquires its nationality, on the basis of the ius soli
principle. As a
consequence of migration, these principles may conflict with each other, leading to child-
ren being born stateless. One of the aims of the 1961 Convention is to reduce stateless-
ness at birth.
Children who are born in the Netherlands and have been stateless since birth can acquire Dutch nationality by option. The Netherlands Nationality Act requires them to have had a residence permit for at least three years. The ACVZ believes this to be incompatible with the 1961 Convention since the Convention precludes the imposition of a residence
permit requirement. It uses the term ‘habitually resided’, not ‘legally resided’. Various sources have confirmed that habitual residence is not meant to signify residence on the basis of a residence permit. Habitual residence signifies that a person’s everyday, personal life is lived in a certain place. The ACVZ therefore recommends that the residence permit requirement for applying for Dutch nationality by option be dropped in the case of state-less children.
Statelessness in other countries
Worldwide, 12 countries have a statelessness determination procedure. In the European
Union these are: Belgium, France, Hungary, Italy, Latvia, Spain and the United Kingdom.
The procedure varies considerably from country to country. The ACVZ took a closer look
at practices in Belgium, France, Hungary, Spain and the United Kingdom. The greatest
similarities between these countries are that in all of them, with the exception of Bel-
gium, the immigration service carries out the procedure, and that, again with the excep-
tion of Belgium, these countries attach residence rights to the recognition of statelessness.
However, Belgium is planning to make changes to its determination procedure following
a UNHCR report on how statelessness is identified in Belgium. Finally, the ACVZ notes
that the number of applications for a determination of statelessness is low, in comparison
with the migration figures. On the basis of this study, the Committee concludes that no
single country has a determination procedure that can serve as an example worth follo-
1) Establish a statelessness determination procedure backed by guarantees.
a) Adopt for the purposes of the procedure the definition of ‘stateless persons’ as in
the 1954 Convention (de jure stateless persons).
b) Open the procedure to all aliens on Dutch territory. c) Permit aliens to stay in the Netherlands during the procedure.
d) Refer aliens who raise asylum issues as well as statelessness first to the asylum
e) Adopt a shared burden of proof in the determination procedure.
2) Incorporate in the Aliens Act a new residence ground for the purpose of
a) Categorise this residence permit for stateless aliens under the regular temporary or
non-temporary humanitarian residence permit.
3) Include in the procedure the exclusion grounds contained in article 1, para-
graph 2 of the 1954 Convention. Additionally, an analogous application of
article 31 of the 1954 Convention allows for the exclusion of persons that
pose a risk to national security and public order. Also, persons who have resi-
dence rights elsewhere can be excluded from protection.
4) Waive the birth certificate requirement for naturalisation in the case of
recognised stateless persons.
5) Drop the legal residence requirement for stateless children born in the Net-
herlands who wish to acquire Dutch nationality by option.
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Dr. I-Fang Cheng Assistant Researcher National Nano Device Laboratories (NDL), Tainan, Taiwan e-mail: [email protected] Tel : 886-6-2082408 ext. 8711, 886-6-5050650 ext. 6614 Education and experiences: Ph.D. in Institute of Nanotechnology and Microsystems Engineering, National Cheng Kung University (07/2010) M.S. in Department of Biomedical Engineering, National Cheng Kung Uni