ASKV / Refugee Support and the European Network on Statelessness make this joint submission as
part of the consultation to the proposed statute law for a statelessness determination procedure by
the Ministry of Security and Justice in the Netherlands.

25 November 2016

About the European Network on Statelessness (ENS)
ENS1 is a civil society alliance of NGOs, lawyers, academics and other independent experts committed
to addressing statelessness in Europe. Based in London, it currently has over 100 members (including
55 organisations) in 39 European countries. ENS organises its work around three pillars – law and
policy, communications and capacity building. The Network provides expert advice and support to a
range of stakeholders, including governments.
About ASKV / Refugee Support
ASKV 2 is an Amsterdam-based organisation, providing legal assistance and social support to
undocumented refugees. At present, ASKV is one the last remaining organisations of its kind in
Amsterdam, and every year hundreds of undocumented people make use of our daily walk-in legal and
social advice clinics. ASKV has particular expertise in providing housing and guidance to refugees with
psychiatric disorders. In addition to direct assistance, ASKV is a vocal advocate for refugee rights, both
locally and nationally.

Introduction
Stateless persons are not recognised as a citizen by any country in the world. Statelessness has farreaching impacts that affect almost every aspect of daily life. The Netherlands has signed the 1954
Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of
Statelessness. Together these Conventions ensure the identification and protection of stateless
persons and the prevention and reduction of statelessness in general. Other binding international and
human right treaties, including the Convention on the Rights of the Child, also underpin the widely
recognised right to a nationality.
In this context, ENS and ASKV believe it is ostensibly a welcome development that the Netherlands is
now fulfilling the promise it made in 2014 to introduce a statelessness determination procedure.
However, significant deficiencies in the legislative proposal risk undermining the efficacy and value of
the new procedure, as well as potentially setting unfortunate precedents for states that might follow
the Netherlands’ example in the future. Despite the fact that the proposal recognises that status
determination is both of symbolic and legal significance, the current texts also represents a missed
opportunity. Namely, the opportunity to provide a meaningful place in society to those people who
are currently left in limbo and forced to go through life disenfranchised. In this submission we
therefore outline the flaws in the proposed procedure, as well as ways in which these shortcomings

1 For more information about ENS, please see the website http://www.statelessness.eu/
2 For more information about ASKV, please see the website http://www.askv.nl/

can be revised in order that the Netherlands can both meet its international obligations and adhere
to good practices in countries that already operate a statelessness determination procedure.
1. Consequences of determination
Depending on the exact definition applied, there are currently 13 countries in the world that have
implemented functioning mechanisms to determine statelessness. In the proposal, it is claimed that
the Netherlands, following the example of those countries, aims to do more for stateless persons who
often find themselves in a vulnerable position.3 However, the Dutch proposal differs in a crucial way
from its 13 predecessors, as it will be the first and only country so far to not establish a right of
residence for those recognised as stateless.4 Thereby the proposal runs counter to a primary rationale
for introducing a procedure, and in essence disregards the suffering of stateless persons, namely that
they commonly do not enjoy a right of residence. Also, in this way the procedure is likely to become
merely a symbolic measure for many of the applicants.
As already acknowledged by the government, its interpretation of the 1954 Convention can be seen
as controversial, and by implementing the procedure in this way it will go against the advice of
numerous consulted experts. Furthermore, the choice of the Netherlands to break with established
good practices could ignite a downward spiral. Other countries that might introduce a determination
mechanism in the future could now feel legitimised to only provide the bare minimum just like the
Netherlands. The Dutch stated aim to ‘to do more for stateless persons’ could thus have an extremely
punitive impact in practice.
European case law also lends support to the importance of granting a residence permit. Specifically,
the European Court of Human Rights concluded that the refusal of granting residence rights to
recognised stateless persons constitutes a possible violation of Article 8 of the ECHR. In the case of
Kuric and Others v. Slovenia the Court ruled:
the prolonged refusal of the Slovenian authorities to regulate the applicants’ situation comprehensively
[. . .] in particular the failure to pass appropriate legislation and to issue permanent residence permits
to individual applicants, constitutes an interference with the exercise of the applicants’ rights to respect
for their private and/or family life, especially in cases of statelessness. 5

The government’s arguments to not establish the right of residence following determination are
based primarily on fears of a pull effect and ‘stacking’ of residence proceedings.6 However, there are
no substantive facts that support these assumptions in practice. For example, both Spain and Hungary
have determination procedures in place since 2001 and 2007 respectively. The number of applications
and positive decisions has remained modest in both countries,7 and a similar trend has been reported
in countries which more recently introduced a procedure.8 In France, which has operated a procedure
for decades, application numbers have remained consistent at about 200 per year. The French
government recently confirmed that its statelessness determination procedure is not a documented
3 Draft explanatory memorandum statelessness determination procedure, p. 1. see

www.internetconsultatie.nl/staatloosheid
4 European Network on Statelessness, Statelessness Determination and the Protection Status of Stateless Persons, October
2013, p. 36
5 European Court of Human Rights, 13 July 2010, Kuric and others v. Slovenia, Application No. 26828/06, paragraph 361
6 Draft explanatory memorandum statelessness determination procedure, p. 12
7 Spain received in the period 2001-2009 in total 1,312 applications. Hungary received between 1 July 2007 and 30
September 2010 in total 109 requests.
[Source: Equal Rights Trust, Unraveling Anomaly: Detention, Discrimination and the Protection Needs of Stateless Persons,
July 2010, p. 206; and Hungarian Helsinki Committee, Statelessness in Hungary: The Protection of Stateless Persons and the
Prevention and Reduction of Statelessness, December 2010, p. 5]
8 In Moldova for example there were 617 applications received between 2012 and 2015 (source – a presentation by
representative of the Moldovan Interior Ministry at a European Migration Network conference in Budapest in September
2016.

pull factor – not for persons outside of the EU or within the EU itself.9 Hence there is absolutely no
indication that countries operating a procedure have received an increasing influx of stateless persons
besides those who already resided in the country.
Indeed, misguided fear of a pull factor may in fact deny the Netherlands one of the key
rationale/advantages of introducing a determination procedure, namely a solution for stateless
persons who cannot demonstrate entitlement to a nationality and cannot be removed. In this regard
it is worth emphasising that all applicants must voluntarily and fully cooperate with evidence
gathering (including contact with embassies/countries of origin) as part of a statelessness
determination procedure, and hence submit themselves to two possible outcomes – one being
establishment of a nationality and subsequent return, the other a finding of statelessness.
Furthermore, there exists a problematic assumption that recognised stateless persons can generally
return to their former country of habitual residence or another country.10 This is however not usually
possible in reality. When an alleged country of origin does not cooperate with return of a stateless
person, yet the Dutch authorities nevertheless persist that expulsion is possible the person involved
ends up in an exceptionally hopeless situation. Supported by European case law, the European Court
on Human Rights concluded in Amie and Others v. Bulgaria that the removal of refugees, in particular
stateless refugees, in practice can lead to significant problems and sometimes even appears
impossible because there exists no country they can be deported to. 11 Furthermore, repeated
attempts to expel a person whose identity proves impossible to establish to a country where his
admission is not guaranteed can potentially violate Article 3 of the European Convention of Human
Rights.12
Article 27 of the 1954 Convention provides for the right of an identity document for recognised
stateless persons, regardless of their residence status. However, there does not exist a competent
authority in the Netherlands to issue identity documents. Despite the fact that this absence is in
violation of the Convention, the current proposal for a determination procedure does not solve this
problem. The suggestion that a decision from the Court could serve as proof of identification does
not meet the requirements, particularly because the Netherlands has compulsory identification and
the judgment of the court is not regarded as valid identification. Therefore, not only do stateless
persons generally lack the documents that facilitate return to their former place of stay, they also
cannot identify themselves while staying in the Netherlands.
In practice, the government often refers to the ‘no-fault procedure’ (buitenschuldprocedure) as a last
resort for stateless persons who, despite their full and persistent cooperation/efforts, fail to
effectuate their return. This is both surprising and highly problematic given that the Ministry of
Security and Justice has stated repeatedly that statelessness as such plays no role in obtaining a permit
on no-fault claims.13 In addition, research from the University of Tilburg confirms that (recognised)
statelessness is not considered in this proceeding. 14 It is therefore recommended that recognised
statelessness should be a strong indication to issue a permit on the basis of the no-fault criteria. In
this way it would fulfil its objective to provide a solution to stateless persons who cannot travel to and
reside legally in any country in the world. It is also strongly recommended in these cases that the
9 In response to a questionnaire of the European Migration Network (EMN) France concluded: “as far as we know, this

procedure has not created a pull factor of persons residing before outside the EU and has not facilitated secondary
movements in the EU”. EMN/European Commission, Ad-Hoc Query on recognition of stateless persons, 4 May 2015.
10 Draft explanatory memorandum statelessness determination procedure, p. 12
11 ECHR, 12 February 2013, case 58149/08, Amie and Others v. Bulgaria, paragraph 77
12 ECHR, 5 March 1986, case 10798/84, Harabi v. The Netherlands
13 See amongst others European Network on Statelessness, Protecting Stateless Persons from Arbitrary Detention,
November 2015, p. 18.
14 Sanghita Jaghai en Caia Vlieks, Buitenschuldbeleid schiet tekort in bescherming staatlozen, Asiel & migrantenrecht, 2010:
5-6.

burden of proof be reversed. Namely, if the government does not grant a (no-fault) residence permit
to a recognised stateless person, the authorities must demonstrate that legal residence is possible in
another country.
Also, under the current proposal it is not deemed necessary to provide legal stay during the
procedure. This has major implications for those applicants that do not possess a residence permit.
This group could face destitution and/or arrest and subsequent detention awaiting deportation to a
country which is not yet known while the question of statelessness is determined. Moreover, this
could negatively influence the ability of those people that need it the most to make use of this
procedure. Persons who are destitute or in detention will likely lack resources (or communication
facilities) to evidence their statelessness so will find themselves caught in a vicious circle. We
therefore strongly urge that attempts to deport and detain should be suspended, at least pending the
procedure.
Lastly, the failure to grant the right of residence for persons recognised as stateless in the current
proposal also impedes their access to the labour market, education and health care.15 Considering the
inability for stateless persons to return to their former place of residence, it is likely they will remain
in perpetual limbo in the Netherlands. Therefore, it is both in the best interest of the individual and
wider society to provide these basic rights which are vital to successful integration and economic selfreliance.

2. Immediate interest
Access to a statelessness determination procedure must be ensured in order for them to be fair and
efficient.16 As confirmed by ENS following previous research: “In the overwhelming majority of states
where statelessness is defined by law as a protection ground any non-national can submit an
application for protection at any time (as in the case of asylum procedures).”17
In the current proposal it is stated in article 2(1) that a request to determine statelessness can only
be submitted in the case of an “immediate interest” for the person involved. 18 This concept of
“immediate interest” is not further mentioned or elaborated on in the Act or the memorandum. It is
therefore unclear what the impact of this statement will be.
That being said, it has proved complicated in the past to prove immediate interest. For example, a
possibly stateless man from Azerbaijan, born there when it was part of the Soviet Union, requested
the Court in The Hague to determine its statelessness in the absence of a procedure. However, the
State concluded that it was not clear what the concrete interest was in his claim as statelessness under
the current law does not result in the issuing of a residence permit.19
Since the current proposal for a statelessness determination procedure does not grant residence
rights either, ostensibly the most convincing ground on which to justify an immediate interest to
request status determination, there exists the risk that the concept of “immediate interest” will
significantly obstruct the access to the procedure for many stateless persons. We therefore would like
to recommend that this concept be further explained, and that new arrangements ensure access to
the procedure for everyone.

15 European Network on Statelessness, Statelessness Determination and the Protection Status of Stateless Persons, October

2013, p. 37-39
16 Ibid., p. 15
17 Ibid., p. 14
18Draft Act statelessness determination procedure, Article 2 (1), see www.internetconsultatie.nl/staatloosheid
19 Rechtbank Den Haag, JV 2015/158, r.o. 4.2, 4.3

3. Burden of proof
Given the nature of statelessness, applicants for a statelessness status are often unable to
substantiate the claim with much, if any, documentary evidence. Statelessness determination
authorities need to take this into account, where appropriate giving sympathetic consideration to
testimonial explanations regarding the absence of certain kinds of evidence. However, the
explanatory memorandum to the proposal for a determination procedure does not find it necessary
to determine additional instructions in this regard because existing regulations would conform. We
believe this is a misconception and does not comply with Article 25 of the 1954 Convention in which
treaty states are called upon to provide administrative guidance to stateless persons within their
territories that governments normally provide their own citizens.
A shared burden of proof would facilitate better decision-making (i.e., by establishing all relevant
facts) and take account of the substantial difference in power/influence (including when
communicating with other countries) between the applicant and the rewarding party (the State).
France, Hungary, Moldova, the Philippines and Spain all have determination mechanisms in which the
burden of proof is shared.20 As UNHCR explains in its Handbook on the Protection of Stateless Persons:
“the procedure is a collaborative one aimed at clarifying whether an individual comes within the scope
of the 1954 Convention”.21 While the applicant should be required to present all the information he
can reasonably possess, it would be strongly recommended that the State would perform additional
research in cases where it has not been established whether the applicant has a nationality.
To conclude, a proportional distribution of the burden of proof between the individual and the State
is strongly preferred. We therefore welcome the possibility in the proposal for the Ministry of Foreign
Affairs to officially ask questions to foreign authorities. In addition, we believe it to be beneficial for
the court to be able to approach the International Law Institute on foreign nationality law.

4. Right of option for stateless children
One of the main cornerstones of the 1961 Statelessness Convention, which the Netherlands has
signed, is the obligation of the parties to provide nationality to children born on their territory who
would otherwise be stateless. For a long time the Dutch government only provided this so-called
“right of option”/ “optierecht” to children legally residing in the Netherlands, in contravention of the
treaty, standing jurisprudence, and advice from UNHCR and others.
While it is an important step forward that the government has now decided in the new proposal to
revoke the legal residence requirement, there are still crucial implications. Namely, it has been
decided to create separate grounds for legally and illegally residing children, whereby children
without a residence permit have to wait longer to opt for Dutch citizenship. Furthermore, for illegal
residing children there has been developed the criteria of ‘stable principal residence’. The main issue
herein is that this requires a cooperation requirement for the parents of stateless children, who must
not have withdrawn from the supervision of the authorities during their stay in the Netherlands. This
requirement is not allowed under the 1961 Convention and is in breach of article 2 of the Convention
on the Rights of the Child, which prohibits the discrimination of children on the basis of circumstances
or activities of the parents.22
If this aspect were retained, it would mean that the objective of the procedure is strongly undermined,
as it does not move towards resolving statelessness in the Netherlands. Moreover, statelessness is a
20 UNHCR, Good Practices Paper – Action 6: Establishing statelessness determination procedures to protect stateless persons,

11 July 2016, p. 6
21 UNHCR, Handbook on Protection of Stateless Persons, 30 June 2014, p. 34.
22 Convention on the Rights of the Child, article 2, see http://www.ohchr.org/en/professionalinterest/pages/crc.aspx

legal fact, and the aim of this procedure is to determine whether a person is stateless in an individual
case. Therefore, the allocation of rights derives from that determination in which the behaviour of
the parents is legally irrelevant.
Article 6(b) of the Dutch nationality law now recognises nationality to a foreign national that has been
born stateless in the Netherlands and has had admission and principal stay for a continuous period of
at least three years. We strongly recommend the government to revise this in a way that stateless
children born in the Netherlands without formal admission will also fall under this law, hereby
allowing it to comply with international requirements.

Conclusion
In conclusion, the European Network on Statelessness and ASKV Refugee Support urge the Ministry
of Security and Justice to consider the aforementioned highly problematic aspects of the proposal for
a statelessness determination procedure and to revise the law accordingly.
The following recommendations, if adopted, would help guarantee the rights owing to stateless
persons and help ensure the efficacy of the new procedure:
 The right of residence must be granted for persons recognised as stateless under the
procedure. Hereby it should follow the example of all 13 countries that have established
statelessness determination procedures in the world. Without residence rights this procedure
is merely symbolic and will not protect the most vulnerable. Suspension of removal is also
essential during the procedure.
 Recognised stateless persons should receive an identity document in accordance with settled
jurisprudence and article 27 of the 1954 Convention. For this purpose a competent authority
should be assigned.
 The term “immediate interest” should not lead to a restriction of access to the determination
procedure for stateless persons, including those applicants without residence permits. Access
to a determination procedure must be guaranteed at any time.
 Distribution of the burden of proof should be further specified. While taking into account the
inherent difficulty experienced by stateless persons in proving their nationality a shared
burden of proof is recommended.
 Stateless children born in the Netherlands without legal residence should be granted the
same rights as those with legal residence in order to be in accordance with international law.
Creating a separate system for children without residence permits is highly undesirable and
discriminatory, and runs contrary to the best interests of the child.