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Statelessness in the Netherlands (Preparatory Report)

Statelessness in the Netherlands (Preparatory Report)

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Preparatory research reporting discussing the situation of stateless people in the Netherlands.
Preparatory research reporting discussing the situation of stateless people in the Netherlands.

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MAPPING STATELESSNESS IN THE NETHERLANDS

A PREPARATORY REPORT

1 April 2011 Olivier Vonk, PhD Karel Hendriks, MSc

MAPPING STATELESSNESS IN THE NETHERLANDS
Olivier Vonk Karel Hendriks Expert panel: Prof. dr. Gerard-René de Groot, Maastricht University Prof. dr. Peter Rodrigues, Leiden University Dr. Maarten Vink, Maastricht University Special thanks to: Gert Westerveen, Sjaak Verboom, Jeroen van Loon, Eric Gubbels, Maurice Gordijn and Hans Tomson.

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MAPPING STATELESSNESS IN THE NETHERLANDS
LIST OF ABBREVIATIONS ................................................................................................................................. 5 EXECUTIVE SUMMARY ..................................................................................................................................... 6 1. STATELESSNESS IN A SOVEREIGN GLOBAL ORDER ......................................................................... 8 1.1 1.1.1 1.1.2 1.1.3 1.2 1.2.1 1.2.2 1.3 2. Introduction ............................................................................................................................................ 8 Case 1: The story of Eric and Gala Moroz ................................................................................. 10 Case 2: Stateless child born in the Netherlands to a Sri Lankan mother .................................... 13 Purpose of the study and chapter outline .................................................................................... 14 Statelessness across the globe............................................................................................................... 15 Causes of statelessness ................................................................................................................ 16 Consequences of statelessness..................................................................................................... 18 Role of UNHCR in the protection of stateless people .......................................................................... 20

DEFINITIONS, METHODOLOGY AND REGISTRATION PRACTICES ............................................... 22 2.1 2.2 2.3 2.4 Definitions and distinctions .................................................................................................................. 22 Demographic methodology .................................................................................................................. 24 Legal methodology ............................................................................................................................... 26 The registration of stateless people....................................................................................................... 27

3.

A DEMOGRAPHY OF STATELESSNESS IN THE NETHERLANDS .................................................... 33 3.1 3.2 3.2.1 3.2.2 3.2.3 3.3 3.3.1 3.3.2 3.3.3 3.3.4 3.4 A brief history of statelessness in the Netherlands ............................................................................... 33 Statistical overview .............................................................................................................................. 35 Statistics on stateless people ....................................................................................................... 37 Statistics on people of unknown nationality ................................................................................ 43 In conclusion ............................................................................................................................... 48 The face of statelessness in the Netherlands ......................................................................................... 49 Stateless due to “technical causes” ............................................................................................ 51 Stateless following state succession or restoration ..................................................................... 60 Stateless due to denial or withdrawal of citizenship ................................................................... 63 Unreturnable people ................................................................................................................... 76 Analysis and conclusions...................................................................................................................... 80

4.

A LEGAL ANALYSIS OF STATELESSNESS IN THE NETHERLANDS .............................................. 86 4.1 4.2 4.3 4.4 4.4.1 4.4.2 Introduction .......................................................................................................................................... 86 Statelessness under international law ................................................................................................... 88 Statelessness in Europe......................................................................................................................... 95 Does the Netherlands comply with its obligations under the 1954 and 1961 Conventions? .............. 100 Dutch aliens law in respect of stateless persons: the ‘no-fault residence permit’ .................... 101 Dutch nationality law in respect of stateless persons................................................................ 105

5.

CONCLUSION AND RECOMMENDATIONS........................................................................................ 116 [3]

BIBLIOGRAPHY ............................................................................................................................................... 121

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LIST OF ABBREVIATIONS
CBS DGNR DNA DT&V ECN ExCom GBA GGD ICCPR IND IOM LP MVV OAR PTSD UNHCR UNRWA VBL Central Bureau for Statistics (Centraal Bureau voor de Statistiek) General Directorate of Registries and Notaries [Spain] Dutch Nationality Act (Rijkswet op het Nederlanderschap) Repatriation and Departure Service (Dienst Terugkeer en Vertrek) European Convention on Nationality Executive Committee Municipal Basic Administration (Gemeentelijke Basis Administratie) Municipal and Communal Healthcare Service (Gemeentelijke of Gemeenschappelijke Gezondheidsdienst) International Covenant on Cultural and Political Rights Immigration and Naturalization Service (Immigratie en Naturalisatie Dienst) International Organization for Migration Laissez-passer Permission towards temporary stay (Machtiging Voorlopig Verblijf) Office for Asylum and Refuge [Spain] Post-traumatic Stress Disorder United Nations High Commissioner for Refugees United Nations Relief and Works Agency for Palestine Refugees in the Near-East Freedom Restricting Location (Vrijheidsbeperkende Locatie)

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EXECUTIVE SUMMARY
The Netherlands has long since been a Contracting State to the 1954 Convention Relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness. These instruments entered into force in the Netherlands on 11 July 1962 and 11 August 1985 respectively. A procedure to determine statelessness is lacking in the Netherlands. In collecting data on the number of stateless persons residing on Dutch territory, the Central Statistical Bureau (CBS) therefore currently relies on the registration practice at the municipal level. Whenever a person’s nationality status cannot be readily determined upon registration with the municipal authorities, the individual is registered as of “unknown nationality”. People are rarely registered as stateless in the Municipal Basic Administration (GBA), as stateless persons need to present extensive documentary evidence to substantiate their statelessness. However, since stateless people are not represented by a country willing or able to issue this documentation, it often proves inherently impossible to live up to this condition. Consequently, the category “nationality unknown” is markedly bigger than the category stateless. UNHCR has commissioned this study on statelessness in the Netherlands for a special reason: to celebrate the 50th anniversary of the 1961 Convention, and to draw attention to the importance of accession to and correct implementation of the 1954 and 1961 Conventions. In addition, this study has a number of more specific objectives. Firstly, it describes the current Dutch practice of determining statelessness at the municipal level; it investigates the legal effects of registration as of “unknown nationality” or as stateless; and it assesses the effects of the absence of a dedicated statelessness determination procedure. Secondly, the sociodemographic analysis in this report aims to provide the problem of statelessness in the Netherlands with a face. For this purpose, quantitative and qualitative data were collected and analyzed and numerous interviews were conducted with stateless persons residing on Dutch territory. In order to tackle statelessness, UNHCR generally aims for improvements in four specific areas: the identification, prevention and reduction of this phenomenon, as well as the protection of stateless persons. We conclude that the Dutch statelessness policy is in need of improvement in nearly all areas, both for the sake of the State and individual stateless persons. The matter of identification may be the most problematic area of all. The statistical analysis in this report shows that often no distinction is made between stateless persons and those whose nationality is unknown. The available statistics are also of poor quality. Another conspicuous problem concerns the fact that no uniformity exists between various institutions in the way statelessness is registered, and even if one is registered in this way, it is unclear what rights emanate from this. Moreover, the common practice of labelling people as of unknown nationality because they cannot live up to the GBA’s stringent administrative requirements to be recognised as a stateless person, precludes the rights enshrined in the 1954 Convention from being activated. The Netherlands has signed this Convention and thus
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acknowledges stateless people’s special protection needs. However, without a clear and undisputable way to establish statelessness through a statelessness determination procedure, people may not be accorded the rights to which they are entitled. While the current no-fault procedure – which allows stateless persons to stay on non-removability grounds – figures as the Dutch way of living up to the 1954 Convention’s requirements, it is in fact not a statelessness determination procedure. A dedicated statelessness procedure, in which the burden of proof is shared between the individual and the State, would solve problems related to the unclear status of potentially stateless persons in the Netherlands, as well as draw many individuals out of invisible margins and thereby improve statistical awareness of statelessness in the Netherlands. If, in the end, statelessness is determined, the individual should be granted a one-year renewable residence permit, similar to the one issued at present following a successful no-fault procedure. We also conclude that Article 1 of the 1961 Convention – which aims at the prevention of statelessness – is being violated by the Netherlands because the Dutch Nationality Act contains the requirement of legal stay for stateless children born in the Netherlands who wish to exercise their option right to Dutch nationality. The reduction of cases of statelessness is also an important area of focus for UNHCR. No violation of the Conventions has been found in this respect. Stateless persons have facilitated access to Dutch nationality and Dutch nationality can in principle not be revoked if this would result in statelessness. The one exception to this principle, namely the rule that Dutch nationality can be revoked if it was acquired by fraud, is allowed under the 1961 Convention. However, considering the particular hardship of statelessness as described in the report, we urge the Netherlands to fully take into account the effects of a revocation of Dutch nationality if this results in statelessness. The matter of protection of stateless people is particularly worrying. While obviously related to the troublesome identification of statelessness in the Netherlands, even those who are deemed to be stateless do not enjoy all the rights to which they are entitled. The interviews conducted for this study reveal that numerous respondents face trouble in accessing essential healthcare and in acquiring means of identification, and that these two issues are often interlinked. We propose that in a future statelessness determination procedure, all claimants are provided with means of identification. Similarly, pending the no-fault procedure, applicants should be furnished with ID-cards. Furthermore, incarceration in alien detention centres proved to be frequent and lengthy. The repetitive nature of the process – detention, absent prospect of deportation, release with an order to leave the country, arrest and potential declaration of undesirability for illegal presence, again detention – is daunting. Finally, taking into account that many people’s desires to return home are genuine, we recommend that efforts to coax countries of origin into facilitating repatriation be stepped up.

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1.

STATELESSNESS IN A SOVEREIGN GLOBAL ORDER
‘To be stripped of citizenship is to be stripped of worldliness; it is like returning to a wilderness as cavemen or savages … they could live and die without leaving any trace.’ Hannah Arendt1

1.1 Introduction Our world is still very much a patchwork of nation states. The interplay between sovereign states is regulated by international law. International human rights law in turn stipulates what privileges a state should extend to people on its territory. In theory, human rights should be enjoyed regardless of official membership of a nation state – at least some are universal after all. However, in practice ‘the actual enjoyment of human rights depends [...] primarily on the national context’, which is ‘the purview of national constitutions, courts and legislators’.2 It is for this reason that a nationality, in itself a universal human right, has been frequently described as ‘the right to have rights’.3 This is troubling, because in places the patchwork is coming apart at its seams. Some people drop in between tears in the weave: they are left unclaimed by any state. These people are the world’s stateless. The problems related to statelessness are grounded in a constellation of already complex issues such as birth registration, nationality legislation, state succession, migration and international law.4 The phenomenon´s complexity is compounded by its growing magnitude. Especially in the past two decades, the prevalence of statelessness has risen considerably:
Since the collapse of communism in Europe in 1989, ethnic nationalism has led to the manipulative exclusion of minorities from citizenship in a number of new or successor states. During the same period in Africa, latent ethnic tensions arising from decolonization and statebuilding, combined with the growing significance of political rights in emerging democracies, have sparked armed conflict and marginalized racial and ethnic minorities. Meanwhile, repressive governments in Asia and the Middle East perpetuate women’s inequality through discriminatory citizenship rules and are using the denial or deprivation of nationality as a tool to disenfranchise unpopular ethnic groups. These concurrent phenomena are causing an acute crisis of statelessness at the dawn of the twenty-first century.5

H. Arendt, The Origins of Totalitarianism (London: Andre Deutsch, 1986), 300. Equal Rights Trust, "Unraveling Anomaly: Detention, Discrimination and the Protection Needs of Stateless Persons", (2010), 20. 3 Article 15 of the Universal Declaration of Human Rights reads that (1) Everyone has the right to a nationality; and (2) No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality. For nationality as ‘the right to have rights’, see, e.g., C.A. Batchelor, "Statelessness and the Problem of Resolving Nationality Status", International Journal of Refugee Law 10, no. 1/2 (1998), 159; Equal Rights Trust, "Unraveling Anomaly: Detention, Discrimination and the Protection Needs of Stateless Persons", 20. 4 M. Manly and S. Persaud, "UNHCR and responses to statelessness", Forced Migration Review, no. 32 (2009), 7. 5 Open Society Justice Initiative, "Human Rights and Legal Identity: Approaches to Combating Statelessness and Arbitrary Deprivation of Nationality", Thematic Conference Paper (May 2006), 2.
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It is difficult to establish who exactly has the responsibility to address the hardship that results from statelessness, as it is a long standing principle of international law that a sovereign state has the inviolable right to determine who receives its nationality and who does not.6 However, the decision not to attribute or to revoke a nationality when an individual is not granted this status by any other state either, is at odds with this person’s human rights. Considering that national laws also govern who is allowed to legally reside in a country, and that this privilege is generally sparingly accorded, people who are not citizens anywhere run the elemental risk of not being permitted to live anywhere either. Furthermore, stateless people’s rights to enter, leave, work or vote in a country may all be suspended. Consequences are not just practical though: statelessness destroys a sense of both origin and belonging, and as a result ‘for many stateless people around the world, it is a corrosive, soul-destroying condition that colours every aspect of their lives’.7 Statelessness is a phenomenon not confined to the developing world or distant countries; all across the globe people get by without the elementary benefit of a nationality. Indeed, the Netherlands is no exception in this regard, despite having signed and ratified two Conventions designed to address this issue: the 1954 Convention Relating to the Status of Stateless Persons was ratified by the Netherlands on 11 July 1962, and the 1961 Convention on the Reduction of Statelessness entered into force in the Netherlands on 11 August 1985.8 As a result, a legal framework with regard to statelessness ought to be in place. Below the existing framework will be briefly outlined, to facilitate comprehension of the remainder of this study. From an immigration law perspective, the most important legal instruments in the Netherlands include the Aliens Act 2000 (Vreemdelingenwet 2000),9 the Aliens Decree (Vreemdelingenbesluit), and the Aliens Act Implementation Guidelines (Vreemdelingencirculaire). The general executive agency is the Immigration and Naturalization Service (IND). The Return and Departure Service (DT&V), in turn, is responsible for making aliens leave Dutch territory if they do not have the right to stay in the Netherlands. Both agencies fall under the responsibility of the Ministry of the Interior and Kingdom Relations. Nevertheless, the Netherlands also has a Minister for Immigration and Asylum Policy, who is part of the Ministry of the Interior. With regard to nationality law, the Dutch Nationality Act (Rijkswet op het Nederlanderschap) governs the acquisition of citizenship of the Netherlands. Article 6(1)b of this act is of particular importance, is it allows children born and legally resident in the Netherlands who would otherwise be stateless to opt for Dutch nationality. This provision is called the option right.

League of Nations, “Convention on Certain Questions Relating to the Conflict of Nationality Law”, Treaty Series 179, no. 4137 (1930), 89. 7 P. Leclerc and R. Colville, "In the shadow: Millions seek to escape the grim world of the stateless", Refugees 3, no. 147 (2007), 6. 8 Trb. 1967, 124. 9 Vreemdelingenwet 2000 (23 November 2000). Stb. 2000, 496. [9]

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Two concepts of Dutch aliens law feature prominently with regard to stateless persons. The first is the no-fault residence permit (buitenschuldvergunning), which is not an asylum permit but a regular residence permit. The permit may be issued if an applicant manages to demonstrate an inability to leave the Netherlands through no fault of his or her own. The nofault residence permit is a temporary permit which is valid for a year, but which can be extended annually. After three years the person can apply for a residence permit for limited time. Although the conditions that have to be met for the no-fault residence permit are particularly severe, it is only this permit that allows stateless persons to reside legally in the Netherlands. The second prominent concept concerns the so-called W- and W2-documents. The former are meant for asylum-seekers who have not yet received a final decision on their application, whereas the latter are meant for a (relatively small) group of aliens who are allowed to stay in the Netherlands while their application for a regular residence permit is being decided upon. Both documents show holders’ identity, nationality and legal residence in the Netherlands, but they do not facilitate international travel. Importantly, allegedly stateless person are neither eligible for an aliens passport (which does enable the holder to cross borders) nor for a W2-document while their – often protracted – application for a no-fault residence permit is pending. The government presumes that the grant of a W2-document removes the incentive for stateless persons to contact the authorities of the country of origin and to ask for a passport. This policy in respect of stateless persons is, according to the government, in tune with the 1954 Convention. Importantly, no procedure is in place in the Netherlands to determine in a binding way whether a person is stateless. Thus, the IND, the courts, but also the municipalities do not necessarily agree on whether a person is stateless or not. Under the Law on the Municipal Basic Administration (Wet GBA), the nationality of a person is recorded by the municipality where the person is registered. However, the nationality as mentioned on residence documents issued by the IND to persons who cannot show their nationality (e.g. asylum-seekers) is not sufficient proof for registration of their nationality in the Municipal Basic Administration (GBA). The absence of a statelessness determination procedure, the outcome of which is binding for all authorities, is one of the most apparent omissions in the Dutch statelessness policy. Bearing this background information in mind, the life of stateless people in the Netherlands is still best illustrated by delving into the stories and experiences of people who have lived it. Before proceeding to outline the purpose and contents of this study, two of these stories will be told. Later on in the report, many more will follow. 1.1.1 Case 1: The story of Eric and Gala Moroz10 Eric (47) and Gala (46) Moroz are both born in the former Soviet Union, in a part of the empire then known as the Ukrainian Soviet Socialist Republic. In the Soviet Union Gala feared persecution from the government due to her religion (Judaism), and as a medical

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Interview with Eric and Gala Moroz (pseudonyms) – Apeldoorn, 2 December 2010. [10]

student Eric had been requested by the Committee for State Security (the KGB) to operate as an informant for the intelligence agency. When at some point he was ordered to gather information about fellow Jewish students wishing to flee the Soviet Union and migrate to Israel, he refused to comply. This refusal precipitated severe beatings by the KGB, in front of Gala, resulting in permanent injuries and trauma (damaged heart valves, headaches, double vision, damaged kidneys resulting in kidney stones). Eric was in coma for two weeks and spent two months in intensive care. Gala fled to the United States in 1990 and Eric followed in January 1991, just before the complete collapse of the Soviet Union. In the USA they applied for asylum as political refugees, and while in the end their application was rejected, through various appeals they had lawful stay in the country until at least 2002.11 Eric and Gala lived in the USA for sixteen uninterrupted years. Although lacking an official residence permit, they did have social security passes and numbers, bank accounts and credit cards, driver’s licences and employment authorisation.12 They had a life, a community and businesses in the USA, and homes in New York, Ohio and Pennsylvania. ‘The period in our lives in the United States was the one time we experienced piece of mind; we were simply left alone’, Gala says. Meanwhile, in 1991, the Soviet Union fell apart. Everybody with habitual residence in the new-formed state of Ukraine at independence could apply for citizenship, but this proviso did clearly not extend to Eric and Gala. The registration window passed, their Soviet nationality became obsolete and a US nationality had still not been issued. Suddenly, in December 2006, they were arrested by the American Immigration and Customs Enforcement (ICE) and detained for 90 days ‘pending removal’. Without further explanation they were released after these three months had passed. Meanwhile, however, US authorities unilaterally declared Eric and Gala to possess Ukrainian citizenship.13 Events then repeated themselves on 21 May 2007 when
without any warning, we were arrested in New York City and the next day we were illegally removed from the USA by force, and escorted to the Amsterdam transit zone. At that time, we had never lived in, visited or transited the Netherlands. Gala and I were detained at Schiphol for 7 hours and then forced on board of a KLM aircraft and transported to Kiev in Ukraine.

Eric and Gala were shepherded into Ukraine with travel documents handed to them by the captain of the plane. Documents with misspelled names, no Ukrainian identity numbers and signatures that were later marked by the Ukrainian District Court as forgeries. Without luggage, money or explanation they were dropped in Ukraine. A year of wandering illegal residence went by, though they were assisted by some family members. In February 2008 the same District Court in Donetsk ruled Eric and Gala to be stateless, ordered the issuance of temporary means of identification and travel documents and ordered them to be deported back to their country of habitual residence: the United States. Moreover, it was ruled that the

Ruling of the United States Immigration Court Detroit, Michigan, 23 May 2007. File nos.: A71-960-907/908. Copies of documents and passes are in possession of the authors. 13 Ruling of the United States Immigration Court Detroit, Michigan, 23 May 2007. File nos.: A71-960-907/908.
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Ukrainian Ministries of Interior and Foreign Affairs had acted illegally when they assisted the USA in the Moroz’s deportation. This decision was upheld by the Donetsk Administrative Court of Appeals in May 2008, and both were provided with Stateless Persons’ Travel Documents. They were deported at the end of August 2008. Later, in September 2009, the Ukrainian Embassy in The Hague would issue a letter declaring that both Eric and Gala are ‘recognized as units [sic] without citizenship and in compliance with the Ukrainian legislation have to be deported from the Ukraine to the United States of America as a country of their former living [sic]’.14 But because Eric and Gala came to Ukraine via Schiphol they were returned that way too, as opposed to directly to the United States. At Schiphol the Moroz’s were urged by immigration officials to apply for asylum as, they were told, travelling onwards would be out of the question. This is despite the fact that neither Eric nor Gala has any desire to stay or live in the Netherlands. Instead, they see a return to the United States, where all their possessions were left behind, as the only satisfactory solution. However, this wish is impeded by the fact that they are, as their legal counsellor in the Schiphol detention facility wrote, ‘documented stateless people’. He went on to state that his ‘clients have been deported by Ukraine on grounds of illegal stay in the country and it has threatened with long-term imprisonment in case of return’.15 Clearly Ukraine recognises neither as a national. Still, the United States does not allow the return of these two former illegal residents (and/or the Netherlands does not facilitate their departure). Either way, Eric and Gala are stuck in the Netherlands, a country which they only know as a constellation of various reception centres and detention facilities – a country that, by now, they hate with a passion:
Here, in this country which is party to Statelessness and Refugee Conventions, we do not have any basic civil and human rights, starting with refusal to issue mandatory identity documents. In the Netherlands we do not have the right to work, travel, have a bank account, get education or training, etcetera, and we live under constant threat of arrest, detention, displacement, illegality, extrajudicial removal and refoulement, total destitution, homelessness and death from hunger and cold on the streets. … Since May of 2007 our lives as stateless persons have been “Hell on Earth”.

To make matters worse, Eric and Gala were deported from the Netherlands to Ukraine for a second time on 16 October 2009. Only this time the Ukrainian border officials sent them back immediately – on the very same plane – as it had been clearly determined previously that Ukraine bore no responsibility for either of them. It is as Eric remarked: ‘we are buried alive in the Netherlands, and we never wanted to be here in the first place’. In between and after these two deportations, they were put in alien detention various times. First of all, they were in custody for 17 days in Schiphol’s detention facility following

Letter from the Ukrainian consul in The Netherlands, Y. Panchenko, issued 25 September 2009. A copy is in possession of the authors. 15 Report of Eric and Gala Moroz’s legal counsellor, 2 September 2008. Copy of original in possession of the authors. [12]

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their first return from Ukraine. During this period Eric went on hunger strike to protest against the way they were being treated, and in response he was handcuffed and put in an isolation cell. This entire period of incarceration was ruled unlawful by a Dutch court, and in the end compensation was paid. Both were detained a second time (for a week this time around) in preparation of the second attempt at deportation, followed by a third six-week stint in alien detention after their return from Ukraine that same day. This last spell was especially dubious, considering that no charges were put forward. Wryly, a judge ruled a few days after their release – when both were already out onto the streets – that they had to be let go. These different stretches of detention, both in the USA and in the Netherlands, and a general sense of dehumanisation have left their marks: ‘we are going to bed fearing that they can come and arrest us at night, we are scared of any car parked under our window, of any knock on our door, we are scared of any minivan with tinted glass.’ After their last imprisonment the Moroz’s were released with an order to leave the country within 24 hours. Without either documentation or destination, this was an obvious “mission impossible”. Homeless, they spent two months in a night shelter. Finally, contrary to their desires, they resigned to the reopening of their asylum application, to at least have a roof over their heads. Still, the anger remains. Gala: ‘you tell Myanmar, Nepal and Bhutan to take care of their stateless people. Why would the USA or the Netherlands be any different? Why do they not have to provide for their stateless people? I didn’t leave America on my own: they displaced me!’ At present Eric and Gala Moroz live in an asylum-seeker reception centre (AZC) in Apeldoorn. Despite being in a procedure, they have yet to receive identity documents. A return to the USA or even recognition of their situation has as of yet failed to materialise, despite the fact that UNHCR issued a letter confirming their statelessness.16 Gala has been suffering from clinical depression for almost 20 years, and the events of the last three years have aggravated her symptoms: suicidal thoughts, insomnia, irritability. She wants to go back to her Jewish New York community where she hopes to find moral support and peace of mind, and be a full-fledged member of a community and society again. Gala: ‘I just want to go home. I want my own walls, to be able to close my door. I don’t care where it is anymore – even if it is the middle of the Atlantic. I just want to go home’. 1.1.2 Case 2: Stateless child born in the Netherlands to a Sri Lankan mother A boy called Nalin was born in the Netherlands on 22 July 2001. His father was unknown, but his mother was from Sri Lanka and in possession of a Sri Lankan passport when she applied for asylum in the Netherlands. Her application was eventually rejected and she was forced to return to Sri Lanka. As a result of the mother’s serious psychiatric problems, the Office for Youth Care (Bureau Jeugdzorg) had already acquired custody over the child before the mother’s return to Sri Lanka. The mother had not registered Nalin with the Sri Lankan authorities (and has always refused to do so), but he was registered in the Municipal Basic Administration (GBA) as possessing Sri Lankan nationality.

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The letter was dated 22 July 2010. [13]

The boy obtained a regular residence at birth which has been prolonged ever since. Nalin lives with Dutch foster parents now, but cannot travel with his residence permit. It is for this reason that the Office for Youth Care actively tried to obtain a Dutch passport for him. The Office claimed that Nalin was stateless and that he was incorrectly registered in the GBA as a Sri Lankan national. After all, he was unknown to the Sri Lankan authorities as he had not been registered with the Sri Lankan embassy in the Netherlands. In the view of the Office, Nalin had a right of option to Dutch nationality under Article 6(1)b Dutch Nationality Act (DNA).17 This was denied by the Immigration and Naturalization Service (IND), however, which claimed (based on the GBA registration) that Nalin was not stateless but Sri Lankan. An expert report containing information about Sri Lankan nationality law as well as an analysis of the incompatibility of the current Article 6(1)b DNA with Article 1 of the 1961 Convention was submitted to the municipality where Nalin lived.18 In the end the municipality was convinced of the boy’s statelessness and he has in the mean time acquired Dutch nationality through the option right of Article 6(1)b.19 1.1.3 Purpose of the study and chapter outline This year, 2011, marks the 50th anniversary of the 1961 Convention on the Reduction of Statelessness – one of the most important international treaties governing the treatment of stateless people worldwide. In commemoration of this, states may wish to harden their resolve to tackle problems related to statelessness. In this light, the purpose of this study is primarily to, for the first time, provide an overview and analysis of the socio-demographic profile of stateless persons in the Netherlands, as well as to expound on their legal situation by examining the legislation and procedures in place. Furthermore, the report lays bare the difficulties stateless people face and suggests possible ways to improve their position in Dutch society. It is also expected that the report may increase awareness and promote capacity-building at the national level through the development of potential synergies between influential actors in the field of statelessness. With respect to this last expectation: throughout the course of this study we have benefitted from the guidance of an Expert Consultative Panel, composed of professionals of recognized merit and expertise in the demographic and legal fields. These experts have not only provided crucial added value to the research, but the meetings also constituted an interesting capacity building exercise. In accordance with the purpose and goals of this study, the report is divided into five chapters. The present chapter describes the prevalence of statelessness across the globe and details both its causes and consequences. The chapter also elaborates on UNHCR’s responsibility towards stateless people. In the second chapter key definitions are provided, methodologies are outlined and the ways in which government authorities register stateless

Article 6(1)b: ‘After making a written declaration to that effect, the following persons shall acquire Netherlands nationality ... : b) an alien who was born in the Netherlands ... and has been admitted to and who has had his or her principal place of residence there during a continuous period of at least three years and is stateless since his or her birth’. 18 G.R. de Groot, ‘Notitie over de verwerving van de nationaliteit van Sri Lanka door afstamming’ [Note on the acquisition of Sri Lankan nationality by descent], 19 June 2010 (on file with authors). 19 Email message from the Office for Youth Care of 17 January 2011. On file with authors. [14]

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persons are described. The third chapter is a demographic inquiry into the scale of statelessness in the Netherlands and interprets the available statistical material. The chapter also recounts the experiences of the stateless persons interviewed as part of this project. Their stories allow us to grasp a number of difficulties that are common to most stateless people present in the Netherlands. A fourth chapter provides a legal analysis of all legislation and procedures in place in the Netherlands with respect to statelessness, and examines if and to what extent the Netherlands lives up to its obligations borne out of its ratification of two Conventions on statelessness. Some of the stories highlighted in the demographic chapter will be subjected to legal analysis too. A fifth and final chapter concludes on the research findings, and comes forward with a number of recommendations that can be derived from these results. 1.2 Statelessness across the globe It is a grim fact that the story of Eric and Gala Moroz recounted above is hardly an anomaly. All over the world, some 12 million people are estimated to be stateless.20 This could nevertheless be a substantial underestimation, considering that many states are reluctant to admit to the presence of stateless people on their territories and because stateless people are rarely counted in official statistics. Instead, if their presence is acknowledged at all, they are more often classified in undifferentiated lump-categories such as “nationality unknown” or even as “aliens” in general.21 Moreover, as shall become clear in section 2.1, 12 million people is a cautious estimate, based on a narrow definition of what constitutes statelessness. Stateless people hail from all continents, although certain populations have traditionally been at particular risk. After the Second World War millions of Jews and Roma (or “gypsies” as they were often derogatively called) were left stripped of citizenship and dispersed throughout Europe.22 This situation prompted the philosopher Hannah Arendt, herself stateless at the time, to produce the description of statelessness that started this chapter. The dire circumstances of all post-war refugees, many of them stateless too, precipitated the drafting of the 1951 Convention Relating to the Status of Refugees. This Convention was originally presumed to cater to the needs of stateless people too, as it was thought that all stateless people were inherently refugees as well. When this proved to be a misconception, the 1954 Convention Relating to the Status of Stateless Persons was adopted.23 This Convention ‘provides for the legal status of “stateless person” for individuals who find themselves without a nationality and guarantees a minimum standard of protection’.24 In short, it revolves around improved protection of people who are already stateless. As it did little in the way of prevention or reduction of statelessness, the Convention was complemented by the 1961 Convention on the Reduction of Statelessness, which deals

UN High Commissioner for Refugees, "Action to Address Statelessness: A Strategy Note", (2010), 4. B. Frelick and M. Lynch, "Statelessness: a forgotten human rights crisis", Forced Migration Review 24 (2005), 66. 22 B. Berkeley, "Stateless people, violent states", World Policy Journal 26, no. 1 (2009), 6. 23 C.A. Batchelor, "The 1954 Convention Relating to the Status of Stateless Persons: Implementation Within the European Union Member States and Recommendations for Harmonization", Refuge 22, no. 2 (2005), 34. 24 L. van Waas, "Statelessness: A 21st century challenge for Europe", Security and Human Rights, no. 2 (2009), 137.
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‘with the right to a nationality by identifying which state is actually responsible for conferring (or refraining from withdrawing) nationality in particular circumstances in order to prevent new cases of statelessness from arising’.25 These two legal instruments, ratified by 65 and 37 states respectively, are at the heart of the legal regime that battles statelessness.26 Regrettably, so far the battle has proved an uneven one. The global total of identified stateless persons rose by another million people between 2005 and 2010, although slightly improved identification-procedures and information sharing may have caused this increase.27 Exactly how many more stateless people we are simply unaware of, remains unclear. Furthermore, many examples of statelessness have appeared extremely persistent. Although Hannah Arendt and most other Jews (re-)acquired a nationality, many Roma remain stateless to this day. In Europe, the collapse of the former Soviet Union caused hundreds of thousands to become stateless; in Latvia alone a Russian-speaking minority of 140,000 people experiences great difficulty in obtaining citizenship. Countless Palestinians have branched out to various European states and live stateless lives there. Outside Europe, instances of statelessness are too common to provide a comprehensive overview, but some of the worst-off populations include: numerous black Mauritanians who live as virtual slaves in a country dominated by its Arab population; Kenyan Nubians of Sudanese descent who fought in the British colonial army; descendants of immigrant workers in Côte d’Ivoire; the originally nomadic Bidun from Kuwait, Bahrain, Saudi Arabia and the United Arab Emirates; Rohingya from Myanmar, who are consistently labelled as illegal immigrants from Bangladesh by the country’s junta government. Finally, many among the Karen and Hmong hill tribes in Thailand are stateless too.28 In general, all these people ‘are victims of rampant discrimination and exploitation, political disenfranchisement, and wholesale economic and social marginalization’.29 However, before elaborating on these and other consequences of statelessness, it is useful to understand how precisely one becomes a stateless person. After all, nationality is a legalphilosophical construct, not a state of nature.30 1.2.1 Causes of statelessness It is possible to become stateless in a considerable variety of ways. Different causes can be grouped into three categories: a) technical causes; b) causes linked to state succession and restoration; and c) causes linked to discrimination or arbitrary deprivation of nationality.31

Ibid. Ratification situation as per October 2010. See http://www.unhcr.org/pages/4a2535c3d.html [accessed 7 April 2011]. 27 K. Southwick and M.L. Lynch, "Nationality Rights for All: A Progress Report and Global Survey on Statelessness", (2009), 28. 28 For even more “risk groups”, see, e.g., B. Frelick and M. Lynch, "Statelessness: a forgotten human rights crisis", 66; B. Berkeley, "Stateless people, violent states", 7; Open Society Justice Initiative, "Human Rights and Legal Identity: Approaches to Combating Statelessness and Arbitrary Deprivation of Nationality". 29 B. Berkeley, "Stateless people, violent states", 7. 30 P. Boeles, "Het nut van nationaliteit", Afscheidscollege als hoogleraar immigratierecht (Leiden, 29 juni 2007). 31 UN High Commissioner for Refugees, "Nationality and Statelessness: A Handbook for parliamentarians", (2008), 27-39.
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Technical causes can differ widely, but they all have in common that statelessness is the (sometimes unintentional) side-effect of administrative practices. An individual can, for example, become the victim of a conflict of laws, in which two states each claim that the other is responsible for the bestowal of a nationality. This is especially likely to happen when a person’s state of birth grants nationality by descent (jus sanguinis), while this person’s parents were born in a state that attributes nationality by birth on its territory (jus soli).32 Many South-American countries issue nationality based on jus soli principles, which means that children born to their nationals in states adhering to the jus sanguinis standard are in theory at risk of statelessness.33 A second technical cause can be found in laws that particularly affect women and children. In Yemen for instance, nationality can by law not be passed on through the female line, which means that children of unmarried or divorced mothers (or mothers who are married to a stateless man) are born and grow up stateless.34 In general, exclusively patrilineal nationality legislation is widespread in the Middle East. Although these practices may come across as administrative technicalities, they in fact constitute a clear form of gender discrimination.35 Thirdly, someone can remain stateless, even though the person in question would in theory be eligible for citizenship, because of bureaucratic barriers. Nepal provides a case in point: it recently amended its nationality laws to extend citizenship to anyone born in the country before April 1990, and this included various – previously stateless – minorities. While obviously a positive development, the poorest stateless people cannot benefit from these reforms due to prohibitive citizenship fees or long distances that need to be travelled to lodge an application.36 In general, regardless of origins, people not registered at birth always have a harder time proving their right to citizenship. Lastly, some states employ a mechanism whereby automatic loss of nationality occurs, for instance after a prolonged absence from the country (although in some states a few months is already considered a “prolonged absence”).37 Also, marriage can constitute a ground for the automatic loss of citizenship: Iranian women lose their nationality when they marry a foreign national.38 In Europe, causes linked to state succession and restoration have been especially prominent. The disintegration of both the Soviet Union and Yugoslavia each caused tremendous problems for people of whom it was unclear to which of the twenty-something newly formed states they belonged. In between these two major events, similar problems had resulted from Czechoslovakia’s split, and from the break-up of the Austro-Hungarian and

Equal Rights Trust, "Unraveling Anomaly: Detention, Discrimination and the Protection Needs of Stateless Persons", 57. 33 It should be noted that most South-American states have by now incorporated provisions in their nationality laws that tackle this issue. 34 Ibid., 7. 35 For more information on specifically gender-related problems facing stateless women and girls, see UN High Commissioner for Refugees, "UNHCR Handbook for the Protection of Women and Girls", (January 2008). 36 B.K. Blitz, "Statelessness, protection and equality", Refugee Studies Centre, Forced Migration Policy Briefing no. 3 (2009), 15. 37 UN High Commissioner for Refugees, "Nationality and Statelessness: A Handbook for parliamentarians", 33. 38 Equal Rights Trust, "Unraveling Anomaly: Detention, Discrimination and the Protection Needs of Stateless Persons", 58. [17]

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Ottoman empires before that.39 As far as restoration is concerned: when Latvia regained its independence in 1991, a nationality was only granted to those who were already Latvian citizens before 1940, and to their descendents. This did not include Russians who had moved there during unity and, as Russia did not assume responsibility either, in one stroke a third of the country’s population became stateless.40 A somewhat more theoretical scenario pertains to states that break-up but do not leave successor-states behind: countries below sea level that could in the future disappear altogether as a result of climate change. In principle, the citizenship-status of approximately 600 million inhabitants of The Netherlands, Bangladesh, Guyana and several island states could come under threat.41 The numerically most prominent cause of statelessness, certainly on a global level, is related to the denial or withdrawal of citizenship. Discriminated minorities that are arbitrarily deprived of their citizenship at some point in their lives, or have never received it at all, abound. The 700,000 Rohingya from Myanmar constitute a striking example of just how explicit a denial of citizenship can be. The Rohingya do not appear on a list of 135 “national races” and are therefore by law classified as “Myanmar residents”, which is not a legal status at all: no rights can be derived from this status whatsoever.42 What’s more, ‘Myanmar consistently refers to the Rohingya as illegal immigrants from Bangladesh’.43 The most notorious instance of withdrawal of citizenship is probably that of the Jews living in countries occupied by Nazi-Germany during the Second World War. However, more recently (in the early 2000s) Côte d’Ivoire manifested itself in a similar vein: ‘when the economy turned sour and competition for the spoils of power heated up, demagogues played the stateless card, fashioning a new concept known as Ivoirité’.44 This xenophobic sentiment formed the foundation for the denaturalization of thousands of West African migrant workers and their children, all in an attempt at ethnic homogenization of the country. Some conventions bind their signatories to certain restrictions if statelessness could result from the withdrawal of a nationality. However, these safeguards usually cease to apply when a nationality has been acquired by fraudulent means in the first place.45 1.2.2 Consequences of statelessness Statelessness costs people dearly; this may become apparent soon after birth already. Authorities may refuse to issue a birth certificate to a child whose parents cannot prove that they hold the nationality of their country of residence. Without such a birth certificate, the child in question is much more likely to experience trouble acquiring a nationality (or a host

B.K. Blitz and M.L. Lynch, "Statelessness and the benefits of citizenship: A comparative study", Geneva Academy of International Humanitarian Law and Human Rights/International Observatory on Statelessness (2009), 10. 40 Ibid. 41 B.K. Blitz, "Statelessness, protection and equality", 14. 42 Equal Rights Trust, "Unraveling Anomaly: Detention, Discrimination and the Protection Needs of Stateless Persons", 61. 43 Ibid. 44 B. Berkeley, "Stateless people, violent states", 8. 45 See, e.g., 1961 Convention on the reduction of statelessness, Article 8(2)b. [18]

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of other rights) in the future. People may experience similar hindrances in obtaining documentation to identify themselves. Considering that they are already at increased risk of discrimination and abuse by the authorities, not being able to present ID may increase the incentive to shun participation in society altogether. Indeed, ‘[t]his lack of identification means that they are often powerless to seek redress through the courts. Significant numbers of stateless people therefore face extortion from state and non-state agents as well as arbitrary taxation’.46 While access to the labour market is either tough or barred completely, stateless people can often not access national services such as public education or healthcare either. The right to own or inherit property may be restricted or fully denied. Similarly, it can be virtually impossible to start a business due to the inability to enter into contracts, obtain licences or open a bank account.47 This way, poverty becomes an integral part of stateless life. Small-scale fraud can be commonplace, as the stateless assume fake identities to register a marriage or businesses, or purchase falsified documents. On a more macro-scale, statelessness may hamper development efforts, because ‘the concept of statelessness introduces a power-dynamic that is particularly challenging for the design and delivery of effective pro-poor social development programmes’.48 Furthermore, the marginalisation and disenfranchisement suffered by stateless people have negative effects for regions at large. ‘The refusal to grant citizenship to a large number of titular residents may severely affect the balanced integration of all groups in society. Thus, it may represent a security threat’.49 States have had to suffer the consequences in places as diverse as Bangladesh, the Great Lakes region in Africa and in Israel and the Palestinian Occupied Territories. In these circumstances, ‘states lose in terms of lower economic output and a reduced fiscal base. The greatest losers, however, remain the individuals who are unable to pursue their daily existence free from interference and who have difficulties actualising their rights’.50 Often, non-recognition of citizenship also leads to the denial of a person’s right to reside in the country, which results in a heightened chance of expulsion from one’s homeland. Even if this does not occur, it is rather conceivable that a stateless person would wish to leave behind all of the above. Unfortunately, legitimate international travel is not an option, resulting in significantly increased exposure to human smugglers and traffickers; ‘an industry that thrives on the desperation of people’.51 Refugees International reported that stateless women and girls are lured into prostitution abroad because an absent nationality precluded the

B.K. Blitz, "Statelessness, protection and equality", 6. UN High Commissioner for Refugees, "Action to Address Statelessness: A Strategy Note", 14. 48 B.K. Blitz, "Statelessness, protection and equality", 3. 49 Address by K. Vollebaek, OSCE High Commissioner on National Minorities, to the Expert Consultation on ‘Issues related to minorities and the denial or deprivation of citizenship’, convened by the UN Independent Expert on Minority Issues, G. McDougall, Geneva, 6 December 2007. Available at http://www.osce.org/files/ documents/a/4/29915.pdf [accessed 31 January 2011]. 50 B.K. Blitz and M.L. Lynch, "Statelessness and the benefits of citizenship: A comparative study", 7. 51 M. Lynch, "Statelessness: International blind spot linked to global concerns", Refugees International Field Report (2 September 2009), 2.
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possibility of decent education and job opportunities.52 Subsequently, victims taken across borders have no government to rely upon to defend their interests. Whether one is outside one’s country of origin or habitual residence as a result of trafficking or following voluntary departure, return poses a practical impossibility for most stateless persons. When abroad, many spend months or even years in alien detention because deportation proves problematic with no official country of nationality to which they can be returned. In practice, ‘the vast majority of such problems go undetected’.53 It seems one can truly live and die without leaving a trace. 1.3 Role of UNHCR in the protection of stateless people In contrast with later human rights instruments, the 1954 Convention’s drafters did not foresee in an organization or body to be charged with the implementation and enforcement of the provisions laid down in the treaty. It was not until the 1961 Convention was drawn up, that some clarity in this respect emerged. Article 11 of this treaty recommended that ‘Contracting States shall promote the establishment within the framework of the United Nations […] of a body to which a person claiming the benefit of this Convention may apply for the examination of his claim and for assistance in presenting it to the appropriate authority.’ No further guidelines or criteria were posited as to what the duties and responsibilities of such a ‘body’ were to be. However, when the Convention entered into force in 1974, the UN General Assembly requested the United Nations High Commissioner for Refugees (UNHCR) to assume temporary responsibility in this regard. This role was extended to become an indefinite mandate in 1976.54 Following UNHCR’s existing mandate with respect to the protection of refugees, granting the organization responsibility for stateless people seems logical. According to the Equal Rights Trust,
[t]he strong link between the stateless and refugees, who are both denied the effective protection of a state of nationality, together with the legal and operational protection mandate of the UNHCR, make the latter the most obvious and suitable UN organisation to take the stateless under its wing.

‘However’, as the report goes on to state, ‘one of the inadvertent side-effects of this move has been that until recently the issue of statelessness had escaped the concerted attention of the UN human rights system – the Human Rights Council and the treaty bodies’.55 For UNHCR too, the problem of statelessness was clearly overshadowed by the refugee problem throughout most of its history. Moreover, there was a general sense, both inside and outside

K. Southwick and M.L. Lynch, "Nationality Rights for All: A Progress Report and Global Survey on Statelessness", 3. 53 H. Massey, "UNHCR and De Facto Statelessness", UNHCR Legal and Protection Policy Research Series (2010), 43. 54 C.A. Batchelor, "The 1954 Convention Relating to the Status of Stateless Persons", 35. 55 Equal Rights Trust, "Unraveling Anomaly: Detention, Discrimination and the Protection Needs of Stateless Persons", 24. [20]

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UNHCR, that because of the relative stability of states during the Cold War, the issue of statelessness was a minor issue and that only a relatively small number of individuals were affected by it. Since then, the situation has changed notably with dissolution of a number of federal states, and with new states being formed in the aftermath of the Cold War. As In light of these developments, UNHCR increasingly realised that more needed to be done to highlight and address the plight of stateless people. In 1996 UNHCR was requested by the UN General Assembly to actively promote accession to the two Statelessness Conventions, and to serve in a technical and advisory role to states interested in implementing the Convention’s provisions in their nationality laws.56 UNHCR has provided support to this end ever since. In 2006 the Member States of UNHCR’s Executive Committee (ExCom) came forth with a conclusion that urged UNHCR ‘to strengthen its efforts in this domain by pursuing targeted activities to support the identification, prevention and reduction of statelessness and to further the protection of stateless persons’.57 These four areas still govern UNHCR’s statelessness-related efforts today. It was also confirmed that, in addition to the promotion of accession, UNHCR should take on the duty of providing training, technical expertise and operational support to states which were grappling with issues related to statelessness. Still, it should be noted that UNHCR does not challenge states’ prerogative to govern the acquisition or loss of nationality. What the organization can do, for instance, is assist stateless individuals through the dissemination of information on citizenship, provide documentation and legal advice and promote birth registration. Detailed guidance on how to determine whether or not a person is stateless is in development. ExCom further encouraged UNHCR to ‘promote increased understanding of the nature and scope of the problem of statelessness, to identify stateless populations and to understand reasons which led to statelessness, all of which would serve as a basis for crafting strategies to addressing the problem’.58 The present study was instigated as part of this renewed resolve.

UN General Assembly resolution 50/152, 9 February 1996. UN High Commissioner for Refugees, "Conclusion on Identification, Prevention and Reduction of Statelessness and Protection of Stateless Persons, 6 October 2006, No. 106 (LVII) - 2006". Available at http://www.unhcr.org/refworld/docid/453497302.html [accessed 2 February 2011]. 58 Ibid.
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2.

DEFINITIONS, METHODOLOGY AND REGISTRATION PRACTICES

The main body of this report consists of two distinct but complementary parts: a demographic and a legal analysis of statelessness in the Netherlands. Each parts employs its own methodologies; this chapter elaborates on both. However, first some preliminary remarks should be made about the way statelessness is defined, as well as on other concepts regularly used throughout this report. Furthermore, an overview of the public authorities involved and of their registration practices will be provided. Especially the latter matter warrants extensive attention, since understanding the way stateless persons are registered and counted allows us to gauge the accuracy and reliability of statistical data presented in the next chapter. 2.1 Definitions and distinctions Any discussion on statelessness in the end revolves around the absence of a nationality. For the purposes of this report, nationality59 will be defined as legal membership of a state.60 A stateless person, according to Article 1 of the 1954 Convention relating to the Status of Stateless Persons, is someone ‘who is not considered as a national by any State under the operation of its law’. This definition, as Batchelor put it, ‘is not one of content or quality but simply one of fact’.61 Following this classification, persons who technically do have a nationality but enjoy none of the benefits normally associated with it (such as the right to reside, leave and return, receive diplomatic protection abroad, etc.) are not considered to be stateless. However, many scholars have argued that a purely technical nationality that is in many or all respects completely ineffective, in practice equals having no nationality at all.62 People with such a “useless” nationality are commonly referred to as de facto stateless persons, but this group is much less clearly delineated and much more conceptually ambiguous than the de jure stateless. For the purposes of this study, a person is de facto stateless when he or she is outside his or her presumed country of nationality, yet has no effective nationality and does not enjoy that country’s protection.63 If one visualizes a continuum on which full, legal citizenship takes up one end of the spectrum, de jure statelessness occupies the other – unfavourable – end. ‘In between these extremes are millions of de facto stateless persons denied effective protection’.64 In practice, “de facto statelessness” is a problematic and confusing concept. Put simply, one is only considered de facto stateless when one’s nationality is ineffective.

The terms “nationality” and “citizenship” are treated interchangeably in this study. P. Boeles, "Het nut van nationaliteit", Nederlands Juristenblad, no. 42 (2007), 2666-2671. 61 C.A. Batchelor, "Statelessness and the Problem of Resolving Nationality Status", 172. 62 C.A. Batchelor, "Stateless Persons: Some Gaps in International Protection", International Journal of Refugee Law 7, no. 2 (1995), 180. See also Equal Rights Trust, "Unraveling Anomaly: Detention, Discrimination and the Protection Needs of Stateless Persons", 10, 78. 63 This definition combines the interpretation of the concept by the UN High Commissioner for Refugees (In: "Nationality and Statelessness: A Handbook for parliamentarians", 11) and H. Massey (In: "UNHCR and De Facto Statelessness", 61). 64 I. Goris, J. Harrington, and S. Köhn, "Statelessness: what it is and why it matters", Forced Migration Review 32 (2009), 4.
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However, because a) no consensus exists as to when this criterion of ineffectiveness is met; and b) even if this were the case, no legal imperatives exist to grant rights to de facto stateless people on grounds of their statelessness, the concept is rendered rather toothless. Whereas the absence or denial of a nationality (de jure) is covered by the two Conventions on statelessness, the denial of rights attached to a nationality (de facto) is an issue already addressed by the existing human rights regime.65 Indeed, ‘the right to a nationality is distinct from the rights attached to nationality’.66 All in all, this report shall aim to avoid using the term “de facto” as much as possible, and unless mentioned otherwise the word “stateless” refers to its de jure variant. It should be noted though that not just officially recognised de jure stateless persons will be covered by this report, especially since it will become apparent that plenty of reservations can be made towards the way in which statelessness is (or is not) determined in the Netherlands. Instead, people who are at particular risk of statelessness according to UNHCR’s interpretation of the international treaty regime on the matter, will be considered too. Up until 1 April 2003 a stateless person was defined in Dutch law as ‘he who has no nationality or whose nationality cannot be determined’.67 This definition raised the matter of whether or not people who were registered as of unknown nationality in the Municipal Basic Administration (GBA), were thereby rendered stateless too.68 This debate was cut short by the modified Dutch Nationality Act (DNA) of 2003, which virtually copies the legalistic definition of statelessness from the 1954 Convention. According to Article 1(1)f DNA a person is stateless when he or she ‘is not regarded as a national by any State under its legislation’. This definition is relevant for Article 6(1)b (option right to Dutch nationality), Article 8(4) (naturalization) and Article 14(6) DNA (loss of Dutch nationality). However, it should be stressed at the outset that rather few people are actually registered as a stateless person in the Netherlands (2,060 persons on 1 January 2010). Nevertheless, it is quite unclear whether a GBA registration of statelessness also implies recognition as such. The group that is registered as “nationality unknown” is markedly bigger (83,008 on 1 January 2010). This is salient, considering that these people might have qualified for statelessness prior to the 2003 changes in the DNA. Still, as the distinction is clearly made in practice, it is useful to distinguish between stateless people and people of unknown nationality in this report as well. One other distinction, more tailored to the Dutch context than the common de jure – de facto dichotomy, is between stateless people and “unreturnable” people. This report elaborates on cases from both categories. The former refers to people who fall under the strict definition of statelessness outlined above. The latter category refers to people who do not qualify for statelessness under these criteria, but who, despite their own express wishes, cannot return (or be returned) to their country of origin or former habitual residence, and are not legally entitled to reside in their current host country either. These people, in short, are in

L. van Waas, Nationality Matters. Statelessness under international law (Antwerp: Intersentia, 2008), 25. H. Massey, "UNHCR and De Facto Statelessness", 28. 67 Stb. 1984, 628. Article 1(f) of the 1984 Dutch Nationality Act. 68 G.-R. de Groot, "Het optierecht van in Nederland geboren staatloze kinderen op het Nederlanderschap", Migrantenrecht 21, no. 6 (2006), 315.
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limbo, and share all problems usually associated with statelessness. One can get stuck in such a twilight zone when, for instance, re-entry to a country of origin is refused, or when consular authorities prove unwilling or unable to issue travel documentation, after an application for a residence permit in the Netherland has been denied.69 Although similar in scope and consequence, verifying whether a person is unreturnable is much more clear-cut than establishing de facto statelessness. After all, by taking the possibility of return as the central criterion, which can be simply revealed through practice, vague conditions such as “ineffectiveness” are avoided. As return can generally only be effectuated with the cooperation of the country of origin, the return-criterion is in line with one of the principal functions of nationality in international law: the reception of (consular) assistance when abroad.70 Demonstrated unreturnability thus points to the absence of at least a core function of one’s presumed nationality. Furthermore, as opposed to de facto statelessness, by way of the no-fault procedure being an unreturnable person actually does have legal effect. 2.2 Demographic methodology The demographic chapter of this report consists of a quantitative and a qualitative analysis. As far as the quantitative section is concerned, one’s count of the number of stateless people in the world is primarily dependent upon two factors: the way in which “stateless” is defined and the common practice through which people are registered as such. As for the first factor, in the Netherlands the Central Bureau for Statistics (CBS) adheres to a strictly de jure definition of statelessness. Naturally, such a limited definition will cause numbers to be relatively low. However, a large group of people of unknown nationality may obscure thousands of stateless or unreturnable persons, and for this reason both categories will be scrutinized to reveal the people behind the numbers. As for the second factor, the way stateless people are registered in the Netherlands, this practice was considered sufficiently curious and complex to warrant special attention (see section 2.5). It should be noted that whenever CBS statistics conflicted with those of the Dutch Immigration and Naturalization Service (IND), CBS figures were given precedence. This bureau aggregates its statistics directly from municipal population registers, whereas the IND indicated that their numbers might be less reliable. Various interviews with IND personnel and municipal officials have been conducted to shed additional light on limited availability of data and the way stateless persons are registered in the Netherlands. Case law on registration practices will at times be forwarded to highlight and clarify striking statistical outcomes. The qualitative section of this report did not face difficulties in the availability of data, but instead in its accessibility. After all, how does one trace people variously described as “anomalies”,71 “legal ghosts” or “non-persons”?72 Considering that no government- or non-

In applying the distinction between stateless people and unreturnable persons, we follow the forthcoming UK report on statelessness commissioned by UNCHR. 70 UN High Commissioner for Refugees, "The Concept of Stateless Persons under International Law", Summary Conclusions of an Expert Meeting held in Prato, Italy on 27-28 May 2010. 71 United Nations, "A study of statelessness", (1949), 8. 72 L. van Waas, Nationality Matters. Statelessness under international law, 457. [24]

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government agency is specifically concerned with the fate of stateless people, respondents were sought through two alternative channels. Firstly, grassroots non-governmental organisations (NGOs) from all over the country that have assumed the task of providing assistance to undocumented people in general were approached. It soon appeared that almost all of them had (sometimes extensive) experience with supposedly stateless persons asking for their help. More established organizations, such as Amnesty International, suggested potential interviewees throughout the research as well. Secondly, a number of law firms, mainly specialised in immigration and nationality law, were asked for assistance. Some of them were at present representing (or had in the past represented) alleged stateless persons in their court cases. This avenue provided valuable insights into the lengthy and intractable legal quagmire many stateless persons are stuck in. Appendix 1 lists the organizations that have suggested potential respondents. An important advantage of approaching respondents through these multiple “access points” is that an overreliance on individual “snowball sampling” is avoided. If respondents had been collected in this way, i.e. through repeated referral starting with the person approached in first instance, a rather biased sample would have been likely. After all, this initial “gatekeeper” may be inclined to suggest people of equal stature or of similar social or geographical origins. Moreover, isolated, ostracised or particularly marginal groups of people are unlikely to be reached in this way. A clear, but unfortunately unavoidable, downside to this way of gathering interview subjects is a lack of control over the sample. As a result, although numbers from the statistical section below do indicate that the majority of stateless persons or people of unknown nationality is male, men are somewhat overrepresented in the research population. Similarly, no stringent demands could reasonably be set as to the age, education or social position of interviewees, although we did end up with a highly diverse group of people in these respects. One aspect that was actively “selected” on, is the geographical background of respondents, borne specifically from the desire to provide stories from people that match both the “risk groups” indentified statistically as well as through practical experience. At least two respondents were sought to match each risk group. This practice, commonly called “quota sampling”, ensures that the research population meets certain characteristics. This is not to suggest that statelessness is a marginal issue in countries or continents not represented in this study’s sample, but simply that numbers and/or practical experts point to a limited presence in the Netherlands of stateless people from such backgrounds. Put succinctly, the sample of interviewees is intended to reflect groups at particular risk of either statelessness or “unreturnability” in the Netherlands – a demography of statelessness, so to speak. To this end, 24 people were consulted in 20 different interviews (family members in identical situations were in some cases interviewed together), representing ten different risk groups. The demographic part of this report was scheduled to last four months in total, so the interviews took place within a short timeframe of two months (late November 2010 until late January 2011) to allow for careful interpretation and analysis afterwards. All interviews were semi-structured, to assure some level of comparability between the different cases presented here. Appendix 2 details the questions that (though by no means rigidly) informed all conversations. Nonetheless, as with all qualitative studies, empirical data may illuminate
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particular trends and exceptions, but can hardly ever stake a claim to causality or conclusiveness.73 Each interview was summarised in an approximately three-page document, to facilitate both subsequent reflection on as well as the discerning of patterns in the various stories. In each case documentary support was sought to back up the story and experiences recounted by the interviewee. Most people kept – sometimes considerable – records of their situation, whereas in other cases their lawyer was approached. Interviews were conducted in six different cities, in NGO offices, cafés and in one case in the interviewee’s home. Additionally, three different alien detention facilities were visited to speak to people in custody. Interviews on average lasted approximately 75 minutes, and participation was entirely voluntary (no remuneration was offered). Most respondents gave permission to record our conversation. Nevertheless, complete anonymity was guaranteed, to allow respondents to talk freely without fearing the potential ramifications of their candour. Throughout the report, therefore, pseudonyms have been used to portray their stories. 2.3 Legal methodology This study is written for a special reason: the 50th anniversary of the 1961 Convention. The Netherlands is a Contracting State to both this Convention and the 1954 Convention. One of the main goals of the legal part is to build on the demographic analysis by indicating if and how the Dutch statelessness policy can be improved. In doing so, particular attention is paid to the implementation of the objectives of the 1954 and 1961 Conventions in Dutch law. As the Conventions were drafted many decades ago, when human rights law was only in its infancy, it was only logical to briefly describe both Conventions in historical perspective (paragraphs 4.2.1 and 4.2.2). It shall also be seen that academic criticism has been voiced about the international achievements in the fight against statelessness (paragraph 4.2.3). Nevertheless, the two Conventions remain crucial in this regard, in particular because they are the only instruments exclusively focusing on statelessness in a broad sense.74 UNHCR therefore actively promotes accessions to the Conventions.75 In addition to these two specific UN Conventions, an overview will be given in the legal part of this report of other relevant instruments containing provisions on statelessness. The Netherlands is party to most of them. Several comparative research projects on nationality legislation are currently being conducted,76 yet no comprehensive legal reports are available on the specific subject of statelessness.77 The legal analysis will nonetheless briefly illustrate the statelessness policies in Spain and Hungary because they can possibly serve as inspiration to the Netherlands. It is hoped that a Dutch report, in conjunction with the other national UNHCR reports from the United Kingdom and Belgium, will shed more light on the different European practices in this

See B.K. Blitz and M.L. Lynch, "Statelessness and the benefits of citizenship: A comparative study", 96. This sets them apart from, for example, a more specific instrument such as the 2006 Council of Europe Convention on the Avoidance of Statelessness in Relation to State Succession. 75 See recently ARCA and UN High Commissioner for Refugees, Initiativa pentru desvoltarea politicolor si practicolor romaniei in domeniul apatridiei (Bucarest: 2010), 8. 76 See for example http://eudo-citizenship.eu/. 77 Gábor Gyulai, for example, has written a comparative study which is not, however, a comprehensive analysis of statelessness in the EU.
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field. A combined reading of these documents could also indicate whether there is a need for common rules on statelessness in Europe. A long-standing debate in European nationality law concerns the question of the harmonization of different national rules on acquisition and loss of nationality. This debate has become all the more salient with the introduction of European citizenship, which entails the right to freely move on the European territory, by the 1992 Maastricht Treaty.78 Although this harmonization debate rarely focuses on statelessness, the national reports may also trigger a debate on the need for common European rules and policies with regard to this phenomenon, or for an EU Statelessness Directive. The objective of the legal analysis is not, however, to conduct a broad European study, but to analyse the current Dutch statelessness policy. Particular attention will be paid to whether in Dutch law we can find the following three remedies for statelessness: pre-emptive remedies, which try to prevent statelessness before it develops; minimization remedies, which lessen the difficulties associated with statelessness and serve to protect stateless persons from discrimination; and naturalizing remedies, which attempt to secure nationality for those already stateless. While the 1961 Convention primarily deals with the former and the latter remedies, the 1954 Convention contains a considerable number of minimization remedies. It will be seen throughout this report that the relevance of the 1954 Convention remains particularly unclear in the Dutch context. It is surprising how little has been written about statelessness in the Dutch academic literature compared to other subjects of nationality and aliens law. For instance, during the analysis of case law only a few core judgments have been encountered; it would therefore not have been fruitful to give a detailed overview of all case law on the subject. Finally, the law firms that were contacted during the project appear to have rather little experience with statelessness and could therefore only be of limited assistance. The legal analysis therefore primarily draws upon the findings in the demographic part. In other words, the Dutch legal practice is illustrated using the cases of several interviewees as an example. 2.4 The registration of stateless people In theory, all inhabitants of the Netherlands are registered in the “municipal basic administration” (GBA).79 Aliens who lawfully reside in the Netherlands on the basis of Article 8 of the Aliens Act 2000, and who are likely to remain in the Netherlands for at least six months, are registered in the GBA as well. Registration can take place upon a voluntary action by the person to be registered, or by order of the municipal authorities, if and when these obtain knowledge about the arrival or presence (or absence or departure) of persons in their municipalities. Asylum-seekers living in a reception centre are registered after having stayed there for at least six months. Children born to asylum-seekers living in a reception centre are registered immediately upon birth.80 Decentralized registration data from all Dutch

See most recently Case C-34/09, Ruiz Zambrano, delivered by the Court of Justice of the European Union on 8 March 2011. The Belgian UNHCR report will contain a detailed analysis of this case. 79 Wet Gemeentelijke Basisadministratie (9 June 1994). Staatsblad 1994, 494. Article 34 Act GBA states that the nationality of a person is recorded by the municipality where the person is registered. 80 Besluit Gemeentelijke Basisadministratie (8 September 1994), Article 55. [27]

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municipalities are collected and aggregated to the national level by the Central Bureau for Statistics. According to Article 43 of the Act GBA,81 nationality status of all residents should be included in the registration. The GBA operational guideline specifies that such data is to be based on documents emanating from a person or institution that is competent to determine citizenship in the jurisdiction concerned, or that can issue a document testifying to the person’s citizenship. A declaration under oath does not suffice, nor does an IND document specifying an individual’s nationality.82 Whenever citizenship cannot be readily determined, two options remain: an individual is either registered as of “unknown nationality” or as stateless.83 In the case of a registration of statelessness, it is not specified in the guideline how precisely this determination is to be conducted, nor does the word “stateless” appear in the Act GBA. The guideline also remarks that statelessness ‘rarely ever occurs’.84 When it does, however, only those stateless persons able to accurately document their statelessness are registered in this way. It is unclear which law or regulation stipulates that the burden of proof borne by potential stateless people should be this high, but it is ‘common practice’ nonetheless.85 This type of modus operandi prompted one author to remark that ‘[i]t is perhaps the ultimate irony that even a statelessness certificate requires supporting documents’.86 Yet, even if someone succeeds in providing adequate documentary support to substantiate his claim to statelessness, it is unclear what exactly the consequences of a GBA registration as a stateless person are. In practice, they appear relatively limited. A right to reside or work in the Netherlands can certainly not be inferred from it, and neither does it automatically render the 1954 Convention, and all concomitant rights stipulated in this treaty,

Article 43 Act GBA: 1.Gegevens over een vreemde nationaliteit worden ontleend aan een beschikking of uitspraak van een daartoe volgens het ter plaatse geldend recht bevoegde administratieve of rechterlijke instantie, die tot doel heeft tot bewijs te dienen van de betreffende nationaliteit, dan wel opgenomen met toepassing van het betreffende nationaliteitsrecht. 2.Indien gegevens over een vreemde nationaliteit niet overeenkomstig het eerste lid kunnen worden verkregen, kunnen deze gegevens worden ontleend aan een geschrift van een volgens het ter plaatse geldend recht bevoegde autoriteit, dat gegevens vermeldt over die nationaliteit. 3.Indien de betrokkene geen nationaliteit bezit of de nationaliteit niet kan worden vastgesteld, wordt dit gegeven opgenomen. Indien een rechterlijke uitspraak op grond van artikel 17 van de Rijkswet op het Nederlanderschap is gedaan, waarbij is vastgesteld dat de betrokkene niet de Nederlandse nationaliteit bezit, wordt daarvan melding gemaakt. 82 Agentschap Basisadministratie Persoonsgegevens en Reisdocumenten, "Handleiding uitvoeringsprocedures", (2010), 49. See also P.H. Oostendorp, "Staatloosheid, onbekende nationaliteit en de GBA", in Trends in het nationaliteitsrecht, ed. H.U. Jessurun d’Oliveira ('s-Gravenhage: Sdu, 1998), 128. 83 Such practice has been criticized in the literature. Referring to Germany, where there is some case law to the effect that a finding of unknown nationality is unacceptable, Mandal feels that ‘undetermined nationality’ should not be a conclusion of a determination process. R. Mandal, "Discussion Paper no. 3: Procedures for Determining Whether a Person is Stateless", Discussion papers series for the establishment of a UNHCR Handbook on the Determination of Statelessness (2010), 34. 84 Agentschap Basisadministratie Persoonsgegevens en Reisdocumenten, "Handleiding uitvoeringsprocedures", 75. 85 Interview with Eric Gubbels, Advisor at the Nederlandse Vereniging voor Burgerzaken (NVVB) (‘Dutch Association for Civic Affairs’) – telephone, 27 January 2011. 86 V. Tan, "Chasing the Propiska", Refugees 3, no. 147 (2007), 11. [28]

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applicable. A right to reside in the Netherlands is determined by the IND, but according to Dutch law statelessness in itself is no ground on which one can acquire a residence permit. Moreover, although data from the GBA is indicative for all other governmental institutions, e.g. the IND, it is not binding.87 Still, it is important for stateless people to be registered as such for two reasons. The first reason pertains to the Dutch right of option system, which requires a child to be stateless from birth if it is to be eligible for Dutch citizenship. It would facilitate a child’s chances of naturalization if he or she were born to two registered stateless parents. Secondly, a registration as stateless in the GBA will in general be sufficient to qualify for an aliens passport with a “statelessness clause”.88 Though the individual concerned will not be exempt from visa regulations in most countries, it is nonetheless an internationally accepted travel and identification document. Alternatively, when the person concerned is suspected of having at least one, albeit undetermined, nationality or has reported citizenship of a country not recognized by the Netherlands, he or she is registered as of “unknown nationality”. Children of asylum-seekers are also regularly registered in this way. After all, often there will be no evidentiary proof of their nationality as many countries do not provide documentation to minors. Refugees, having often just fled from state persecution, cannot reasonably or legally be expected to contact their authorities to ask for confirmation of their identity. Quite a number of asylum-seekers thus arrive in the Netherlands without adequate documentation and it can be safely assumed that many of them will also be registered as of unknown nationality. In the context of state succession, the GBA operational guideline prescribes that after the breakdown of a state, former citizens who have not yet acquired citizenship of a successor state ought to be registered as of unknown nationality. Even if someone loses his or her nationality after a state’s breakdown and it is unclear what other nationality he or she might be eligible for, the person concerned is considered to be of unknown nationality.89 Although commonplace, this registration practice is in fact legally problematic. We point at Recommendation on the Nationality of Children (CM/Rec(2009)13) adopted by the Council of Europe, which states that
[a] case on the borderline of de jure and de facto statelessness exists if authorities register a person as being of unknown or undetermined nationality or classify the nationality of a person as being “under investigation”. Such classification is only reasonable as a transitory measure during a brief period of time.90

Interview with Eric Gubbels – telephone, 27 January 2011. An inventory conducted by Eric Gubbels at the municipality of Amsterdam has shown that no cases appear to have been reported where parents inform the municipality of the child’s acquisition of Portuguese nationality. UNHCR nevertheless assumes that stateless children born to Portuguese parents are at some point registered with the Portuguese authorities and granted Portuguese nationality. 88 Interview with Xander Seijs, Advisor at the NVVB - telephone, 27 January 2011. 89 Agentschap Basisadministratie Persoonsgegevens en Reisdocumenten, "Handleiding uitvoeringsprocedures", 75, 333-334. 90 Council of Europe, "Position Paper of the Bureau of the European Committee on Legal Cooperation on the Draft Recommendation on the Nationality of Children", (2009), 4. [29]

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In the Netherlands no time limit is imposed on the duration of a “nationality unknown” registration, nor does it result in a municipal duty to look into the matter and answer the implicit question. This is in spite of the fact that this Recommendation considers Article 8 of the 2006 Convention on the Avoidance of Statelessness in relation to State Succession to urge states ‘to implement their obligations under international law by not indefinitely leaving the nationality status of an individual as undetermined’.91 Moreover, the fact that the Netherlands has ratified the 1961 Convention, which is first and foremost concerned with the reduction of statelessness, suggests that a duty to find out who is and who is not some country’s national does exist. In any case, at present the category “nationality unknown” is sufficiently broad to be of considerable size. The case below illustrates some of the registration practices outlined above, as well as their rather challenging burden of proof. Case law A Syrian Kurd was registered in the GBA as being of unknown nationality.92 He requested that the registration be changed into “stateless” on the basis of a Syrian identity document issued by the ‘Mukhtar’ (village head) of his place of origin. The District Court of Roermond refused the request, holding that the Syrian identity document contained no information about nationality as required under Article 43(1) or 43(2) GBA. In addition, the court held that research conducted by the IND into Syrian nationality law had not shown that the claimant did not possess Syrian nationality. Consequently, the court, after having adopted this rather marginal test, ruled that the IND ‘has conducted sufficient research from which it could conclude that it could not be inferred from the Syrian Nationality Act whether or not the claimant had acquired a nationality’. Municipal authorities are not the only institutions charged with the registration of stateless persons: the IND is involved as well. For instance, it registers all applications for residence permits by aliens, and here a distinction is made between applications for “asylum permits” and “regular permits”. Unfortunately, published IND statistics do not specifically count applications by stateless persons, but the category “nationality unknown” is applied. In 2009, out of 14,905 first-time asylum applications, 507 (3.4%) concerned persons who had no known nationality.93 However, recall that the only avenue towards legal residency in the Netherlands specifically intended for stateless people is the no-fault procedure and this results in a (temporary) regular permit. How many people of unknown nationality filed an application in this way is unclear. One reason for the sketchiness of these IND statistics is that, as one senior policy official put it, the organization’s registration system ‘confuses people with an unknown nationality with those who are stateless’.94 Another official spoke of ‘a certain pollution’ in the IND system as the two categories are not attributed accurately.95

Ibid., 21. Rechtbank Roermond, 23 April 2007, LJN BA4086. 93 INDIAC: Asylum trends August 2010. 94 E-mail from an IND Senior Policy Official, 17 November 2010. On file with authors. 95 E-mail from an IND Policy Official, 1 October 2010. On file with authors.
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The lack of uniformity as to the qualification and registration of statelessness is clearly one of the most problematic aspects of the current Dutch statelessness policy. Therefore we concur with Evers and De Groot, who have recently argued for a statelessness determination procedure the outcome of which should be binding for all Dutch authorities dealing with statelessness (see in more detail paragraph 4.4.1).96 The incoherence resulting from the highly dispersed statelessness policy can additionally be illustrated by the following observations. The Dutch Passport Act (Paspoortwet) reads in Article 13 that every alien who is admitted as a stateless person to one of the countries of the Kingdom of the Netherlands is entitled, within the limits established by law, to an aliens’ travel document (reisdocument voor vreemdelingen),97 which is valid for at least three years and for all countries.98 Article 11(2) of the Passport Implementation Regulation (Paspoortuitvoeringsregeling) continues by stating that the alien’s right to such a travel document is to be determined on the basis of his or her status in the GBA. It is therefore checked whether the person is registered as stateless in the municipal administration.99

L. Evers and G.-R. de Groot, "Staatloos of van onbekende nationaliteit of nationaliteit in onderzoek?", (2011, On file with authors). 97 The Dutch policy regarding foreign aliens’ travel documents (Houders van vreemdelingenpaspoorten (staatlozen)) is laid down in Article A2/6.2.12 of the Aliens Act Implementation Guidelines, and reads: ‘Onder ‘staatloze’ wordt blijkens het op 28 september 1954 te New York gesloten Staatlozenverdrag verstaan: een persoon die door geen enkele staat, krachtens diens wetgeving, als onderdaan wordt beschouwd. Deze personen worden in de regel door de autoriteiten van het land waar zij zijn toegelaten in het bezit gesteld van een vreemdelingenpaspoort. Het reisdocument voor staatlozen, afgegeven krachtens voornoemd verdrag, wordt voor binnenkomst op het grondgebied van de Schengenstaten als document voor grensoverschrijding erkend. Vreemdelingenpaspoorten worden door de autoriteiten van het land waar zij zijn toegelaten ook wel afgegeven aan personen die om één of andere reden van het land waarvan zij onderdaan zijn geen document voor grensoverschrijding kunnen verkrijgen of een reeds verkregen document voor grensoverschrijding niet kunnen laten verlengen. Toegang wordt slechts aan houders van vreemdelingenpaspoorten verleend indien uit het vreemdelingenpaspoort of een ander document blijkt dat de wedertoelating van de vreemdeling tot het land van afgifte is gewaarborgd. Houders van een dergelijk document voor grensoverschrijding zijn bij binnenkomst aan de visumplicht onderworpen. Echter, vreemdelingen die in het bezit zijn van een reisdocument dat is afgegeven door een lidstaat van de EU aan staatlozen en andere personen zonder nationaliteit die rechtmatig verblijf hebben in die lidstaat zijn op grond van Verordening 539/2001 vrijgesteld van de visumplicht. Voor de bepalingen met betrekking tot houders van een vreemdelingenpaspoort aan wie lang verblijf in Nederland is toegestaan wordt verwezen naar A2/6.2.10.1. Aan personen die verklaren staatloos te zijn en die niet in het bezit zijn van een vreemdelingenpaspoort wordt de toegang geweigerd. Houders van vreemdelingenpaspoorten die niet beschikken over de vereiste visa wordt in beginsel eveneens de toegang geweigerd. In bijzondere gevallen en onder bepaalde voorwaarden kunnen echter aan de grens visumfaciliteiten worden verleend (zie A2/4.3.8)’. 98 See Article 3(6) jo. Article 13 Passport Act. Article 3(6): ‘In reisdocumenten die aan Nederlanders worden verstrekt, wordt de Nederlandse nationaliteit vermeld. In reisdocumenten voor vluchtelingen en in reisdocumenten die aan staatlozen worden verstrekt, wordt de status van de houder vermeld’. Article 13: ‘Iedere vreemdeling die als staatloze tot een der landen van het Koninkrijk is toegelaten, heeft binnen de grenzen bij deze wet bepaald, recht op een reisdocument voor vreemdelingen, geldig voor ten minste drie maanden en voor alle landen’. 99 Article 11(2): ‘De vaststelling van het recht op een reisdocument voor vreemdelingen als bedoeld in Artikel 13 van de [Paspoort]wet geschiedt op grond van de gegevens die over het verblijfsrecht en de staatloosheid van de aanvrager in de basisadministratie zijn opgenomen, alsmede aan de hand van het door de aanvrager overgelegde verblijfsdocument, waaruit het gegeven van diens staatloosheid blijkt, en: a. waaruit diens verblijfsrecht ingevolge Artikel 14 of 20 [Vw 2000] blijkt, of [31]

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However, if there is any doubt about the alien’s nationality status, research will be conducted which takes into account the IND’s information about this person’s status.100 In other words, the IND document containing a person’s presumed nationality can be used to determine nationality for the purpose of issuing a travel document. Yet for the assessment of a person’s nationality in the GBA, the IND document is completely irrelevant. A final actor involved with the potential registration of stateless people is the Dutch authorities (and the Ministry of Safety and Justice specifically), which from time to time publish estimates of the number of illegal aliens staying in the Netherlands. The last estimate dates from 2006.101 In this report it was concluded that a total of 128,907 illegal aliens live in the Netherlands. Unfortunately, no further data about stateless persons among this group is available.In this context it should be reiterated that most stateless people are undocumented at the same time – a quandary inherent to the absence of nationality. Therefore, when later we survey the statistical material available, it is important to bear in mind that an overview can only be provided of the limited percentage of officially visible stateless persons.

b. waaruit diens toelating als staatloze in de openbare lichamen blijkt’. 100 Article 11(3): ‘Indien de in de basisadministratie opgenomen gegevens als bedoeld in het eerste en tweede lid afwijken van de gegevens die zijn vermeld in het door de aanvrager overgelegde verblijfsdocument dan wel anderszins onzekerheid bestaat over deze gegevens, wordt daarnaar een gericht onderzoek ingesteld waarbij de gegevens die over het verblijfsrecht en de nationaliteit dan wel staatloosheid van de aanvrager in de vreemdelingenadministratie zijn opgenomen, mede worden betrokken’. 101 Wetenschappelijk Onderzoek- en Documentatiecentrum, "Een schatting van het aantal in Nederland verblijvende illegale vreemdelingen in 2006", (2006).Report available at www.wodc.nl/images/1466_volledige _tekst_tcm44-59472.pdf [accessed on 9 January 2011]. Another estimate is due to be released in 2011. [32]

3.

A DEMOGRAPHY OF STATELESSNESS IN THE NETHERLANDS

Very few countries in the world have accurately identified the prevalence of statelessness on their territories. From a 2004 UNHCR questionnaire sent out to 191 states (to which the Netherlands unfortunately did not respond) it appeared that only 45 percent of the responding states has ‘general information available on the potential number of stateless persons in their country’.102 With regard to the Netherlands, it is this lacuna that the present chapter attempts to fill. A first section will briefly recount the Dutch historical experience with issues related to statelessness, in order for current data to be interpreted in light of past events. The second section then provides an overview of all available statistical material on statelessness in the Netherlands. The third section identifies groups at particular risk of statelessness in the Netherlands, and describes the lives they live and the challenges they face. The personal stories of these individuals complement the statistical data and allow us to appreciate the human toll paid as a result of this ostensibly administrative problem. A fourth and final section interprets the presented findings and offers some concluding thoughts. 3.1 A brief history of statelessness in the Netherlands103 One of the clearest examples of Dutch experience with statelessness goes all the way back to 1892, when a new, rather restrictive Nationality Act replaced the much more generous provisions of the 1838 Civil Code and the special nationality law of 1850.104 First, the 1892 Act adopted the jus sanguinis a patre principle, meaning that citizenship could only be conferred by a Dutch father to his children. Until then Dutch nationality was acquired by birth on Dutch territory (jus soli), including the colonies, regardless of gender. Considering that only Dutch men could now pass on citizenship, the government had to determine who exactly were citizens at that time, particularly in the colonies. In the Dutch East Indies the government decided to attribute citizenship along the lines of an already existing racial division, namely between ‘Europeans and assimilated’ (predominantly Christians) and ‘Natives and assimilated’ (Arabs, Chinese, Muslims and “pagans”).105 Due to their large numbers, the latter group was not granted nationality or political rights (inhabitants of smaller colonies such as Surinam and the Antilles were allowed to retain their Dutch nationality). As of that moment these ‘natives’ in the Dutch East Indies were stateless, because as subjects of a colonial power they had no other state to turn to. However, in 1910 a bond of international

Emphasis added. UN High Commissioner for Refugees, "Final Report Concerning the Questionnaire on Statelessness Pursuant to the Agenda for Protection", (2004), 5. 103 This section draws heavily from R. van Oers, B. de Hart, and K. Groenendijk, "Country report: The Netherlands", EUDO Citizenship Observatory Country Reports (2010). 104 The nationality provisions of the 1838 Civil Code were used in matters concerning civil law, while the nationality law of 1850 defined Dutch nationality for the exercise of civic rights. See O. Vonk, Dual Nationality in the European Union. A Study on Changing Norms in Public and Private International Law and in the Municipal Laws of Four EU Member States, Dissertation European University Institute (Leiden/Boston: Martinus Nijhoff Publishers, 2012), 208. 105 Van Oers et al. citing E. Heijs, "Nederlanderschap in de Nederlandse Koloniën: Regulering van immigratie vanuit de koloniën door nationaliteitsbeleid in Nederland", Recht der Werkelijkheid 12, no. 2 (1991), 24. [33]

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law was again created with the native population by giving them the status of ‘Dutch subject non-Dutch national’. Thus, while the 1892 Act had made them aliens, the 1910 Act made them subjects again, albeit second-class ones. This practice continued until Indonesia’s independence in 1949. Despite having ratified the 1954 and 1961 Conventions in the sixties and eighties respectively, this was not the last time statelessness resulted from the Dutch colonial legacy. As Indonesia became independent, the Moluccas – a group of islands to the northeast of Java – in turn attempted to wrestle free from Indonesian influence and achieve autonomy. In 1951, as the war of secession increased in intensity, the Dutch government reluctantly granted refuge to some 12,500 Moluccans and their families who had served in the Dutch Colonial Army. Both the Dutch government and the exiles operated under the assumption that this would be a temporary arrangement. After all, soon the Moluccans would have their own country to return to. Though this expectation is yet to be fulfilled, at the time their belief in an autonomous state was strong and therefore most had no desire to acquire Dutch citizenship. Meanwhile, however, these Moluccans had lost Indonesian citizenship as a result of the 1958 Indonesian Nationality Act. They were, in short, stateless. By the 1970s about 30,000 people of Moluccan origin lived in the Netherlands and many grew impatient. The Dutch government recognized the need for improvement and in 1976 the Faciliteitenwet Molukkers (‘Law pertaining to the position of Moluccans’) was introduced,106 granting Moluccans (nearly) the same rights as Dutch nationals, without actually making them citizens. In their passports it was stated that they were to be treated as Dutch nationals on the basis of the 1976 Act.107 As this gave rise to practical problems, the Dutch government decided in 1991 that all stateless Moluccans would be Dutch nationals for the purpose of the Passport Act.108 Although most have since acquired regular Dutch citizenship, according to Van Oers et. al. up to 1,000 people may still hold the quasi-citizenship bestowed by the Faciliteitenwet.109 In April 2003 a significantly revised Dutch Nationality Act entered into force. Prior to this revision children acknowledged by a Dutch father automatically acquired citizenship, but because this repeatedly led to allegedly fake acknowledgments when no biological bond existed between father and child, this arrangement was adjusted. After the modification children born out of wedlock could only obtain a Dutch nationality after having been cared

Stb. 1976, 468. Artikel 17 van de Paspoortuitvoeringsregeling: ‘1. Aan een staatloze persoon die op grond van de Wet betreffende de positie van Molukkers als Nederlander wordt behandeld, wordt op zijn verzoek binnen de grenzen bij de wet bepaald een faciliteitenpaspoort verstrekt. 2. Indien onzekerheid bestaat over de behandeling als Nederlander van de aanvrager, wordt daarnaar een gericht onderzoek ingesteld. Dit onderzoek omvat zoveel mogelijk verificatie van de behandeling als Nederlander met behulp van door de aanvrager over te leggen documenten die zijn afgegeven door een bevoegde autoriteit, waaronder zijn geboorteakte, en eventuele andere bewijsstukken’. In short, they held a so-called ‘quasi-citizenship’ or were, in the words of De Haas-Engel, ‘alsof-Nederlanders’. R.H. de Haas-Engel, Het Indonesisch Nationaliteitsrecht, Dissertatie Universiteit Maastricht (Deventer: Kluwer, 1993), 257ff. 108 R. van Oers, B. de Hart, and K. Groenendijk, "Netherlands", in Acquisition and Loss of Nationality, Policies and Trends in 15 European Countries, ed. R. Bauböck, et al. (Amsterdam: Amsterdam University Press, 2006), 421. 109 R. van Oers, B. de Hart, and K. Groenendijk, "Country report: The Netherlands", 38.
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for by their Dutch father for at least three years. If these children did not acquire their mothers’ citizenship in the meantime, they were stateless for three years. Public outcry, after newspapers reported that the IND wished to expel a five-month old baby,110 resulted in the law again being amended in 2009. At present, children automatically receive Dutch citizenship if they are acknowledged by their Dutch father before they have reached the age of seven. After this age, parenthood has to be established through a DNA-test.111 The Dutch government’s latest venture into the field of statelessness came as recent as 16 September 2010, when the 2006 Council of Europe Convention on the avoidance of statelessness in relation to State succession was signed. The Ministry of Foreign Affairs commented on this event by stating that ‘the prevention of statelessness is one of the most important goals of international nationality law’, and went on to say that being stateless is ‘a highly undesirable situation, as statelessness usually implies a high level of rightlessness’.112 The next section highlights how many people nonetheless live in this ‘highly undesirable situation’. 3.2 Statistical overview People who claim to be stateless are often undocumented. However, as we have seen, only those who do have documentation to prove their statelessness are registered in this way. Significant discrepancies between estimates of the prevalence of statelessness and actual statistical findings are therefore unsurprising. For instance, at present UNHCR has collected reliable worldwide data accounting for 3.5 million stateless people; a little more than a quarter of the total worldwide stateless population which is estimated at 12 million people.113 These inaccuracies do not only characterise global statistics, but persist in national data too. Few countries, if any, thoroughly keep track of stateless people on their soil.114 The Netherlands is no exception in this regard, although at first sight this might appear otherwise.
Table 1. Stateless/unknown nationality - age Younger 15-30 30-45 45-65 65 years than 15 years years years or older 19,887 29,982 23,261 10,200 1,739 (23%) (35%) (27%) (12%) (2%)
Source: CBS, situation 1 January 2010

Total 85,069

Table 2. Stateless/unknown nationality - sex Men Women 50,194 34,875 (59%) (41%)
Source: CBS, situation 01 January 2010

The Central Bureau for Statistics, in its “Statline” database, reported that on 1 January 2010 there were 85,069 persons living in the Netherlands without a nationality or with an unknown nationality. This category is defined by the CBS as ‘persons who are not considered

Trouw, “Baby moet land uit”, 29 October 2006, available at http://www.trouw.nl/nieuws/nederland/ article1394927.ece [accessed 6 January 2011]. 111 R. van Oers, B. de Hart, and K. Groenendijk, "Country report: The Netherlands", 38. 112 Ministry of Foreign Affairs, 17 September 2010. Available at http://tinyurl.com/38yf4u2 [accessed 6 January 2010]. 113 UN High Commissioner for Refugees, "Action to Address Statelessness: A Strategy Note", 4. 114 K. Southwick and M.L. Lynch, "Nationality Rights for All: A Progress Report and Global Survey on Statelessness", 28. [35]

110

as a national by any state or whose nationality cannot be established’.115 A little more than 85% are younger than 45 years (table 1), and almost 60% are male (table 2).116 Nearly half of these people live in the Randstad (West-Netherlands).117 These 85,069 persons constituted 11.5% of the total number of registered aliens in the Netherlands (735,197). This surprisingly large category can be broken down into those registered as stateless persons, and people of unknown nationality. The former group (stateless) is markedly smaller, consisting of 2,060 persons on 1 January 2010, whereas the latter group (nationality unknown) is comprised of 83,008 individuals.118 To the extent that people from these two categories migrated to the Netherlands, it is useful to inquire into the size of these migration flows (table 3).
Table 3. Migration flows in the Netherlands, 2008 Total Stateless Unknown 90,067 43 374 Emigration 143,516 207 9,021 Immigration
Source: Eurostat, 2008

Clearly, in 2008 immigration to the Netherlands outpaced emigration and this pattern extended to the flow of stateless people and persons of unknown nationality as well. It is possible for both stateless people and persons of unknown nationality to acquire Dutch citizenship.
Table 4. Grounds on the basis of which Dutch nationality has been acquired by stateless people and persons of unknown nationality, 2009 Ground for acquisition Nationality Stateless Unknown 10 5 Adoption 45 13 Recognition 25 7 Judicial determination of paternity 127 42 Right of option 4,634 45 Naturalization 2,188 46 Co-naturalization 7,029 158 Total
Source: CBS, 2009

As outlined in table 4, whenever people of unknown nationality attain Dutch nationality this usually happens through naturalization (and the concomitant co-naturalization of dependants). This is possible after one has had legal residence in the Netherlands for more than five years. People of unknown nationality are not accorded the privilege of facilitated access to naturalization that stateless people do enjoy: of the latter group only three years of legal stay are required.119 Nonetheless, this distinction does not appear to be of much consequence:

Central Bureau for Statistics, available at http://tinyurl.com/37olhcb [accessed 5 January 2011]. Central Bureau for Statistics, available at http://tinyurl.com/3a7mnzc [accessed 5 January 2011]. 117 Ibid. 118 Central Bureau for Statistics, data not available on Statline but on file with authors. 119 Rijkswet op het Nederlanderschap (‘Dutch Nationality Act’), Article 6(1)b.
116

115

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every year about 8% of people from either category acquires a Dutch nationality. Again, naturalization comes forward as the primary solution, although the right of option is invoked relatively often too. The remainder of this chapter attempts to provide an insight into the composition of the groups of registered stateless people and persons of unknown nationality. By disaggregating and analysing these categories, we may be able to grasp the actual meaning of otherwise hollow numbers. 3.2.1 Statistics on stateless people According to Eurostat, the Netherlands is one of seventeen (out of twenty-seven) EU countries that statistically keeps track of stateless people at all. In its most recent 2009 survey, the Netherlands was shown to have the third largest stateless population in Europe, only exceeded by Germany and Sweden.120 Figure 1 displays the development of the number of registered stateless people present in the Netherlands.121 Fig. 1 - Registered stateless people in NL
9000 8000 7000 6000 5000 4000 3000 2000 1000 0 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010
Source: CBS, situation 1 January

The sharp decline visible after 2004 is difficult to clarify unambiguously. The most plausible explanation lies in the changed definition of a stateless person in the revised Dutch Nationality Act of 2003.122 Indeed, recall that until 1 April 2003 people whose ‘nationality cannot be determined’ were also considered by law to be stateless. Many of them, as is the case at present, were nonetheless grouped into the category ‘nationality unknown’, for instance because they could not live up to the burden of proof to be registered as a stateless person. Nevertheless – though with some inertia – with this broader definition of statelessness, naturally more people were registered as such than is currently the case. The

Eurostat 2009. Available at http://tinyurl.com/mlzgzt [accessed 03-02-2011]. Central Bureau for Statistics, available at http://tinyurl.com/2vsx9px [accessed 5 January 2011]. 122 Changes in the restrictiveness of Dutch immigration policy or more proactive deportation efforts are unlikely to be at the root of this decline, since stateless people – especially those already registered as such – can in general not be deported and experience great difficulty in leaving the country of their own accord.
121

120

[37]

sudden drop in 2010 is not due to changes in the policy environment either but a result of either, modifications in CBS’s data collection methods. Recall that to acquire its data on statelessness, the CBS aggregates information provided by municipalities until an impression of the national state of affairs is achieved. However, according to a CBS demographer in the demographer, old situation the bureau did not rece receive any information on an individual’s past nationalities. Instead, municipalities provided data on the situation as it prevailed on 1 January of every year. However, as of 1 January 2010 CBS does have access to these “historical” nationalities. Whereas an empty record was previously understood to point to a stateless person, at present this empty record may be complemented by a historical nationality still valid today. As a result, significantly fewer people turn out to be stateless.123 Consequently, d gathered using data the new methodology cannot be accurately compared to earlier statistics on statelessness not statelessness. The origins of stateless people in the Netherlands Who are these people then? Looking at the 2,060 persons registered as stateless in the year 2010, a curious picture emerges. urious Fig. 2 - Country of birth of registered stateless Indonesia Netherlandsin NLAll others (48 countries) people
16% 13%

71%

Source: CBS, situation 1 January 2010

A little over 71% of these people (1,471 to be precise) were born in the Netherlands. Another 13% (260 people) were born in Indonesia, whereas an additional 48 different countries combined make up the remaining 1 16% (figure 2).124 This would appear to suggest that stateless people are sooner registered in this way if they happened to be born on Dutch soil. However, if we break down the group of Dutch-born stateless persons by their fa born fathers’ 125 country of birth, the picture portrayed in figure 3 results.

E-mail correspondence with a CBS demographer, 1 March 2011. On file with authors. Central Bureau for Statistics, data not available on Statline but on file with authors. 125 Ibid. The eight paternal nationalities depicted in figure 3 represent 76% of the total number of stateless persons born in the Netherlands. The remaining 24% is divided over dozens of other paternal nationalities. Please note, however, that the CBS data do not list t number of persons whose fathers are unknown. At the present, the data portray a rather utopian situation in which every registered stateless person has an identified father. It has been opted to display paternal over maternal nationality in this chapter, because globally speaking, t because nationality laws exhibit a paternal bias. In short, if individuals have a nationality at all, it is in general most likely to have been passed on by their father. Nonetheless, this graph would be virtually identical had it been bas on based maternal nationality.
124

123

[38]

Fig. 3 - Registered stateless people born in the Netherlands - father's country of birth (N> 20)
600 500 400 300 200 100 0

Source: CBS, situation 1 January 2010. “N > 20” indicates that data is only included where it concerns at least 20 individuals.

Clearly, the vast majority of stateless persons born in the Netherlands are of Indonesian origins. These stateless persons born in Indonesia and of Indonesian descent are in all probability the Moluccans and their children referred to in section 3.1 above. Where Van Oers et. al. estimated this group to consist of approximately 1,000 individuals, in reality this figure is a little lower. Of all registered stateless people in the Netherlands, a group of 260 persons was born in Indonesia, whereas another 494 persons were born in the Netherlands but to an Indonesian father. Taken together, the group of people of Indonesian origins is comprised of 754 individuals. The fact that these presumed Moluccans are registered in the GBA as stateless persons is consistent with the fact that – though for all intents and purposes treated as such – they are not officially Dutch citizens.126 In this regard it is at first sight remarkable that virtually all these purportedly stateless Moluccans are registered as without a residence permit. However, if one considers that as quasi-citizens these individuals do not require a residence permit to reside legally in the Netherlands, even this makes sense.127 It should be noted that children of Somali and Portuguese fathers, despite having been born in the Netherlands, are at particular risk of remaining stateless when they grow up. Luckily, quite a clear-cut explanation is available. According to the Portuguese Nationality Act of 3 October 1981, a child born abroad only receives Portuguese citizenship when the

Though it is difficult to determine with absolute certainty, the considerable plausibility of this explanation was backed up by Eric Gubbels and Hans Tomson at the NVVB. 127 This finding also corroborates the argument in general, as the consistency in the way stateless people of Indonesian origins are registered presupposes a rather homogenous group of people, such as Moluccans for instance. Out of a total of 754 registered stateless people with an Indonesian background (either born there or with an Indonesian father), 738 persons do not have a residence permit. No more than 14 people have a regular permit, zero hold an asylum permit. Two persons are registered as having “either” an asylum or a regular permit. Combined with the Moluccans’ historic proneness to statelessness, the statistical homogeneity of this group renders it unlikely that many non-Moluccan stateless Indonesians have accidentally been filtered out too. [39]

126

birth is entered into Portugal’s nationality register, or when the parents approach the Portuguese authorities with an explicit request to grant citizenship. Without such registration the child remains stateless (and the same goes for Cape Verdean nationality law).128 It should be noted that it is entirely possible that these children were stateless at birth and registered as such, but that their parents soon after applied for Portuguese nationality for their children without notifying the GBA. After all, if the parents do not report the changed nationality status of their offspring, the label “stateless” is never changed.129 Therefore, persons of Portuguese origin are probably overrepresented in the available statistics. As far as children of Somali parents are concerned, they are regularly registered as either stateless or of unknown nationality because Somalia lacks the “competent authority” to – among many other tasks – issue credible identity documents.130 Children then in principle inherit their parents’ absent or unknown nationality. Furthermore, according to Somali law, a woman may not transfer her nationality to her family. As a result, children of single or unaccompanied female migrants or asylum-seekers are stateless from birth. With regards to the other origins mentioned in figure 3, one can only make an educated guess as to the characteristics of these people, in particular because it is prohibited to register ethnicity in the Netherlands. Nevertheless, it seems likely that the old Soviet-citizens became stateless during the process of state succession. Likewise, the breakup of former Yugoslavia would account for another group of individuals, especially when combined with the knowledge that the region has historically been home to many stateless Roma. In general, controlling for the people of Indonesian origin, almost 72% of registered stateless persons were born in or after 1992 and are therefore still of minor age.131 Case law In 2003 the District Court in the Hague was confronted with a person whom the IND claimed was a Somali national.132 The case concerned the question whether Somalia could in the present state of affairs still be considered a State. In its advisory opinion, the Asser Institute observed that three criteria have to be met under customary international law for a State to be called such: there must be a territory, a population and a government exercising effective and actual authority.133 As no effective government had been in place in Somalia since 1991, the court held that the IND had not convincingly shown that Somalia was a State and, consequently, that the IND had not adequately justified (ondeugdelijk gemotiveerd) why the claimant was not de jure stateless. Stateless people without a residence permit

P.H. Oostendorp, "Staatloosheid, onbekende nationaliteit en de GBA", 127. Interview with Eric Gubbels – telephone, 27 January 2011. 130 Ibid. 131 Central Bureau for Statistics, data not available on Statline but on file with authors. 132 Rechtbank ’s-Gravenhage, 27 June, 2003, LJN AI0720. 133 See also O. Vonk, Dual Nationality in the European Union, 30. Article 1 of the 1933 Montevideo Convention on the Rights and Duties of States lays down the same criteria that are mentioned by the Asser Institute.
129

128

[40]

According to the CBS data a clear majority (almost 65% or 1299 persons) of recognised stateless people did not hold a residence permit on 1 January 2010.134 Though strictly speaking the 1954 Convention does not oblige states to grant residence to stateless persons (see chapter 4), this is a striking percentage nonetheless. However, if we filter the Moluccans with quasi-Dutch citizenship out of the data (presumably 754 individuals), what remains is 545 stateless persons of non-Indonesian descent without a residence permit – only 27% of the total number of registered stateless people. After this control measure it again emerges that in almost all cases (nearly 95%) these people were born in the Netherlands. Fig. 4 - Stateless people born in NL without a residence permit - father's country of birth (N>10)
140 120 100 80 60 40 20 0

Source: CBS, situation 1 January 2010

Figure 4 illustrates once more that in particular children of Portuguese fathers experience trouble in acquiring Dutch (or, for that matter, any kind of) nationality. However, the fact that Portuguese citizenship can be easily obtained through registration may account for the magnitude of this figure. After all, why would parents even apply for their child’s legal residence in the Netherlands in these cases? As a European Union citizen the child in question does not require a residence permit to live in the Netherlands, but may still be registered as a stateless person if the parents have not apprised their municipality of the changes. Cape Verde, Angola and Brazil are characterised by nationality legislation very similar to Portugal’s, thus accounting for these states’ presence in the graph. However, unlike their former colonizers, people from these countries are not EU citizens, and thus the absence of a residence permit is presumably considerably more consequential. Children from Somali parents are, as noted above, regularly registered as stateless due to either Somalia’s discriminatory laws or its questionable statehood. However, it is not just children from these backgrounds that ostensibly live without a nationality. In general, 90% of registered stateless persons currently not in possession of a residence permit were born in the

134

Central Bureau for Statistics, data not available on Statline but on file with authors. [41]

2000s. It thus seems safe to conclude that the problems of this particular group usually start at birth. It is worrisome that apparently even the Convention on the Rights of the Child, which provides that all children should acquire a nationality immediately after birth, is of no influence in this regard.135 Stateless people with a residence permit Approximately 35% of registered stateless people in the Netherlands, or 761 individuals, do have a residence permit.136 Almost 16% of this group received such a permit on asylum grounds, meaning that in all probability these people are stateless refugees. Even if there had been a binding procedure to determine statelessness in the Netherlands, in this case people would have been granted an asylum status instead of recognition as a stateless person, because the former provides a broader level of protection. In other words, their statelessness is secondary to their refugeehood. This means that the other 84% of all stateless status-holders have acquired a regular residence permit.137 Fig. 5 - Stateless people born in NL with regular residence permits - father's country of birth (N>10)
100 80 60 40 20 0

Source: CBS, situation 1 January 2010

Recalling that the intended way to achieve legal stay in the Netherlands if one is stateless (and not also a refugee) results in a regular residence permit, this percentage is perhaps as expected. Furthermore, bearing in mind the origins of stateless people without residence permits described above, it may be not be surprising either that most stateless persons with permitted stay on Dutch territory were born in the Netherlands (circa 61%). It should be noted

Article 7 of the Convention on the Rights of the Child, ratified by the Netherlands, reads: 1. The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and. as far as possible, the right to know and be cared for by his or her parents. 2. States Parties shall ensure the implementation of these rights in accordance with their national law and their obligations under the relevant international instruments in this field, in particular where the child would otherwise be stateless. 136 Central Bureau for Statistics, data not available on Statline but on file with authors. 137 To be precise, the CBS data list four people (or 0,5%) as in possession of either an asylum or a regular residence permit. For clarity’s sake, this category has been left out. [42]

135

however that successful application for a no-fault residence permit is not the only way to acquire a regular residence permit. For example, requests for family reunification and study or work related applications (if successful) all result in regular permits. Unfortunately, the available data does not specify on what ground stateless people were issued a regular permit, leaving it unclear how important the no-fault procedure is in this regard. When we break this group down into peoples’ fathers’ country of birth again, the situation outlined by figure 5 results.138 As we know nothing of the number of applications made by these various groups, this figure tells us nothing about the chance of acquiring legal residence based on one’s origins, but instead merely shows current practice. Apparently, stateless individuals born in the Netherlands with a Somali background receive a regular permit most often. The remaining stateless regular residence permit holders (39%) were not born in the Netherlands. The data indicates (as visualised in figure 6)139 that in this instance people of a presumably Palestinian background have been granted residency most often. After all, Palestinians are notoriously at risk of statelessness, and come to the Netherlands from Israel, Lebanon and Syria. Also, stateless Kurds born in Syria may be included again. Citizens from the former Soviet Union make up another group that has been accorded regular residence permits reasonably often. Fig. 6 - Stateless people in NL with regular residence permits - country of birth (born in NL excluded, N>10)
50 45 40 35 30 25 20 15 10 5 0

Source: CBS, situation 1 January 2010

3.2.2 Statistics on people of unknown nationality

The total number of stateless people born in the Netherlands holding a regular residence permit, split up by their fathers’ country of birth, includes another 147 people divided over 49 paternal nationalities. Central Bureau for Statistics, data not available on Statline but on file with authors. 139 The total number of stateless people in the Netherlands, excluding those of Dutch birth, holding a regular residence permit, split up by their fathers’ country of birth, includes another 82 people divided over 31 paternal nationalities. Central Bureau for Statistics, data not available on Statline but on file with authors. [43]

138

If we cast our gaze towards the group of people whose nationality is unknown, the numbers involved are of an entirely different magnitude: at the start of 2010 no fewer than 83,008 persons were registered as such in the municipal administration systems. Among this group were 22,881 children (born in or after 1992), which is roughly 28% of all persons who have no known nationality. This substantial figure persists, despite the fact that European Commissioner for Human Rights Thomas Hammarberg already raised concerns about the matter in 2008.140 Fig. 7 - People of unknown nationality in NL
120000 100000 80000 60000 40000 20000 0 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010
Source: CBS Statline

Although the category “nationality unknown” appears to be of consistently substantial size, figure 7 does show a decline after 2003. This time around the drop probably could be attributed to a generally stricter immigration policy and more proactive deportation efforts. After all, this category does not solely consist of stateless people, and persons of unknown nationality are in general more easily returned to their countries of origin. Oddly, the fact that someone’s nationality is unknown does not imply a legal duty to inquire into the matter. In fact, this registration could in theory be indefinite: almost 60% of all people of unknown nationality (49,568 individuals) have carried this registration for more than three years. Figure 8 reveals that once again children are most clearly represented.

T. Hammarberg, "Report by the Commissioner for Human Rights Mr. Thomas Hammarberg on his visit to the Netherlands, 21-25 September 2008", (2009), 19. [44]

140

Fig. 8 - People registered with an unknown nationality for more than three years
14000 12000 10000 8000 6000 4000 2000 0 0-17 18-24 25-29 30-34 35-39 40-44 45-49 50-54 55-59 60-64 65+ years years years years years years years years years years
Source: CBS, situation 1 January 2010

Almost 13,000 minors have an unknown nationality in the Netherlands, although the graph does suggest that as time passes the issue is often resolved. Considering that naturalization is possible from majority age onwards, the sudden drop at age 18 is logical. Nonetheless, at later ages too the declining trend persist, and most people apparently acquire some form of acknowledgment in the course of their lives (either of a nationality or of statelessness). A little over 1,000 persons over the age of 65 have (still) not been able to substantiate any nationality. As indicated in section 2.5, the category “nationality unknown” covers a wide array of cases, including undocumented refugees, people from broken-down states awaiting a new nationality and stateless persons who could not meet the GBA’s heavy burden of proof to be registered as such. According to Busser and Rodrigues, a so far undetermined number of people in this category have at least an “ineffective nationality” and are thereby de facto stateless.141 In the year 2008 alone, the IND counted 9,021 individuals of unknown nationality who migrated to the Netherlands.142 The lack of clarity about the meaning of this considerable figure is compounded by the experience that “nationality unknown” is in practice used by municipal officials as a lump-category for all people who have trouble substantiating their nationality status.143 However, by investigating the residence status of people of uncertain nationality, some clarity may yet surface. People of unknown nationality with a residence permit

A. Busser and P.R. Rodrigues, "Staatloze Roma in Nederland", Asiel- en Migrantenrecht, no. 8 (2010), 387. Nederlands nationaal contactpunt voor het Europees migratienetwerk (EMN), "Statistisch Jaaroverzicht Migratie en Internationale Bescherming – Nederland 1 januari 2008 - 31 december 2008", (2010), 31. 143 The 9,021 immigrants of unknown nationality that arrived in the Netherlands in 2008 constituted more than 6% of the country’s total immigration. Considering that no other state in Europe (apart from Cyprus) receives even nearly this many people of unknown nationality, the suspicion that this classification is being used as a “lump-category” is reinforced (Source: Eurostat, 2008).
142

141

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As reflected in figure 9,144 exactly 36,000 people with an unknown nationality have a residence status on asylum grounds in the Netherlands. Fig. 9 - Residence status of people with unknown nationality in the Netherlands
40000 35000 30000 25000 20000 15000 10000 5000 0 Asylum
Source: CBS, situation 1 January 2010

Regular

Either

None

Applying the same reasoning employed above when describing registered stateless persons with an asylum permit, this group most likely by and large consists of undocumented refugees whose reasons for flight were convincing despite limited documentary support. This assumption is corroborated by the fact that already 54% of this group originates from either Afghanistan, Iraq or Somalia145 – for some time now the top three nationalities of refugees in the Netherlands. Statistically speaking, some people of unknown nationality with asylum permits could be stateless too. However, those who are stateless are at the very least also refugees, and as far as the level of protection offered is concerned, refugeehood is a status that prevails over statelessness. Another large number of people of unknown nationality, 35,527 persons to be exact, possess a regular residence permit. In theory, people whose absent or unclear nationality prevent them from leaving the Netherlands should be able to obtain legal residence through the no-fault procedure. However, permits on this ground are issued rarely and are therefore unlikely to extend beyond the group of “recognised stateless people with regular permits” described above.146 Nevertheless, looking at the countries of origin of these regular residence

Central Bureau for Statistics, data not available on Statline but on file with authors. Ibid. 146 In 2008, only 50 permits out of 1,990 regular permits issued to stateless people or persons of unknown nationality were granted as a result of a no-fault procedure. According to the IND, in 2008 ‘approximately’ 40 no-fault permits were issued following a total of 260 requests. In 2009, approximately 50 out of 340 requests were granted and in 2010 roughly 30 out of 270 applicants were given a permit. In one-third to half of these cases, the IND had instigated the procedure ex officio. In the period January 2007 - August 2011 the IND sought the DT&V’s counsel 75 times. In 60 of these cases DT&V recommended granting a no-fault permit. (Sources: correspondence with an IND policy officer, 17 March 2011; correspondence with a DT&V policy officer, 22 September 2011; response by State Secretary of Justice to questions from parliament (‘Reactie Staatssecretaris van Justitie op kamervragen Tweede Kamer’), TK 2009-2010, 19 637, nr. 1302; Central Bureau for Statistics, available at http://tinyurl.com/678ma92 [accessed on 11 January 2011] ).
145

144

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permit holders, 26% of them (or 9,252 individuals) hail from two regions of the world notoriously prone to statelessness: former Yugoslavia and the former Soviet Union.147 Even those people of unknown nationality with regular permits born in the Netherlands (20%) are in one quarter of the cases children of Yugoslavian and Soviet fathers (only 2% is of actual Dutch descent). Still, though perhaps at risk of statelessness, the fact of the matter is that all people in this category have legal residence in the Netherlands, and are therefore not particularly vulnerable to the difficulties generated by a stateless existence.148 People of unknown nationality without a residence permit This is expressly not the case for the 10,493 registered persons of unknown nationality who reside in the Netherlands without a residence permit. Figure 10 displays their countries of birth.149 Fig. 10 - People of unknown nationality without a residence permit - country of birth (N>100)
3000 2500 2000 1500 1000 500 0

Source: CBS, situation 1 January 2010

Clearly, the largest category of people of unknown nationality without permits are born in the Netherlands, though in 97% of the cases at least one of the parents is foreign (see figure 11).150

Regular residence permit holders of unknown nationality are predominantly born in the Netherlands (20%), the former Soviet Union (14%) and former Yugoslavia (12%). Central Bureau for Statistics, data not available on Statline but on file with authors. 148 Again, it should be noted that successful application for a no-fault residence permit is not the only way to acquire a regular residence permit. For example, requests for family reunification and study or work related applications (if successful) all result in regular permits. Unfortunately, the available data does not specify on what ground people of unknown nationality were issued a regular permit, leaving it unclear how important the no-fault procedure is in this regard. 149 Ibid. 150 Ibid. [47]

147

Fig. 11 - People of unknown nationality born in NL with no residence permit - father's country of birth (N>50)
400 350 300 250 200 150 100 50 0

Source: CBS, situation 1 January 2010

Note that 90 persons born in the Netherlands to a father also born on Dutch territory have no known nationality. It may be that part of this figure corresponds to individuals who lost their Dutch citizenship because they fought in the Spanish civil war, complemented by a statistical “remnant” of children born out of wedlock between April 2003 and March 2009 (see section 3.1).What’s more, it appears once again that the vast majority (94%) of Dutch-born persons with an unknown nationality and without a residence permit were born in the 2000s, pointing to the troublesome acquisition of a nationality for many children born to foreign parents in the Netherlands. Presumably the high numbers of people of Afghan, Iraqi and Somali origin visible in figures 10 and 11 reflect all those persons whose claim to asylum was rejected due to absent or questionable (identity) documents, but who did not leave the country after this unfavourable decision. Precisely how many individuals of unknown nationality experience all difficulties related to statelessness, but cannot live up to the no-fault procedure’s high standard of proof and are thus left without a permit, is impossible to tell. Nonetheless, judging by the data displayed in figures 10 and 11, persons of Yugoslavian and Soviet origin, as well as those originally from Angola, Burundi, China, the DR Congo, Guinea, Sierra Leone and Sudan are at particular risk of being left without both a (agreed upon) nationality and a permit to reside. 3.2.3 In conclusion Based on the statistical evidence presented above, it is tempting to venture a guess as to the total number of stateless people living in the Netherlands. Unfortunately, to do so would be to deny the significant inaccuracies in the available quantitative data. For starters, the people covered in this section may represent just a tip of the iceberg: those stateless people and persons of unknown nationality who have been registered by their municipalities. No statistical material whatsoever is available on the number of illegal and unregistered stateless people; they remain completely invisible. Nonetheless, recalling that an estimated total of

[48]

128,907 illegal aliens live in the Netherlands, the number of stateless people among them could be substantial. Furthermore, people who have erroneously or unilaterally been attributed a nationality do not show up in statelessness-related statistics. The Sri Lankan boy mentioned in the introduction to this study poses an example of this. Coming up with a total tally of the number of stateless people in the country is further complicated by the fact that many statelessness registrations do not stand up to scrutiny. Indeed, no less than 37% of registered stateless people are in all likelihood Moluccans with quasi-citizenship. Children of parents born in Portugal make up another 9% of all officially stateless persons in the Netherlands, but they can in principle opt for Portuguese citizenship whenever they so desire. Moreover, as the GBA is not automatically updated when they do acquire the Portuguese nationality, many of these people may not even be stateless anymore. Another 3% of registered stateless people is Cape Verdean, to whom the exact same reasoning applies. All in all, this leaves us with 1061 registered stateless persons (a little more than half of the original total) who are likely to be genuinely stateless. Although this is a relatively small figure, it is important to realise that a clear majority of these people are still children, and that most have been born in the Netherlands. Moreover, even though their municipalities have determined these people to be stateless, many do not hold a residence permit. Specialised inquiry into this group in particular seems warranted, as at present it appears as if, among other legal instruments, the Convention on the Rights of the Child is not respected in all cases. Finally, employing the available statistical material, it is impossible to gauge exactly how many people are stateless within the category “nationality unknown”. What we do know is that once more, children are manifestly present among this group. Moreover, taking the heavy burden of proof to be registered as a stateless person into account, combined with the fact that stateless people are often inherently unable to meet these stringent documentary requirements, it is certainly probable that a considerable number of stateless individuals are hidden by the label “unknown”. The group of people whose nationality is unknown and who do not hold a residence permit either (comprised of 10,493 individuals) is at particular risk of statelessness, or at the very least unreturnability. This assumption is in accordance with the findings of section 3.4 below, which attempts to identify groups at particular risk of statelessness based on qualitative evidence, as well as to provide all these numbers with an actual human face. 3.3 The face of statelessness in the Netherlands Although the statistical information available on statelessness may appear limited, arguably even less is known about the actual individual lives of stateless persons. When spoken about they are often addressed as a group, a collectivity even, of 12 million strong. Yet in reality the world’s stateless people are far from a homogeneous crowd, but instead a highly diverse group coming from all classes, ages, sexes, educational backgrounds and continents. However, all stateless persons have one thing in common: invariably states are responsible for their lack of citizenship, as ‘[i]t is a long recognised norm of international law that states have

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the sovereign right to determine how nationality, and hence citizenship, is acquired’.151 In other words, with the prerogative to determine who obtains citizenship comes responsibility for those who do not, but are nevertheless within that states’ jurisdiction. In this sense it is useful to classify stateless persons in the Netherlands by both the (combination of) cause(s) of their absent citizenship and by the state(s) primarily responsible for their dire situation. This will enable us to get to grips with the various “types” of stateless people living in the Netherlands and to see which problems are most pernicious in the Dutch context. Once these typologies are established we can proceed to present all the stories and experiences collected during this study’s fieldwork period. The qualitative evidence forwarded here will allow us to perceive the actual people hidden by the numerics of the previous section. The practical experience of law firms and NGOs indicated a dozen or so countries that particularly appear to shun responsibility for some of their former residents or ought-to-be citizens. The risk groups identified in this way largely overlap with the people who proved statistically speaking most likely to be stateless.152 It is telling though, that only one of the twenty-four stateless persons interviewed was actually registered as such in the GBA, whereas only a handful were designated as of “unknown nationality”. All others simply live invisible lives. Nevertheless, taking the commonalities between statistics and practice into account, there is no immediate need to doubt the representativeness of the statistical data available. However, as the interviews confirmed that a significant percentage of stateless people stays completely under the radar, some scepticism about the magnitude of figures presented in the previous section is warranted. People from the following backgrounds emerged as regularly stateless or unreturnable from both quantitative and qualitative sources: Roma (mainly from former Yugoslavia), ex-citizens of the former Soviet Union, Palestinians and people of Sudanese, Somali, West-African (Guinea, Liberia and Sierra Leone), Burundian, Ethiopian and Chinese backgrounds. Each of these origins is represented by at least one, but generally two, respondents.153 Though not demonstrated to be at significant risk statistically speaking, two people with roots in Surinam have also been interviewed, due to the direct Dutch responsibility for their statelessness and the historical ties between the two countries. Divided over the causes of their statelessness, the stories of these people will be presented below. The three most common ways of becoming stateless have already been recounted in the first chapter: i) technical causes; ii) causes linked to state succession and restoration; and iii) causes linked to discrimination or arbitrary deprivation of nationality. All interviewees that have been grouped under these three causes are potentially de jure stateless. However, a fourth group has been added, consisting of those people who may technically possess a nationality but who cannot return to their country of origin despite their own express wishes and who nonetheless do not possess a residence permit in the Netherlands either: unreturnable persons.

B.K. Blitz, "Statelessness, protection and equality", 7-8. Only Angola and DR Congo do appear statistically relevant, but were not mentioned by any of the law firms or NGOs as of particular significance. 153 Due to time constraints it has unfortunately proved impossible to speak to respondents of Chinese origin.
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3.3.1 Stateless due to “technical causes” Recall that as far as technical reasons for statelessness go, we can distinguish between causes related to i) a conflict of laws; ii) laws and practices that particularly affect women and children; iii) administrative practices; and iv) automatic loss of nationality. Narrowly interpreted, a pure conflict of laws is a relatively rare cause of statelessness, and was consequently not encountered during the fieldwork for this study. It requires an individual’s parents to originate from a country strictly applying citizenship based on jus soli principles and the stateless person himself to be born on the territory of a country rigidly adhering to jus sanguinis tenets. However, various countries only allow children born abroad (though sometimes only those born out of wedlock) to acquire their nationality if citizenparents apply for it at a consulate or in the country itself.154 In effect, this practice results in a conflict of laws too, because until the parents have made the request (and until it is honoured), the child remains stateless. This is because Article 1(1) of the 1954 Convention employs present tense and as such ‘the test is whether a person is considered as a national at the time the case is examined and not whether he or she might be able to acquire the nationality in the future’.155 If one adopts a slightly broader understanding of what “conflict of laws” means, the problem is much more prevalent. A conflict of laws could also be interpreted to refer to the situation in which country A considers an individual to be a national of country B, whereas B deems the exact opposite to be true. According to Massey, people can end up in this legal tug o’ war for instance when a state determines that ‘a person born on its territory acquired at birth the nationality of State B, and therefore did not acquire its own nationality at birth’.156 However, the individual may in fact not have obtained a nationality from state B, which leaves the person de jure stateless if state A refuses to resolve the matter. Patrick Loomens (29) fell victim to precisely such a disagreement. Although born in Vlissingen, both his parents are from Surinam, which means that Patrick should normally have acquired Surinamese citizenship too. However, on unclear grounds Surinam has always believed him to be Dutch, whereas the Netherlands did not grant him citizenship because they considered Patrick to be Surinam’s national. With regard to people of Surinamese origins in the Netherlands, a conflict of laws of this type may be more common than often assumed. After all, as of 1954 and until Surinam’s independence on 25 November 1975, all inhabitants of this country were citizens of the Kingdom of the Netherlands, enjoying equal citizenship status to all other nationals of the Kingdom including freedom of movement between the two countries.157 At independence, through a still contentious agreement called the toescheidingsovereenkomst, all Dutch citizens present in Surinam on 25 November 1975 who were born there not only received Surinam’s

Cf. the practice of Portugal and Cape Verde presented in the statistical section. UN High Commissioner for Refugees, "The Concept of Stateless Persons under International Law". 156 H. Massey, "UNHCR and De Facto Statelessness", 45. 157 This citizenship status was laid down in the Koninkrijksstatuut (‘Kingdom Charter’) of 15 December 1954.
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nationality, but automatically lost their Dutch citizenship too.158 This arrangement sowed the seeds for problems that persist until today, as evidenced by the story of John Pieters. John Pieters (59)159 John Pieters was born in Surinam in 1951 and as per the Kingdom Charter of 1954 he was therefore a national of the Netherlands from three years of age. In 1968 he and his family left for the United States of America, but John – in possession of a Dutch passport – moved on to the Netherlands in 1974. This meant that he was outside of Surinam when the toescheidingsovereenkomst entered into force, in which case he would in principle retain his Dutch nationality. Like other people of Surinamese descent living in the Netherlands, he could opt for Surinam citizenship if he did so before 1 January 1986. However, according to Art. 5(2) of this agreement, if an individual born in Surinam later on in his life resides in Surinam for at least two years, he or she is accorded Surinamese citizenship (and thereby loses Dutch nationality).160 Between 1980 and 1989 John travelled and lived in various places, including in Surinam. He did not live in Surinam for more than two years (he again spent time in the USA, but also in Canada and Brazil), but the Dutch government thought otherwise and stripped him of his Dutch nationality, assuming he had now acquired citizenship in Surinam. Unfortunately, Surinam disagreed. On 13 January 1999 the court finally ruled that John had officially lost his Dutch nationality. The decision felt surreal to John: ‘like all Surinamese people of my generation, I was taught aap noot mies in school. I learned about Dutch cities – used ‘t kofschip. The affinity is undeniable.’ As a matter of stubborn principle, John refuses to apply for a residence permit: ‘I have always been Dutch’, he says, ‘so why would I apply for a permit to live here? I’m furious.’ Being recognised as a stateless person, on the other hand, is ‘acceptable’. At least that accurately describes the current state of affairs, even though this state of affairs is rather grim. John is homeless, hopping from shelter to shelter, and selling newspapers on street corners to get by. Still, it beats stripping wires for copper and stealing bikes; his previous modes of self-sustenance. ‘You can have a hundred friends, but nobody will carry you for ten years,’ he adds. For some time his mother, still in the USA, supported him a little, but she died in 2004. After that, John subsisted for a while on his then-wife’s welfare, but his dependent position hurt his pride (‘I was a paper tiger’) and strained the marriage, which broke down soon after.

‘Toescheidingsovereenkomst inzake nationaliteiten tussen het Koninkrijk der Nederlanden en de Republiek Suriname’, Article 2(1) Trb. 1975, 132. 159 Interview with John Pieters (pseudonym) - Amsterdam, 9 December 2010. 160 This proviso, granting Surinam citizenship after two years of residence, was removed from the toescheidingsovereenkomst on 14 November 1994, but applied retroactively to 1 January 1986. Trb. 1994, 280. [52]

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A little earlier, in August 2003, he had already been picked up at home and escorted into alien detention, where he remained for six months. In February 2004 he was released, as there was no prospect of deportation. ‘From 2006 onwards, everything went downhill.’ First there was a second stint in alien detention from February to June 2006. Subsequently, though he strongly denies it ever happened, John was charged with domestic violence and subsequently declared an undesirable alien. From then on he led a homeless life in Amsterdam, though it was interrupted by a third period of detention, a full year this time from June 2007 until June 2008 (although two of those twelve months were criminal detention; the result of unpaid fines acquired on the streets). ‘It drove me mad – by this time I had no idea what was happening to me.’ From March until November 2009 a fourth and – for now – final incarceration followed. Again he was released, with an order to leave the country within 24 hours, because expulsion did not materialise. ‘Alien detention is rougher than a criminal prison; no work, no rehabilitation, more time behind closed doors and all this usually with two people in one cell.’ Access to healthcare is a prime frustration. Mostly in need of dental care, John was only offered the ‘opportunity’ to have medical students hone their skills on him – a possibility he kindly passed on. ‘I feel so humiliated,’ he says. The situation has become a protracted one. To this day Surinam and the Netherlands cannot agree on who bears responsibility for this particular individual. As recently as November 2009 the Consul-General of the Surinam Consulate in Amsterdam declared that John did not appear in the country’s population register.161 So far this has not proved adequate incentive for the Dutch authorities to provide much needed recognition of his dilemma. The second technical cause of statelessness pertains to laws and practice that discriminate against women and disproportionally affect women and children. For instance, up until 2007, when Morocco amended its 1958 Nationality Code ‘to allow women to pass on their nationality’, children born out of wedlock to a Moroccan mother remained stateless.162 Considering the large number of people of Moroccan descent living in the Netherlands, this is sure to have caused some problems in the past. In general, this technicality was to varying extents experienced by many interviewees, as they were either not registered with the authorities at birth, or left their country of origin before reaching the age of majority, when they could have obtained identification documents. The stories of Cheikh Keita (32) from Guinea, Genet (21) and Tirhas (22) Asgedom from Ethiopia and Ahmed Hassan (28) from Somalia provide examples of this. The experiences of the two sisters Genet and Tirhas will be

Declaration of the Consul-General of the Surinam Consulate in Amsterdam, dd. 26 November 2009. A copy is in possession of the authors. 162 M. Manly, "Sorry, Wrong Gender", Refugees 3, no. 147 (2007), 25. [53]

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presented here, as their story clearly demonstrates how stuck one can truly be if no country has official record of your existence. Genet (21) and Tirhas (22) Asgedom163 Genet and Tirhas Asgedom were born in Begi, close to Gondar, Ethiopia, to an Eritrean father and an Ethiopian mother of Oromo ethnicity. They have never met their father (according to their mother he died soon after their birth) and were raised by their mother alone. Still, their father’s origin is significant, especially considering that ‘[i]n some countries, such as Ethiopia, the law is gender neutral on its face; but often in practice the children of citizen mothers and noncitizen fathers are not regarded as citizens’.164 This is despite the fact that Ethiopia is one of only two countries in Africa to offer each child the constitutional right to a nationality.165 A report from the Open Society Institute goes on to state that
Ethiopia in practice does not respect the right to a nationality, despite recent reforms, owing to continuing gender discrimination in the implementation of its citizenship law as well as the fallout from the war with Eritrea that has left many Ethiopians of Eritrean origin effectively stateless.166

Ethiopia’s nationality legislation was significantly revised in 2003, eliminating some of the earlier gender discriminatory provisions. However, the new law does not have retroactive effect, ‘and in practice it seems that those with nonEthiopian fathers find it difficult to obtain recognition of a right to nationality on equal terms’.167 When Genet and Tirhas were approximately twelve years old, their mother took them from Ethiopia to Kenya. The political activities of the girls’ mother, who advocated for increased autonomy for the Oromo people, threatened her security in Ethiopia. However, before their departure already, the mother fell ill and died in a hospital soon after their arrival in Kenya. In Nairobi Genet and Tirhas were detained as illegal immigrants for about two weeks. Yet when an Ethiopian couple came to visit another detainee and saw these fellowEthiopian girls, they took pity on them. The couple cared for the girls for about two years, but then decided to move back to Ethiopia. They indicated that they could not take Genet and Tirhas in permanently and instead arranged with an agent for the sisters to travel to the Netherlands. Genet and Tirhas arrived in the Netherlands in 2003. Both were still children then, roughly 14 years of age, and for a while they were allowed to

Interview with Genet and Abrihet Asgedom (pseudonyms) - Eindhoven, 22-12-2010. B. Manby, "Citizenship Law in Africa: A Comparative Study", Open Society Institute (2009), 5. 165 Ibid., 3. 166 Ibid., 34. 167 Ibid., 54
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stay on ground of being unaccompanied minors. Their application for asylum was rejected though, because neither could forward any documentary evidence as to their identity or nationality. The agent had kept what little documentation they had. When Genet and Tirhas were 16 and 17 years old, they were evicted from the asylum-seekers centre because an age inquiry had demonstrated that both were 18 years old already – and thus adults. An NGO in Tilburg took the sisters in and they lived there for a year. ‘But we’re so weary by now’, Genet says. ‘We are trying to return to Ethiopia; we’re tired of being here.’ Neither Genet nor Tirhas ever had a passport (apart from the probably fake documents they used to get to the Netherlands) and they are unsure whether their mother registered them at birth. An inquiry with the municipal government of Gondar, close to their place of birth, yielded no results. Their first letter was sent back unopened, the second one was not replied to.168 Considering that they left Ethiopia some ten years ago, Genet and Tirhas hardly have any acquaintances there. Nevertheless, they have attempted to write separate letters to six of their neighbours in their birth village Begi, as well as to their primary school teacher, hoping that one of these people could confirm their identity and perhaps acquire certification of this. However, streets in Begi are unnamed and the letters came back unopened. Subsequently, Genet and Tirhas approached the IOM in Ethiopia to track down these neighbours and the teacher, but this too proved fruitless. Numerous letters to the Federal Civil Service Agency followed, until they were requested to stop writing and try the Ministry of Foreign Affairs instead. Both agencies were contacted by phone as well, but neither was willing or able to facilitate the sisters’ request. Matters were handled in similar fashion by the Ethiopian Immigration Office. So far all of the girls’ efforts, including more than twenty letters sent between late 2008 and late 2010, have not yielded any results whatsoever. Having written to the Ethiopian embassy in Brussels thrice already and after having approached the International Organization for Migration (IOM) repeatedly (it cannot assist in the return of undocumented people), Genet and Tirhas asked the Return and Departure Service (DT&V) to mediate in their repatriation in September 2009. On 22 April 2010 they were finally presented to the Ethiopian embassy, in the presence of two DT&V officials. They spoke Amharic with the consular officer and his secretary, but without further documentary evidence the Ethiopian representative refused to grant a laissezpasser, nor was he able to provide any documents. In the DT&V report of the meeting, no alternative countries to approach or other potential avenues to explore were forwarded.169 After all, the sisters’ Eritrean roots are even harder

Copies of these and various other letters are on file with authors. Dienst Terugkeer & Vertrek, “Verslag van de presentatie bij een (diplomatieke) vertegenwoordiging”, (22 April 2010). A copy of this report is in possession of the authors.
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to substantiate, especially considering that their father has passed away, that they know hardly anything about him and that they have never even lived in the country.170 Courts, the IND and the GBA all list the two sisters as Ethiopians, but for purposes of their asylum claim the IND was still not convinced of either their nationality or identity. Nevertheless, the DT&V made no ex officio recommendation towards a no-fault permit. ‘We want to study and work like normal people. Because we cannot do that here, we want to go back to Ethiopia, but return is impossible too. We have no country – it’s hopeless’, Tirhas says. Every once in a while they clean houses to earn a little money. In Genet’s case this has by now become impossible, as she is eight months pregnant. Luckily the father is Dutch, which means that she does not have worry about her child’s nationality. Both do constantly worry about being caught by the police; their illegal stay in the Netherlands is eating away at them, and they fear they might be detained again. In 2009 and 2010, both girls have separately been detained as illegal aliens. Tirhas was caught in the train with a reduced-price ticket, although her reduction card was not valid yet. She was detained for three weeks, during which it immediately became apparent that she could not be deported as Ethiopia refused to cooperate. She was released, though not without a notice to leave the country within 24 hours. ‘That was a bit weird’, Tirhas laughs cautiously. But then: ‘it makes me angry! How am I to leave then?’ In the detention centre she was nervous and afraid, not knowing what the future would bring. ‘Sometimes I just screamed in my cell’. Genet wanted to try her hand at driving a car and drove a circle around the parking lot in her boyfriend’s car, when the police drove by. She too could not identify herself and ended up in detention, though only for a week. She too received a notice to leave the country. Access to healthcare has so far not been a problem; both are healthy, and when necessary an Eindhoven-based NGO pays the bills. Genet’s unborn baby is checked upon regularly and in her case deportation attempts have even temporarily been suspended due to her pregnancy.171 In practice, stress and boredom perhaps pose the toughest challenges. ‘We sit and think, think all day long,’ Tirhas says. ‘It is time for us to return’, Genet goes on. ‘I don’t know what we’ll do in Ethiopia – we don’t know anyone there and I don’t know what will happen to the baby. But here there is no hope. Time just goes on; I was thirteen when I came here, now I’m 21.’

In Eritrea, ‘nationality by birth is given to any person born to a father or mother “of Eritrean origin,” defining “Eritrean origin” to mean resident in Eritrea before 1933.’ See B. Manby, "Citizenship Law in Africa: A Comparative Study", 43. In Tenagne and Netsanet’s case, this is impossible to prove (if it is even the case at all). 171 Aliens Act 2000, Article 64, reads: ‘Uitzetting blijft achterwege zolang het gelet op de gezondheidstoestand van de vreemdeling of die van een van zijn gezinsleden niet verantwoord is om te reizen.’ [56]

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A third technical road to statelessness is concerned with procedural barriers to citizenship for people who are otherwise likely to be eligible. Generally, people wishing to acquire Dutch nationality have trouble affording the steep administrative citizenship fees.172 However, in the cases of various Roma families – especially those with many children – these fees have been reported to be prohibitive.173 Another example is found in the issuance of declarations of undesirability to various stateless interviewees, in most cases the result of minor subsistence crimes or, ironically, identity fraud. After such a stigma has been handed out, a stateless person can never acquire legal residence or Dutch citizenship anymore, as he or she cannot start up any procedure aimed at regularization. In this fashion statelessness is made truly indefinite. This happened to Stefan Sejdovic (24) and Mirela Nicolić (39) (both are Roma), to Kenneth Woods (43) from Liberia, to Amin Kassir (45) and Omar al-Qasim (43) from Palestine, as well as to John Pieters and Patrick Loomens, both from the Netherlands/Surinam. A final technicality causing statelessness is automatic loss of nationality, for instance resulting from a prolonged absence from one’s country of birth. John Pieters’ story has already been told under the header of a conflict of laws, though his situation is just as much an example of automatic loss of nationality. In somewhat differing fashion, after having lived in the Netherlands for more than ten years, Cheikh Keita was erased from the Guinean civil registry following a clean-up after a coup d’état. Consequently, a laissez-passer to return to Guinea is out of the question, as the authorities have no records of his ties to the country anymore. His experiences are narrated below. Cheikh Keita (32)174 Cheikh arrived in the Netherlands from Guinea on 8 November 1999. In Rotterdam harbour he staggered off a ship with severe internal bleeding. In 1997 Cheikh and his father Oumar had been arrested in Conakry, when they participated in an anti-government political rally. Oumar succumbed to guardinflicted injuries in prison. Cheikh was severely beaten too, but a friend of his father arrived in time to bribe him out. He was brought to Conakry’s port and put on a ship bound for the Netherlands, though Cheikh at that time had no clue where he was going. ‘I walked off the ship, wandered around and ended up walking on the freeway on bare feet’, Cheikh describes his first moments in the Netherlands. He then went to the police, who recognised his dire physical state. On 10 November he was treated for intestinal injuries, though the damage had

As per 1 January 2011, depending on the purpose of the request, an application for a regular residence permit costs between €433 and €830 per person, a one year extension €288. Applying for an indefinite residence permit costs €401 per person, and an application for naturalization €789. Recognised stateless people and persons with an asylum permit pay €587 to apply for naturalization. See, http://www.ind.nl/Leges/index.aspx [accessed 4 February 2011]. 173 Dokters van de Wereld, "Stateloos maakt radeloos. De situatie van stateloze Roma in Nederland 2009", (2010), section 5.3. 174 Interview with Cheikh Keita (pseudonym) – Eindhoven, 22 December 2010. [57]

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by then become permanent. To this day he continues to take medication (Omeprazol) to prevent further problems. Cheikh applied for asylum, but was soon transferred to a psychiatric centre in Leiden and lived there for fourteen months. Fearful dreams and traumatic memories of soldiers chasing him persist still. During his time in this centre his asylum application was rejected, mainly on the basis of a lack of documentary proof. After an unsuccessful appeal, his attempts to claim asylum ended in 2002. He was brought to Amsterdam Central Station and told to leave the country. How he was to succeed in this without documents was unclear. Instead, Cheikh went back to Leiden, where he worked illegally in a sauna for more than a year. The man who had arranged this job for him had given him a photocopy of an Angolan passport, which Cheikh used as cover. ‘Either you work illegally or you start stealing – most people choose the first option’, Cheikh comments. However, the UWV (a Dutch organization that encourages employment and distributes social welfare) found out that the social security number Cheikh used was not his own. The police held Cheikh for two weeks pending deportation, after which he was transferred to an alien detention centre in Tilburg. He stayed there for four months and two weeks, starting in April 2004, during which time he was presented to the Guinean embassy in Brussels twice. Twice his application for a laissez-passer was denied, even though Cheikh spoke fluent Fula and Soso with the ambassador. The ambassador acknowledged that Cheikh is in all likelihood Guinean, but indicated that without documents his return would not be facilitated. In August 2004, upon court order, he was released on medical grounds, although the verdict stated that his mental and physical state should have precluded the option of expulsion in the first place. Cheikh made a living cleaning, gardening and as a handyman. Also, having made quite a few Dutch friends during his years in the Netherlands, several of them support him in various ways. In 2006 he was granted a one-year residence permit on medical grounds. Afterwards the permit was not extended, as the IND considered Guinean hospitals to be able to provide the necessary care. ‘I have used 32 different types of medicine from 2001 until now, be they for my stomach or for psychiatric problems. I have been operated four times. I can’t hold my urine and my gallbladder presses on my liver – a problem they daren’t even touch here for fear of rupturing it.’175 Considerations on whether or not a Guinean hospital could have provided adequate care were soon rendered superfluous, as repatriation turned out to be even more problematic than expected.

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In February or March 2011 another attempt to remove the gallbladder will be made. [58]

Starting in 2006, Cheikh undertook a long list of attempts to return to Guinea. ‘I don’t want any trouble with the Dutch government’, Cheikh explains. ‘I never want to go to prison or get kicked out on the streets again. I never want to work illegally anymore – I don’t want to be forced to steal. I am completely stuck here.’ In August and September 2006 he went to the embassy in Brussels twice, accompanied by an employee of a Dutch NGO as proof. First he was denied an interview, but the second time around he was told that all information on him was deleted from the country’s civil registry, due to his youthful departure and his prolonged stay abroad. Counting the two presentations during his time in detention as well, Cheikh made a fifth attempt in December 2006. The embassy issued a letter stating that ‘...the Embassy is unable to issue documents of any kind whatsoever to any person not holding any evidence that could prove his nationality’.176 In an attempt to obtain the required evidence of his identity, Cheikh wrote letters to the supervisor of SIAG (Système d’Informatisation de l’Administration Guinéenne) in Conakry, to a friend of his father, to a hospital where he was once treated, to the Pita neighbourhood office (where he used to live) and to the consul of Guinea in Senegal.177 He asked the DT&V (Departure and Repatriation Service) and IOM the intercede. All to no avail. As a near-last resort, in 2007 Cheikh made another attempt at residency in the Netherlands through the general pardon that was extended to illegal people already present in the country prior to 1 April 2001. However, despite meeting all other criteria, Cheikh’s application was rejected because the IND had registered him as an undesirable alien for two weeks after having worked using somebody else’s social security number. After two weeks this registration was revoked, among other reasons because the offence was not considered grave enough. Still, the pardon was out of reach. Cheikh is still exasperated about this refusal: ‘I want to be part of this society, but to then be declared “undesirable” – listen to that word! – it’s unbelievable’. A sixth visit to the embassy took place on 12 September 2008, leading to another LP denial by ambassador Ahmed Tidiane Sakho.178 The next attempt was on 3 June 2009. This time it was put forward that Cheikh’s knowledge of local languages did not provide sufficient guarantees as to his nationality, as people in surrounding countries use the same or similar languages. To obtain the desired documents (passport, laissez-passer), it was pointed out that Cheikh needed to possess a birth certificate. However, the embassy’s first secretary did acknowledge that acquiring one may prove an impossible endeavour, as

Author’s translation of a letter issued by the Ambassade de la Republique de Guinee aupres des Pays du Benelux et de l’Union Europeenne dated 7 December 2006. Copy in possession of the authors. 177 Exact dates and proofs of sending are in the author’s possession. 178 Letter issued by the Ambassade de la Republique de Guinee aupres des Pays du Benelux et de l’Union Europeenne dated 12 September 2006. Copy in possession of the authors. [59]

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following a coup d’état all registries in Guinee had been “cleaned up” and citizens absent from the country for multiple years were erased. Committing this explanation to paper was unfortunately not possible, ‘as his typist was on holiday’.179 A last visit with the DT&V, planned for March 2010, was cancelled due to turbulent elections in Guinea. ‘I am stateless, and I can’t do anything about it’, Cheikh says. ‘The insecurity is ongoing – everyday I have to think where I’ll sleep and eat. I’m always pestered by doubt and insecurity; I can be confronted by the police at any time.’ Aside from uncertainty, disbelief about his own situation prevails. ‘How can you be rejected by your own country of birth? To me, it’s unbelievable’. At the end of 2010, Cheikh visited court together with twelve people (two “foster families” and various sisters from a convent in Eindhoven) willing to vouch for him. However, Cheikh’s last opportunity at legal residence in the Netherlands vaporised when his procedure on grounds of schrijnendheid (‘distress’) was rejected. He is afraid because so far being in procedure allowed Cheikh access to the Dutch healthcare system. ‘I got my hospital punch-card when I still had a valid W2-document,180 but as soon as the punch-card expires the hospital may refuse treatment, as I won’t be able to renew it without any means of identification’, he says. Some consequences of Cheikh’s statelessness are truly Kafkaesque. A former flatmate still pays municipal taxes on his behalf, because even to deregister oneself official identification is required. It is yet another illustration of Cheikh’s limbo, or as he puts it himself:
Even though I have been gone for such a long time and know many more people here than in Guinea, despite the fact that I feel a stronger connection with Dutch society and culture – I have learned so much here –, I would still be willing to return to Guinea. [...] After all, right now, I’m just trapped between two worlds.

3.3.2 Stateless following state succession or restoration Issues linked to state succession and state restoration are a common source of statelessness in the Netherlands, particularly vis-à-vis former Soviet citizens. In December 1991, the Soviet Union split up into 15 different successor states, ‘leaving 287 million people in need of a new identity. As a result of this unprecedented political earthquake, an estimated 54-65 million people suddenly found themselves living “abroad” [and] some with links to two states found

This part of Cheikh’s story is also written down in DT&V’s report of a second ‘departure conversation’, held on 21 July 2009. 180 It is unclear why Cheikh does not have a valid W2-document at present. According to the IND website, all aliens with lawful stay in the Netherlands (as defined by Aliens Act 2000, Article 8, first section, sub f, g, h or j) – e.g. due to a pending procedure the outcome of which may be awaited in the Netherlands – but without bordercrossing or identity documents, are entitled to an identification document. Criteria available at http://www.ind.nl/nl/inbedrijf/actueel/wat_is_een_W2-document.asp, accessed 29 December 2010. [60]

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themselves citizens of neither’.181 The predicament of Eric and Gala Moroz was already elaborated upon in the introduction. They lived in the United States when the Soviet Union collapsed, and were therefore not present in what had become Ukraine at its independence. As a result, they did not qualify for Ukrainian citizenship, though the United States apparently disagreed when it deported them regardless. They have been trapped in the Netherlands, originally just a transit destination, ever since. Zviad Gelovani (30), in turn, is a South Ossetian citizen, but only a few countries recognize this seceded state. Even though ‘[w]hether or not an entity has been recognised as a State by other States is indicative (rather than determinative) of whether it has achieved statehood’, other indicators confirm that at present the territory may not qualify as a state. The 1933 Montevideo Convention on the Rights and Duties of States lists a permanent population, a defined territory, a government and the capacity to enter into relations with other states as crucial criteria for statehood. Especially the last criterion is troublesome in South Ossetia’s case, all the more because the approval of the State which previously exercised control (in this case Georgia) is of importance too. In this regard it is salient to note that ‘further analysis of the individual’s relationship with the entity under consideration is moot if that entity does not qualify as a “State”’.182 To further elucidate statelessness as a result of state succession, Zviad’s specific situation will be detailed below. The story also serves as a reminder that at present, the fact that a stateless person cannot possibly return to his or her home country does not precipitate involvement or redress by the Dutch authorities in any way. Zviad Gelovani (30)183 Back at home in South Ossetia, Zviad Gelovani had lost his old Soviet Union passport years ago.184 Although in most places one would ask the authorities for a replacement, the situation in South Ossetia precluded this possibility. This region had unilaterally declared independence from Georgia in 1990, although the latter was at that time still known as the Georgian Soviet Socialist Republic. As a result, as found by a fact finding mission of the Danish Immigration Service,
South Ossetian citizenship was not recognised outside South Ossetia, which is why South Ossetian passports would not be recognised. As the Georgians took their passport issuing facilities with them to Georgia in 1991, it has not been possible to issue Georgian passports since then. Instead old Soviet passports are used, but these are no longer valid abroad. [...] On identity documents, the Foreign Minister explained that the Russian “form No 9” was issued (which is

P. Leclerc and R. Colville, "In the shadow: Millions seek to escape the grim world of the stateless", 6. UN High Commissioner for Refugees, "The Concept of Stateless Persons under International Law", 2. 183 Interview with Zviad Gelovani (pseudonym) – Amsterdam, 3 December 2010. 184 Zviad Gelovani reported this to the South-Ossetian Ministry of Internal Affairs on 23 May 2000. A copy of the Ministry’s confirmation of this is in UNHCR’s possession.
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incidentally no longer valid in Russia) to young people, as the old Soviet passports could no longer be issued. 185

The report went on to state that ‘in general Russia [does] not issue national passports to South Ossetians’.186 Due to ongoing hostilities between South Ossetia and Georgia (culminating in the 2008 war between both parties), acquiring Georgian citizenship is not only an unlikely alternative for South Ossetians, but also highly undesirable to most of them. After all, Zviad says, ‘the South Ossetian government would immediately perceive you as an enemy of the state’. Moreover, due to increased border controls following tensions in 2004, getting into Georgia in the first place to apply for citizenship can be a hazardous endeavour. Consequently, when Zviad fled conscription in South Ossetia he left a country already scarcely recognized internationally without any proof of citizenship. After having been imprisoned twice (for a total period of more than a year), beaten and shot through the hand for his refusal to join the army, Zviad is not keen to find out whether they would have him back even if it were technically possible at all. ‘I don’t feel a particular attachment to any country at the moment’, says Zviad. Zviad bribed his way out of prison and came to the Netherlands by bus – arranged by an agent – in May 2008, via North Ossetia and then Russia. His asylum request in the Netherlands was denied (a decision upheld in appeal) due to a lack of evidentiary support for his story, and his inability to indisputably prove de jure statelessness. In its verdict, the court in The Hague held it against Zviad that he had ‘neglected to present documents substantiating his identity and nationality’.187 His only means of identification, a South Ossetian “form No 9” (as referred to above), was not accepted. However, at least his unreturnability was proven a few years later. From January to September 2010 Zviad was put in alien detention awaiting deportation. Then, after eight months, he was released by order of the court in The Hague, as there was no prospect of successful deportation.188 Georgia, which up until then the Secretary of State and various courts had considered to be Zviad’s country of nationality, refused to issue a laissez-passer, as it could not find registration of him anywhere in its registers. Zviad now resides illegally in the Netherlands, with little prospect of regularization anytime soon. He was not required to leave the country either, as the police accepted his ‘non-

Danish Immigration Service, "Danish Immigration Service: Report on roving attaché mission to Georgia (14 to 27 October 2000), 1 November 2001". Available at http://www.unhcr.org/refworld/docid/ 3cac59354.html [accessed 8 December 2010]. 186 Ibid. 187 Zviad Alexandrovic Gelovani v. the State Secretary of Justice, 2 October 2008. Registration number AWB 08/33023. 188 Zviad Alexandrovic Gelovani v. the Minister of Justice, 17 September 2010. Registration number AWB 10/31399. [62]

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removability’ based on the court order. What exactly his status is, then, is entirely unclear. Its perception of his Georgian nationality notwithstanding, the court in The Hague systematically referred to Zviad as a Russian citizen. The Immigration and Naturalization Service states he is of “unknown nationality”, and the Council of State calls him stateless. This seemingly random attributing of nationalities is remarkable. Zviad feels a strong sense of powerlessness. ‘Everything is in the hands of courts and the IND. They determine everything. I just wait.’ His means of identification (a W2-document) has expired.
Two weeks ago I called the vrijwilligerscentrale (‘volunteers centre’), asking them how I could help – time is all I’ve got. When I told them I do not have a residence permit, they said they could not hire me, as I couldn’t be insured. I can’t even work for free.

Like many other illegal aliens, he postpones potentially important hospital visits (he worries about his heart, but tells himself that surely its only stress that causes it to race) because of problems that might arise. Aside from stress, boredom appears to be one of the biggest challenges to overcome. Still he refuses to complain. At least courses in Dutch offered by various NGOs keep him somewhat busy. Food and shelter are also offered to him by people concerned about his fate. This has prevented him from becoming all too bitter: ‘everything I do have is thanks to Dutch people.’ But, as Zviad remarks towards the end of our conversation, ‘it would be nice to be considered a human being. After all, nobody is born with a passport.’ Additionally, numerous people (predominantly of Roma origin) who wish to return to one of the successor states of the former Yugoslavia ‘may be unable to prove their right to residency prior to 1998 [a prerequisite for a laissez-passer], and may therefore be vulnerable to de facto statelessness [and/or unreturnability]’.189 This is especially so when host countries do not naturalize or at least grant residence to persons in this situation. For instance, two of the three Sejdovic brothers were born in Croatia, but their father was Macedonian and their mother came from Kosovo. They have so far not managed to substantiate their links with Croatia as a “country of former habitual residence”, inhibiting their eventual return. According to Croatian authorities, the brothers lack ‘demonstrable ties’ to the nation. 3.3.3 Stateless due to denial or withdrawal of citizenship A third cause of statelessness pertains to the denial or withdrawal of citizenship.190 On a global scale, denial of citizenship is probably the major cause of statelessness. Several large

Amnesty International, "Not welcome anywhere: Stop the forced return of Roma to Kosovo", (2010), 31. In the Netherlands, withdrawal of Dutch citizenship with statelessness as a result is only permitted when citizenship was acquired fraudulently in the first place. Regrettably, the Immigration or Naturalisation Service
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population groups have been affected by this practice, which significantly boosts the total number of stateless persons worldwide. Two large groups that are often denied nationalities are regularly found in Europe too: Palestinians and Roma. In various other countries around the world denial and withdrawal of citizenship are also commonplace. However, qualitative and quantitative evidence indicated that it is mostly stateless Africans who reach the Netherlands. Below, a representative of each of these three groups (Palestinians, Roma, stateless Africans) will provide us with an account of his or her experiences. Stateless Palestinians Most Palestinians are never issued a real nationality, although nuance dictates that the flat-out denial of citizenship is not the only component involved in their statelessness. The roots of Palestinians’ absent nationality are singularly complex, as their fate is determined at the crossroads of a denial of citizenship, state succession and restoration, and unreturnability. Moreover, Palestinians in exile are affected by both refugee and statelessness related treaties, making their legal position even more convoluted. Badil, a Palestinian advocacy agency, estimates the size of the Palestinian population currently living in the Netherlands at 10,457.191 Presumably, this figure is largely comprised of refugees. Regarding Palestinians seeking asylum in the Netherlands, the former Minister of Alien Affairs and Integration issued a circular providing that:
Whenever a Palestinian is no longer present in the mandate area of UNRWA [the UN Relief and Works Agency for Palestine Refugees in the Near East], the exclusion clause of Article 1D of the Refugee Convention ceases to be applicable and the Refugee Convention is again applicable. This however does not mean that a residence permit should automatically be granted. After all, the concerned person is expected to return to this mandate area with the aim of re-invoking the protection of UNRWA.192

Those Palestinian asylum-seekers able to substantiate that they cannot return due to a wellfounded fear of persecution in the UNRWA mandate area, may be accorded refugee status in the Netherlands. However, it should be noted that in UNHCR’s view, following Article 1D of the Refugee Convention, ‘no separate determination of well-founded fear [...] is required to establish that such persons are entitled to the benefits of that Convention’.193 And what of Palestinians who cannot return to the UNRWA mandate area as a result of their statelessness? Indeed, it is a common dilemma facing both Europe at large and the Netherlands specifically

was not able to provide information on how often this occurs. In the legal section some case law on deprivation of citizenship resulting in statelessness will be covered. 191 Badil, "Summary of Findings: Badil's Survey of Palestinian Refugees and IDPs 2008", (2008). Available at http://tinyurl.com/6xfhm8k [accessed 16 February 2011]. Please note that an unknown number of these people is recognised as refugee, even though they may be stateless too. After all, refugee status trumps statelessness. 192 Aliens Circular C1/4.2.2, as amended by circular TBV 2003/11 of 24 April 2003. Source: E. Søndergaard, "Protection of Palestinian Refugees in States Signatories to the 1951 Refugee onvention and the 1954 Stateless Convention", Al Majdal, no. 22 (2004), 31. 193 UN High Commissioner for Refugees, "Revised Note on the Applicability of Article 1D of the 1951 Convention relating to the Status of Refugees to Palestinian Refugees", (October 2009), 3. [64]

that ‘it is often impossible to return stateless Palestinian refugees who have received a final negative decision [on their asylum application]’.194 After all, Palestinians make up ‘the largest stateless community in the world’, and ‘if expelled from a country they are at risk of finding themselves in ‘perpetual orbit’ as stateless individuals’.195 These Palestinians’ unreturnability does not just emanate from their statelessness an sich, but is reinforced by regional policy regarding their repatriation. In principle, Palestinians who wish to return to their area of origin have to go by the same route they used to depart. In practice this means that Palestinians who want to return to the West Bank have to obtain the permission of either Israel or Jordan and of the Palestinian Authorities. People who want to go back to Gaza need authorization from either Israel or Egypt and from the Palestinian Authorities. Return to the Golan Heights is virtually impossible as this area borders with Syria and Lebanon and neither allows repatriates to pass through their territory. Israel does sometimes permit this, but again only if the individual concerned left via Israel in the first place. In this case too, the Palestinian Authority’s permission has to be sought as well.196 The two Palestinians interviewed for the purpose of this study are both from Gaza. Both Amin Kassir (45) and Omar al-Qasim (43) harbour a strong desire to return, as they lack any perspective of legal residence or, for that matter, of an even remotely fulfilling life in the Netherlands. However, both have seen all their applications for a laissez-passer rejected. Amin’s case in particular shows how an individual can become caught up in geo-political considerations, and what disturbing and persistent consequences may result. Amin Kassir (45)197 When still a baby Amin left Palestine with his parents, fleeing the six-day war in 1967. Already rendered stateless by virtue of being born in a place designated by the UN as a ‘state with limited recognition’, Amin’s problem is compounded by his belonging to a specific group of refugees – those fleeing around 1967. As laid out in the 1993 Oslo Interim Agreement, their destiny is tied to a final resolution of the conflict between Israel and Palestine.198 The Palestine General Delegation to the Netherlands wrote to Amin saying he could not be issued a Palestinian Passport, ‘since the issue of the Palestinian refugees according to the Oslo Interim Agreement will be discussed in the final status

Ibid., 32. A. Shiblak, "Stateless Palestinians", Forced Migration Review, no. 32 (2009), 8-9. 196 Information on repatriation practices in relation to Palestinians was acquired through e-mail correspondence with the International Organization for Migration, 28 December 2010. 197 Interview with Amin Kassir – Utrecht, 29 November 2010. 198 The Oslo Accords were to be formed in a two stage process, where the smaller, less controversial issues were initially agreed upon. The real issues at the core of the conflict (such as refugees and Jerusalem) were deferred until “final status” talks, when it was claimed the necessary confidence would be built due to good faith practices in negotiations; these final negotiations were to take place a few years into the peace process, but have so far not begun. See K. Nabulsi, "Palestinians Register: Laying Foundations and Setting Directions", Report of the Oxford Civitas Project (2006), 8.
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negotiations’.199 Though the agreement was signed in 1993, the issues of this specific group of refugees are yet to be resolved. Drifting from country to country, Amin arrived in the Netherlands in the mid-1980s. Amin obtained a residence permit when he married a Dutch national, but he held it for only a year: the permit was revoked in 1993, when he and his wife divorced. Ever since he has been illegal in the Netherlands. The situation has become especially protracted because he has been declared an undesirable alien. He has been convicted for manslaughter, though he claims to be unjustly and unfairly tried, and served a six-year unconditional sentence. Immediately afterwards, he was put in alien detention pending a deportation that proved impossible:
they did not try to deport me, they just tried to kill me slowly. The chances of my return to Gaza are absolutely zero, and they knew it. I was put on a plane to the Middle-East, and they flew me around, seeing if I was allowed to get off anywhere. Well, I came back, surprise surprise! It was never a real attempt at deportation. Upon return in the Netherlands – now a year ago – I was kicked out on the street and told to leave the country with two euros in my hand.

During his time in alien detention – two periods of one year each according to the DT&V,200 longer according to Amin – he claims he never received insulin to treat his diabetes, which may have caused his recent health issues. In the past year Amin spent most nights out on the streets. ‘Still, I doubt whether I’ll survive a second winter outside’, he adds. Amin has not seen his ex-wife or children since his criminal conviction. ‘I’ve tried all sorts of jobs, but my diabetes is becoming worse and worse, my nerve system has been wrecked by having spent eleven years without insulin and psychologically I am truly on edge.’ A psychiatrist at Altrecht, an organization specialised in mental healthcare, diagnosed Amin with severe depression and post-traumatic stress disorder. A general practitioner confirmed diabetes and hypertension, as well as several other smaller ailments.201 However, the Municipal and Communal Healthcare Service (GGD) refused treatment after an initial intake because Amin is uninsured. Mediation by various NGOs has so far not led to the required further treatment. Any improvements in Amin’s situation and all hope of an eventual residence status are blocked by the declaration of undesirability, and thus the only procedure Amin has currently going on is an appeal to this declaration.

Letter from the Palestine General Delegation to the Netherlands to Mr. Amin Mohamed Ramadan Kassir, dated 5 October 2010. Copy of original in possession of the authors. 200 Report of departure consultation between DT&V and Mr. Amin Kassir, dated 20 October 2010. Copy of original in possession of the authors. 201 Documents confirming both the psychiatric and general medical diagnoses, dated 24 June 2010 and 17 June 2010 respectively, are in possession of the authors. [66]

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Still, ‘I do not think my undesirability will be lifted. I am stuck in the Netherlands: I’m not allowed to leave but the Netherlands does not want me either – I’m just left hanging.’ In late October 2010, the DT&V invited Amin again to come talk about leaving the country. Although he feared another period of detention pending removal, he showed up anyway to demonstrate his willingness – important if he ever wants to start a no fault procedure. DT&V insisted that Amin was responsible for his own departure, and reiterated that his continued stay in the Netherlands constitutes a criminal offence. The prospect of future alien detention is mentioned in the report of the conversation.202 He is expected to look for a third country willing to take him in on his own. If Amin could leave for Palestine right now, he’d pack up without hesitation. ‘I don’t even want a Dutch residence permit anymore’, he says. ‘I want a Dutch passport, you know why? To get out of here! It’s only a piece of paper, but now my life revolves around it.’ In December 2010, Amin hit a new low. Not knowing where else to spend the night he reported himself to the police, where he was arrested for unlawful stay in the Netherlands. He collapsed in his cell, and was transferred to a hospital with cardiological problems. He was nursed back to relative health, and in February 2011 his situation improved somewhat. The court in Utrecht reiterated in Amin’s case that human dignity and human freedom make up ‘the very essence’ of the European Convention on Human Rights.203 According to the verdict, this principle does not just aim to prevent stateinterference with an individual’s private life, but may at times also carry the positive requirement to effectively warrant an individual’s private life. Taking all of the above into account, and mentioning explicitly that Amin is stateless and cannot return to his country of birth, the court ruled that there was no ‘fair balance’ between the public interest and the state’s refusal to grant emergency shelter. Though hardly a durable solution, this will undoubtedly improve Amin’s situation considerably in the short run. Stateless Roma Historically speaking, people of Roma origins are also particularly prone to statelessness.204 Their nomadic and voluntarily isolated lifestyle, combined with a history of persecution and stigmatisation, have made many of them deeply distrusting of and unattached to postindustrial society.205 The Netherlands is home to some 10,000 Roma, although it should be noted that this is only an estimate because ethnicities are not allowed to be registered in the

Report of departure consultation between DT&V and Mr. Amin Kassir, dated 20 October 2010. District Court Utrecht, 17 February 2011, case nr. SBR 10/4265. 204 For purposes of this study “Roma” and “Sinti”, technically two distinct population groups, are taken together and labelled as Roma. 205 P.R. Rodrigues, "Few and Neglected: Roma and Sinti in the Netherlands", (2008). Available at http://www.errc. org/cikk.php?cikk=2540 [accessed 17 February 2011].
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GBA.206 According to the Council of Europe, ‘between 50,000 and 100,000 Roma from Serbia and Montenegro, including Kosovo, who had fled the region during the conflict in the Balkans, are still living in various European countries, with no permanent status’.207 The Netherlands was one of the major receiving countries, playing host to approximately 12,000 Roma from the former Yugoslavia in 2003. In practice, Usmany reports, many stateless Roma have neither lawful admission nor lawful stay in the Netherlands. After all, because they generally have no country of origin and often do not possess valid travel documents they cannot apply for a “permission towards temporary stay” (machting voorlopig verblijf or MVV) which would allow them to enter legally. Furthermore, ordinarily a Dutch residence permit can only be obtained once one has lived up to the “passport requirement” – another condition most Roma cannot meet.208 In this light it is unsurprising that Council of Europe Commissioner for Human Rights Thomas Hammarberg, in a call to action titled ‘Many Roma in Europe are stateless and live outside social protection’, wrote in 2009:
There are Roma in a number of European countries who have no nationality. They face a double jeopardy - being stateless makes life even harder for those who are already stigmatized and facing a plethora of serious, discrimination-related problems. For those who happen to be migrants as well, their situation is even worse.209

As one of the most prominently present stateless groups in the Netherlands, five people of Roma origins were interviewed for the purpose of this study. Dita Dervishi (22) from Kosovo, three brothers called Stefan (24), Nicolæ (23) and Marko (21) Sejdovic, and Mirela Nicolić (39), who is mother to four children. It is her story that will be told below, because it demonstrates that even if all conditions to be recognised as a stateless person appear to have been met, under current circumstances the situation may not necessarily improve. Mirela’s father, Kolja, at times also chimed in. Mirela Nicolić (39)210 Mirela Nicolić’s family has been roving around Europe in their caravan for generations. Both her parents, Kolja and Rubinta, were stateless persons of Roma origin, as were her grandparents and so on. Nobody in Mirela’s large family has ever had a passport, primarily because the Roma’s wandering existence traditionally ignored the still dominant system of sovereign nation states. Furthermore, many of the often persecuted and harassed Roma have a understandable distrust towards government authorities, and as a result the birth

FORUM, "Onderwijs en scholing voor Roma en Sinti in Nederland", (2008), 55. Parliamentary Assembly of the Council of Europe, recommendation 1633(2003). See Dokters van de Wereld, "Stateloos Maakt Radeloos": section 4.3 for a more elaborate portrayal of the Roma migratory history. 208 It should be noted that the no-fault procedure is not bound by this passport requirement. See R. Usmany, "Staatloosheid Onder Roma in Nederland", Wetenschapswinkel Universiteit van Tilburg (2010), 7-8. 209 T. Hammarberg, "Many Roma in Europe are stateless and live outside social protection", (2009). Available at http://www.coe.int/t/commissioner/Viewpoints/090706_en.asp [accessed 17 February 2011]. 210 Interview with Mirela Nicolić (pseudonym) – Almere, 21 January 2011.
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of children is rarely registered. Nevertheless, these days many Roma opt for a more sedentary lifestyle, and Mirela is one of them. However, probably because Roma people have lived outside modern bureaucratic societies for so long, it has proved virtually impossible for Mirela to become part of fixed society now. Mirela herself was born in Rome, Italy, but moved with her parents to the Netherlands soon afterwards. Kolja was granted a residence permit for five years in 1973, but this was revoked after a few months once the authorities found out that the application was made using a false ID. ‘What else was I going to do?’, Kolja sighs. ‘It’s not like anybody has ever given me real papers’. Fed up, the entire family travelled on to the United States in 1974, entering the country via Mexico using forged travel documents. The family was never officially granted legal stay in the USA, but was allowed to travel and work freely within the country. Mirela grew up in Chicago, and eventually had four children with a Roma man who was stateless too: Geba (now 16), Janko (15), Gini (14) and Juliano (13) were all born in the USA. They were brought into this world by an unlicensed midwife who could therefore not act as a witness to the births. Because of this, and due to the family’s illegal residence, Mirela’s children were never registered with the US authorities. Consequently, birth certificates for her three sons and only daughter were never obtained. Due to family circumstances the entire family decided to move back to the Netherlands in 1998 (again using fake papers). In the Netherlands they applied for residence and work permits, but all were denied. Naturally, eventually money ran out. At some point, Mirela feared she could not provide for her children anymore, and stole some food from a supermarket. For this she was arrested and declared an undesirable alien – a label that she has actively opposed and appealed, yet so far without success. As a result, all procedural avenues are closed to her. Matters were aggravated when, in 2004, it became mandatory to carry ID at all times, and Mirela and her mother were arrested while shopping for not being able to identify themselves. Various arrests and fines followed, which could often not be paid. In 2007, ‘everything was a big mess.’ However, things were looking up somewhat when the family was admitted into three emergency shelters (noodopvang), on grounds of the family’s cooperation towards departure and return. Indeed, as Kolja comments, ‘if you want me to leave, okay, but I need something to go with – a travel document!’ Mirela agrees: ‘that’s what bothers me; we’re willing to leave and if they can get us to America; go ahead and do it. If not, then admit to it and settle the case here. Now there’s just no motion.’ Then she adds: ‘if we are to be deported, it needs to be to a country where we can have a right to live, because I cannot take this again. It is too much, it is too stressful – this uncertainty. I want this to stop with my children – it can’t go on like this.’ However, as far as deportation is concerned, the DT&V’s ongoing attempts to this end are curious in light of its recognition of the Nicolić’s statelessness. All the organization’s letters to Mirela mention that she is
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stateless. However, it’s not just the DT&V that recognises them as such: they are registered in the same way in the GBA too. Nevertheless, the family’s application in the no-fault procedure was rejected. It is surprising how on the one hand all Nicolić family members can be registered as stateless persons, which inherently means that no state will accept their return, but that nonetheless their continued presence on Dutch territory is considered to be attributable not to an inability to leave but to unwillingness. In this regard it should be noted that the IND alone continues to refer to them as of “unknown nationality”. Mirela and her children’s statelessness is corroborated by the numerous and genuine attempts at achieving some form of recognition from other states. In 2007, Mirela managed to acquire an Italian birth certificate (and find out her birthday!), but the Italian consulate has already indicated that this does not render her eligible for citizenship (which is passed on jus sanguinis in Italy too). Furthermore, a laissez-passer is only issued to nationals. The consulate also informed her that she may have been eligible for Italian citizenship at some point, had her parents demonstrated their statelessness at the time of Mirela’s birth. However, as Kolja and Rubinta never possessed birth certificates or identification, this is now out of the question. Mirela herself would have to prove her identity too, if any procedure were to be started. A birth certificate though, does not qualify as valid means of identification. In an e-mail, the Italian Consul General in Amsterdam acknowledged that this is ‘a barrier towards the acquisition of a passport’.211 This vicious cycle could not be breached by approaching the American authorities. The documentary evidence required to apply for American citizenship (especially birth certificates as nationality is attributed jus soli) could not be forwarded, and as such a laissezpasser would not be issued either.212 The DT&V itself made a similar request to the US embassy in late 2009, again without result. Mirela’s wrote a final plea to the Illinois Department of Public Health to ask for a delayed record of birth for her children, but this was rejected due to insufficient documentary evidence of their existence. Over ten independent visits to the embassy have not helped either. In December 2009 Mirela was informed that she and her children had to move out of the emergency shelter by January 2010. As part of changes in national policy this type of assistance would cease to be offered. A letter from the Almere municipality indicated that the DT&V had found ‘shelter for you and your family’ in a so-called “Freedom Restricting Location” (Vrijheids-

A copy of the all e-mail correspondence with the consulate (between 31 October 2007 and 24 January 2008) is in possession of the authors. 212 Letter from the Consulate General of the United States of America, 2 November 2007. A copy of the original is in possession of the authors. [70]

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beperkende Locatie, or VBL).213 The family was allowed to take luggage up to a maximum of 14 kilos a person. The letter went on to threaten that ‘should you choose not to use the shelter offered in the VBL, this means that you have not sufficiently cooperated in the process of your departure and return’.214 It should be clearly noted in this regard that the VBL does not qualify as a shelter. The former State Secretary of Justice phrased it as follows: ‘the Freedom Restricting Location is not a measure to offer shelter, but instead a measure to restrict the freedom of movement to allow supervision of aliens to ensure their departure’.215 Moreover, aliens are not allowed to stay in a VBL for more than 12 weeks. If their deportation has not been effected by then, they will be put out onto the streets. Knowing her chances of being accepted by any other state, Mirela opted not to vacate the house. After all, ‘what the hell were they going to do in those twelve weeks that I or they couldn’t have done in all these years?!’ A court ruling confirmed the slim prospect of their departure, and postponed the eviction for a year. Despite the fact that little to nothing has changed, in January 2011 the entire affair restarted. It is ongoing at present. The elemental feeling of not being able to adequately provide for your children continues to beleaguer Mirela. There were times when healthcare was totally inaccessible. ‘My daughter had an infection around her mouth – this big rash. The hospital refused to treat her. I had to scream and shout until a doctor came along who was willing to give her the medicine. It’s like a fight – I have to fight for everything.’ Now, as part of the emergency shelter programme, they are insured, but dental care remains out of the question. None of the children has seen a dentist in five years. Gini, the family’s only girl, is particularly confused about what’s happening to her, and the ups and downs in the fate of the family heavily influence her performance at school. However, the boys too have difficulty grasping what’s happening to them. Mirela confesses:
One of my sons, Janko, sometimes even angers me. He constantly asks “what am I?”, and I just can’t seem to explain. We’re always debating, but he’s just lost. [...] It’s funny when people say “why don’t you go back to your country?”. There is no country – that’s what they don’t understand. My son is also like that; he just doesn’t understand.

As all of Mirela’s children are still minor they enjoy the universal right to education, and all four still go to school. However, without a social security number it’s hard to come by a stage (‘internship’), and without this a diploma cannot be obtained. Further schooling or even legal employment are out of the

Letter from the Almere municipality, 23 December 2009. A copy of the original is in possession of the authors. 214 Ibid. 215 Letter from the State Secretary of Justice to Parliament, 24 June 2008, 29344, Nr. 67. [71]

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question. This especially worries Mirela: ‘You cannot look at the future, you have to look at things day by day. You don’t know where the hell you’re going to be next summer. But at the moment, things are looking grim.’ The desperation is the worst part, she says. ‘I know where being desperate will get you if you have no money or food and you have kids to feed – you will have to go and steal it. I’m a mom – I’ll do whatever I have to do.’ Stateless Africans Denial (or withdrawal) of citizenship is prevalent in Africa too, and many countries there have a long-standing tradition of not granting citizenship to ethnic minorities. Additionally, ‘[i]n many African countries, where citizenship is based on descent, citizenship denial is exacerbated by ineffective methods of birth registration, which hampers the ability of residents to prove their citizenship. Approximately 71% of all births in sub-Saharan Africa are not registered’.216 Notorious culprits include Ethiopia, which may have stripped as many as 300,000 people of Eritrean origin of their citizenship in the wake of its border conflict with Eritrea; Côte d’Ivoire, where thousands of individuals of migrant backgrounds were discriminated and denaturalised; and the Democratic Republic of Congo, which denied citizenship to more than a million people of ‘unconfirmed ancestral ties to the territory of Zaire’.217 Regrettably, the list could easily be expanded.218 Ahmed Hassan’s story illuminates the life of a stateless African in the Netherlands. He is of Bajuni descent, a people originating from the Bajuni Islands, off the coast of Somalia. He was born in Kismayo, a port city overlooking the islands. Bajuni people form an ethnic minority of mixed descent (Arabic, Bantu, Portuguese and Somali), who speak their own dialect, Kibajuni, which is derived from Swahili. On grounds of both descent and linguistic distinctiveness Bajuni people are discriminated and excluded from regular Somali society.219 The US Department of State described the fate of such minorities in Somalia as follows:
members of groups other than the predominant clan were excluded from effective participation in governing institutions and were subject to discrimination in employment, judicial proceedings and access to public services. […] Minority groups are disproportionately subject to killings, torture, rape, kidnapping for ransom and looting of land and property with impunity by faction militias and majority clan members. Many minority communities live in deep poverty and suffer from numerous forms of discrimination and exclusion.220

F.D. Barton, J. Heffernan, and A. Amstrong, "Being Recognized as Citizens: A Human Security Dilemma in Sub Saharan Africa, South, Central and Southeast Asia, the Caucasus and Central and Eastern Europe", Prepared for discussion with the Commission on Human Security (December 2002), 10. 217 Ibid., 3-8. It should be noted that the issue in the DRC has by now been largely resolved. 218 For various other instances of denial of citizenship in Africa, see G. Nzongola-Ntalaja, "Citizenship, Political Violence and Democratization in Africa", Global Governance, no. 10 (2004), 403-409; B. Manby, Struggles for Citizenship in Africa (London: Zed Books, 2009). 219 Netherlands: Ministry of Foreign Affairs, Algemeen ambtsbericht Somalië (“General memorandum on Somalia”), September 2010, 56-57. 220 United States Department of State, 2009 Human Rights Report: Somalia, 11 March 2010. Available at http://www.state.gov/g/drl/rls/hrrpt/2009/af/135976.htm [accessed 22 March 2011]. [72]

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The United Kingdom’s Home Office had previously already remarked that
Somalis with no clan affiliation are the most vulnerable to serious human rights violations, including predatory acts by criminal and militias, as well economic, political, cultural and social discrimination. These groups comprise an estimated 22% of the Somali population and include the Bajuni.221

Ahmed’s experiences are outlined below. Ahmed Hassan (28)222 Ahmed’s father was – as a relatively wealthy businessman – involved in supplying an armed Bajuni rights group in Kismayo with financial and material support. As a result of this both Ahmed’s parents were kidnapped by government troops when he was four years of age, back when Somalia was still being held together by dictator Siad Barré. After this his brother Said took care of him, but Said also continued their disappeared father’s subversive work. When armed men came looking for him and only found Ahmed – ill in bed as a result of a gastric deficiency (his body painfully regurgitates most foods immediately) he has suffered from since birth – they burned down the house. When Said returned, they decided to flee. The journey was necessarily clandestine: Ahmed never had a passport, as the Somali government refused to issue him (and most tribesmen of his age) such a document due to their heritage. He explains: ‘in 1981 troubles between the Bajuni people and the Somali government started, so my older brother does have his papers. When I was young sometimes I used his’. False visas were arranged – Ahmed’s document allowed him to go to the Netherlands, Said went on to England. First however, they went to Yemen by boat and spent nine days at sea. At Schiphol they separated and lost all contact, despite subsequent efforts of the Red Cross in Geneva to locate Ahmed’s brother on his behalf. Ahmed arrived in the Netherlands in June 2007, and lodged his first asylum application in August that year. Up until now the question of his nationality proves an insurmountable stumbling block: the IND does not accept his Somali origins because upon arrival Ahmed indicated he speaks Swahili, and later a Swahili language analysis by a native Kenyan was found to show that Ahmed comes from Kenya. However, a presentation at the Kenyan embassy on 11 October 2007 did not yield any results, and a laissez-passer was not issued. The Kenyan representative did remark that Ahmed’s Swahili did not sound Kenyan, but was perhaps more like Tanzanian Swahili. A request for a laissez-passer was sent to the Tanzanian embassy 14 November 2007, but was

221 222

United Kingdom: Home Office, Operational Guidance Note: Somalia, March 2009, 13-14. Interview with Ahmed Hassan (pseudonym) – Zaandam, 10 December 2010. [73]

declined too. A second presentation before the Kenyan embassy followed on 29 January 2008. Again, Kenya did not assume responsibility for Ahmed’s fate. On 14 October 2010 DT&V tried for a third time, this time with Ahmed’s express permission (despite not being a Kenyan) rendering it a request for voluntary return, but without result. On 5 November 2010 Tanzania too was approached once more, again to no avail.223 These various presentations took place while Ahmed was in alien detention.224 After his first application for asylum was denied within seven days, he was in custody for nine months, awaiting an apparently difficult (if not impossible) deportation. Due to his stomach problems he had trouble eating, but the staff in Schiphol’s alien detention centre figured it might be deliberate; a sort of hunger strike.
They said I should be isolated, so a camera could watch me to see if I would eat the food they gave me. I said “no, this is my life – if I don’t eat it’s my choice”. They sent strong security guards, wearing clothes like they came to fight. I refused. They beat me heavily and broke my bladder. They kicked me when I was on the floor. When they put me in isolation I urinated blood for three days. Now I cannot control my urine – it comes out directly. Later they accepted to buy pampers for me. But since I came to this prison [Zaandam detention facility, see below] I get one pack for one week. It is not enough! In the past two weeks they have refused to buy them at all. I use a big ball of toilet paper, I can show you if you want!225

After nine months a judge ordered his release, although he did receive an order to leave the country within 48 hours. Ahmed obeyed and left the country for Belgium, where he applied for asylum and explained his predicament. However, after three months he was returned to the Netherlands in accordance with the Dublin Regulation. Here, he was detained again for another three months after which he was asked to leave the country within 24 hours. His lawyer applied for asylum again, and pending the procedure he lived in a reception centre in Ter Apel, reporting once a week. After eight months the police came for him in the middle of the night. By now knowing what to expect,
I jumped through the window and ran to France. But when I got out of the train I was arrested and told to turn back. I took a train back to Belgium, but there I

Immigration and Repatriation Service (DT&V), (Voortgangs)Gegevens met betrekking tot uitzetting (“Progress report concerning deportation”), 24 November 2010. 224 The detention periods mentioned in this interview are corroborated by the Immigration and Repatriation Service (see n.4). 225 Ahmed’s lawyer at the time discouraged him from pressing charges, as another court case, he said, might hamper his chances of a residence permit. During the interview Ahmed agreed to have a doctor examine him to determine the time and cause of his bladder problem. [74]

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changed and headed for Switzerland. After nine months they too sent me back to the Netherlands. I was detained for another 45 days, and then sent back to Somalia.

Ahmed was deported in February 2010, despite the IND’s continuous claim that he is not a Somali. Prior to his expulsion he did not receive the medical treatment for his stomach condition that the Swiss planned on giving him before he was called back to the Netherlands. When he arrived in Somalia and told the immigration official his tribal background, he was told: ‘you people are not from here, you know that’. After three days he was sent back to the Netherlands, though not before he was severely abused. The scars on his body are still clearly visible. ‘When I came back to the Netherlands the police was waiting for me. They asked me some questions and then said: “the door is open, you can go.” “Where can I go?”, I asked. “Anywhere”, they said, “as long as you stay in the country.” I went to Amsterdam, and slept outside for two nights.’ After that, an employee of an NGO called The Open Door cared for Ahmed for a while. At the time of our interview Ahmed was detained for a fourth time, this time in Zaandam since August 2010. Despite repeated requests he is not granted medical treatment for his chronic stomach issues (he does receive pills that were prescribed in 2007 but have no effect). A November appointment made for him by The Open Door to have a gastroscopy in a hospital passed while he was locked up. ‘I can’t eat or sleep because of the pain. I have to eat little bites about ten times a day, because otherwise I can’t keep it down. [...] I am innocent – this is punishment for nothing.’ Bad dreams in which his parents are killed before his eyes dampen his spirit and wear him out.
I constantly fear being deported to Somalia again. The last time I was there they put out their cigarettes on me, they cut me with the knives attached to their guns. I resisted being sent back to the Netherlands, because I knew I’d go to prison again. I said it’s better to die here. If I go back and they kill me I don’t care. What scares me is their punishment if I come back. I don’t know what I can do.

Five days after our conversation in Zaandam’s detention boat, Ahmed’s latest appeal was denied by the court in The Hague, despite the defence’s assertion that there are indications that the claimant’s previous application was not treated with sufficient care.226 During his case Ahmed forwarded a report by the Irish Refugee Documentation Centre (IRDC), which indicated that Bajuni people consider themselves as a Swahili-speaking community, despite the

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District Court in The Hague, 15 December 2010, AWB 10/33337. Author’s translation. [75]

Bajuni dialect’s distinctiveness from this language.227 In fact, some Bajuni speak no Somali at all (as is the case with Ahmed).228 Remarkably, the IND’s language analysis was not conducted by an expert analyst in Somali Bajuni, but by a Swahili speaking Kenyan.229 However, the IND retorted that the IRDC report was not an official contra-expertise and therefore did not lead to a conclusion different from the one based on the earlier language analysis. The court agreed that as such no new facts or circumstances were forwarded, though a contra-expertise was recommended in the verdict. The fact that Ahmed cannot afford this did not sway the court. The past three and a half years Ahmed has spent either in reception or detention centres. Still, in early February 2011 the court ruled that Ahmed’s current confinement is lawful and can be extended. This is in spite of the fact that the DT&V has indicated that it does not know what to do with his case. Ahmed told a DT&V official: ‘I have come here to ask for your help; you don’t want to help me. If you want to send me anywhere, I am ready. I will go wherever’. However, not a single country considers Ahmed eligible for citizenship. He has filed another request for voluntary return to Somalia, hoping that the DT&V may be able to assist this time around. An attempt to arrange his return through the IOM already failed, as the organization found Somalia to be too dangerous to send people back to. 3.3.4 Unreturnable people “Unreturnability” is in fact not a cause of statelessness, but instead the source of a protracted state of limbo and uncertainty closely resembling statelessness in its effects. An unreturnable person is, in spite of extensive attempts at repatriation, stuck in a country other than that of origin or habitual residence. Causes of unreturnability are myriad, and interviewees were confronted with the problem in many different guises. However, in most cases of interviewed unreturnable people, embassies will flatly refuse to issue a laissez-passer even though the nationality itself is not in question. And in all instances encountered, this refusal may have had political roots: Ali Lago (36) from Sudan proved too vocal in his job as a school principal, and Sebit Deng (40) comes from the often discriminated southern parts of the country. In turn, Pierre Nkomo’s (35) father was a soldier in Burundi, and as such antagonised other now-powerful factions. Samuel Mworoha (26), from Burundi too, was also involved with forces opposing the prevailing political winds. At any rate, both Burundians have seen all their attempts at repatriation stranded. Kenneth Woods (43) from Liberia at some point

Ireland: Refugee Documentation Centre, Somalia: Information on the reliability of Language Analysis Reports especially as pertains to the Bajuni Islanders, 14 January 2010, Q11501, 12. Available at http://www.unhcr.org/refworld/docid/ 4bc6db7a2.html [accessed 21 December 2010]. 228 Ibid., 14. 229 District Court in The Hague, 15 December 2010. [76]

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even acquired a valid passport, but was still not allowed to re-enter his country. He too has in the past rubbed important people the wrong way. Alternatively, human trafficking – most often of women and girls – may pose another source of unreturnability. According to the UNHCR Handbook for the Protection of Women and Girls, [t]rafficked women and girls may be unaware of their rights, may lack access to information and advice, and may face obstacles to gaining access to mechanisms that protect those rights. They may find themselves without personal identity documents and be unable to establish their nationality status, leaving them de facto stateless.230 Below, the story of Ali Lago from Southern Sudan is told. He is not technically denied his Sudanese citizenship, but instead all rights normally attached to a nationality – chiefly his right to return. His personal history contains strong refugee elements, but because of absent documentation his in itself plausible story could not be definitively linked to his person. This case shows just how pervasive the consequences of an unclear identity can be for stateless or unreturnable persons. Ali Lago (31)231 In 2001 Ali Lago was still a school principal in Central Sudan. He felt that his school lacked the resources required to function properly, and regularly wrote to the Ministry of Education in Khartoum to ask for improved funding and teaching materials. When at some point children stopped coming to school because of the poor facilities, Ali convened a meeting to inform all parents of his efforts. This ‘rally’, combined with his written insistence and criticism, cost him dearly. After several warnings, Sudan’s Secret Service picked him up as a political dissident. He was incarcerated for ten months, and severely abused. When his brother in law found out about Ali’s whereabouts, he bribed the guards and made arrangements for him to leave the country. ‘I put on Islamic clothing and covered my face, and he drove me to Khartoum.’ There, Ali was given a passport by a travel agent – he had never possessed one of his own. ‘It’s troublesome to get one for people from the small villages; we have to go all the way to the capital’, Ali recalls. He did have a birth certificate though. However, as his school’s ID card was confiscated during his imprisonment, he was transported out of Sudan without official means to establish his identity. Within a few days after his release he was flying towards an unknown destination. Like many other interviewees, he was abandoned by his agent soon after arrival in Amsterdam. ‘I waited for him, for six hours. At some point, I just started screaming – I was still hurt and bleeding.’ Ali was put in a police

230 231

UN High Commissioner for Refugees, "UNHCR Handbook for the Protection of Women and Girls", 220. Interview with Ali Lago (pseudonym) – Rotterdam, 16 December 2010. [77]

cell, still very afraid. An asylum procedure was started soon afterwards, but it was rejected because the IND doubted whether Ali was actually Sudanese, or even African at all. Today, after many years and three procedures, the IND is still not convinced. This is despite a declaration of residence from the Dalanj municipality and a copy of the arrest warrant issued for Ali by the Central Security Service in Sudan.232 The IND could not put the authenticity of these documents beyond doubt (nor were they proven to be forgeries). The latest negative decision (dating back to September 2009) states that because Ali cannot substantiate his origins and identity, the documents he forwarded to prove his identity cannot be taken into consideration.233 The argument that, at the time, deportation to Sudan might have constituted a violation of Article 3 of the European Convention on Human Rights was refuted in similar fashion: Ali’s Sudanese nationality had not been established, rendering the applicability of this reasoning uncertain. In between and after these various procedures Ali was homeless for a while, and lived in a train station. After the second rejection, in a case of mistaken identity, he was arrested by the aliens police and detained for one month. He was released when it appeared that someone else with the same last name should have been kept in custody instead.234 After each failed procedure he was handed a notice to leave the Netherlands by himself within 24 hours, but without the required documentation this was simply impossible. Meanwhile, the DT&V also attempted to effectuate Ali’s departure, and he reluctantly cooperated in the organization’s endeavours to obtain a laissez-passer from the Sudanese embassy.235 Still, he did not really want to leave the Netherlands, although the instability of his life was troubling him already. To combat this uncertainty, he has been doing voluntary work for years.236 As a result, Ali speaks Dutch well and feels at home in the Netherlands. It is as he told the IND: ‘I’m not a scrounger. I want to mean something to the Dutch society. I came here hoping for a stable life and a meaningful role in society’.237 In 2007 everything changed for Ali. Although he had worked for years (or ‘lost years’, as he calls them now) to achieve legal residence in the

Declaration of residence from Dalanj municipality, 1 May 2007. Arrest warrant by the Directorate General of the Sudanese Central Security Service in Al Dalang, 20 September 2001. Copies of both documents are in possession of the authors. 233 IND decision on the application for an asylum permit by Ali Lago (pseudonym), 1 September 2009. A copy is in possession of the authors. 234 Ali did receive financial compensation for the whole affair. 235 It should be noted that, considering the IND’s continuous disbelief towards Ali’s Sudanese nationality, it is striking that the DT&V expends considerable effort to return him there. One would assume that ‘return’ at least implies prior residence. 236 The medical insurance he had during his procedures has not yet expired, which enables Ali to do voluntary work even though other interviewees were not allowed to do so. Furthermore, because of this healthcare has always been readily accessible to Ali and he has thus never had any trouble in acquiring his prescribed medication for arrhythmia. 237 Ali made this statement during his first hearing in the third procedure on 23 and 24 April 2008. [78]

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Netherlands, every incentive to stay here was taken away when he got word from his sister who still lives in Sudan. She said that their parents have been arrested and will only be released once Ali returns and turns himself in. However, in a striking example of the body moving in a different direction from the legs, apparently the Sudanese Security Service holds Ali’s parents captive until he returns, while the country’s embassy declines to facilitate just this. Then the IOM indicated that it cannot be of service in Ali’s case as he is undocumented,238 and neither a personal visit to the Sudanese embassy nor the DT&V’s mediation have yielded any results so far.239 ‘I want to return, but there is a big gap between wanting and being able to’, Ali says. ‘I feel so guilty. Maybe they torture my father, or maybe they die...’ In September 2009 things appeared to turn around, when the Sudanese embassy issued a statement confirming Ali’s citizenship: ‘The Embassy of the Republic of The Sudan hereby certifies that [Mr. Ali Lago] born in Sudan on 16.04.1974 is a Sudanese citizen’.240 However, this message did not come with permission to return. Almost a year later Ali visited the embassy in person again, this time accompanied by the Aliens Police as witnesses. In another statement the consul rejected his application for a laissez-passer, in spite of previous confirmation of his nationality: ‘The Embassy of the Republic of the Sudan in The Hague hereby certifies that [Mr. Ali Lago] approached the Embassy to request for a Sudanese Passport or Travel document, but in the absence of any Sudanese official documents (Sudanese Nationality certificate) the Embassy is unable to comply with this request’.241 Steadily running out of options, Ali started a no-fault procedure. However, the permit was denied because again the authenticity of the evidentiary proof forwarded could not be verified. The appeal is currently pending. ‘I have done everything I can think of’, Ali sighs. By now, Ali has lost hope of a resolution to his problems any time soon. ‘I have Post-traumatic Stress Disorder and I sleep very badly. There is just no stability. [...] One day I stood on a bridge over the Maas in Maastricht, and I jumped... The police fished me out of the water’.242 It did not remove the guilt over his parents’ situation, and therefore the desire to return to Sudan remains strong. A no-fault permit would at least allow him to acquire means of personal identification, and

IOM letter of 25 July 2007. A copy is in possession of the authors. Ali visited the Sudanese embassy on 25 June 2007. He signed a DT&V laissez-passer application form on 14 September 2007. 240 Letter from the Sudanese embassy in The Hague, 25 September 2009. The authenticity of the ambassador’s signature was verified by the Dutch Ministry of Foreign Affairs. A copy is in possession of the authors. 241 Letter from the Sudanese embassy in The Hague, 14 July2010. A copy is in possession of the authors. 242 RIAGG Maastricht confirmed that Ali suffers from Post Traumatic Stress Disorder, and that it primarily manifests itself through nightmares, trouble sleeping, guilt, emotional behaviour, poor concentration and headaches. ‘Stress can exacerbate these symptoms.’ Letter dated 7 April 2008.
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perhaps travel documents too. Until that day has come, Ali is anxiously stuck in the Netherlands. 3.4 Analysis and conclusions The diverse and mostly dispiriting stories of the people interviewed for this report do feature a number of similarities. Some issues, apparently, are experienced by people at risk of statelessness in the Netherlands regardless of cause or origin. As a result, some overarching conclusions can be drawn. Various issues, both procedural and practical, revolve around the most pervasive and disturbing problem undergone by all but four of the interviewees: the incidence of lengthy, repeated and hopeless periods of detention. As the UNHCR already reported more than a decade ago, ‘[p]ersons who enter a State illegally, or those who have entered legally but whose documents or visas have expired, are also often placed in detention pending resolution of where they should be sent’.243 In the case of stateless people, however, this ‘resolution’ regularly does not materialize at all. In the Netherlands, every year approximately 8,00010,000 people are being held in alien detention facilities.244 About 20% of these people (1,575 individuals according to Amnesty International) were in custody for more than six months.245 How many persons actually have a desire to return to their country of origin (or of former habitual residence), but cannot because no state accepts responsibility for them, is unclear. In light of a rising international desire to criminalise irregular migration, the legal position of stateless people is becoming increasingly weak. Indeed, ‘[t]his trend has an impact on all irregular migrants. However, the stateless are disproportionately affected due to the reality that many are unable to travel legitimately’.246 In the European context, the Council of Europe Commissioner for Human Rights, Thomas Hammarberg, acknowledged this ‘trend to criminalize the irregular entry and presence of migrants’, and noted that ‘[s]uch a method of controlling international movement corrodes established international law principles. It also causes many human tragedies without achieving its purpose of genuine control’.247 In the Netherlands too, the government plans to render illegal stay punishable by law.248 Numerous interviewees independently described the Kafkaesque practice of being detained for months, in a regime no different from or worse than criminal prisons249 and without any indication as to when they would be expelled or let go, only to be released

UN High Commissioner for Refugees, "UNHCR Brief on Statelessness and Detention Issues", (1997). Available at http://www.unhcr.org/refworld/docid/4410638fc.html [accessed 4 January 2011]. 244 Dienst Justitiële Inrichtingen (Ministerie van Justitie), "Vreemdelingenbewaring in getal. 2005-2009", (2010). 245 Amnesty International, "Vreemdelingendetentie: In strijd met mensenrechten (updated version)", (2010), 12. 246 Equal Rights Trust, "Unraveling Anomaly: Detention, Discrimination and the Protection Needs of Stateless Persons", xxi. 247 T. Hammarberg, "It is wrong to criminalize migration", (2008). Available at http://www.coe.int/t/ commissioner/Viewpoints/080929_en.asp [accessed 26 January 2011]. 248 Regeerakkoord VVD-CDA, “Vrijheid en Verantwoordelijkheid”, (2010), 21. 249 Amnesty International, "Vreemdelingendetentie: In strijd met mensenrechten (updated version)", 16. See also European Committee for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment, "Report to the authorities of the Kingdom of the Netherlands on the visits carried out to the Kingdom in Europe, Aruba and the Netherlands Antilles", (2007), 33. [80]

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because a judge ruled that ‘the perspective of deportation was absent’. In an especially wry display, interviewees were then given notice to leave to country within 24 hours, though how exactly they were to arrange this without travel documents or, for that matter, a nationality, remains vague. In 2008 alone 1,679 people of unknown nationality were told to depart from the Netherlands this way.250 With no means or right to either stay in or leave the country, most respondents were arrested a second or third (and in some cases even fourth and fifth) time and then sent back to alien detention awaiting deportation. Usually, not being able to present identification documents caused the arrest in the first place. Obviously, while in custody no country offers consular protection or advocates for the stateless person’s rights. This vicious cycle has a tremendously detrimental effect on the mental state of stateless persons, who often do not dare to leave their house or shelter at all anymore. Indeed, ‘[e]ven where detention is not initially prohibited, it may become arbitrary over the course of time owing to the length [and regularity] of detention’.251 It should be noted in this regard that up until 24 December 2010, when the EU Return Directive entered into force, the Netherlands operated without legal restrictions on the duration of alien detention.252 Still, with this Directive in place detention may last as long as 18 months when ‘a lack of cooperation by the third-country national’ has been found or ‘delays in obtaining the necessary documentation from third countries’ arise.253 The latter issue is particularly common where stateless people are concerned. One way to improve this situation, following the example set by a successful Australian pilot programme, would be to issue so-called bridging via.254 These bridging visa can be extended to migrants whose application for a residence permits had been denied, but whose departure proves difficult to effectuate, despite the migrant’s cooperation. The bridging visa confers temporary legal stay to the person in question. One a case-by-case basis the level of supervision is to be decided, and a right to work is included (access to social services may be curtailed). In Australia, during this pilot, 94% of bridging visa recipients did not go into hiding. Approximately two-thirds were able to return voluntarily. Of families who were released from detention centres and given a bridging visa, less than one 1% absconded. Finally, this use of alternatives for detention resulted in declining costs, and as a result the pilot has been extended into a national programme.255 Efforts such as these are in line with Article 32 of the 1954 Convention, which calls for the facilitation of “assimilation and naturalization” of stateless people. Considering that most stateless persons cannot be expelled anyway, forcing them to subsist illegally in the Netherlands by leaving them unregularized

Nederlands nationaal contactpunt voor het Europees migratienetwerk (EMN), "Statistisch Jaaroverzicht Migratie en Internationale Bescherming – Nederland 1 januari 2008 - 31 december 2008", 37. 251 K. Perks and J. Clifford, "The legal limbo of detention", Forced Migration Review, no. 32 (2009), 42. 252 Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals. 253 Ibid., Article 15 (section 6 under a and b). 254 See for the entire report on this pilot, International Detention Coalition, "Case management as an alternative to immigration detention: The Australian Experience", (June 2009). 255 Ibid. [81]

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worsens the situation for all parties involved. After all, it leads to both human suffering and an increased risk of unwanted behaviour. While it is positively true that in some cases self-proclaimed refugees or stateless people have destroyed their means of identification to hinder their expulsion, in general deportation is not just dependent upon the willingness of the person to be removed. The cooperation of friends or kin in the individual’s country of origin may be required to establish an identity, and they may be found unable or unwilling to do so, or not found at all; alternatively the Dutch government may not expend the resources required to achieve removal; most importantly, a country of origin may refuse its cooperation for an assortment of reasons, chief among them a sincere or pretended unawareness of a “genuine and effective link” with the person in question. In this context it has been suggested that ‘[i]f no information can be acquired within a reasonable time the person involved should be deemed to be stateless’.256 Especially when a failure to realise deportation is not proven to be due to an individual’s own (in)actions, punishment for an inability to leave is particularly harsh. We would therefore recommend the imposition of a time limit on these attempts at expulsion. In fact, ‘under Article 7 of the ICCPR [International Covenant on Cultural and Political Rights, ratified by the Netherlands] repeated attempts at expulsions to a country which is not guaranteed to admit the individual concerned may amount to inhuman or degrading treatment’.257 If, as happened almost certainly in the case of Patrick Loomens, a bilateral deal is struck to return someone despite his or her statelessness, ‘[g]uarantees that the individual will be treated in accordance with international human rights law and, where nationality is not on offer, the standards set out in the Statelessness Convention would surely be appropriate’.258 The adverse connection between the interviewees’ inability to identify themselves and the likelihood of detention has already been emphasised (particularly after 2004 when carrying personal identification became mandatory). Another consequence of absent means of identification pertains to difficulties in accessing healthcare that should by law be available to all residents in the Netherlands.259 Various interviewees have indicated that they were either refused essential care, or postponed potentially important check-ups for fear of being “discovered”. A majority of respondents struggles with psychological issues, often PTSD and depression related. These mental issues are either a token of traumatic experiences in the past, or have been caused or aggravated by the disheartening judicial cul-de-sac most find themselves in. Independent from one another, the desire to be treated ‘as a human being’ was voiced repeatedly. Those interviewees who were fortunate enough to be assisted by an NGO experienced considerably less problems, as these organizations regularly pay for essential

G.-R. de Groot, "A clarification of the fundamental rights implications of stateless and persons erased from the register of residents", Briefing paper European Parliament (2007), 3. 257 R. Mandal, "Discussion Paper no. 4: What Status Should Stateless Persons Have at the National Level?", Discussion papers series for the establishment of a UNHCR Handbook on the Determination of Statelessness (2010), 20. 258 Ibid., 25. 259 This inaccessibility of healthcare to stateless people has previously been reported in the case of Roma people. See Dokters van de Wereld, "Stateloos maakt radeloos. De situatie van stateloze Roma in Nederland 2009", section 6.4. [82]

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treatment. Nevertheless, the Aliens Act 2000 mentions that all aliens should have access to ‘medically necessary healthcare’.260 The line between necessary and optional appears to be drawn arbitrarily and in an ad hoc fashion though; whether or not healthcare is provided seems to depend on the personal willingness of the person approached. Even those stateless persons who are still in an (asylum) procedure, and are thus lawfully resident in the Netherlands, experience trouble identifying themselves. Various interviewees should in theory be entitled to a W2-document, but have nonetheless not been provided with this crucial piece of plastic. This is because, as the former State Secretary of Justice explained in a letter to the National Ombudsman in 2007, no ID documents are issued during the procedure of people who have staked a claim to statelessness. The rationale behind this is that ‘issuing an aliens’ passport or identity document will remove the incentive to fully commit to acquiring a passport’.261 If the person in question is later officially deemed stateless but is not granted residence, no aliens’ passport or ID-document will be granted either.262 The National Ombudsman took up the case of one stateless person of Latvian origin, and ruled that the State Secretary ought to reconsider her position, as this man did deserve means of identification on the basis of Article 27 of the 1954 Convention.263 This recommendation has so far not resulted in any changes in policy. In general, interviewees were confronted with significant difficulties in accessing the rights attributed to them in the two Statelessness Conventions. This is mainly because they are all either unregistered, or registered as of unknown or an unconfirmed other nationality. This is a troubling situation, as classifying stateless people as of unknown nationality or of unsubstantiated other citizenship pre-empts the activation of rights enshrined in the 1954 Convention.264 Zviad Gelovani, for example, has alternatively been attributed Russian, Georgian, unknown or no citizenship at all. In the first two instances, no verification for this ascription was sought, and nationality was unilaterally determined. On this matter GerardRené de Groot wrote the following:
If the foreign State refuses to recognize the person involved as a national, other States are absolutely not entitled to conclude that the person in question is nevertheless a national of this foreign State. If the person involved does not possess any other nationality, this person is de iure stateless and must enjoy the advantages of statelessness avoiding or reducing provisions.265

While Article 17(2) of the 1954 Convention calls on signatories to ‘give sympathetic consideration to assimilating the rights of all stateless persons with regard to wage-earning employment to those of nationals’, at present it is forbidden for nearly all interviewees to earn

Aliens Act 2000, Article 10(2). Letter of the State Secretary of Justice to the Nationale Ombudsman, 29 June 2007. Report 2007/328. 262 A. Busser and P.R. Rodrigues, "Staatloze Roma in Nederland", 386. 263 Nationale Ombudsman, report 2007/328. 264 G.-R. de Groot, "A clarification of the fundamental rights implications of stateless and persons erased from the register of residents", 4. 265 Ibid.
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a living, or even perform voluntary work to keep occupied. Other elemental needs, a roof over one’s head in particular, are similarly difficult to access. Various respondents are homeless, and scrape a living on the streets. For those who have found shelter, eviction poses a constant threat. Finally, although education appears to be available to all minors, the inability to complete an internship may obstruct the acquisition of a diploma. In any case, it can be debated what value an education holds when it is subsequently impossible to employ one’s newly attained skills in practice. Many of the interviewees complained about the lack of procedural solutions to their plight. Due to the absence of a dedicated statelessness procedure in the Netherlands, stateless persons end up ‘hopping’ from one ill-fitting procedure to another. It should not become common practice for a state ‘to evade its responsibilities under the 1954 Convention simply by refusing to put in place mechanisms for verifying those who would fall within its ambit’.266 Although the no-fault procedure in theory services stateless people, in practice permits are rarely ever granted in this way. Moreover, the no-fault procedure can only be accessed after an application for an asylum or regular residence permit has been denied, causing considerable and unnecessary delay. After all, many stateless persons do not even wish to apply or, for that matter, consider themselves eligible for asylum. The consequences are evident: ‘migrants who face difficulties in obtaining readmission to their respective countries of origin [...] may end up in limbo unless statelessness status determination procedures are in place’.267 This is not to say that residence should in all cases be viewed as a stateless person’s “end game” or as the general optimum solution. Indeed, various interviewees displayed no desire whatsoever to stay in the Netherlands, either because of a longing to return home or because of profound disillusionment with life in exile. In these cases actively advocating for and assisting in acquiring another country’s citizenship will be more in line with an individual’s wishes. Even if there were more readily accessible procedural solutions to statelessness, many of the interviewees would still not have benefited from it. Eight of the respondents have been declared undesirable aliens, mostly for minor offences such as petty theft and posing as someone else to be able to work. This kind of subsistence crime, though not to be condoned, is one logical consequence of a situation where stateless persons have no right to either legal residence, social services or work. However, a declaration of undesirability is a nearirrevocable stigma blocking the already inadequate procedural options available to stateless and unreturnable persons. After all, as this declaration criminalizes and penalizes an alien’s presence on Dutch territory, it is impossible to pursue a resolution of their dilemma afterwards. It is especially ironic that the Aliens Act and the Aliens Decree stipulate that a declaration of undesirability will be lifted if an individual leaves the country for either ten or five years (depending on the severity of the crime committed) and does not repeat the offence during this period.268 For stateless and unreturnable persons it is simply impossible to depart

R. Mandal, "What Status Should Stateless Persons Have at the National Level?", 10. UN High Commissioner for Refugees, "Action to Address Statelessness: A Strategy Note", 15. 268 Aliens Act 2000, Article 68. Aliens Decree, Article 6.6(1).
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from the Netherlands, which effectively rules out their one chance at rehabilitation. This is in spite of Article 6 of the 1954 Convention, which states that
any requirements (including requirements as to length and conditions of sojourn or residence) which the particular individual would have to fulfil for the enjoyment of the right in question, if he were not a stateless person, must be fulfilled by him, with the exception of requirements which by their nature a stateless person is incapable of fulfilling.269

In practice, however, the crucial criterion to rescind a declaration of undesirability is by nature singularly unattainable for a stateless person. It should be noted that the Aliens Circular provides that in extraordinary cases, when danger to the public order has receded or when the personal interest of the alien ought to prevail, a declaration could be lifted before the allotted period has passed.270 Despite ample attempts, none of the interviewees have thus far qualified for this particular provision. Lastly, as was already pointed out, no homogeneous stateless population exists in the Netherlands. This is, however, not just a demographic trivium, but has as a consequence that the potential for collective action is severely diminished. Many other countries faced with challenges related to statelessness feature a specific and coherent group at particular risk (say, Nubians in Kenya, Crimean Tartars in Ukraine or Rohingya in Bangladesh). Indeed, as Blitz and Lynch concluded, ‘findings from Kenya and Ukraine suggest that large stateless populations have considerable agency and may set agendas for reform, even if they are challenged by xenophobic forces’.271 The Dutch stateless population is diverse, dispersed, unorganized and thus in reality not a “population” at all. Both the action-inhibiting heterogeneity of stateless people in the Netherlands as well as the presently ill-defined policy towards them, increase the need for external advocacy.

1954 Convention relating to the status of stateless persons, Article 6. Emphasis added. Aliens Circular, paragraph A5/4.1 271 B.K. Blitz and M.L. Lynch, "Statelessness and the benefits of citizenship: A comparative study", 101.
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4.

A LEGAL ANALYSIS OF STATELESSNESS IN THE NETHERLANDS

4.1 Introduction It has become clear from the demographic analysis that the Dutch statelessness policy is in need of improvement, both for the sake of the State and individual stateless persons. This introduction to the legal analysis identifies the most problematic aspects, which will then be further illustrated and elaborated throughout this chapter. To start with, a statelessness determination procedure is lacking in the Netherlands. The case of Zviad Gelovani shows that an individual can simultaneously be Russian according to the court, of ‘unknown nationality’ to the IND, and stateless in the eyes of the Council of State. It might be in the interest of both the individual and the Dutch State that one authority can make a binding decision concerning a person’s nationality status. In the absence of such a dedicated procedure, the Dutch position on statelessness remains unclear. The current practice of registering statelessness in the GBA means exactly that; it results in registration, but not in an official recognition of statelessness to which a fixed set of rights is attached. Neither does the no-fault procedure result in an official recognition of statelessness; the grant of a no-fault residence permit only leads to the issuance of a residence permit for limited time. We also identify as a major flaw under the current Dutch policy the fact that the burden of proof lies exclusively with the individual. This is clearly demonstrated in the cases of Eric and Gala Moroz, Ali Lago and Cheikh Keita. A shift in the burden of proof seems reasonable in case the applicant has brought forward evidence that he is not accepted, and will not be accepted, as a national by the country of which he is supposed to hold the nationality. A shared burden of proof between the individual and the State is also in the latter’s interest because its involvement not only speeds up the procedure, but the State – or a designated authority if our proposal is adopted – is also in a much better position than the individual to find out the content of foreign nationality law, which, in turn, allows for a better assessment of the veracity of the applicant’s statelessness claim. Let us then turn our attention more specifically to the no-fault procedure, which is at present the relevant procedure for those claiming to be stateless. It should be noted at the outset that even when a statelessness determination procedure would be instituted, the no-fault procedure will remain in force for unreturnable persons. The most conspicuous problem in relation to the no-fault procedure concerns the fact that it is not bound by any time constraints. This not only leaves the individual in continued uncertainty – as the cases of Amin Kassir, Tirhas and Genet Asgedom, and Cheikh Keita clearly illustrate – but has also negative effects on Dutch society as a whole. A number of cases in the demographic analysis show that the indefinite nature of the procedure, in combination with the lack of shelter while the procedure is pending, makes that applicants are sometimes pushed to a life of subsistence crime. Criminal behaviour can obviously not be condoned, but a procedure in which the self-proclaimed unreturnable has a legal position comparable to that of asylum-seekers in all these respects may prevent such behaviour from arising, and may thus equally benefit the individual and Dutch society. On the other hand, one should be aware that the no-fault procedure might be
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abused if the threshold for being granted a no-fault residence permit would be substantially lowere. Yet, we argue that when the State has repeatedly been unsuccessful in removing a person who is willing to leave, it is the State’s responsibility to acknowledge a person’s nonremovability and grant a residence permit for limited time. The case of Ahmed Hassan, whom the IND unsuccessfully tried to send to Kenya, Tanzania and Somalia, is particularly illustrative in this respect. The same is true for Mirela Nicolić, the Roma woman with four children who was herself born in Italy, and who ended up in the Netherlands after a long intermission in the USA, where her children were born. The DT&V has made numerous, but unsuccessful, attempts to remove her and her family. Yet, their proven non-removability has so far not resulted in a right to stay – their no-fault procedure was rejected – or an improvement of their situation for that matter. The Nicolić case also shows similarities with that of Zviad Gelovani: the DT&V fully acknowledges the Nicolić’s statelessness and they are also registered as such in the GBA. The IND, however, continues to refer to them as of ‘nationality unknown’. The legal uncertainty resulting from the fact that different institutions hold different views as to their nationality status strongly argues in favour of a dedicated and binding statelessness determination procedure. In addition, the Nicolić’s situation illustrates that, in the end, their registration as stateless persons – which will normally mean that no State accepts their return272 – brings them nothing because the authorities consider their continued presence on Dutch territory to be attributable not to an inability to leave but to unwillingness. Their case clearly shows that the current practice of trying to remove stateless persons unless they can show that they cannot leave beyond their will seems untenable. It should be acknowledged that statelessness by its very nature implies that there is no State to which a person can be expelled. The nofault procedure will remain relevant, of course, for all those whose statelessness is not recognized. Finally, the situation of stateless children is particularly worrying. Here we can think of the case, described at the very beginning of this report, of the child who is cared for by Dutch foster parents due to his Sri Lankan mother’s psychiatric problems and her forced return to Sri Lanka consequent on her rejected asylum procedure. It is very problematic that, on the one hand, Dutch law contains the requirement of lawful residence (toelating) for children who use the option right to Dutch nationality under Article 6(1)b DNA and, on the other, that the Netherlands does not fully accept a foreign State’s declaration that it does not recognize a person as its national. After all, in the case of the Sri Lankan boy, the IND insisted on his registration as a Sri Lankan national in the GBA, although he was unknown to the Sri Lankan authorities. The Netherlands should, finally, also live up to its obligations under Article 1 of the 1961 Convention despite the possible consequences in terms of EU law.273

There are rather specific exceptions to this rule, however, such as the legal position of Moluccans in the Netherlands and the Heimatlose Ausländer in Germany. 273 Case C-34/09, Zambrano, delivered by the European Court of Justice on 8 March 2011. The Belgian UNHCR report will contain a detailed analysis of this case. The Dutch government has stated in a letter to parliament dated 31 March 2011 that a situation similar to that of Zambrano cannot arise in the Netherlands because Dutch [87]

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To summarize, it is recommended that the Netherlands institutes a dedicated statelessness determination procedure in which the burden of proof is shared between the individual and the State (or the court). This procedure should have a set timeframe and its outcome should be binding for all Dutch institutions and authorities. The number of stateless recognitions is presumably relatively low, but those whose statelessness is recognized should in principle be entitled to legal stay. If not, the 1954 Convention remains a dead letter as most of its provisions require lawful stay rather than mere physical presence. The no-fault procedure, in turn, is to remain yet should be bound by time constraints. It could be considered to provide applicants with shelter while awaiting the outcome of their procedure. Finally, the Netherlands should fully comply with its international obligations to prevent statelessness at birth. 4.2 Statelessness under international law Although this report analyses the Dutch situation regarding statelessness, a description should be given of the drafting history and substantive content of the 1954 Convention (paragraph 4.2.1) as well as the 1961 Convention (paragraph 4.2.2). Moreover, we use the opportunity to articulate some critical remarks by academics about the international achievements in the fight against statelessness (paragraph 4.2.3). Yet, before turning to these subjects, attention should be paid to other international treaties to which the Netherlands is a party and which contain relevant provisions for the purposes of this report.274 (The Conventions established under the auspices of the Council of Europe are excluded from the list and are addressed in section 4.3, which focuses on statelessness in Europe). The Netherlands is party to the 1930 Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws275 as well as its Protocol relating to statelessness,276 the 1966 Convention on the Elimination of all Forms of Racial Discrimination,277 the 1966 International Covenant on Economic, Social and Cultural Rights,278 the 1966 Convention on Civil and Political Rights,279 the 1979 Convention on the Elimination of All Forms of

law does not grant stateless children born in the Netherlands an option right to Dutch nationality at birth, but after three years of lawful residence. See in more detail on the option right for stateless children born in the Netherlands infra paragraph 4.4.2. 274 See generally on these treaties G.-R. de Groot, Handboek Nieuw Nationaliteitsrecht (Deventer: Kluwer, 2003); G.-R. de Groot and M. Tratnik, Nederlands nationaliteitsrecht 4th ed., Studiepockets privaatrecht (Deventer: Kluwer, 2010). 275 Trb. 1967, 73. Entry into force in the Netherlands on 2 April 1937. The preamble reads: ‘Being convinced that it is in the general interest of the international community to secure that all its members should recognize that every person should have a nationality and should have one nationality only; recognizing accordingly that the ideal towards which the efforts of humanity should be directed in this domain is the abolition of all cases of statelessness and double nationality’. 276 Trb. 1967, 74. Article 1 reads: ‘In a State whose nationality is not conferred by the mere fact of birth in its territory, a person born in its territory of a mother possessing the nationality of that State and of a father without nationality or of unknown nationality shall have the nationality of the said State’. 277 Trb. 1966, 237. Entry into force in the Netherlands on 9 December 1972. Articles 1 and 5 refer to nationality. 278 Trb. 1969, 100. Entry into force in the Netherlands on 11 December 1978. 279 Trb. 1978, 177. Entry into force in the Netherlands on 10 March 1979. Article 24(3) provides: ‘Every child has the right to acquire a nationality’. [88]

Discrimination against Women,280 the 1989 Convention on the Rights of the Child.281 The Netherlands was party to the 1957 Convention on the Status of Married Women282 and the 1973 Berne Convention on the Reduction of the Number of Cases of Statelessness,283 but denounced these Conventions in 1991 and 2001 respectively.284 It should also be noted that the right to a nationality has long since been regarded as a human right. Article 15 of the (non-legally binding) 1948 Universal Declaration of Human Rights famously declares that ‘everyone has the right to a nationality. No one shall be arbitrarily deprived of his nationality, nor denied the right to change his nationality’.285 4.2.1 The 1954 Convention relating to the Status of Stateless Persons The 1954 Convention was adopted by a Conference of Plenipotentiaries in New York on 28 September 1954 and entered into force on 6 June 1960.286 The Convention was ratified by the Netherlands on 11 July 1962, including two reservations which we feel have become obsolete and should therefore be withdrawn.287 The first reservation reads that ‘the government of the Kingdom of the Netherlands reserves the right not to apply what is laid down in Article 8 of the Convention to stateless persons who formerly possessed an enemy nationality or a nationality which can be equated to that’.288 The second reservation provides that ‘in relation to Article 26 of the Convention, the government of the Kingdom of the Netherlands reserves

Trb. 1980, 146. Entry into force in the Netherlands on 22 August 1991. Article 9(1) provides: ‘States Parties shall grant women equal rights with men to acquire, change or retain their nationality. They shall ensure in particular that neither marriage to an alien nor change of nationality by the husband during marriage shall automatically change the nationality of the wife, render her stateless or force upon her the nationality of the husband’. Section 2 continues: ‘States Parties shall grant women equal rights with men with respect to the nationality of their children’. 281 Trb. 1990, 170. Entry into force in the Netherlands on 8 March 1995. Article 7(1) reads: ‘Every child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents’. 282 Trb. 1965, 218. Entry into force in the Netherlands on 6 November 1966 and no longer in force as of 16 January 1993. 283 Trb. 1974, 32. Entry into force in the Netherlands on 19 May 1985 and no longer in force as of 13 September 2001. 284 The 1957 Convention was denounced because it violated the 1979 Convention on the Elimination of All Forms of Discrimination against Women. The 1973 Convention was denounced because it had become irrelevant once gender equality in Dutch nationality law was secured. (The Berne Convention obliged States to grant their nationality iure sanguinis a matre to children of a mother who was a national of the State involved if the children did not acquire the nationality of their father). See G.-R. de Groot, "A clarification of the fundamental rights implications of stateless and persons erased from the register of residents", 3. 285 For general remarks on nationality as a human right, see O. Vonk, Dual Nationality in the European Union, 35. The role of the European Convention on Human Rights in relation to the condition of statelessness itself is very weak. Nevertheless, the Convention has been helpful to stateless persons where it protects them from being removed or deported, and, to a lesser extent, where it helps them to maintain or establish a life in the host country. See C. Sawyer and B.K. Blitz, eds., Statelessness in the European Union (Cambridge: Cambridge University Press, 2011), 93ff. 286 Trb. 1957, 22. 287 Stb. 1961, 468. 288 ‘De Regering van het Koninkrijk der Nederlanden behoudt zich de bevoegdheid voor, het bepaalde in artikel 8 van het Verdrag niet toe te passen op staatlozen die voorheen een vijandige of daarmede voor het Koninkrijk der Nederlanden gelijkgestelde nationaliteit hebben bezeten’. [89]

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the right, for reasons of public policy, to assign a principal place of residence to certain stateless persons or groups of stateless persons’.289 Initially, a Committee had been charged with preparing a Convention relating to the international status of both refugees and stateless persons, which in 1950 resulted in a draft Convention relating to the Status of Refugees and a draft Protocol relating to the Status of Stateless Persons. Although stateless persons had traditionally been included in the group of refugees,290 only the Refugee Convention was adopted at a conference held in Geneva in 1951.291 The problem of statelessness was put aside for lack of time, but also because it did not attract the same urgency as the refugee problem.292 The draft Protocol was later discarded at the 1954 New York conference; instead, an independent Convention relating to the Status of Stateless Persons was adopted.293 Article 1 of the 1954 Convention relating to the Status of Stateless Persons gives a definition of statelessness which has subsequently been copied in many national legislations:
For the purposes of the Convention, the term “stateless person” means a person who is not 294 considered as a national by any State under the operation of its law.

This definition only refers to persons who are de jure stateless; de facto statelessness is excluded.295 Although Batchelor calls the definition concise and to the point, she also feels that it is flawed since it
precludes full realization of an effective nationality because it is a technical, legal definition which can address only technical, legal problems … Quality and attributes of citizenship are

‘De Regering van het Koninkrijk der Nederlanden behoudt zich met betrekking tot artikel 26 van het Verdrag het recht voor, aan bepaalde staatlozen of groepen staatlozen een hoofdverblijfplaats aan te wijzen om redenen van openbare orde’. 290 For historical remarks on statelessness in the first half of the 20th century, see C.A. Batchelor, "Stateless Persons: Some Gaps in International Protection", 239ff. 291 Trb. 1954, 88. Entry into force in the Netherlands on 1 August 1956. The 1951 Convention was designed specifically and solely for the aftermath of the Second World War. A Protocol of 1967 subsequently extended protection to later refugees as well. See C. Sawyer and B.K. Blitz, eds., Statelessness in the European Union, 78. 292 C.A. Batchelor, "Stateless Persons: Some Gaps in International Protection", 243. 293 P. Weis, "The Convention Relating to the Status of Stateless Persons", The International and Comparative Law Quarterly 10, no. 2 (1961), 255-256. 294 As of 1 April 2003, Article 1 of the Dutch Nationality Act (DNA) defines the stateless person as ‘a person who is not regarded as a national by any State under its legislation’. Until 1 April 2003, a stateless person was defined as ‘a person who does not have a nationality or whose nationality cannot be ascertained’. 295 See section 2.1 for a definition of de facto statelessness. Although the question whether the definition should also cover de facto stateless persons was heavily debated during the New York conference, de facto statelessness was in the end explicitly not included in the 1954 Convention. Only a non-binding recommendation on de facto statelessness was inserted into the Final Act, which recommended that ‘each Contracting State, when it recognizes as valid the reasons for which a person has renounced the protection of the State of which he is a national, considers sympathetically the possibility of according to that person the treatment which the Convention accords to stateless persons’. The Final Act of the 1961 Convention would later recommend that persons who are de facto stateless should as far as possible be treated as de jure stateless to enable them to acquire an effective nationality. [90]

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not included, even implicitly, in the definition … The definition is not one of quality, simply 296 one of fact.

It appears that ratifying States have continuously tried to find ways to evade their obligations under the Convention through their interpretation of Article 1. What if a person is registered, for example, not as a stateless person, but as a person whose nationality is ‘undetermined’ or ‘under investigation’?297 Does the 1954 Convention apply to such a person? And what if the authorities consider someone to be a national of another State, without this being confirmed or denied by the State involved? De Groot rightly observes that the provisions in the 1961 Convention which aim at the avoidance and reduction of statelessness will not be activated if a person is (incorrectly) classified as a national of a given State. He therefore stresses that
if the foreign State refuses to recognize the person involved as a national, other States are absolutely not entitled to conclude that the person in question is nevertheless a national of this foreign State. If the person involved does not possess any nationality, this person is de iure stateless and must enjoy the advantages of statelessness avoiding or reducing provisions.298

It is important to note that the 1954 Convention does not require a State, even if it finds a person to be stateless, to grant entry and residence.299 This is generally been seen as the Convention’s greatest weakness. The Nicolić case referred to in the introduction is particularly illustrative in this respect, for the Nicolić’s are registered as stateless in the GBA yet do not have a right to stay in the Netherlands. Despite their acknowledged statelessness, the Dutch authorities attribute the family’s presence in the Netherlands not to an inability to leave but to unwillingness. It is clear that the lack of a concomitant right of entry and residence upon a finding of statelessness seriously jeopardises the Convention’s objective of granting stateless persons access to basic rights. The mechanism of the 1954 Convention for recognizing statelessness does, consequently, not translate into an absolute entitlement to legal stay in any country.300 In other words,‘state parties to the [1954 Convention] are free to refuse, detain or expel any stateless person seeking access to their soil without the proper authorisation’.301 Consequently, stateless persons are forced to rely on the goodwill of a State party for access to its territory in order to claim the rights under the Convention. Mandal has nevertheless argued that the Convention implicitly grants a right of residence:

C.A. Batchelor, "Stateless Persons: Some Gaps in International Protection", 232. P.H. Oostendorp, "Staatloosheid, onbekende nationaliteit en de GBA", 127-134. 298 G.-R. de Groot, "A clarification of the fundamental rights implications of stateless and persons erased from the register of residents", 4. 299 See Article 7: ‘Except where this Convention contains more favourable provisions, a Contracting State shall accord to stateless persons the same treatment as is accorded to aliens generally’ (emphasis added). 300 C.A. Batchelor, "The 1954 Convention Relating to the Status of Stateless Persons", 43. 301 L. van Waas, Nationality Matters. Statelessness under international law, 298.
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Without any implied right to residence, even of a temporary nature, is the object and purpose of the 1954 Convention fundamentally undermined? If stateless persons are not granted the opportunity to remain in one country for a reasonable period of time can they realistically access enjoyment of their human rights and benefit from a regularised status, the two aims set out in the Preamble to the 1954 Convention? ... Thus, an argument can be made that the 1954 Convention implicitly requires states to permit those who are recognised as stateless under its terms to reside lawfully in their territory at least in the short-term while a durable solution is sought.302

Van Waas has classified the provisions of the 1954 Convention into three categories: provisions on civil and political rights; on economic, social and cultural rights; and provisions addressing the special needs of the stateless, e.g. naturalization and documentation. She comes to a devastating conclusion for all but a few of them:
[As to the enjoyment of civil and political rights by the stateless], the unavoidable verdict seems to be that the contribution of the 1954 Statelessness Convention is virtually nil. The instrument proclaims a somewhat random and notably incomplete selection of civil and political rights. The decision to omit various fundamental issues (that are dealt with in human rights law) is neither logical nor necessarily appropriate. Each one of the rights that is elaborated can be found in similar or stronger wording in contemporary human rights instruments.303

Her conclusion as regards the economic, social and cultural rights is not much different: ‘[The 1954 Convention’s] added value in light of contemporary human rights law is negligible’.304 Van Waas is more optimistic about the Convention’s solutions to the ‘special needs’ (i.e. documentation305 and naturalization) of the stateless, and notes that ‘this is an area in which [the Convention] very clearly retains its value, even in the light of contemporary international (human rights) law’.306 In respect of documentation she writes:
[The 1954 Convention] offers a comprehensive set of guarantees that, together, ensure that the stateless are issued with the basic documents needed to access any rights and facilities – related to their status or otherwise. And even though human rights law recognises the importance of documentation and may even provide a route to claiming various types of papers, to date these developments in no way negate the relevant provisions of the statelessness-specific instrument. This is because [the 1954 Convention] establishes a concrete entitlement to the different documents. Plus it identifies which state is mandated to issue them … Nevertheless, there is no escaping the fact that what the statelessness instrument fails to do

Empasis added. R. Mandal, "What Status Should Stateless Persons Have at the National Level?", 18. Emphasis in original. L. van Waas, Nationality Matters. Statelessness under international law, 299. 304 Ibid., 356. 305 With regard to the important issue of identity papers, Article 27 reads: ‘The Contracting States shall issue identity papers to any stateless person in their territory who does not possess a valid travel document’. 306 L. van Waas, Nationality Matters. Statelessness under international law, 385.
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… is to provide guidance on how to identify cases of statelessness and actually establish a 307 person’s status as a stateless person.

The case of Eric and Gala Moroz demonstrates, however, that the Netherlands could do more in this one area where the Convention has clearly retained its value, i.e. documentation. We find it problematic that even alleged stateless persons who are still in a (asylum) procedure, and are thus lawfully resident in the Netherlands, experience trouble identifying themselves. As was seen in section 3.4, they are in theory entitled to a W2-document, but have nonetheless not received it because no ID-documents are issued during the procedure of people who have staked a claim to statelessness. The rationale behind this policy which has been strongly criticized by the Dutch Ombudsman is that the issuance of an aliens’ passport or identity document will remove the incentive to fully commit to acquiring a passport. If the person in question is later officially deemed stateless but is not granted residence, no aliens’ passport or ID-document will be granted either. 4.2.2 The 1961 Convention on the Reduction of Statelessness The 1961 Convention, which entered into force on 13 December 1975, was the end result of activities started by the International Law Commission in 1949 in the field of nationality, including statelessness.308 It entered into force in the Netherlands on 11 August 1985.309 The Convention does not define statelessness, but it is generally assumed that the definition is the same as that in the 1954 Convention. Batchelor has stated that the 1961 Convention focuses not on the development of a right to a nationality, but on how best to avoid statelessness.310 In other words,
the 1961 Convention does not require a contracting State unconditionally to grant nationalityto any stateless person but seeks, rather, to balance factors of birth311 and descent312 in an effort to avoid the creation of statelessness by reflecting on an individual’s genuine and effective existing connection with the State.313

This is not the place to explore in more detail the content of the 1961 Convention. Rather, the relevant provisions are dealt with in section 4.4 in the context of the analysis of Dutch law.

Ibid., 287-288. C.A. Batchelor, "Stateless Persons: Some Gaps in International Protection", 249. 309 Trb. 1967, 124. 310 C.A. Batchelor, "Statelessness and the Problem of Resolving Nationality Status", 161. 311 Article 1(1) reads: ‘A Contracting State shall grant its nationality to a person born in its territory who would otherwise be stateless. Such nationality shall be granted: (a) At birth, by operation of law, or (b) Upon an application being lodged with the appropriate authority, by or on behalf of the person concerned …’. 312 Article 4 (1) reads: ‘A Contracting State shall grant its nationality to a person, not born in the territory of a Contracting State, who would otherwise be stateless, if the nationality of one of his parents at the time of the person’s birth was that of that State …’. 313 Emphasis in original. C.A. Batchelor, "Statelessness and the Problem of Resolving Nationality Status", 161162.
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Suffice it to say for now that the Convention inter alia contains important rules providing that loss of nationality shall be conditional upon possession or acquisition of another nationality.314 Yet, the obligation to avoid statelessness, which arguably has by now become a rule of regional customary international law in Western Europe (see paragraph 4.4.2), is not absolute. This has recently been illustrated by the Rottmann case in which the Court of Justice of the European Union – referring to Article 8(2) of the 1961 Convention and Article 7(1) of the ECN – concluded that State parties are not prohibited under those Articles ‘from depriving a person of his nationality, even if he thus becomes stateless, when that nationality was acquired by means of fraudulent conduct, false information or concealment of any relevant fact attributable to that person’.315 According to the Court, such deprivation could be compatible with EU law, yet the principle of proportionality must be observed. 4.2.3 Criticism in respect of international achievements in the fight against statelessness It was seen above that a number of international treaties have provisions aimed at avoiding statelessness. Although the substantive provisions are sometimes said to be flawed, this is not the only reason why the problem of statelessness has not yet been tackled. An additional problem concerns the lack of (correct) implementation of these rules,316 as well as insufficient monitoring practices.317 The reader may wonder whether critical remarks on the achievements of the 1954 and 1961 Conventions as well as other international instruments are in order, taking into account that UNHCR is calling on States to sign and ratify the Statelessness Conventions on the occasion of the 50th anniversary of the 1961 Convention. Both Conventions are still most definitely worth acceding to in the view of UNHCR. Thus, it has recently stated that the 1954 Convention
provides the stateless with an internationally recognized legal status, offers them access to travel documents, identity papers and other basic forms of documentation, and sets out a common framework with minimum standards of treatment for stateless persons. Accession to the 1954 Convention therefore allows States to demonstrate their commitment to human

Articles 5-9 of the 1961 Convention. Consideration 52 in Case C-135/08 of 2 March 2010. Rottmann was an Austrian national by birth who acquired German nationality through naturalization in 1999, thereby losing his Austrian nationality. During the naturalization procedure, however, he had not mentioned that he was the subject of criminal proceedings in Austria. It was only after his naturalization that the German authorities were informed of Rottmann being subject to criminal proceedings, and that already in 1997 Austria had issued a warrant for his arrest. In the light of those circumstances, Rottmann’s naturalization was withdrawn with retroactive effect on the ground of deception. As he had lost his Austrian nationality upon naturalization in Germany, the withdrawal of the naturalization not only rendered him stateless but also provoked the loss of European citizenship. See in more detail O. Vonk, Dual Nationality in the European Union, 105 ff. 316 C.A. Batchelor, "Statelessness and the Problem of Resolving Nationality Status", 176. 317 D.S. Weissbrodt and C. Collins, "The Human Rights of Stateless Persons", Human Rights Quarterly 28, no. 1 (2006), 273-274.
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rights, gives individuals access to protection and mobilizes international support for the State 318 to adequately deal with the protection of stateless persons.

UNHCR also encourages accessions to the 1961 Convention because
[it] equips States to avoid and resolve nationality-related disputes and mobilize international support to adequately deal with the prevention and reduction of statelessness. A higher number of States Parties will also help to improve international relations and stability by consolidating a system of common rules.319

We understand the critical remarks on the Conventions’ achievements for the simple reason that statelessness has not been eradicated even in States that have long since ratified them. It can therefore be seriously questioned whether the Conventions do enough to tackle statelessness. Although accessions are to be welcomed, it appears that merely complying with the Conventions is not enough. Some of the recommendations made in this report therefore go beyond what is provided for in these instruments. Article 1 of the 1954 Convention, for example, does not oblige States to institute a statelessness determination procedure, but this report recommends that the Netherlands do precisely that. It can also be argued that UNHCR’s activities should be complemented by the EU, for example, by drafting a Statelessness Directive. Finally, UNHCR does have a mandate to deal with statelessness,320 but its supervisory role is limited. Its main role is to put (political) pressure on States to comply with their obligations under the statelessness Conventions. After all, as Sawyer and Blitz have observed in relation to statelessness:
International law is unenforceable – there is no court in which the stateless, or refugees, may enforce rights under Conventions even if their host countries have ratified them – but of considerable political importance if the countries concerned value their place in the international community.321

4.3 Statelessness in Europe: the Council of Europe Conventions, the possible role for the European Union, and national ‘champions’ in the fight against statelessness Two Council of Europe Conventions contain provisions which address the problem of statelessness. The first is the 1997 European Convention on Nationality (hereafter: 1997 ECN), Articles 4 and 6-8 of which have a bearing on statelessness.322 The second is the recent

UN High Commissioner for Refugees, "Protecting the Rights of Stateless Persons. The 1954 Convention Relating to the Status of Stateless Persons", (2011), 3. Available at http://www.unhcr.org/4ca5941c9.html. 319 UN High Commissioner for Refugees, "Preventing and Reducing Statelessness. The 1961 Convention on the Reduction of Statelessness", (2011), 2. Available at http://www.unhcr.org/4ca5937d9.html. 320 UNHCR has been charged with responsibilities under Article 11 of the 1961 Convention. 321 C. Sawyer and B.K. Blitz, eds., Statelessness in the European Union, 148. 322 Trb. 1998, 10 and 149. Entry into force in the Netherlands on 1 July 2001. [95]

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2006 Convention on the Avoidance of Statelessness in Relation to State Succession,323 which entered into force on 1 May 2009.324 The EU, in turn, has been increasingly active in the field of migration, but not specifically on the subject of statelessness. In 1999 it was decided to establish minimum standards in the field of asylum through a common European asylum system.325 Directives that in some way include references to statelessness are the following: Directives 2001/55/EC,326 2003/9/EC,327 2004/83/EC328 and 2005/85/EC.329 Apart from Directive 2004/83, however, these instruments relate to stateless persons who are at the same time refugees and apply for asylum in an EU Member State. For our purposes, this category is less relevant as the report investigates the position of de iure stateless persons and not de facto stateless persons who are at the same time refugees. Only Directive 2004/83 has provisions on stateless persons who are not refugees. For the sake of completion, we therefore mention that Article 2(e), which deals with ‘subsidiary protection’ in contrast to ‘refugee protection’, reads:
“person eligible for subsidiary protection” means a third country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm as defined in Article 15, and to whom Article 17(1) and (2) do not apply, and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country (emphasis added).

Let us then turn to the important question whether there are European ‘best practices’ to tackle statelessness, which can serve as an example to the Netherlands. A considerable number of Member States of the European Union are party to the 1954 Convention.330 The 1961 Convention, on the other hand, has been much less successful and only 13 EU Member

Trb. 2010, 99. The Convention was signed by the Netherlands on 16 September 2010. See generally L. van Waas, "Statelessness: A 21st century challenge for Europe", 133-146. 325 G.G. Lodder, Vreemdelingenrecht in vogelvlucht 3rd ed. (Den Haag: Sdu uitgevers, 2008), 103. 326 Council Directive of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof. 327 Council Directive of 27 January 2003 laying down minimum standards for the reception of asylum-seekers. 328 Council Directive of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted. 329 Council Directive of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status. 330 Austria, Belgium, Czech Republic, Denmark, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, the Netherlands, Slovakia, Slovenia, Spain, Sweden and the UK are bound by the 1954 Convention. See for the complete list of ratifications and accessions http://www.unhcr.org/cgibin/texis/vtx/refworld/rwmain/opendocpdf.pdf?reldoc=y&docid=4c0f4b1f2.
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States are bound by the Convention.331 As contracting States to the 1954 Convention determine through their own procedures whether a person fits the statelessness definition in Article 1, the national practices concerning statelessness vary considerably. Consequently, there is no common approach among Member States as to the determination of statelessness under Article 1. In very few Member States a specialized procedure is in place to examine an applicant’s claim of statelessness.332 The majority of Member States deal with statelessness in another way. Thus, some Member States have an administrative or judicial authority competent to recognize a person’s statelessness; in Member States where such an authority does not exist – for example in the Netherlands333 – the issue of statelessness usually arises in asylum procedures or as a subsidiary question upon applications for residence permits or travel documents.334 Batchelor points out that in these States the question of statelessness only seems to arise when an asylum application is rejected. Having rejected an asylum application, States may then nevertheless grant permission to stay on humanitarian or non-removability grounds. However, this practice ‘does little to identify cases of statelessness generally and, therefore, misses an opportunity to address the broader question of identifying increased flows of stateless persons due to changed circumstances in their countries of origin’.335 We share Batchelor’s view and therefore argue in favour of a Dutch statelessness determination which would allow for the identification of statelessness (see in more detail paragraph 4.4.1). Spain and Hungary are the only two countries in the world which instituted a dedicated statelessness determination procedure, in 2001 and 2007 respectively.336 Consequently, they are often referred to as ‘champions’ or forerunners in the fight against statelessness. In both countries the procedures are regulated in a legislative Act, but they are by no means the

Austria, Czech Republic, Denmark, Finland, Germany, Hungary, Ireland, Latvia, the Netherlands, Romania, Slovakia, Sweden, UK. See for the complete list of ratifications and accessions http://www.unhcr.org/cgibin/texis/vtx/refworld/rwmain/opendocpdf.pdf?reldoc=y&docid=4c0f4e592. 332 C.A. Batchelor, "The 1954 Convention Relating to the Status of Stateless Persons", 32. 333 The Netherlands generally assesses a person’s statelessness through the no-fault procedure (buitenschuldprocedure) in the framework of the application procedure for a residence permit. On the application of the no-fault criterion (buitenschuldcriterium) see, for example, ‘IND-werkinstructie 2007/12’ and ‘Tussentijds bericht 2000/29, Staatlozen die buiten hun schuld niet kunnen voldoen aan de rechtsverplichting om uit Nederland te vertrekken’. See in more detail paragraph 4.4.1 below. 334 C.A. Batchelor, "The 1954 Convention Relating to the Status of Stateless Persons", 39. On the problem of the identification of (the risk of) statelessness, see L. van Waas, Nationality Matters. Statelessness under international law, 45ff. 335 C.A. Batchelor, "The 1954 Convention Relating to the Status of Stateless Persons", 39. 336 G. Gyulai, "Forgotten Without Reason. Protection of Non-Refugee Stateless Persons in Central Europe", Hungarian Helsinki Committee (2007), 36; G. Gyulai, "Practices in Hungary Concerning the Granting of NonEU-Harmonised Protection Statuses", (2009), 24; Equal Rights Trust, "Unraveling Anomaly: Detention, Discrimination and the Protection Needs of Stateless Persons", 201. Uniquely, Mexico has a procedure to establish de facto statelessness. [97]

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same.337 The following brief remarks are intended to explain the main differences between the procedures and to determine if one of them can be an example to the Netherlands. The Hungarian procedure, in which the alien policing authority is responsible for assessing statelessness, is considerably more strict than the Spanish one as only persons who are legally present in Hungary can apply.338 The low number of statelessness applications is particularly striking (47 applications in 2008), although it must be admitted that applications proceeding to the merit stage are often positively decided on (20 out of 25 applications in 2008).339 The Hungarian Helsinki Committee has recently established that 56 out of a 109 persons who applied for stateless status in Hungary between 1 July 2007 and 30 September 2010 were recognized as being stateless.340 Statelessness status, one of the four non-EU-harmonized protection statuses in Hungary, entails significantly fewer rights than refugee status.341 While the humanitarian residence permit issued to stateless persons is valid for a maximum of one year, the residence of recognized refugees is not limited in time and the latter are issued a Hungarian identity document valid for 10 years. In addition, Hungarian law does not foresee any accommodation arrangements for stateless persons and they will only be issued a work permit if there is no suitable Hungarian or EEA-citizen342 applicant for the job. Moreover, from the point of view of access to public health care, the stateless status provides significantly less favourable conditions than refugee status343; the same is true for access to higher education and family reunification rights. Although the residence requirement for naturalization is five years for stateless persons, instead of the general eight years, this five-year period only starts to run after having obtained permanent residence status in Hungary, which means at least three years after having established residence in Hungary. In short, stateless persons can only apply for naturalization after a minimum of eight years, while recognized refugees can do so after three years. The Hungarian statelessness determination procedure, despite being a progressive example for other States, therefore has two significant shortcomings: it excludes unlawfully staying persons from its scope of application, and the statelessness protection regime provides only a limited set of rights.344 Regarding this protection regime, Gyulai has noted that it ‘raises serious concerns about the extent to which stateless status actually ensures a valid, durable protection status with real

Royal Decree 865/2001 of 20 July approving the Regulation for the Recognition of the Status of Stateless Persons. In Hungary, the Hungarian Parliament adopted an amendment of the Hungarian Aliens Act in December 2006 (entry into force: 1 July 2007) which creates a separate statelessness determination procedure. 338 For the particulars of the procedure, see G. Gyulai, "Practices in Hungary Concerning the Granting of NonEU-Harmonised Protection Statuses", 35ff. 339 Equal Rights Trust, "Unraveling Anomaly: Detention, Discrimination and the Protection Needs of Stateless Persons", 202. 340 G. Gyulai, "Statelessness in Hungary. The Protection of Stateless Persons and the Prevention and Reduction of Statelessness", (2010), 5. 341 G. Gyulai, "Practices in Hungary Concerning the Granting of Non-EU-Harmonised Protection Statuses", 38ff. 342 The European Economic Area includes the EU, Norway, Iceland and Liechtenstein. 343 Social security rights are usually linked to gainful employment. If unemployed, the stateless person only has access to basic public health care services. 344 G. Gyulai, "Practices in Hungary Concerning the Granting of Non-EU-Harmonised Protection Statuses", 5960. [98]

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integration possibilities (most of all, if compared to EU-harmonised statuses)’.345 Consequently, he argues that statelessness could be brought under the scope of the common European asylum policy, for example by drafting a Statelessness Directive, since stateless persons often find themselves in a situation similar to that of refugees.346 The Spanish procedure, in turn, allows persons illegally staying in Spain to make an application, as long as it is made within one month of entry into the country (otherwise the application will be presumed manifestly unfounded). This term does not seem to be strictly applied in practice, however.347 The Spanish procedure also differs from other States’ statelessness policies (including that of Hungary) in another respect:
Generally, in other countries, the burden of proof is on the applicant to provide documentation from the embassy or consular authorities of the country of origin stating that he or she is not a national. Under the Spanish procedure, the burden shifts, and the [Office for Asylum and Refuge, OAR] may request as many reports as it deems appropriate from the central administration, national and international entities, experts and language analysts.348

However, the OAR’s failure to adequately instruct experts as well as its reliance on general reports often results in the burden of proof remaining with the applicant. The OAR has also been criticized for the fact that, due to its conservative approach, the considerable number of applications between 2001 and 2009 (1,312 persons applied) only led to the recognition of statelessness in 28 cases.349 The grant of stateless status entails a number of important rights: the stateless person is issued with a card confirming the right to live and work in Spain. In addition, Spain goes beyond its obligations under the 1954 Convention by allowing family reunification.350 Compared to the Hungarian statelessness determination procedure, the Spanish one thus has a broader scope of application as well as a more generous protection regime. In addition to the dedicated statelessness determination procedure, a special regime is in place for stateless children born in Spain. Article 17(1)c of the Spanish Civil Code automatically accords Spanish nationality to ‘those born in Spain to foreign parents, if both lack a nationality or if the legislation of the State of either of the parents does not give the child a nationality’.351 Article 17(1)c therefore implies that children who do not acquire a nationality iure sanguinis are automatically granted Spanish nationality iure soli at birth.

Ibid., 61. G. Gyulai, "Remember the forgotten, protect the unprotected", Forced Migration Review, no. 32 (2009), 48. 347 Equal Rights Trust, "Unraveling Anomaly: Detention, Discrimination and the Protection Needs of Stateless Persons", 204. This Spanish policy is confirmed by the Spanish UNHCR questionnaire on state practice regarding determination procedures and standard of treatment for stateless persons. 348 Ibid., 205. 349 Ibid., 206. 350 Ibid., 205. 351 A translation of the Spanish Civil Code is available at http://eudo-citizenship.eu/ (select Spain under ‘country profiles’).
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This provision has led to a considerable body of case law by the General Directorate of Registries and Notaries (DGNR), which can be consulted in a publication by Alvarez Rodríguez.352 From this case law a very clear picture emerges of the circumstances under which children born in Spain to foreign parents acquire Spanish nationality iure soli at birth under Article 17(1)c. In other words, the case law has resulted in an overview of countries that do and countries that do not allow for the transmission of their nationality iure sanguinis to children born abroad. De Groot has observed that this Spanish case law can also greatly benefit foreign lawyers. After all, the long experience in applying Article 17(1)c has provided Spain with an invaluable insight into foreign nationality laws; there is no reason to assume that other countries would come to a different conclusion regarding the application of foreign nationality law, unless it can be shown that the DGNR was wrong in a particular case.353 For the Netherlands this concretely means that a quick glance at the Spanish case law would tell whether or not a country allows for the transmission of its nationality iure sanguinis to children born abroad (at least as of the late 1990s and early 2000s), and thus whether a child born in the Netherlands has an option right to Dutch nationality under Article 6(1)b DNA (see paragraph 4.4.2). It is therefore recommended that knowledge on nationality laws as has been acquired over the years in countries like Spain is collected in a centralized database. 4.4 Does the Netherlands comply with its obligations under the 1954 and 1961 Conventions? Having addressed the objectives of the 1954 and 1961 Conventions in previous sections, it is now time to assess the incorporation of these objectives in Dutch law. The next paragraph will investigate the approach towards statelessness in Dutch aliens law, while paragraph 4.4.2 explores the provisions on statelessness in the Dutch Nationality Act. In the literature the remedies for statelessness are sometimes conveniently classified into three categories: pre-emptive remedies, which try to prevent statelessness before it develops; minimization remedies, which lessen the difficulties associated with statelessness and serve to protect stateless persons; and naturalizing remedies, which attempt to secure nationality for those already stateless.354 This section will show in detail to what extent Dutch law contains such remedies. Suffice it to say for now that pre-emptive and naturalizing remedies can be found in Articles 6(1)b and 8(4) DNA respectively.355 The minimization remedies laid down in the 1954 Convention have not, however, concretely been implemented in Dutch law; the implementing legislation as found in the official records (Staatsblad) does

A. Alvarez Rodríguez, "Nacionalidad de los hijos de extranjeros nacidos en España : regulación legal e interpretación jurisprudencial sobre un análisis de datos estadísticos de los nacidos en territorio español durante el período 1996-2002", Documentos del Observatorio Permanente de la Inmigración (2006). 353 G.-R. de Groot, "Staatloosheid: lessen uit Spanje", Migrantenrecht, no. 3 (2007), 115-116. 354 D.S. Weissbrodt and C. Collins, "The Human Rights of Stateless Persons", 271. 355 Ibid., 272. Weissbrodt and Collins argue that not one instrument – neither the 1954 and 1961 Conventions nor the Convention on the Rights of the Child – forces State parties to implement naturalizing remedies for statelessness. They feel that Article 32 of the 1954 Convention is too weak a provision to be properly called a naturalizing remedy. [100]

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not indicate that legislation was amended following the entry into force of the Convention in the Netherlands.356 Finally, Article 14(6) DNA is a very relevant provision. It does not contain a remedy for statelessness, but allows for the loss of Dutch nationality acquired by fraud, even if this loss results in statelessness. 4.4.1 Dutch aliens law in respect of stateless persons: the ‘no-fault residence permit’357 The basic premise of the Dutch return policy is that all aliens who do not have the right to stay in the Netherlands can in principle return to their country of origin.358 The government has frequently stated that it has no indications of countries not complying with their obligation under international law to take back their own nationals.359 Aliens whose asylum application has been rejected, but also irregular, undocumented or unreturnable people, can be granted a residence permit for a limited time (een verblijfsvergunning regulier voor bepaalde tijd) under Articles 3.4(1)w in conjunction with Article 3.6(1a)360 of the Aliens Decree (Vreemdelingenbesluit) if the alien is unable to leave the Netherlands through no fault of his or her own. The residence permit is a so-called nofault residence permit (buitenschuldvergunning),361 which is granted subject to the rule that the alien is still required to leave if this becomes possible at a later stage. The no-fault procedure is seen by the Dutch authorities as the implementation of the Dutch obligations under Article 1 of the 1954 Convention.362 As shelter is not provided during the no-fault procedure, most applicants try the asylum procedure first as this procedure does provide for shelter. Many persons are therefore pushed into starting an asylum procedure, even if they have no interest in doing so. This leads to duplication of procedures, which is clearly not in the interest of the State. Moreover, it is also subject to doubt whether the lack of shelter during the no-fault procedure gives applicants a realistic chance, taking into account that the procedure can be indefinite. A dedicated statelessness determination procedure, with similar provisions as the asylum procedure, would avoid duplication of procedures and is therefore in the interest of both the individual and the State.

Stb. 1961, nr. 468. Buitenschuldvergunning/verblijfsvergunning verleend onder de beperking ‘verblijf als vreemdeling die buiten zijn schuld niet uit Nederland kan vertrekken’. 358 H.W. Groeneweg and J.H. van der Winden, eds., Commentaar Vreemdelingenwet 2000. Editie 2004-2005 (Den Haag: Sdu uitgevers, 2004), 300. 359 Tweede Kamer, 2009-2010, 19 637, nr. 1336, p. 3. See also J. Kleijne, Artikelsgewijs commentaar op de Vreemdelingenwet 2000 en het Vreemdelingenbesluit 2000 (Deventer: Kluwer, 2001), 250. 360 Article 3.4(1)w: ‘De in artikel 14, tweede lid van de [Vreemdelingenwet] bedoelde beperkingen houden verband met: verblijf als vreemdeling die buiten zijn schuld niet uit Nederland kan vertrekken’. Article 3.6(1)a: ‘De verblijfsvergunning voor bepaalde tijd, bedoeld in artikel 14 van de [Vreemdelingenwet], kan slechts ambtshalve worden verleend onder een beperking verband houdend met: verblijf als vreemdeling die buiten zijn schuld niet uit Nederland kan vertrekken’. 361 VluchtelingenWerk Nederland, "Geen Pardon, geen Terugkeer. De stand van zaken rond de uitvoering van het Project Terugkeer", (2006), 29-33. 362 It can be inferred from paragraph B14/3 of the Aliens Act Implementation Guidelines that the no-fault procedure is the relevant procedure for those claiming to be stateless.
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From the above, it follows that Articles 3.4(1)w in conjunction with Article 3.6(1a) of the Aliens Decree, although not directly and exclusively referring to stateless persons, are particularly relevant to this group. It should be stressed, however, that the ascertainment of a person’s statelessness does not automatically lead to a no-fault residence permit.363 The stateless person has to meet a number of stringent cumulative conditions364 which are listed in paragraph B14/3.2. of the Aliens Act Implementation Guidelines (Vreemdelingencirculaire):
1. the alien can prove that he or she has independently (zelfstandig) tried to leave the Netherlands; 2. the International Organization for Migration has indicated not to be capable of making the alien leave due to lack of travel documents; 3. mediation by the Return and Departure Service (DT&V) to obtain the necessary travel documents has not been fruitful; 4. the applicant must show through objective and verifiable facts and circumstances that he or she cannot leave the Netherlands through no fault of his or her own; and 5. the alien resides in the Netherlands without a valid title and does not meet other conditions for a residence permit.365

Dokters van de Wereld, "Stateloos maakt radeloos. De situatie van stateloze Roma in Nederland 2009", Section 5.3. 364 T.P. Spijkerboer and B.P. Vermeulen, Vluchtelingenrecht (Nijmegen: Ars Aequi Libri, 2005); G.G. Lodder, Vreemdelingenrecht in vogelvlucht, 119ff. It should also be noted that the introduction of the no-fault criterion in the return policy of the Aliens Decree was a deliberate break with the cooperation criterion (meewerkcriterium) then in force. In contrast to the latter, the no-fault criterion makes the alien primarily responsible for his or her return. See J. Kleijne, Artikelsgewijs commentaar op de Vreemdelingenwet 2000 en het Vreemdelingenbesluit 2000, 245. 365 ‘Het begrip “buiten hun schuld” dient hier te worden opgevat als een objectief criterium, hetgeen betekent dat de vreemdeling aan de hand van objectief toetsbare bescheiden moet kunnen aantonen dat de betrokken autoriteiten van het land van herkomst of van het land alwaar de persoon verblijf heeft (gehad), geen toestemming zullen verlenen aan zijn terugkeer. Veelal gaat het hierbij om het verkrijgen van (vervangende) reisdocumenten waarmee de vreemdeling naar het betreffende land kan reizen en op grond waarvan hij bovendien in beginsel toegang zal krijgen tot het betreffende land. Bij de pogingen om de vereiste medewerking van de betreffende autoriteiten te krijgen, alsmede om in het bezit te komen van de benodigde (vervangende) reisdocumenten, heeft de vreemdeling een eigen verantwoordelijkheid. Om in aanmerking te komen voor een verblijfsvergunning op grond van het hier beschreven bijzondere beleid, dient de vreemdeling zich te wenden tot de vertegenwoordiging van zijn land van herkomst en eventuele landen van eerder verblijf. De vreemdeling komt in aanmerking voor verblijf als cumulatief aan de volgende voorwaarden wordt voldaan: 1. de vreemdeling heeft zelfstandig geprobeerd zijn vertrek te realiseren. Hij heeft zich aantoonbaar gewend tot de vertegenwoordiging van het land of de landen waarvan hij de nationaliteit heeft, dan wel tot het land of de landen waar hij als staatloze vreemdeling eerder zijn gewone verblijfplaats had, en/of tot andere landen waarvan op basis van het geheel van feiten en omstandigheden kan worden aangenomen dat de vreemdeling aldaar de toegang zal worden verleend; en 2. hij heeft zich gewend tot de IOM voor facilitering van zijn vertrek en deze organisatie heeft aangegeven dat zij niet in staat is het vertrek van de vreemdeling te realiseren vanwege het feit dat de vreemdeling stelt niet te kunnen beschikken over reisdocumenten; en 3. hij heeft verzocht om bemiddeling van de DT&V bij het verkrijgen van de benodigde documenten van de autoriteiten van het land waar hij naar toe kan gaan, welke bemiddeling niet het gewenste resultaat heeft gehad; en 4. er is sprake van een samenhangend geheel van feiten en omstandigheden op grond waarvan kan worden vastgesteld dat betrokkene buiten zijn schuld Nederland niet kan verlaten. Het dient daarbij te gaan om [102]

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As stated above, an application for a no-fault residence permit can only be lodged after an application for asylum or a regular residence permit has been rejected.366 This is also the case in, for example, Australia, Canada, Ireland and the UK. In these countries the refugee determination or application for regular residence must thus be disposed of before the statelessness issue can be addressed. Although some commentators have argued in favour of a combined statelessness/refugee procedure, we deem that the different nature of the refugee and statelessness determination procedures argues against combining the two. The main argument we bring forward is that the need for confidentiality in refugee cases is hard to reconcile with the obligation in statelessness cases to contact foreign authorities.367 There is, as we have seen, no explicit obligation in the 1954 Convention for State parties to put in place a determination procedure – just as the 1951 Convention does not explicitly require an asylum procedure. Nevertheless, Mandal correctly notes that without some form of determination mechanism it is difficult to see how contracting parties can fulfil their obligations under the Convention.368 UNHCR therefore notes that the creation of some sort of status determination procedure is a practical consequence of having acceded to the 1954 Convention. In the Dutch context, De Groot and Evers have also recently argued that a separate statelessness determination procedure is to be established, which would allow the District Court of The Hague to deliver a binding judgment as regards a person’s alleged statelessness.369 In the view of both authors, the court’s conclusion that a person is stateless should not have any consequences in terms of residence rights, but it would obviously allow the stateless person to invoke the rights granted by the 1954 and 1961 Conventions. This report also recommends that a stateless determination procedure be instituted which draws inspiration from Article 17 DNA. Under this Article, a person can submit an application to the specialized District Court in The Hague for an order confirming that he or she possesses or has possessed Dutch nationality. Consequently, this court seems much better suited to the task of determining statelessness than other courts. The case in the demographic analysis of a Syrian Kurd who claimed to be stateless and therefore contested his registration as ‘nationality unknown’ in the GBA indeed raises the question whether non-specialized courts should be burdened with the task of assessing a person’s statelessness. However, we feel that a residence right should be granted when the court concludes that a person is statelessness. Only then will the 1954 Convention be truly ‘activated’, since

objectieve, verifieerbare feiten en omstandigheden die zien op de persoon van betrokkene en die in de eerste plaats zijn onderbouwd met bescheiden; en 5. hij verblijft zonder verblijfstitel in Nederland, en voldoet niet aan andere voorwaarden voor een verblijfsvergunning’. 366 This seems to follow from paragraph 3.4.3 of the Aliens Act Implementation Guidelines: ‘Indien de vreemdeling is uitgeprocedeerd, bijvoorbeeld omdat hij ten tijde van de asielprocedure niet kon aantonen dat hij in aanmerking kwam voor verblijf op grond van het beleid inzake vreemdelingen die buiten hun schuld niet uit Nederland kunnen vertrekken, maar inmiddels meent dat hij aan de voorwaarden voldoet, kan hij de verblijfsvergunning regulier aanvragen bij de IND’. 367 R. Mandal, "Procedures for Determining Whether a Person is Stateless", 7, 13. 368 Ibid., 8. 369 L. Evers and G.-R. de Groot, "Staatloos of van onbekende nationaliteit of nationaliteit in onderzoek?". [103]

most of the Convention’s rights are dependent on lawful stay. Virtually all cases in the demographic analysis show that persons lacking a nationality have difficulties accessing basic rights such as health care, education and employment. Mere statelessness recognition would not, strictly speaking, change anything for them in this respect, since it does not currently translate into a right to legal stay. We are aware that granting recognized stateless persons an automatic right to legal stay may be a far-reaching proposal. Yet, there is no indication whatsoever that a strict statelessness determination procedure with a right to legal stay for those who are recognized as stateless has a strong pull effect. Burden of proof It is clear that under the current no-fault procedure370 the burden of proof lies exclusively with the applicant. The Aliens Act Implementation Guidelines explain that this policy is allowed under the 1954 Convention, because this instrument does not contain provisions regarding the issue of proof. Thus, the Guidelines provide that, in the absence of such provisions, each State is free to determine the level of proof needed to accept a person’s alleged statelessness. The assessment of this proof is not the exclusive privilege of a specifically designated judicial or administrative authority.371 We recommend that the burden of proof is shared between the individual and the State, and that a specifically designated authority is assigned the task of assessing this proof. This is also in the State’s interest because its involvement not only speeds up the procedure, but the State – or, if our recommendation is adopted, the District Court in The Hague – is also in a much better position than the individual to find out the content of foreign nationality law which, in turn, allows for a better assessment of the veracity of the applicant’s statelessness claim. Case law A 2005 judgment by the District Court in the Hague concerned four persons who claimed that they were stateless and were unable to leave the Netherlands through no fault of their own.372 The IND, on the other hand, submitted that they held Russian nationality under the Russian Nationality Act of 1991. The court observed that in respect of three of the persons concerned, the Russian authorities had stated that they did not possess Russian nationality; in respect of one person the Russian authorities had not confirmed the possession of Russian nationality. The court concluded that the IND had not adequately shown that these persons had acquired Russian

This procedure is laid down in paragraph B14/3 of the Aliens Act Implemention Guidelines. Concerning the proof of statelessness, paragraph B11/17.2 of the Aliens Act Implemention Guidelines reads: ‘Ten aanzien van de vraag hoe de staatloosheid dient te worden bewezen, bevat het Staatlozenverdrag geen bepalingen. Iedere staat is dus vrij om zelf te bepalen welke bewijzen hij nodig acht om de beweerde staatloosheid van een bepaalde persoon te kunnen aannemen. Het bewijs van de staatloosheid is niet aan bepaalde middelen gebonden en de beoordeling daarvan niet voorbehouden aan een speciaal daarvoor aangewezen rechterlijke of administratieve instantie’. 372 Rechtbank ’s-Gravenhage, 25 February, 2005, LJN AT0461.
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nationality under the Nationality Act of 1991. Consequently, it held that the IND had insufficiently motivated why the applicants had not demonstrated that they could not enter Russia. From this it followed that the IND had insufficiently motivated why the applicants were not eligible for a no-fault residence permit.373 4.4.2 Dutch nationality law in respect of stateless persons As said in the introduction to this section, the main goal is to see how the 1954 and 1961 Conventions have been implemented in Dutch law. Having described the statelessness practice under Dutch aliens law in the previous paragraph, we will now analyse how the objectives of the Conventions have been incorporated in Dutch nationality law. This concerns Article 6(1)b (option right), Article 8 (naturalization) and Article 14(6) DNA (loss of nationality). Article 6(1)b DNA: option right to Dutch nationality The 1997 ECN and the 1961 Convention both provide for the acquisition of the nationality of the country of birth if the child would otherwise be stateless. In Article 6(2) ECN we read:
Each State Party shall provide in its internal law for its nationality to be acquired by children born on its territory who do not acquire at birth another nationality. Such nationality shall be granted: a. at birth ex lege; or b. subsequently, to children who remained stateless ... Such an application may be made subject to the lawful and habitual residence on its territory for a period not exceeding five years immediately preceding the lodging of the application.

Article 1(1) of the 1961 Convention provides that:
A Contracting State shall grant its nationality to a person born in its territory who would otherwise be stateless. Such nationality shall be granted: a. at birth, by operation of law, or b. upon an application being lodged with the appropriate authority ... in the manner prescribed by the national law.

The grant of nationality under Article 1(1)b of the Convention may be subject to a number of conditions, however, among which

‘[D]e IND heeft onvoldoende gemotiveerd waarom eisers niet hebben aangetoond dat zij geen toegang tot Rusland kunnen krijgen en daarmee heeft de IND onvoldoende gemotiveerd waarom eisers niet in aanmerking komen voor een verblijfsvergunning regulier voor bepaalde tijd onder de beperking “verblijf als vreemdeling die buiten zijn schuld niet uit Nederland kan vertrekken”’. [105]

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That the person concerned has habitually resided in the territory of the Contracting State for such period as may be fixed by that State, not exceeding five years immediately preceding the lodging of the application nor ten years in all.

The difference between the two Conventions is immediately apparent: under the ECN a nationality application may be subject to the requirement of lawful and habitual residence, while this is only habitual residence under the 1961 Convention. The Netherlands is a contracting State to both Conventions, and the relevant provision in the DNA, Article 6, provides that:
1. After making a written declaration to that effect, the following persons shall acquire Netherlands nationality ... : b. an alien who was born in the Netherlands, the Netherlands Antilles or Aruba and has been 375 374 admitted to and who has had his or her principal place of residence there during a continuous period of at least three years376 and has been stateless377 since his or her birth.378 [...] 4. It shall refuse the confirmation if there are grave reasons for believing, on the ground of the behaviour of the person concerned that he or she may constitute a danger to public order, public morals or the security of the Kingdom, unless this is in conflict with international law obligations.

Admission is defined in Article 1(1)g DNA as ‘permission by the competent authority with respect to a lasting place of residence of an alien in the Netherlands, the Netherlands Antilles or Aruba’. The manual to the DNA clarifies: ‘Van ‘toelating’ in Nederland in de zin van deze Rijkswet is sprake indien de vreemdeling rechtmatig verblijf heeft op grond van artikel 8, aanhef en onder a tot en met e, en l, Vw 2000’. 375 The manual to the DNA states: ‘Het begrip ‘hoofdverblijf’ heeft een strikt feitelijke betekenis. Het hoofdverblijf van een persoon is de plaats waar hij kennelijk geregeld vertoeft, daar waar hij het centrum van zijn activiteiten heeft. Te denken valt bijvoorbeeld aan de plaats waar een persoon zijn slaapplaats heeft, waar hij werkelijk woont (met zijn gezin) of waar zijn inboedel zich bevindt. Er moet sprake zijn van een meer duurzame betrekking tussen een persoon en een plaats. Een verblijf van voorbijgaande aard heeft geen betekenis’. 376 According to the manual to the DNA, a continuous period of at least three years means that ‘er in de vereiste periode geen zogeheten “verblijfsgaten” mogen voorkomen. Een verblijfsgat leidt tot een onderbreking van de hierboven genoemde termijnen. Na de onderbreking begint de termijn opnieuw te lopen. Of sprake is van een verblijfsgat is op zich een vreemdelingrechtelijke vraag ...’. 377 Defined in Article 1(1)f DNA as ‘a person who is not regarded as a national by any State under its legislation’. The manual to the DNA explains that ‘om te bepalen of een persoon staatloos is in de zin van de RWN wordt gekeken naar de inschrijving in de GBA. Indien betrokkene in de GBA is ingeschreven als staatloze, is op zijn persoonslijst de categorie nationaliteit niet opgenomen en kan hij worden aangemerkt als staatloze in de zin van de RWN. Indien betrokkene in de GBA is opgenomen als zijnde van onbekende nationaliteit omdat zijn nationaliteit niet kan worden vastgesteld, is op zijn persoonslijst in de categorie nationaliteit de standaardwaarde ‘0000’ (onbekend) opgenomen en kan hij niet worden aangemerkt als staatloze in de zin van de RWN. Een eenduidige definitie van het begrip ‘staatloze’ is van belang in verband met de toepassing van artikel 6, eerste lid, aanhef en onder b, RWN, artikel 8, vierde lid, RWN en artikel 14, vierde lid, RWN’. 378 As of 1 April 2000, Article 6(1)b reads: ‘Na het afleggen van een daartoe strekkende schriftelijke verklaring verkrijgt … het Nederlanderschap: […] b. de vreemdeling die in Nederland, de Nederlandse Antillen of Aruba is geboren, aldaar gedurende een onafgebroken periode van tenminste drie jaren toelating en hoofdverblijf heeft en sedert zijn geboorte staatloos is’. Until 1 April 2003, Article 6(1)b read: ‘Door het afleggen van een daartoe strekkende verklaring verkrijgt het Nederlanderschap: […] b. degene die in Nederland, onderscheidenlijk de Nederlandse Antillen of Aruba is geboren, aldaar tenminste 3 jaren woonplaats of werkelijk verblijf heeft en sedert zijn geboorte staatloos is, mits hij de leeftijd van 25 jaren nog niet heeft bereikt’. [106]

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De Groot has argued that Article 6(1)b DNA is not in accordance with the 1961 Convention, since the latter does not allow the State to ask for lawful residence.379 Although it was seen above that this requirement is allowed under the ECN, De Groot submits that the Netherlands is also bound by the stricter rule as laid down in the 1961 Convention.380 He therefore concludes that where an individual uses the option right under Article 6(1)b, Article 94 of the Dutch Constitution requires that the requirement of ‘admission’ be set aside for violation of the 1961 Convention.381 The same has been argued by Busser and Rodrigues,382 by Evers and De Groot383 and by the Statelessness Unit at UNHCR.384 This view is reinforced by the fact that the 2006 Convention on the Avoidance of Statelessness in Relation to State Succession provides in Article 1d that habitual residence means ‘a stable factual residence’. In private international law, finally, it is common knowledge that the term habitual residence refers to a factual situation.385 It has become clear from answers to the very rare parliamentary questions relating to statelessness that the Dutch government does not share this view. On 26 February 2008 the Minister of Justice, answering questions by MP Azough concerning stateless children in the Netherlands, stated that Dutch nationality law contains very lenient conditions for stateless persons who wish to acquire Dutch nationality. The Minister inter alia pointed to Article 6(1)b, which grants an option right to stateless persons born in the Netherlands on condition that the applicant has been admitted to the Netherlands and has had his or her principal place of residence there during a continuous period of at least three years prior to lodging an application. The Minister stated that ‘in principle this means that a stateless child born in the Netherlands and legally residing there has an option right to Dutch nationality after his or her third birthday’.386 Although the Minister admitted that the Netherlands is party to the 1989 Convention on the Rights of the Child and that the 1961 Convention speaks of habitual

G.-R. de Groot, "The acquisition of nationality by potentially stateless children: observations on the Articles 1-4 of the 1961 Convention on the Reduction of Statelessness", UNHCR paper (forthcoming). 380 It is also subject to doubt whether the ground for refusal in Article 6(4) DNA is compatible with Article 1(2)c of the 1961 Convention. See G.-R. de Groot, "Weer verder op weg naar een vernieuwd Nederlands nationaliteitsrecht", Migrantenrecht 9, no. 10 (1994), 214. 381 G.-R. de Groot, "A clarification of the fundamental rights implications of stateless and persons erased from the register of residents", 8. De Groot specifies that Dutch law requires the applicant to have had his or her principal place of residence in the Netherlands in the three years prior to lodging the application. This does therefore not mean that Dutch law requires the stateless person to have resided in the Netherlands since birth. See G.-R. de Groot, Handboek Nieuw Nationaliteitsrecht, 232; G.-R. de Groot, "Het optierecht van in Nederland geboren staatloze kinderen op het Nederlanderschap", 314. On the practical application of Article 6(1)b, see G.R. de Groot, Achtentwintig Nederlanders? Bewerkte adviezen en casus over de toepassing van de Nederlandse nationaliteitswetgeving ('s-Gravenhage: Elsevier Overheid, 2007), 17-21, 257-272. 382 A. Busser and P.R. Rodrigues, "Staatloze Roma in Nederland", 389. 383 L. Evers and G.-R. de Groot, "Staatloos of van onbekende nationaliteit of nationaliteit in onderzoek?". 384 ‘In our view, “habitual residence” is determined solely by factual criteria and does not depend upon whether an individual is lawfully or unlawfully resident within the territory of the Contracting State to the 1961 Convention’. Email message of 21 December 2007 (on file with authors). 385 L. Strikwerda, Inleiding tot het Nederlandse internationaal privaatrecht 9th ed. (Deventer: Kluwer, 2008), 81. See also the explanatory report to the 2006 Convention on the Avoidance of Statelessnes in Relation to State Succession. 386 Emphasis added. Tweede Kamer, vergaderjaar 2007-2008, Aanhangsel. No. 1455, p. 3115-3116 [107]

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residence (gewoon verblijf), he feels that Dutch law is in compliance with these international instruments. The Minister points out that when confronted with a stateless child born in the Netherlands, the legislation of the State of which the parent(s) hold(s) nationality should be applied in order to know whether this State recognizes the child as a national. Although this can be a difficult and time-consuming procedure, the Minister holds that one cannot conclude that a child is stateless if it is difficult to acquire the relevant foreign documents. This has been disputed in the literature.387 More recently – on 23 December 2010 – the Minister of the Interior and Kingdom Relations, answering parliamentary questions related to a Dutch study on statelessness among the Roma population (Stateloos maakt radeloos), took the same position as was adopted on 26 February 2008.388 In particular, the Minister notes that Article 6(1)b DNA does not violate Article 1(1) of the 1961 Convention, Article 6(2)b ECN or Article 7 of the Convention on the Rights of the Child. It should be noted, finally, that the legislation implementing the 1961 Convention was discussed in parliament in the mid-1980s. With regard to the former Article 6(1)b, the then State Secretary Korte-van Hemel then made the relevant statement that ‘the three-year term should provide sufficient guarantee that it concerns children who will stay in the Netherlands. An unrestricted jus soli that is also applicable to persons travelling through the Netherlands is in my view not desirable’.389 Case law on Article 6(1)b DNA The case law concerns either the requirement of having been stateless since birth or the requirement of lawful stay. In a judgment by the Dutch Supreme Court (Hoge Raad) of 14 January 2005,390 the question was whether two minor children were stateless from birth. In 1995, two Armenian nationals had entered the Netherlands with valid USSR passports and applied for a residence permit on humanitarian grounds. No final decision had been taken on this application at the time of the decision by the Supreme Court. In 1997 and 1999, two daughters were born to the couple while in the Netherlands. In 2001, the parents tried to exercise the option right under Article 6(1)(b) DNA on behalf of their children. The authorities refused to grant the option, however, and the parents brought the case to court. The District Court subsequently investigated Armenian nationality law and found it likely that the parents possessed Armenian nationality and that therefore also the children possessed this nationality. The court held that, despite a

De Groot argues in connection with Article 10 ECN that ‘if no information can be acquired within a reasonable time, the person involved should be deemed to be stateless’. See G.-R. de Groot, "A clarification of the fundamental rights implications of stateless and persons erased from the register of residents", 5. 388 Tweede Kamer, vergaderjaar 2010-2011, Aanhangsel nr. 640. 389 ‘De termijn van 3 jaar moet een redelijke zekerheid bieden dat het om kinderen gaat die in Nederland zullen blijven. Een onbeperkte toepassing van het jus soli ten opzichte van kinderen van mensen, die in Nederland op doortocht zijn, acht ik niet gewenst’. Handelingen Tweede Kamer of 27 March 1984, 1983-1984, p. 4024. 390 Hoge Raad, 14 January 2005, LJN AR4847. [108]

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letter from the Armenian consul that children of Armenians recognized as refugees elsewhere were not eligible to Armenian nationality, the parents had not proved that their children had been stateless since birth. The Supreme Court confirmed the decision by the District Court: the letter from the Armenian consul could have no effect, as the parents had not (yet) been recognized as refugees in the Netherlands. A judgment by the Supreme Court of 28 March 2008 concerned a Syrian Kurdish family which had tried to exercise the option right to Dutch nationality for their minor daughter.391 The family had arrived in the Netherlands in April 1999, with only Syrian identity documents, issued by the ‘Mukhtar’ (village head). The authorities refused to grant the option right, holding that the nationality of the daughter (and the parents) was ‘unknown’, and not ‘stateless’. The family subsequently started a procedure under Article 17 DNA before the District Court of The Hague for an order confirming that the child had acquired Dutch nationality under Article 6(1)b DNA. The District Court, relying on extensive research by the Ministry of Foreign Affairs, upheld the authorities’ refusal, holding that the parents had not been able to sufficiently prove their (and their daughter’s) identity and nationality status.392 The Supreme Court, finally, held that the case could not lead to a cassation procedure because answering the complaints was not imperative with an eye to legal uniformity (rechtseenheid) or the development of the law (rechtsontwikkeling). In September 2010, the District Court in Zwolle has recently handed down a ruling in line with the interpretation of Article 6(1)b DNA as advocated by UNHCR and the authors mentioned above.393 The case concerned a stateless Palestinian father (from Lebanon) who tried to exercise the option right for his minor son. It was neither disputed that both father and son were stateless, nor that the son had been born in the Netherlands and had uninterruptedly resided there for three years since his birth. However, the family had no residence permit, and the authorities therefore refused to grant the option because of the fact that they did not meet the requirement of ‘lawful residence’ (toelating). The court had regard to Article 94 of the Dutch constitution, which provides that treaty rules having direct effect prevail over national legislation. It found that Article 1(2)(b) of the Convention on the Reduction of Statelessness, which reads:
A Contracting State may make the grant of its nationality in accordance with subparagraph (b) of paragraph 1 of this article subject to one or more of the following conditions: (b) That the person concerned has habitually resided in the territory of the Contracting State for such period as may be fixed by that State, not exceeding five years immediately preceding the lodging of the application nor the ten years in all.

Hoge Raad, 28 March 2008, LJN BC7919. Rechtbank Den Haag, 12 December 2006. 393 Rechtbank Zwolle-Lelystad, 9 September 2010, Jurisprudentie Vreemdelingenrecht 2011, nr. 58, annotated by H. de Voer. For the view of the municipality involved, see G. Reijgersberg, "Jurisprudentie, onder redactie van mr. J.C. Tomson", Burgerzaken & Recht, no. 10 (2010), 350-351.
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had direct effect. According to the court, ‘habitually resided’ refers to the situation where someone ‘has his or her lasting place of residence (duurzaam verblijf) in the Netherlands and has developed a social life here’. It held that it cannot be inferred from the treaty text that the authorities must have agreed with this lasting place of residence. Consequently, it annulled (vernietigen) the authorities’ decision to refuse to grant the option. As the State has appealed this ruling, a final decision is not available yet. Article 8 DNA: naturalization Article 8 DNA reads as follows:
1. Only the following applicants shall be eligible for the grant of Netherlands nationality pursuant to Article 7: a. those who are of full age; b. whose residence in the Netherlands, the Netherlands Antilles or Aruba for an unlimited period does not meet with any objection; c. who has been admitted to and has had his or her principal place of residence in the Netherlands, the Netherlands Antilles or Aruba for a minimum period of five years immediately preceding his or her application; d. who may be deemed to have been assimilated into Netherlands, Netherlands-Antillean or Aruban society on the ground that he or she has a reasonable knowledge of the Dutch language to be determined by general administrative order of the Kingdom and/or—if he or she has his or her principal place of residence in the Netherlands Antilles or Aruba—of the language in common use on the island on which he or she has his or her principal place of residence in addition to the Dutch language, as well as a certain knowledge of the Netherlands, Netherlands-Antillean or Aruban political system and society, and who has also otherwise integrated in society in the Netherlands, the Netherlands Antilles or Aruba and e. who declare to be willing to make a declaration of solidarity upon the acquisition of Netherlands nationality. The decision on the grant is not proclaimed until the declaration of solidarity has actually been made. [...] 4. The period referred to in the first subsection under c shall be three years for an applicant who has either been living with a Netherlands national in a permanent relationship other than marriage for a continuous period of at least three years, or who is stateless (emphasis added).

Stateless persons therefore have facilitated access to Dutch nationality through naturalization – an obligation for contracting States to the 1954 Convention under Article 32 –,394 but still have to meet all the requirements laid down in Article 8(1) DNA.395

Article 32 of the Convention reads: ‘The Contracting States shall as far as possible facilitate the assimilation and naturalization of stateless persons. They shall in particular make every effort to expedite naturalization proceedings and to reduce as far as possible the charges and costs of such proceedings’. The current Dutch government expressly refers to this provision in its plan of 28 March 2011 to amend the DNA. See http://www.internetconsultatie.nl/nationaliteitsrecht/document/300. [110]

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Article 14(6) DNA: loss of Dutch nationality which results in statelessness
Article 14 DNA provides: 1. Our Minister may revoke the acquisition or grant of Netherlands nationality if it is based on a false declaration made by the person concerned or fraud and/or on concealment of any fact relevant to the acquisition or grant. The revocation has retroactive effect to the time of the acquisition or grant of Netherlands nationality. The revocation is not possible following the expiration of a period of twelve years from the acquisition or grant of Netherlands nationality. The third sentence shall not apply if the person concerned is convicted for criminal offences referred to in the Criminal Law in Wartime Act (Wet Oorlogsstrafrecht), the Torture Convention Implementation Act (Uitvoeringswet folteringsverdrag) and the Genocide Convention Implementation Act (Uitvoeringswet genocideverdrag). [...] 6. Without prejudice to the case referred to in the first subsection, Netherlands nationality may not be lost if this would lead to statelessness (emphasis added).396

Article 8 of the 1961 Convention reads:
(1) A Contracting State shall not deprive a person of his nationality if such deprivation would render him stateless. (2) Notwithstanding the provisions of paragraph 1 of this article, a person may be deprived of the nationality of a Contracting State: … (b) Where the nationality has been obtained by misrepresentation of fraud.

Although Article 14(6) is therefore compatible with Article 8 of the 1961 Convention, De Groot nonetheless argues that the introduction of this provision in 2003 violates the spirit of the 1961 Convention.397 The Article is also compatible with the 1997 ECN, since the latter provides in Article 7 for an exception to the general rule that a State Party may not provide in its internal law for the loss of its nationality ex lege except, inter alia, in case of ‘acquisition of the nationality … by means of fraudulent conduct, false information or concealment of any relevant fact attributable to the applicant’. As for the question whether it is perhaps a rule of customary international law to avoid the creation of statelessness, there appears to be academic disagreement. According to Weis, ‘neither the view that denationalisation [loss of nationality by a unilateral act of the State,

De Groot has argued that it would have been better to also grant an option right (rather than a right to naturalization) to stateless persons and refugees. See G.-R. de Groot, "Weer verder op weg naar een vernieuwd Nederlands nationaliteitsrecht", 213. 396 See critically on the Minister’s power to withdraw Dutch nationality under Article 14(1) if this results in statelessness, G.-R. de Groot, Handboek Nieuw Nationaliteitsrecht, 82. Article 14(1) jo. (6) arguably violates Article 8(4) of the 1961 Convention which reads: ‘A Contracting State shall not exercise a power of deprivation … except in accordance with law, which shall provide for the person concerned the right to a fair hearing by a court or other independent body’. 397 Ibid., 353-354. [111]

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authors] is inconsistent with international law because it creates statelessness nor the view that it encroaches upon the rights of the individual finds support in the rules of international law. Statelessness is not inadmissible under international law – although it may be considered undesirable’.398 Although this undesirability has led over time to a number of treaties that endeavour to avoid instances of statelessness, they are only binding on a restricted number of States and only deal with specific cases of statelessness.399 Whereas Weis did not conclude from these treaties that a general principle of customary law had developed which imposes the duty to avoid statelessness, other authors have recently provided a more nuanced view. Hailbronner, for example, agrees with the explanatory report to the 1997 European Convention on Nationality (ECN) which provides in paragraph 33 that an obligation to avoid statelessness exists under customary international law.400 Although De Groot questions the correctness of this claim,401 Batchelor seems to agree and submits that ‘it can safely be said that States have an obligation under international law to avoid the creation of statelessness’. Boll, finally, is less sure about this and comments that ‘a claim that there exists an obligation to avoid statelessness may overstep the requirements of international law’.402 Nevertheless, he notes that the unwelcome effects brought about by statelessness seem to affect a State’s discretion to withdraw nationality.403 The issue of identity fraud received a lot of media attention in 2006, when it was discovered that former MP Ayaan Hirsi Ali had supposedly provided false personal data upon naturalization.404 Although the Minister for Immigration and Integration initially concluded that she had never acquired Dutch nationality (a conclusion rendering Hirsi Ali stateless), she in the end kept her nationality because it was shown that she was allowed under Somali law to bear the name that she had used upon naturalization. Hirsi Ali herself did not know at the time

P. Weis, Nationality and statelessness in international law 2nd revised ed. (Alphen aan den Rijn: Sijthoff & Noordhoff, 1979), 125. See similarly M. Verwilghen, "Conflits de nationalités, plurinationalité et apatridie", in Recueil des cours de l'Académie de droit international de la Haye (Leiden: Sijthoff, 1999), 165. 399 K. Hailbronner, "Nationality in public international law and European law", in Acquisition and Loss of Nationality, Policies and Trends in 15 European Countries, ed. R. Bauböck, et al. (Amsterdam: Amsterdam University Press, 2006), 65. 400 Ibid. 401 ‘Although one may question to what extent this is true, the explanatory report to the Convention declares that the avoidance of statelessness has become a part of customary international law’. See G.-R. de Groot, "A clarification of the fundamental rights implications of stateless and persons erased from the register of residents", 3. 402 A.M. Boll, Multiple Nationality and International Law (Leiden/Boston: Martinus Nijhoff Publishers, 2007), 103. 403 Ibid. 404 For the German situation concerning identity fraud, see S. Magen, "Naturalizations Obtained by Fraud - Can They be Revoked? The German Federal Constitutional Court's Judgment of 24 May 2006", German Law Journal 7, no. 8 (2006); G.-R. de Groot and H. Schneider, "Erschlichene Einbürgerungen, Identitätsbetrug und Entzug der Staatsangehörigkeit in Deutschland und den Niederlanden", in Rechtsstaatliche Ordnung Europas Gedächtnisschrift für Albert Bleckmann, ed. E. Klein, S.U. Pieper, and G. Ress (Köln: Carl Heymanns Verlag, 2007); G.-R. de Groot, Nationaliteit en rechtszekerheid (Den Haag: Boom Juridische uitgevers, 2008), 31-35. [112]

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that she was in fact allowed to bear the ‘false’ name which was entered in her naturalization decree.405 In order to have a clear picture of the historical development of the Dutch practice regarding identity fraud, a number of judgments of the District Court of the Hague as well as the Supreme Court need to be analyzed. Under Dutch nationality law before 1 April 2003, it was not possible to withdraw Dutch nationality acquired by fraud.406 Rather, the traditional doctrine developed by the District Court in The Hague in identity fraud cases entailed, in the words of d’Oliveira, that ‘in case of incorrect of false personal particulars of the interested parties the naturalization decree had eo ipso no effect whatsoever on the person(s) who had requested the naturalization, as the decree identified non-existing or fictional persons and not the person who had made the request’.407 It was expected that this case law would become obsolete after 1 April 2003,408 but surprisingly the District Court initially held on to its doctrine that naturalization decrees containing false personal data had no legal effect.409 The District Court changed its position in a decision rendered on 28 April 2005, in which it held that cases of false identity could also be brought under the scope of Article 14(1) DNA.410 On 11 November 2005, the Supreme Court had to rule on an identity fraud case, but it did not follow the District Court in its recent retreat from the traditional doctrine. Thus, the Supreme Court held that Article 14(1) did not apply to cases of identity fraud because
a naturalization decree containing false or fictional personal data does not identify the person involved and thus has no legal effect, except for special circumstances … Article 14 concerns cases in which Dutch nationality has in effect been acquired through the naturalization decree and not cases in which the naturalization decree has been acquired using false or fictitious 411 personal data, and thus lacks legal effect (emphasis added).

H.U. Jessurun d’Oliveira, "Turmoil around a naturalisation decree or how the Dutch cabinet stumbled over a pebble", in Vers de nouveaux équilibres entre ordres juridiques: liber amicorum Hélène Gaudemet-Tallon (Paris: Dalloz, 2008), 319-333. 406 G.-R. de Groot, Nationaliteit en rechtszekerheid, 22. 407 H.U. Jessurun d’Oliveira, "Turmoil around a naturalisation decree or how the Dutch cabinet stumbled over a pebble", 324. 408 The manual to the DNA states that the revocation procedure needs to follow Articles 66 to 69 of the Decree on the Acquisition and Loss of Dutch Nationality (Besluit Verkrijging en Verlies Nederlanderschap). Article 68 of the Decree states the following: ‘In deciding to revoke Dutch nationality according to Article 14(1) DNA, Our Minister will take into account the nature and the seriousness of the false declaration, fraud or concealment, the possible stateless of the individual after revocation, as well as the time that has passed since the acquisition or grant and all other relevant facts’. (Bij zijn besluit tot intrekking van het Nederlanderschap op grond van artikel 14, eerste lid, van de Rijkswet houdt Onze Minister onder meer rekening met de aard en ernst van de valse verklaring, het bedrog of de verzwijging, de mogelijke staatloosheid van betrokkene na de intrekking, alsook met de tijdsduur die sinds de verkrijging of verlening verlopen is en de overige relevante factoren.) 409 It should be noted, however, that the Implementation Guidelines issued by the Ministry also stated that the case law as developed before 1 April 2003 remained in force. See also G.-R. de Groot, "Notities bij de bepalingen betreffende het verlies van het Nederlanderschap", Migrantenrecht 18, no. 4/5 (2003), 137. 410 Jurisprudentie Vreemdelingenrecht 2005, nr. 420, annotated by G.R. de Groot. 411 Jurisprudentie Vreemdelingenrecht 2006, nr. 2, annotated by G.R. de Groot. The translated parts of the Supreme Court’s decisions in this paragraph are partly based on translations by d’Oliveira. [113]

405

On 30 June 2006, the Supreme Court partly reconsidered its position,412 ruling that
Article 14(1) speaks in very broad terms about granting Dutch nationality and thus gives no grounds for supposing that a category of conferrals of Dutch nationality in which the false statement or fraud is related to the personal particulars of the person who is granted the Dutch nationality falls outside the scope of this provision. The iter of the Bill also gives no indication for this distinction. On the contrary, as was also noted by the District Court, during the handling of the Bill in Parliament the importance of legal security when acquisition and loss of nationality are at stake was emphasized. This point of view holds true in cases in which the false statement or fraud relates to the personalia of the interested person, just as in other cases. In the light of all this, it should be assumed that Article 14(1) also applies to cases in which the applicant did not provide correct personal data, and the naturalization decree consequently does not contain the person’s correct particulars, but in which it is nonetheless clear to which physical person the naturalization decree refers. It is to be concluded from the system and purposes of the law that naturalization decrees, granted under the operation of the law as it stands since 1st April 2003, have legal effect so long as they have not been revoked in conformity with Article 14(1) DNA (emphasis added)’.413

Remarkably, and this has been strongly criticized in the literature,414 the Supreme Court also held that Article 14(1) cannot be applied to naturalization decrees already issued before 1 April 2003. The latter naturalization decrees are therefore in principle void ab initio when identity fraud is discovered. Yet, in its judgment of 30 June 2006 the Supreme Court also provided more guidance on how to interpret the ‘special circumstances’ referred to in its decision of 11 November 2005. The previous doctrine is rendered somewhat less harsh because special circumstances can be invoked if ‘the authorities, in spite of the incorrectness of the personal data supplied, have had such a clear picture of the real identity of the applicant, that it could not be said that the incorrectness of the personal data impeded their examination and evaluation’.

As d’Oliveira notes, ‘one may wonder whether [this judgment] was not influenced by the much publicised ins and outs of the details of nationality law in the Ayaan Hirsi Ali affair. One is unable to believe that the date of the decision is sheer coincidence’. H.U. Jessurun d’Oliveira, "Turmoil around a naturalisation decree or how the Dutch cabinet stumbled over a pebble", 331. 413 Jurisprudentie Vreemdelingenrecht 2006, nr. 314, annotated by H.U. Jessurun d’Oliveira. The Council of State recently decided two cases in accordance with this doctrine, which in at least one case resulted in statelessness. See decisions of 15 September 2010 (LJN BN7008) and 24 November 2010 (LJN BO4883). 414 The fact that, depending on the date of the naturalization decree, the effect of a false identity is to be judged in completely different ways has been criticized by, for example, G.-R. de Groot, "Identiteitsfraude en het Nederlanderschap van vóór 1 april 2003 genaturaliseerde personen", in Groenboek. Drie opstellen aangeboden aan Bart Groen (Maastricht: Universiteit Maastricht, 2006), 45; M. Pellikaan, "Identiteitsfraude bij naturalisatieprocedures", Migrantenrecht, no. 8 (2006), 288; G.-R. de Groot, "Identiteitsfraude en het Nederlanderschap van vóór 1 april 2003 genaturaliseerde personen", Nederlands Juristenblad, no. 2 (2007), 75. All authors argue that it is better to also apply Article 14(1) to identify fraud before 1 April 2003. After all, under Article 14(1) the Minister can, taking into account all relevant circumstances, decide to withdraw nationality within a limited period of 12 years. Under the previous doctrine, on the other hand, the naturalization is either valid or void; if it is void, not only the fraud him/herself but also all persons whose Dutch nationality can be traced back to the fraud’s Dutch nationality will never have been Dutch nationals in the first place. [114]

412

Case law The following case, the facts of which are rather particular, illustrates the situation in which Dutch nationality is withdrawn upon discovery that the naturalisee was no longer in a durable relationship with a Dutch national when his or her naturalization decree was issued.415 In the case at hand, the IND initially (and understandably) withdrew a naturalisee’s Dutch nationality consequent on confusing information provided by his Dutch partner. The case concerned Dutch national Bot416 who was in a relationship with Indian national Ramlal. They concluded a registered partnership in April 2005 and Ramlal acquired Dutch nationality in June 2008, after having forcibly renounced his Indian nationality. In December 2006, Bot had met Philippine national Cabalida, who thereafter stayed with Bot and Ramlal on several lengthy occasions. Although Bot’s relationship with Cabalida was mere amicable at first, he dissolved his registered partnership with Ramlal on 8 September 2008 and applied for an MVV for Cabalida on 6 April 2009, stating for this purpose that his relationship with Ramlal had come to a definitive end in January 2008. Ramlal’s Dutch nationality was subsequently withdrawn in November 2009 for concealment of relevant facts, which rendered him stateless. The IND declared that Ramlal’s residence permit would have been withdrawn if it had been known that their relationship had come to an end in January 2008. In short, Ramlal should never have acquired Dutch nationality in the first place. Ramlal’s subsequent appeal to the IND’s decision to withdraw his nationality was successful, however, since he convincingly argued that – among other things – they still shared a household when he had acquired Dutch nationality and that he was unaware of the fact that Bot wanted to end the relationship. In the end, the IND was convinced that no fraud had been committed under Article 14(1) DNA. Concluding remarks It can be concluded from the legal analysis that the Netherlands complies with its international obligations in the field of statelessness, apart from the requirement of lawful residence for children who want to exercise their option right to Dutch nationality. This requirement is a clear violation of Article 1 of the 1961 Convention. The fact that Dutch aliens and nationality law is in accordance with the 1954 and 1961 Conventions does not mean, however, that there is no room for improvement. After all, the analysis of the Conventions in section 4.2 has shown that merely complying with these instruments is not enough; States will need to go beyond the terms of the Conventions if statelessness is really to be tackled. The next chapter will therefore point out the areas where the authors feels that the Dutch statelessness policy can be improved.

The law firm which provided us with this case was familiar with one other case, the facts of which were similar to the case described. See also two Council of State decisions of 15 September 2010 (LJN BN7008) and 24 November 2010 (LJN BO4883). 416 All the names mentioned are pseudonyms. [115]

415

5.

Conclusion and recommendations

‘The issue of statelessness has been left to fester in the shadows for far too long. It is time to take the necessary steps to rid the world of a bureaucratic malaise that is, in reality, not so difficult to resolve. It is simply a question of political will and legislative energy.’ António Guterres, UN High Commissioner for Refugees Louise Arbour, former UN High Commissioner for Human Rights417

Half a decade ago, UNHCR’s Executive Committee issued a conclusion on the identification, prevention and reduction of statelessness, as well as on the protection of stateless persons.418 UNHCR has aimed for improvements in these four specific areas ever since. With regard to the same four topics, the Netherlands should ask itself whether it is doing enough. Doing so is not just to the advantage of stateless people themselves, but may well serve the State’s own interest too. After all, various scholars have pointed to the clear link between absent citizenship and security issues. See for example Blitz and Lynch, who argue as follows:
Because ensuring the right to nationality is a foundation of human rights and a deterrent to displacement and disaffection, state action to reduce the number of individuals who are de jure or de facto stateless also benefits that state, its region, and the global community by increasing global stability and security.419

However, the benefits are not all geo-political in nature: By addressing statelessness, ‘[t]he number of persons at risk of being trafficked is potentially reduced. The rule of law gains sway. New citizens contribute their voices to politics, strengthen a nation’s labour pool, and pay taxes. The list goes on’.420 Moreover, the marginal and futureless existence led by many stateless and unreturnable persons increases the chance of them resorting to unwanted behaviour. With these potential gains in minds, is the Netherlands doing enough? Firstly, it has become apparent that the matter of identification may be the most problematic area of all. Sound policy on statelessness is predicated upon knowledge of the size and characteristics of this group. At present, information on either is in limited supply. This report’s statistical analysis revealed that often no distinction is made between stateless persons and those whose nationality is unknown. The statistics that are available are of poor quality. For instance, the category “stateless” in the Municipal Basic Administration is for a large part comprised of people who do not qualify as such. No uniformity exists between various institutions in the way statelessness is registered, and even if one is registered in this way, it is unclear what rights emanate from this. Thousands of people carry the label

A. Guterres and L. Arbour, "The Hidden World of Stateless People", United Nations Office of the High Commisssioner for Human Rights (28 November 2007). Available at http://www.reliefweb.int/rw/rwb.nsf/ db900SID/EGUA-79DPYC?OpenDocument&Click= [accessed 24 March 2011]. 418 UN High Commissioner for Refugees, "Conclusion on Identification, Prevention and Reduction of Statelessness and Protection of Stateless Persons, 6 October 2006, No. 106 (LVII) - 2006". 419 B.K. Blitz and M.L. Lynch, "Statelessness and the benefits of citizenship: A comparative study", 103. 420 Ibid. [116]

417

“nationality unknown” for many years, as attempts to resolve this mystery rarely take place. What’s more, the common practice of labelling people as of unknown nationality because they cannot live up to the GBA’s overly stringent administrative requirements to be recognised as a stateless person, precludes the rights enshrined in the 1954 Convention from being activated. The Netherlands has signed this convention, acknowledging stateless people’s special protection needs, but has not yet put a statelessness determination procedure in place. Without a clear and undisputable way to establish statelessness, people may not be accorded the rights they are entitled to. While the no-fault procedure figures as the Dutch way of living up to the 1954 Convention’s requirements, it is in fact not a statelessness determination procedure. As Bachelor observed, allowing persons to stay in the country on non-removability grounds ‘does little to identify cases of statelessness generally and, therefore, misses an opportunity to address the broader question of identifying increased flows of stateless persons due to changed circumstances in their countries of origin’.421 Consequently, she adds, it is ‘impossible to determine the magnitude of the problem of statelessness within EU Member States as there is no consistent way of identifying cases’.422 A dedicated statelessness procedure would solve problems both related to the unclear status of potentially stateless persons in the Netherlands, as well as draw many individuals out of invisible margins and thereby improve our statistical awareness of statelessness in the country. Furthermore, it decreases the number of ill-fated asylum applications made only because no more appropriate procedure exists. Experiences in Spain and Hungary demonstrate that procedural improvements enhance awareness, protection standards and the identification of stateless persons.423 Also, it should be noted that statelessness, like refugeehood, is a legal fact. There should be a mechanism that allows individuals to have their claim to this fact assessed and recognised. As such, a dedicated procedure acknowledges this status, as opposed to granting it.424 Secondly, it has been shown that Article 1 of the 1961 Convention – which aims at the prevention of statelessness – is being violated by the Netherlands because Article 6(1)b DNA contains the requirement of admission (toelating). Numerous scholars, as well as the Statelessness Unit at UNHCR, have claimed that this requirement for the exercise of the option right to Dutch nationality is not in accordance with the 1961 Convention. After all, as the Convention explicitly speaks of habitual residence, States are not allowed to ask for lawful residence. This view is reinforced by the fact that the recent 2006 Convention on the Avoidance of Statelessness in Relation to State Succession provides that habitual residence means ‘a stable factual residence’. Habitual residence also refers to a factual situation in other fields of the law, such as private international law. The clear wording of Article 1 of the 1961 Convention has recently been acknowledged by the District Court in Zwolle. This court held that habitual residence refers to the situation where someone ‘has his or her lasting place of

C.A. Batchelor, "The 1954 Convention Relating to the Status of Stateless Persons", 39. Ibid., 40. 423 G. Gyulai, "Remember the forgotten, protect the unprotected", 48. 424 Mission report Statelessness Expert Meeting, 6-7 December 2010, Geneva.
422

421

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residence in the Netherlands and has developed a social life here’. According to UNHCR, there cannot be any doubt that the current admission requirement under Dutch law violates the 1961 Convention. The Netherlands should no longer evade its international obligations in this respect, even if this has effects in terms of EU law because of the European citizenship attached to Dutch nationality. Thirdly, the reduction of cases of statelessness is an important area of focus. In principle, if two tenets from the 1961 Convention are strictly adhered to, namely the avoidance of statelessness at birth and the prohibition of denationalisation resulting in statelessness, ultimately fewer cases of statelessness would arise.425 Although it can questioned whether Article 32 of the 1954 Convention – which deals with naturalization – is sufficiently effective to reduce statelessness, it was seen that Dutch law complies with the Convention on this point. Dutch nationality law is also in accordance with the loss provisions of the 1961 Convention by taking as a starting point that loss of Dutch nationality cannot result in statelessness. The one exception to this principle, namely the rule that Dutch nationality can be revoked if it was acquired by fraud, is allowed under the 1961 Convention. This exception does, however, seem to violate the spirit of the Convention. Moreover, considering the particular hardship of statelessness as described in this report, the authors urge the Netherlands to fully take into account the effects of a revocation of Dutch nationality if this results in statelessness. It is recommended that States take to heart the ruling of the InterAmerican Court of Human Rights that States have an obligation to ‘prevent, avoid, and reduce statelessness’. Lastly, the protection of stateless people in the Netherlands is at times worrying. While obviously related to the troublesome identification of those in need of protection, even those who are, by one authority or another, deemed to be stateless do not enjoy all rights they ought to. The interviews conducted for this study revealed that numerous respondents face trouble in accessing essential healthcare and in acquiring means of identification (despite being legally present in the Netherlands), and that these two issues are often interlinked. In line with a recommendation made by the Ombudsman, the authors propose that in a future statelessness determination procedure, all claimants are provided with means of identification. Similarly, pending the no-fault procedure, applicant should be furnished with ID-cards. Furthermore, incarceration in alien detention centres proved to be frequent and lengthy. The repetitive nature of the process – detention, absent prospect of deportation, release with an order to leave the country, arrest and potential declaration of undesirability for illegal presence, again detention – is daunting. Some scholars have already identified this type of practice as inhuman and/or degrading treatment. Unsurprisingly, psychological complaints are widespread among interviewees. The introduction of bridging visa could alleviate many of these problems in the short term. It prevents people from suffering long-term detainment, improves access to healthcare and enables personal identification. To allow for self-sustenance, a right to work should be

L. van Waas, Nationality Matters. Statelessness under international law, 457. See also C.A. Batchelor, "The 1954 Convention Relating to the Status of Stateless Persons", 35. [118]

425

included, but access to social services could in principle be restricted. Indeed, without at least temporary legal stay, stateless people may ‘be left in a situation of vulnerability, living in the margins of society, in detention or being forced to move from state to state’.426 Otherwise, how do stateless people enjoy their human rights, or benefit from a regularised status; two of the principal aims of the 1954 Convention? If, in the end, statelessness is determined, the individual should be granted a one-year renewable residence permit, similar to the one issued at present following a successful no-fault procedure. At present, four out of five European countries that have implemented a statelessness determination procedure provide a permit automatically upon recognition (Belgium does not, but France, Hungary, Italy and Latvia do).427 Nevertheless, legal residence is no panacea, and recognition of statelessness is no substitute for the positive right to a nationality. Taking into account that many people’s desires to return home are genuine, efforts to coax countries of origin into facilitating repatriation should be stepped up. In the Netherlands, recognition of statelessness is currently non-existent. Even repeated statements by embassies and countries of origin, denying any attachment to or responsibility for an individual, usually do not convince the Dutch authorities of either this person’s statelessness or unreturnability, nor do these statements result in responsibility being assumed by the Dutch state. The burden of proof for a person to establish statelessness is put squarely on the individual, and while a cooperation requirement seems logical, at present the burden is so onerous as to defeat the aims and spirit of the 1954 Convention by precluding stateless people from being recognised. Instead, it would be better if ‘[r]ather than placing the burden on the individual to establish a negative, to prove that he or she is de jure stateless, emphasis would be placed on the positive right to a nationality by establishing which nationality the individuals has a right to’.428 After all, the right to a nationality is a positive right. It is in this regard important to reiterate that a state is not entitled to unilaterally ascribe a nationality to an individual if the presumed country of nationality has previously denied a bond of citizenship to exist. If the person concerned does not have the nationality of any other state, he or she is de jure stateless and should benefit from all rights taken up in the two Statelessness Conventions. The efforts and goodwill that the Netherlands is required to expend to solve the problem of statelessness on its territory pale in comparison to the challenge other states have had to – and did – live up to. It puts matters in perspective when one considers that in 2003, Sri Lanka provided citizenship to 190,000 formerly stateless Tamils. In 2007 Nepal extended proof of nationality to no fewer than 2,6 million people. Turkmenistan recently naturalised 12,000 persons of unknown nationality.429 Although the exact magnitude of the problem in the Netherlands can under current circumstances not be established, efforts are sure to appear minimal in this light. To back up its claims of determination in combating statelessness, Dutch authorities should lift the two antiquated reservations to the 1954 Convention. Indeed,

R. Mandal, "What Status Should Stateless Persons Have at the National Level?", 10. Mission report Statelessness Expert Meeting, 6-7 December 2010, Geneva. 428 C.A. Batchelor, "Statelessness and the Problem of Resolving Nationality Status", 181. 429 M. Manly and S. Persaud, "UNHCR and responses to statelessness", 7.
427

426

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as reflected in the statement by two High Commissioners starting this conclusion, progress is largely to be won by ‘looking beyond the terms of the law itself, to the outcome of its application in practice’.430

430

Ibid., 176. [120]

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