v. The Netherlands

COMMUNICATION

To the United Nations Human Rights Committee

23 November 2016

CONTENTS
I. THE AUTHOR ......................................................................................................................................... 3
II. LEGAL REPRESENTATIVES OF THE AUTHOR ........................................................................... 3
III. STATE PARTY...................................................................................................................................... 3
IV. SUMMARY OF CLAIM ....................................................................................................................... 3
A. FACTUAL SUMMARY .............................................................................................................................. 4
B. ADMISSIBILITY....................................................................................................................................... 5
C. VIOLATIONS OF THE ICCPR ................................................................................................................... 5
D. REMEDIES .............................................................................................................................................. 6
V. FACTUAL BACKGROUND .................................................................................................................. 6
A. FACTS OF THE CLAIM ............................................................................................................................. 6
........................................................................................................................................... 6
Background:
mother and father .............................................................................................. 6
registration in the Dutch municipal population registry as “unknown” nationality is a
barrier to acquisition of a nationality ................................................................................................... 7
Efforts to obtain proof of
nationality or lack thereof .............................................................. 8
Efforts to change in
registration from “unknown” nationality to “stateless”........................ 9
Administrative Challenges ................................................................................................................................ 9
Judicial Challenges ......................................................................................................................................... 10

current status and living circumstances ............................................................................... 12
B. THE NATIONAL CONTEXT .................................................................................................................... 13
Domestic registration procedures: high frequency of “unknown” nationality annotation................. 13
Criticism of Dutch law and practice in addressing childhood statelessness ...................................... 15
C. CALLS FOR REFORM ............................................................................................................................. 16
Recognition of the need for a statelessness status determination procedure ...................................... 17
Requirements for children born stateless in the Netherlands to acquire Dutch nationality ............... 18
2016 legislative proposal .................................................................................................................... 19
VI. ADMISSIBILITY OF THE COMPLAINT ....................................................................................... 20
A. DOMESTIC REMEDIES EXHAUSTED ....................................................................................................... 20
B. OTHER GROUNDS OF ADMISSIBILITY .................................................................................................... 21
VII. VIOLATIONS OF THE ICCPR ....................................................................................................... 22
A. EVERY CHILD HAS THE RIGHT TO ACQUIRE A NATIONALITY............................................................... 22
Relevant legal standards ..................................................................................................................... 23
faces multiple obstacles to acquiring a nationality ................................................................. 26
The situation of prolonged legal limbo in
case contravenes Article 24(3) ........................... 27
B. THERE IS A POSITIVE OBLIGATION TO INTRODUCE SAFEGUARDS AGAINST CHILDHOOD
STATELESSNESS........................................................................................................................................ 28
Relevant legal standards ..................................................................................................................... 29
(1) There should be Protection-oriented Procedures for Determining Statelessness ......................... 29
(2) The Netherlands should implement additional safeguards in cases of children with
“undetermined” nationality and children who do not have legal residence in the country ............... 31
C. FAILURE TO PROVIDE AN EFFECTIVE REMEDY..................................................................................... 32
VIII. REMEDIES ....................................................................................................................................... 32
ANNEX 1: LIST OF SUPPORTING DOCUMENTS ............................................................................. 36

2

I. THE AUTHOR
Name:
First name:
Nationality:

Stateless

Date and place of birth:
Address:

II. LEGAL REPRESENTATIVES OF THE AUTHOR
1.

This claim is submitted by the Open Society Justice Initiative and Mr.
, who
are appointed as legal representatives of
who is legally represented by his
mother,
. The address for exchange of correspondence:

III. STATE PARTY
2.

This Communication is submitted against the Netherlands, which acceded to the
International Covenant on Civil and Political Rights and the Optional Protocol on 11
December 1978.
IV. SUMMARY OF CLAIM

3.

This case calls attention to a significant gap in the implementation of international legal
protections that guarantee the right of every child to a nationality, including Article
24(3) of the Covenant. Although his case is complicated, the problem is simple: sixyear old
cannot acquire a nationality and the Netherlands denies that its
international commitments to protect children and reduce statelessness mean that it is
responsible to find a solution in
case.

4.

was born in the Netherlands and has never left, yet he is an illegal alien
registered with an “unknown” nationality. Legally, the Netherlands has abandoned
and he lives in a restricted facility for failed asylum seekers with his mother
with little or no contact with society. Despite years of well documented efforts,
mother, who was born in China but holds no documentation proving her own
identity, has failed to obtain recognition of
as a national of China – the only
country, other than the Netherlands, with which he has any connection. In spite of this
evidence of his statelessness,
has not been able to meet the cumbersome
standard of proof to be registered as stateless in the Netherlands.

5.

Without registration as stateless
cannot acquire Dutch nationality. Furthermore,
even if successful in changing his registration from “unknown” to stateless,
would still have no clear means of acquiring Dutch nationality, as he lacks a legal
residence permit, a further requirement under Dutch law. At least one Dutch court has

3

permitted a registered stateless child to claim access to Dutch nationality relying
directly on the 1961 Convention, Article 1, which obliges states to grant nationality to
children born on their territory who would otherwise be stateless. 1 The decision
contradicts current Dutch law, however, and thus offers no certainty that the same
interpretation would apply in Denny’s case. A legislative proposal has been advanced
that could, if adopted, correct this conflict, by allowing children born in the Netherlands
who would otherwise be stateless to acquire Dutch nationality after a period of habitual
(as opposed to legal) residence. 2 The potential amendment makes the recognition of
statelessness all the more imperative. At present, applying to change his
registration to “stateless” is the first and only affirmative step
mother could
3
take on his behalf in an attempt to remedy his situation.
6.

This bleak picture is in stark contrast to the promise of Article 24(3), which guarantees
every child the right to acquire a nationality.
A. Factual Summary

7.

was born in the Netherlands on

8.

, was born in China in 1989, but was never
registered there and is unable to obtain proof of Chinese citizenship. She claims to have
been trafficked to the Netherlands from China at age 15.
father is not in
contact with
. He has not recognized paternity.

9.

The Dutch authorities registered
nationality as “unknown” at birth. In spite of
years of efforts,
mother has been unable to change his nationality entry in the
registry to “stateless” so that he can enjoy the international protections afforded to
stateless children, including the right to acquire the nationality of the state in which he
was born: the Netherlands.

10.

It is impossible to correct
registration, due to the strict proof required by
current rules applicable in the registration process, and the lack of an appropriate
statelessness status determination procedure.

11.

This is a significant problem in the Netherlands. A 2011 mapping study by the UNHCR
found that there were 90,000 people described as having “unknown” nationality in the
registry including 13,000 children, many of whom were born in the Netherlands. 4 As of
September 2016, the total number of “unknown” nationality entries was 74,055,
including 13,169 children under 10 years old. 5 In 2014, the Council of Europe Human
Rights Commissioner expressed concern over the 5,641 children – like
– who
had been registered as “unknown nationality” for over five years. 6

1

Zwolle-Lelystad, Case No. ECLI:NL:RBZLY:2010:BN63949, September 2010 (Awb 09/2212).
See paras. 80-81, below.
3
As discussed in more detail below (paras. 85-86), as an extraordinary measure, an application for
Dutch nationality by option was lodged on Denny’s behalf, which was rejected due to the fact that he is
not registered as stateless.
4
UNHCR, Mapping Statelessness in the Netherlands (2011), para. 46, available at:
http://www.refworld.org/docid/4eef65da2.html.
5
See Dutch Central Bureau of Statistics [Centraal Bureau voor de Statistiek], available at:
http://statline.cbs.nl/StatWeb/publication/?VW=T&DM=SLNL&PA=03743&LA=NL (accessed 21
November 2016).
6
Council of Europe: Commissioner for Human Rights, Report by Nils Muižnieks Commissioner for
Human Rights of the Council of Europe following his visit to The Netherlands from 20 to 22 May 2014,
14 October 2014, CommDH(2014)18, at para. 138-39, available at:
http://www.refworld.org/docid/54bd1d604.html.
2

4

12.

lives with his mother in a restricted freedom center for failed asylum seekers and
their young children. He has nearly no contact with Dutch society, lives in an
atmosphere that is marked by the threat of deportation and surveillance, and his mother
is not eligible for any social benefits besides a small weekly allowance. The eight
restricted freedom centers throughout the Netherlands are intended to serve as
temporary, sober facilities, designed to encourage efforts by residents to facilitate their
deportation, but
and his family have been there for three years.

13.

The Netherlands requires that children born stateless in the country hold a lawful
residence permit for at least three years before they are eligible to apply for Dutch
nationality (nationality “by option”). 7 This position contravenes the Netherlands’
obligations as a party to the 1961 UN Convention on the Reduction of Statelessness,
under which States may only impose habitual residence requirements. 8 The Netherlands
has acknowledged that its law is not in line with the 1961 Convention. Under Dutch
law,
is classified as an illegal alien and he cannot legalize his stay in the country
because he cannot sufficiently demonstrate that he is stateless since birth. Registration
as stateless is a necessary step toward acquiring a nationality in
case, as it
would at least offer a means upon which to base a claim to Dutch nationality. 9
B. Admissibility

14.

The communication is admissible. All available and effective remedies in the
Netherlands have been exhausted. The Administrative Division of the Dutch Council of
State, the country’s highest administrative court, itself recognized that Dutch law denies
any effective remedy. The violations set out fall within the jurisdiction of
the Committee and have not been submitted to any other mechanism of international
investigation or settlement.
C. Violations of the ICCPR

15.

The treatment of Denny violates the Covenant.
•

A. Every Child has the Right to Acquire a Nationality (Article 24(3)). The lack of a
reliable opportunity for Denny to acquire a nationality in his childhood and the
years of limbo he has already suffered on account of the Netherlands’ approach to
addressing statelessness and related rules pertaining to residency rights and
acquisition of nationality, violates the right of every child to acquire a nationality
protected by Article 24(3) ICCPR.

•

B. There is a Positive Obligation to Introduce Safeguards against Childhood
Statelessness. In view of the special protection accorded to children under Article
24, in addition to the positive measures of protection required under Article 2(2) of
the Covenant, the Netherlands is not meeting its obligation to ensure that every
child – including stateless children and children born to parents in an irregular
migratory status – enjoys all rights provided for in the Covenant. In order to do so,
the Netherlands must effectively implement safeguards to end childhood
statelessness.

7

See Dutch Nationality Act, Article 6(1)(b), available (in English) at: http://eudocitizenship.eu/admin/?p=file&appl=currentCitizenshipLaws&f=NL%20Netherlands%20Nationality%2
0Act_consolidated%2025_11_13_ENGLISH.pdf.
8
See 1961 Convention on the Reduction of Statelessness, Article 2(b); Katja Swider, “Statelessness
Determination in the Netherlands”, Amsterdam Centre for European Law and Governance, Working
Paper Series 2014-4 (May 2014), available at: www.acelg.uva.nl/publications.
9
Under proposed amendments to the Dutch Nationality Act, recognition of statelessness status is still a
requirement in order for a child born stateless on the territory to acquire Dutch nationality.

5

•

C. Failure to Provide an Effective Remedy. The Dutch Council of State
pronounced itself incompetent to fill the gap in protection into which
, and
children like him, are currently falling, meaning that there is no effective means by
which
can challenge the overall lack of protection he is facing in the
Netherlands, in violation of Article 24 in conjunction with Article 2(3).

D. Remedies
16.

In order to satisfy its obligations under the Covenant and redress the violations in
case, the Committee should declare violations of Article 24, standing alone
and in conjunction with Articles 2(2) and 2(3) of the International Covenant on Civil
and Political Rights.

17.

The Committee should furthermore recommend that the Netherlands:
a) Change
“stateless.”

record in the BRP from “unknown nationality” to

b) Grant
his birth.

immediately a regular permit of stay in the Netherlands, retroactive to

c) Establish in law a statelessness determination procedure and access to rights such as
residence, with structural and procedural safeguards to ensure accessibility, fairness
and flexibility in its operation, especially in respect of children.
d) Amend Article 6(1)(b) of the Dutch Nationality Act so that Dutch nationality is
accessible to stateless children – such as
– born on the territory, but who do
not hold a permit of stay.
V. FACTUAL BACKGROUND
A. Facts of the Claim
18.

He
is a six-year old child, born in the Netherlands on
currently resides with his mother in a freedom restricted family location for rejected
asylum seekers and other non-citizens awaiting deportation.

19.

has never been recognized as a national by any country. The only two countries
with which
has relevant links – the Netherlands and China – do not consider him
to be a national. He is stateless. 11
Background:

20.

mother and father

mother,
, who is now 26 years old, was born on the
in the province of Guizhou, China.
parents never registered
her with the local authorities in China. Such registration is performed, and civil status is
established, through an individual’s inclusion in a household registry. 12 Household

10

See Exhibit 1: Extract from Dutch Municipal Personal Records Database.
See para. 94, below. A stateless person is one who is not considered as a national by any state under
the operation of its law. See 1954 Convention relating to the Status of Stateless Persons, Article 1(1).
12
Civil status in China is managed through the household registration system which is administered by
the police under the Ministry of Public Security. Registration is performed by local police stations. See
Harro Von Senger, Looking outwards: description of non-Western systems – China (English trans.), at
2.
11

6

registration (hukou) is a prerequisite for access to public services. 13 When
brother was born a few years later, her parents abandoned her.
21.

In 2004, at age 15,
states she was trafficked to the Netherlands, but was able
to escape upon her arrival at Schiphol airport in Amsterdam. She applied for asylum on
8 August 2004 and her application was rejected on 25 August 2004. All appeals failed.
Now an illegal alien in the Netherlands with no documentation of her own identity, Ms.
was homeless and found shelter with other ethnic Chinese friends and
acquaintances that she had met during her stay at an asylum shelter.

22.

In 2006 – still homeless, undocumented, unaccompanied –
was forced into
prostitution. She eventually managed to escape and on 20 March 2008 she reported to
the Dutch police in ’s-Hertogenbosch that she was a victim of human trafficking. The
investigation into her forced prostitution continued for over a year, but on 28 May 2009
it was closed as the police could not identify or locate her traffickers.

23.

She had initially been granted a special temporary residence permit during the police
investigation into her forced prostitution, but this was revoked when the investigation
was terminated.
petitioned for the extension of her temporary residence
permit. All applications and appeals have been denied and she is currently an illegal
14
alien under Dutch law, as is

24.

father has not recognized

as his child and holds no parental authority. 15

registration in the Dutch municipal population registry as “unknown”
nationality is a barrier to acquisition of a nationality
25.

in Utrecht and was registered in the Dutch
Municipal Personal Records Database (Dutch acronym: BRP; formerly known as the
GBA, until 2014) by the relevant municipal authorities with the annotation “unknown”
nationality. 16

26.

The law requires that nationality status is entered into the municipal registration
, entries were governed by Article 43 of the GBA
system. 17 At the time of
Act (which corresponds to Article 2 of the BRP, in effect since January 2014). 18 Since

13

Shuzhuo Li, Yexia Zhang, Marcus W. Feldman, Birth Registration in China: Practices, Problems
and Policies, April 2009.
14
See Ministry of Justice, Immigration and Naturalization Service, Decision, 22 December 2011 (with
English trans.).
15
See Exhibit 2: Extract from Dutch Custody Registry indicating father has no parental authority.
16
See Exhibit 1: Extract from Dutch Municipal Personal Records Database; see also UNHCR,
Mapping Statelessness in the Netherlands (2011), at para. 35, available at:
http://www.refworld.org/docid/4eef65da2.html (“Children born to asylum-seekers living in a reception
centre are registered immediately upon birth.”).
17
See Katja Swider, Statelessness Determination in the Netherlands, Amsterdam Law School Legal
Studies Research Paper No. 2014-33, at 10, available at:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2434573.
18
The GBA Act was replaced by the Law on the Population Register (Wet Basisregistratie personen,
BRP Act) of 2013. The GBA/BRP provisions apply in Denny’s case per the Dutch Administrative
Procedural Law Reform Act. See Exhibit 13: X.J. Zhao v. Executive of the Municipality of Utrecht,
Court of Central Netherlands, Utrecht Branch, Case UTR 13/11, Judgment of the single-judge chamber
of 12 April 2013 (English trans.), para. 1. The amendments of 2013 do not materially affect the
Netherlands’ approach to registration of persons; the two systems of proof are for all relevant purposes
identical. See ACVZ, “Geen land te bekennen’ (No Country of One’s Own), December 2013, at 35
(“Article 1.7 of the BRP Act contains the same wording as Article 43 of the GBA Act. The system of
proof employed to register foreign nationality can be found in identical wording in Article 2.15.”).
Article 2.17 of the BRP Act does introduce a new form of proof that is not relevant the Denny’s

7

mother had no proof of his nationality, he was entered as “unknown.” 19 As
described in the next section, she has spent years seeking to have
registration
changed to “stateless.”
27.

28.

The “stateless” annotation is important because it is a condition precedent for obtaining
Dutch citizenship through a facilitated procedure for stateless persons, known as
citizenship “by option” or the “option” procedure. Under the Dutch Nationality Act
(Rijkswet op het Nederlanderschap, hereafter: DNA), Article 6(1)(b), a child born
stateless in the Netherlands can obtain Dutch citizenship through a facilitated procedure
after three years of legal residency. The conditions are, thus:
•

Birth in the Netherlands;

•

Continuous legal residency (with a residence permit) for three years; and

•

Stateless since birth. 20

In practice, the final requirement entails registration in the GBA/BRP as “stateless.”
Efforts to obtain proof of

nationality or lack thereof

29.

has made several attempts to obtain or confirm Chinese nationality for her
son. These included attempts to obtain documentation for herself in the context of her
own asylum and legal residency procedures, though she has no documents proving her
origins. They also included requests to the Chinese authorities to confirm whether they
do or do not consider
a Chinese national in an attempt to satisfy the
requirements under Dutch legislation and implementing rules that a person must
provide conclusive proof of nationality, or of lack of nationality, in order to change
their status of nationality “unknown.”

30.

These efforts include:
•

Various contacts and entities in China. In 2010,
wrote letters to her old
primary school, the Chinese Family Planning Commission and the General Office.
No response was ever received. 21

•

Assistance from Dutch Refugee Council. Beginning in 2009, with the assistance of
the Dutch Refugee Council (Vluchtelingenwerk Nederland),
tried to get
documents from the Chinese authorities in the Netherlands. On the 10 April 2009
and the 11 January 2010, she visited the Chinese Embassy together with the Dutch
Refugee Council. No response to her requests for clarification of her status was
provided. 22

application, which is that the registration authority may rely on findings of the Dutch immigration
authority (the IND), “within the context of admission of the person concerned to the Netherlands.”
Ibid. at 35; see also Katja Swider, Statelessness Determination in the Netherlands, Amsterdam Law
School Legal Studies Research Paper No. 2014-33, at 16, available at:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2434573 (clarifying that Article 2.17 “does not
extend to the procedures of making changes to the existing registration.”).
19
As discussed in more detail below, at paras. 100-103, while it may be appropriate to use an
“unknown” or “undetermined” nationality designation at birth in certain limited circumstances, every
effort should be made to resolve uncertainty as quickly as possible after birth.
20
See DNA, Article 6(1)(b), available (in English) at: http://eudocitizenship.eu/admin/?p=file&appl=currentCitizenshipLaws&f=NL%20Netherlands%20Nationality%2
0Act_consolidated%2025_11_13_ENGLISH.pdf.
21
Exhibit 3: 9 August 2010 letter in Chinese and English translation, requesting to be informed of her
registration number or to be issued a registration number in order to apply for a Chinese passport.
22
See Exhibit 4: Statements of Machteld Busz, coordinator of ex-AMA team Utrecht, Dutch Refugee
Council, 10 April 2009 and 11 January 2010.

8

31.

•

Assistance from Red Cross. On 29 June 2010, 21 November 2011 and 18 October
2012,
visited the Chinese Embassy together with staff members of the
Red Cross. During the last visit, on 18 October 2012, a statement about the
nationality of
was also requested. The Chinese Embassy told them it would
only be possible to issue proof of Chinese nationality for
herself were registered as Chinese. As stated above,
is unable to register
as Chinese with Chinese authorities because she lacks any personal identification
and was never registered by her own parents.

•

Assistance from International Organization of Migration (IOM). On 19 January
2010 and the 30 September 2010, the Dutch Refugee Council sought assistance
from IOM; these efforts did not produce any material result. 24

•

Red Cross Tracing Service. On the 19 January 2012, the Red Cross also tried to
obtain documents through its Tracing Service. 25 They were told that because she
has no documentation of her own identity, the case does not meet the minimum
criteria for tracing.

Despite these efforts,
has been unable to obtain an official document proving
that
is (or is not) a Chinese national.
Efforts to change in

32.

registration from “unknown” nationality to “stateless”

has made considerable efforts to change her son’s registration so that he is
regarded as “stateless”, through administrative challenges to the municipality followed
by judicial challenges concluding at the Council of State.
Administrative Challenges

33.

On 12 July 2012,
submitted a request to the municipality of Utrecht’s civil
registration department to register Denny in the GBA (now the BRP) as “stateless”
instead of “unknown” nationality. 26

34.

By letter of 9 August 2012, the municipality informed
that it intended to
reject the request on the ground that there is no proof of lack of nationality. 27 In the
municipality’s view on the basis of the GBA (now the BRP),
must prove, with
official legal or state-issued documents, that he is stateless – in this case that he has
neither Chinese nor Dutch nationality. 28 However, as noted above, extensive efforts
proved unsuccessful in obtaining such a document from the Chinese authorities,
indicating whether
is or is not a Chinese national. Therefore, according to the
letter, it is presumed that
possesses Chinese nationality based on a facial reading
of Chinese law. 29

23

Exhibit 5: Statements of Sophie Bijloos, Red Cross Volunteer, 2 July 2010 and 21 November 2011.
Exhibit 6: Statement of Dutch Refugee Council, dated 30 September 2010.
25
Exhibit 7: Letter from Red Cross, dated 25 October 2012.
26
Exhibit 8: Request to amend registration, dated 12 July 2012 (Dutch only).
27
Exhibit 8: Letter from Municipality of Utrecht to Denny Zhao, 9 August 2012 (Dutch only).
28
Ibid. See also Exhibit 13: X.J. Zhao v. Executive of the Municipality of Utrecht, Court of Central
Netherlands, Utrecht Branch, Case UTR 13/11, Judgment of the single-judge chamber of 12 April 2013
(English trans.), at para. 3.
29
Exhibit 9: Letter from Municipality of Utrecht to Denny Zhao, 9 August 2012 (Dutch only). See also
Exhibit 13: X.J. Zhao v. Executive of the Municipality of Utrecht, Court of Central Netherlands, Utrecht
Branch, Case UTR 13/11, Judgment of the single-judge chamber of 12 April 2013 (with English
trans.), at para. 3.
24

9

35.

The intention set out in this letter was formalized in a legal view, sent on 15 August
2012. 30 Based on that legal view, on 17 September 2012,
request for entry
of
status into the civil register as “stateless” was denied on the same grounds
as was set out in the letter of intent. 31

36.

On 14 October 2012,
, through counsel, lodged an administrative appeal
against the written decision with the Municipality of Utrecht. She submitted, together
with the objection, documentation of the above efforts to obtain Chinese citizenship for

37.

On 22 November 2012, the administrative appeal was rejected on the ground that there
was no legal proof of
statelessness, i.e. official documents of the Chinese
authorities that deny Chinese citizenship, and the decision of 17 September 2012 was
upheld. 33
Judicial Challenges

38.

then appealed to the courts, beginning with the district court of MiddenNederland (Utrecht), on 19 December 2012. 34 That court denied the appeal in a
decision dated 12 April 2013, which emphasized that the burden of proof of lack of
nationality rests entirely on
and the municipality has no responsibility to
investigate the matter. The Utrecht Branch judgment also emphasizes that the
Municipality “presumed,” based on its own research on Chinese nationality law, that
s parents are Chinese citizens and that it is “suspected” that
a Chinese
national. 35 It is not clear that the reliance on foreign nationality laws in this way is in
line with the current Handbook on Implementing Procedures (Handleiding
Uitvoeringsprocedures), which states that:
“[T]he application of the relevant foreign nationality law is only possible if there is
a starting point, . . . for example when the nationality of the parents has been
established, and the relevant nationality law provides for the automatic acquisition
by the child of his or her parents’ nationality.” 36

39.

On 23 April 2013,

appealed this decision to the Dutch Council of State. 37

30

Exhibit 10: Letter from Municipality of Utrecht to Denny Zhao, 15 August 2012 (Dutch only). In
Dutch administrative law, a written intention is followed by a legal view in reply (zienswijze) by the
applicant, with regard to the intended rejection.
31
Exhibit 11: Letter from Municipality of Utrecht to Denny Zhao, 17 September 2012 (Dutch only).
32
See Exhibit 12: Utrecht Municipality, Head of Legal Matters Department, ref: b12.3062 letter nr.
J12.621 146 (decision on administrative appeal), 22 November 2012 (with English trans.).
33
Ibid.
34
See Exhibit 13: X.J. Zhao v. Executive of the Municipality of Utrecht, Court of Central Netherlands,
Utrecht Branch, Case UTR 13/11, Judgment of the single-judge chamber of 12 April 2013 (with
English trans.).
35
Exhibit 13: X.J. Zhao v. Executive of the Municipality of Utrecht, Court of Central Netherlands,
Utrecht Branch, Case UTR 13/11, Judgment of the single-judge chamber of 12 April 2013 (with
English trans.), at para. 3.
36
Handleiding Uitvoeringsprocedures (Handbook Implementing Procedure), 7 February 2014. The
Handbook is issued by the Ministry of Interior (Ministerie Binnenlandse Zaken en Koninkrijksrelaties)
to guide the civil servants in the implementation of the Law on the BRP, para 3.32.2. See also Katja
Swider, Statelessness Determination in the Netherlands, Amsterdam Law School Legal Studies
Research Paper No. 2014-33, at 14, available at:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2434573 (citing Handbook of 7 February 2014).
37
See Exhibit 13: X.J. Zhao v. Executive of the Municipality of Utrecht, Notice of Appeal to Council of
State, Administrative Law Division (The Hague), 23 April 2013 (with English trans.).

10

40.

On 21 May 2014, the Administrative Law Division of the Council of State, the highest
court of appeal in the Netherlands, ruled that the Municipality was correct when it
decided that
had not adequately demonstrated that he was stateless. 38

41.

The Council of State concluded that neither national law nor international law
(including the Covenant, the Convention on the Rights of the Child, the 1954
Convention relating to the Status of Stateless Persons, and the 1961 Convention on the
Reduction of Statelessness) contain any rules with regard to procedure to establish
statelessness that the Dutch authorities were obliged to follow. 39 It continued that it was
not up to the authorities to conduct inquiries and determine statelessness status.

42.

The Council of State did, however, acknowledge that the lack of a status determination
procedure meant that individuals entitled to protection – including children – were
falling through the cracks.
“The GBA Act provides a personal data registration system. As the Division has
held previously (among others, in the judgment of November 28, 2012 in case no.
201200045/1/A3; www.raadvanstate.nl), it is paramount that the data in the GBA
are reliable and clear. The users of the data must be able to trust that they are
generally correct. (Parliamentary Papers II 1988/89, 21 123, no. 3, p. 13). In light of
the foregoing, the executive can only register the nationality as “unknown” if no
documents can be submitted from which one can conclude that the person involved
is stateless. It follows from article 43 (3) of the GBA Act, contrary to what
states, that it is not incumbent on the executive in cases of uncertainty regarding the
nationality of the person involved to investigate whether the person involved is
stateless and itself subsequently determine the statelessness. Nor does this
obligation follow from articles 3 and 7 of the CRC, article 24 (3) of the ICCPR, and
article 1 of the Statelessness Convention 1961, leaving aside whether they are
binding on everyone, merely because they do not contain rules with respect to
determining statelessness.
“In this case
did not submit any documents that evidence that her son
has no nationality of a country and is therefore stateless. The court therefore
justifiably ruled that the executive justifiably took the position that it was not
established that
is stateless, so that the executive justifiably rejected the
petition to amend the nationality from “unknown” to “stateless.”

43.

But the Council concluded that it is for the Dutch legislature to provide for a remedy:
“In response to the appeal, the Division holds that it has taken note of the various
documents about the position of stateless persons in the Netherlands, including the
opinion of the Advisory Committee on Migration Affairs, entitled “No Country of
one’s own” [“Geen land te bekennen”], of December 2013. It has been established
that at this moment there is no specific procedure to legally establish the
statelessness of persons. As long as the statelessness of persons without nationality
has not been determined, they cannot invoke protection based on the Statelessness
Conventions and the Dutch legislation pursuant to those conventions. However, it
goes beyond the lawmaking task of the judiciary to fill in this gap.” 40 [emphasis
added]

38

See Exhibit 14: X.J. Zhao v. Executive of the Municipality of Utrecht, Council of State
(Administrative Law Division), Judgment of 21 May 2014 (with English trans.).
39
See Exhibit 14: X.J. Zhao v. Executive of the Municipality of Utrecht, Council of State
(Administrative Law Division), Judgment of 21 May 2014 (with English trans.), at para. 4.2.
40
Exhibit 14: X.J. Zhao v. Executive of the Municipality of Utrecht, Council of State (Administrative
Law Division), Judgment of 21 May 2014 (with English trans.), at paras. 4.1- 4.4 (emphasis added).

11

44.

The last sentence of the Council of State’s decision – the same one cited by Council of
Europe Human Rights Commissioner Muižnieks in his critical account of statelessness
protections in the Netherlands – acknowledges that affirmative action must be taken in
s case in order to give effect to the Statelessness Conventions. To date, his
situation remains exactly the same, although in September 2016 a legislative proposal
was introduced, which is currently in the consultation phase of the Dutch legislative
process. The proposal is discussed in further detail below, at paras. 80-81.

45.

applied for Dutch citizenship in March 2015, arguing that the nationality law
requirement that he hold lawful residency should not be held against him in light of the
1961 Convention and that he should be allowed to access a nationality in spite of his
lack of registration as “stateless” and lack of a residence permit in the Netherlands. His
application and administrative appeal have been rejected as groundless.
current status and living circumstances

46.

Since October 2013,
have lived in a freedom restricted family
location for rejected asylum seekers (Vrijheidsbeperkende locatie, VBL, and
specifically, Gezinslocatie (family housing), GL, which is a form of VBL). There are
eight family locations throughout the Netherlands and the system has been severely
criticized by children’s rights groups as especially damaging and traumatic for
children. 41 Residents cannot leave the municipal area to which they are assigned and
have strict daily reporting requirements (all days except Sunday), enforced by threat of
criminal detention. 42 Children experience constant fear, health problems, family
tensions and social exclusion. 43

47.

The Dutch Supreme Court ruled in a judgment of 21 September 2012 that freedom
restricted centers for families are permitted to offer the bare minimum in services to
residents, including children like
. 44

48.

In 2014, a district court in The Hague ruled that the prolonged stay in a family location
harms child development, awarding €5,000 per child to a mother and her two (Dutch)
children who were forced to stay at a family location for twenty months. 45 Specifically,
the court found that the family location facility left the children feeling “trapped” due to
the reporting requirements imposed on their mother; they experienced nightmares and
did not get enough rest. For the Dutch children, in other words, the court recognized
that the family locations were so harmful that they should be compensated for the time

41

See Working Group on Children in AZC, Onderzoek naar het welzijn en perspectief van kinderen en
jongeren in gezinslocaties (Report on Family Locations), October 2014, available in Dutch only at:
http://www.kind-in-azc.nl/docs/rapport_gezinslocaties.pdf. Summary of the publication:
http://www.kind-in-azc.nl/Gezinslocaties.aspx (outlining the “traumatic” experiences of children living
in family locations).
42
See Asylum Information Database, Freedom of Movement: Netherlands, available at:
http://www.asylumineurope.org/reports/country/netherlands/freedom-movement.
43
Summary of the Working Group on Children in AZC publication: http://www.kind-inazc.nl/Gezinslocaties.aspx.
44
Hoge Raad (Dutch Supreme Court), 21-09-2012, ECLI:NL:HR:BW5328, at para. 3.7.2, available at:
http://deeplink.rechtspraak.nl/uitspraak?id=ECLI:NL:HR:2012:BW5328 (“The State has an obligation
to safeguard the rights and interests of minors who are on its territory, even when it comes to minors
without a valid residence permit, partly because they cannot be held responsible for the actions of their
relatives. This is supported by the case law of the ECtHR, the underlying principles of the Reception
Directive and the Return Directive and on the basis of the position taken by the European Committee
on Social Rights and Committee of Ministers.”) (unofficial translation).
45
Defence for Children, Compensation for Children Who Stayed in Stocking Location, 8 October 2014,
available at: http://www.defenceforchildren.nl/p/140/4093/mo233-m80/schadevergoeding-voorkinderen-die-in-uitzetlocatie-verbleven.

12

they were forced to spend there. The Netherlands has not changed its policy following
the decision and
remains in the location.
49.

After losing her own temporary residence permit when the investigation into her forced
prostitution claim was terminated, and having been unable to obtain a regular residence
permit for herself or her son,
also no longer receives any social benefits to
support
. Appellate courts in the Netherlands have upheld the denial of childcare
benefits to undocumented children, including stateless children who face the same
barriers as
in clarifying their statelessness status, an issue that is currently being
challenged before this Committee. 46
B. The National Context

50.

situation is the product of a national legal framework that fails to take into
account important safeguards against childhood statelessness. In response to multiple
calls for reform over several years, a legislative proposal was finally published in
September 2016, but it does not offer a reliable solution for
.
Domestic registration procedures: high frequency of “unknown” nationality annotation

51.

As stated at paragraph 26, above, the law requires that nationality status is entered into
the municipal registration system. Article 43 of the GBA (which corresponds to Article
2 of the BRP) required that the nationality entry was based on a decision of an
institution or authority. However, these procedural rules make no provision for
individuals without a nationality, who must somehow find a way to prove its absence. 47

52.

Given the evidentiary burden imposed by Article 43 of the GBA, registration authorities
are sometimes unable to confirm the nationality of individuals entered into the
database. In such cases, the marker “unknown” is used. “Unknown” nationality is,
essentially, “a lump-category for all individuals who have trouble substantiating their
nationality status” or indeed their statelessness. 48 “Stateless” is an option for this field,
however, the official guidelines for municipal authorities do not specify on which basis
such an entry should be made and states that statelessness “rarely ever occurs.” 49 The
word “stateless” does not appear anywhere in the BRP, or the GBA before it. 50

53.

The annotation “unknown” for the nationality entry in the BRP (formerly GBA) is quite
common in the Netherlands relative to the rest of Europe: according to the civil registry
83,008 were registered as such in 2010, of which 22,881 (approximately 28 percent)
were children. 51 These numbers are by far the highest in Europe by all publicly

46

See, e.g., Human Rights Committee communications: Abdoelleavna v. the Netherlands, Comm. No.
2498/2014, Hashemi v. the Netherlands, Comm. No. 2489/2014, Piqué v. the Netherlands, Comm. No.
2673/2015, Amza v. the Netherlands, Comm. No. 2683/2015.
47
Katja Swider, Statelessness Determination in the Netherlands, Amsterdam Law School Legal Studies
Research Paper No. 2014-33, at 13, available at:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2434573 (“This type of evidence is therefore
unlikely to play an important role in the registration of statelessness for most people.”).
48
UNHCR, Mapping Statelessness in the Netherlands (2011), at para. 66, available at:
http://www.refworld.org/docid/4eef65da2.html.
49
UNHCR, Mapping Statelessness in the Netherlands (2011), at para. 37 (citing Agentschap
Basisadministratie Persoonsgegevens en Reisdocumenten, “Handleiding uitvoeringsprocedures” at
75), available at: http://www.refworld.org/docid/4eef65da2.html.
50
See UNHCR, Mapping Statelessness in the Netherlands (2011), at para. 37, available at:
http://www.refworld.org/docid/4eef65da2.html; Katja Swider, Statelessness Determination in the
Netherlands, Amsterdam Law School Legal Studies Research Paper No. 2014-33, at
51
UNHCR, Mapping Statelessness in the Netherlands (2011), at para. 62 (citing T. Hammarberg,
“Report by the Commissioner for Human Rights Thomas Hammarberg on his visit to the Netherlands,

13

available accounts. 52 In comparison, that same year, the year of
s birth and
registration, just 2,005 persons were registered as “stateless” in the GBA. 53 As the
European Network on Statelessness has pointed out, “of those whose nationality is
unknown and who were also born in the Netherlands, 5,641 children were still
registered as being of unknown nationality more than five years later.” 54
54.

The high frequency of “unknown” nationality entries is attributable to the combination
of rigid proof requirements described above, the fact that the burden of proof is placed
solely upon applicants, and the lack of appropriate instructions and support to civil
servants in how to recognize and record cases of statelessness. 55

55.

As noted above, under Article 43 of the GBA (now Article 2 of the BRP), the only
evidence that the Dutch registration authorities could consider in order to change
s registration status to “stateless” would be either a decision of an administrative
or judicial body meant to serve as proof of nationality (a passport) or a written
document attesting to nationality, though not meant to serve as an identity document.

56.

These provisions have been consistently interpreted as exhaustive in terms of the forms
of proof that may be considered in making entries in the registry. For example, in 2007,
the Court of Roermond upheld the rejection of a request for change of entry from
“unknown” to “stateless” by a Syrian Kurd in spite of the provision of an identity card
with no recognized nationality and reports by the Dutch government on the situation of
stateless Syrian Kurds. 56

57.

Dutch courts have also ruled that the burden of proof to provide the specific evidence
required under the registration laws rests entirely on the applicant. 57

58.

Another reason for the high number of “unknown” nationality entries is the lack of any
time limit for the duration of such annotation, with no duty placed on authorities to
clarify the matter. 58 UNHCR has reported after a comprehensive mapping of
statelessness in the country that “[a]lmost 60 per cent of all persons of unknown

21-25 September 2008,” (2009), at 19), available at: http://www.refworld.org/docid/4eef65da2.html.
As of September 2016, there are 74,055 “unknown” nationality entries.
52
Ibid., para. 66 n.8; European Network on Statelessness, Preventing childhood statelessness in
Europe: Issues, gaps and good practices, 2014, at 14, available at:
http://www.statelessness.eu/sites/www.statelessness.eu/files/attachments/resources/Preventing%20chil
dhood%20statelessness%20in%20Europe%20%20issues%2C%20gaps%20and%20good%20practices.pdf.
53
ACVZ, “Geen land te bekennen’ (No Country of One’s Own), December 2013, at 31, available at:
https://acvz.org/pubs/geen-land-te-bekennen/.
54
European Network on Statelessness, Preventing childhood statelessness in Europe: Issues, gaps and
good practices, 2014, at 14, available at:
http://www.statelessness.eu/sites/www.statelessness.eu/files/attachments/resources/Preventing%20chil
dhood%20statelessness%20in%20Europe%20%20issues%2C%20gaps%20and%20good%20practices.pdf.
55
See Katja Swider, Statelessness Determination in the Netherlands, Amsterdam Law School Legal
Studies Research Paper No. 2014-33, at 16-18, available at:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2434573.
56
See Katja Swider, Statelessness Determination in the Netherlands, Amsterdam Law School Legal
Studies Research Paper No. 2014-33, at 16, available at:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2434573.
57
Katja Swider, Statelessness Determination in the Netherlands, Amsterdam Law School Legal Studies
Research Paper No. 2014-33, at 16, available at:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2434573.
58
UNHCR, Mapping Statelessness in the Netherlands (2011), at para. 70, available at:
http://www.refworld.org/docid/4eef65da2.html.

14

nationality (49,568 individuals [as of 2010]) have been registered as such for more than
three years.” About one quarter of this group is comprised of children. 59 Today,
would be counted among this group as well, having been registered as holding
“unknown” nationality for almost seven years. Thus, the category “unknown” does not
imply, under Dutch law and jurisprudence, any obligation to find anything out.
Criticism of Dutch law and practice in addressing childhood statelessness
59.

It is suspected that many people, including many children, registered as holding
“unknown” nationality are actually stateless, but it is not possible to confirm this given
the lack of a dedicated statelessness status determination procedure in the
Netherlands. 60 Following his visit to the Netherlands in May 2014, then Council of
Europe Commissioner of Human Rights Nils Muiznieks criticized the Netherlands for
not living up to its international commitments to prevent and reduce childhood
statelessness, highlighting the several interrelated obstacles preventing the effective
operation of these protections:
“Worryingly, in 2012, 5,641 children born in the Netherlands who were five years
old or older were still registered as being of unknown nationality. One of the main
negative consequences of the absence of clear rules on statelessness identification
and determination is that an undetermined number of persons who could be
stateless are considered as immigrants living irregularly on Dutch territory. They
are thus confronted with the daily risks of detention, difficulties in accessing basic
social rights and in particular healthcare, and the situation of legal limbo [].
Another concern is that, under Dutch law, the granting of Dutch nationality to a
child who would otherwise be stateless only applies to children who have been
lawfully resident in the Netherlands for three years, contrary to the 1961 UN
Convention on the Reduction of Statelessness which only requires habitual
residence.” 61

60.

Commissioner
specifically cited to
case and the Dutch
Council of State’s decision to deny him registration as a stateless person in framing the
above analysis. 62 As noted above (paras. 25-28), without recognition of his
statelessness status,
acquire Dutch nationality.

61.

UNHCR, the UN agency with a mandate to address statelessness globally, has also
called the lack of a statelessness status determination procedure with binding,
protection-oriented outcomes “clearly one of the most apparent omissions in the Dutch

59

UNHCR, Mapping Statelessness in the Netherlands (2011), at para. 64, available at:
http://www.refworld.org/docid/4eef65da2.html.
60
UNHCR, Mapping Statelessness in the Netherlands (2011), at para. 6, available at:
http://www.refworld.org/docid/4eef65da2.html.
61
Council of Europe: Commissioner for Human Rights, Report by Nils Muižnieks Commissioner for
Human Rights of the Council of Europe following his visit to The Netherlands from 20 to 22 May 2014,
14 October 2014, CommDH(2014)18, at para. 138-39, available at:
http://www.refworld.org/docid/54bd1d604.html. See also Council of Europe: Commissioner for
Human Rights, Response of the Netherlands government on the report from the Council of Europe
Commissioner for Human Rights, Nils Muižnieks, following his visit to the Netherlands (20 - 22 May
2014) , 14 October 2014, CommDH/GovRep(2014)13, available at:
http://www.refworld.org/docid/54bd31194.html (describing intention to introduce reforms, although
none have materialized to date).
62
Council of Europe: Commissioner for Human Rights, Report by Nils Muižnieks Commissioner for
Human Rights of the Council of Europe following his visit to The Netherlands from 20 to 22 May 2014,
14 October 2014, CommDH(2014)18, at para. 134, available at:
http://www.refworld.org/docid/54bd1d604.html.

15

approach to statelessness.” 63 In its general guidance on the application of the 1961
Convention on the Reduction of Statelessness, to which the Netherlands is a party,
UNHCR advised the following on the use of “undetermined nationality” as a civil
status:
“States need to determine whether a child would otherwise be stateless as soon as
possible so as not to prolong a child’s status of undetermined nationality. For the
application of Article 1 and 4 of the 1961 Convention [which provide for
acquisition of citizenship to otherwise stateless children], it is appropriate that such
a period not exceed five years. While designated as being of undetermined
nationality, these children are to enjoy human rights (such as health and education)
on equal terms as children who are citizens.” 64
62.

The UNHCR guidance explains that five years ought to be the cut-off for a period of
undetermined nationality as this is also the maximum period of residence permissible
under Article 1(2)(b) of the 1961 Convention where states opt to require a period of
habitual residence before granting nationality to otherwise stateless children.

63.

In a recent report, the Human Rights Council called attention to the negative impact that
prolonged registration as “nationality unknown” can have on a child’s wellbeing,
identity and personal development:
“This can place a child in a state of legal limbo, which may last for years, even into
adulthood. This is liable to have negative repercussions on the definition of the
child’s personal identity, and is not in accordance with the best interests of the
child.” 65

64.

In its most recent consideration of the Netherlands’ state practice under the Convention
on the Rights of the Child, the UN Committee on the Rights of the Child called
attention to the lack of an adequate statelessness status determination procedure in the
Netherlands, recommending that the Netherlands “ensure that all stateless children born
in its territory, irrespective of residency status, have access to citizenship without
conditions.” 66 As discussed in the following section (paras. 80-81), a legislative
proposal that would amend the Dutch Nationality Act was introduced for public
comment in September 2016. The proposal, if adopted as drafted, offers the possibility
for children born stateless in the Netherlands who do not have residency status to
acquire Dutch nationality, but with conditions that cast doubt on whether the
amendments could be implemented in line with international standards and guidance.
C. Calls for Reform

65.

The legal context set out above remains in effect today, raising two chief obstacles to
acquisition of a nationality in
case: (a) he lacks sufficient proof of his
statelessness to be able to apply for nationality by right of option available to children

63

UNHCR, Mapping Statelessness in the Netherlands (2011), at para. 6, available at:
http://www.refworld.org/docid/4eef65da2.html.
64
UNHCR, Guidelines on Statelessness No. 4: Ensuring Every Child’s Right to Acquires a Nationality
through Articles 1-4 of the 1961 Convention on the Reduction of Statelessness, para. 22 (emphasis
added).
65
UN Human Rights Council, Impact of the arbitrary deprivation of nationality on the enjoyment of
the rights of children concerned, and existing laws and practices on accessibility for children to
acquire nationality, inter alia, of the country in which they are born, if they otherwise would be
stateless, 16 December 2015, at para. 9, available at: A/HRC/31/29, available at:
http://www.refworld.org/docid/56c42b514.html.
66
UN Committee on the Rights of the Child (CRC), Concluding observations on the fourth periodic
report of the Netherlands, 8 June 2015, CRC/C/NDL/CO/4, at para. 33.available at:
http://www.refworld.org/docid/566fc5a04.html.

16

born stateless, which is linked to the problem of insufficient statelessness status
determination procedures in general; and (b) even if he is able to prove his
statelessness,
not have a legal residence permit, and would not obtain one
even if the Dutch authorities recognize him as stateless, so he does not qualify for
nationality by right of option pursuant to Article 6(1)(b) of the Dutch nationality law.
66.

In recent years, domestic and international calls for reform of the Dutch approach to
statelessness and the protection of stateless persons have focused on both issues
relevant to
case, proposing possible solutions. Those reforms would, ideally,
create a statelessness determination mechanism accessible to those who need it, among
them stateless undocumented and under-documented individuals, and those who lack
legal residency in the country.
Recognition of the need for a statelessness status determination procedure

67.

The problem of statelessness and identification of stateless persons in particular is
certainly not unique to the Netherlands, but two critical studies of the Dutch approach
to addressing statelessness focused attention on the lack of an adequate status
determination procedure as a major protection failure. Both reports – Mapping
Statelessness in the Netherlands (UNHCR, 2011) and No Country of One’s Own (Dutch
Advisory Committee on Migration Affairs, or ACVZ, 2014) – identify as the primary
recommendation to the Dutch government that it establish an “accessible and efficient”
determination procedure. 67

68.

On 2 June 2014, the Dutch government responded to the ACVZ report, acknowledging
the gap in protection of stateless persons and the importance of status determination,
expressing an intention to explore the possibility of establishing a procedure. 68

69.

In a 10 September 2014 letter to the President of the Lower House of Representatives,
the State Secretary of Justice and Security at the time, Fred Teeven, stated the intention
to explore the establishment of a determination procedure. 69

70.

However, concerns were raised about whether the procedure under consideration, as set
out in the letter, would be an effective remedy, including for children in the same
situation as
The procedure (a) may only be accessible to those with preexisting
legal residency, and (b) would not entail residence rights for those declared stateless. 70

71.

On 19 January 2015, the Dutch State Secretary of Security and Justice requested advice
from the ACVZ on the structure of a status determination procedure.

72.

On 9 July 2015, in response to the Secretary’s request, the ACVZ released a discussion
report based on two expert meetings held earlier in 2015 (“expert report”). 71 The report

67

See UNHCR, Mapping Statelessness in the Netherlands (2011), at 3 (“key recommendation” (i)),
available at: http://www.refworld.org/docid/4eef65da2.html; see also ACVZ, “Geen land te bekennen’
(No Country of One’s Own), December 2013, at 10 (Recommendation (1): “Establish a statelessness
determination procedure backed by guarantees” including “a shared burden of proof”), available at:
https://acvz.org/pubs/geen-land-te-bekennen/.
68
See ACVZ, Presentation of discussion report regarding the procedure for determining statelessness
status, ACVZ/ADV/2015/007, 9 July 2015, at 2.
69
See Ministry of Justice and Security, Letter by State Secretary Fred Teeven to President of Lower
House of Representatives, 10 September 2014, available at:
http://www.rijksoverheid.nl/bestanden/documenten-en-publicaties/kamerstukken/2014/09/11/eerstereactie-van-het-kabinet-op-het-advies-van-de-acvz-inzake-staatloosheid/lp-v-j-0000006349.pdf.
70
See Katja Swider, “Change is in the air: an update on efforts to tackle statelessness in the
Netherlands,” 6 March 2015, available at: http://www.statelessness.eu/blog/change-air-update-effortstackle-statelessness-netherlands.
71
ACVZ, Presentation of discussion report regarding the procedure for determining statelessness
status, ACVZ/ADV/2015/007, 9 July 2015.

17

relies heavily on the UNHCR Handbook on Protection of Stateless Persons
(“Handbook”), stating that because of the UNHCR’s mandate under the international
protection framework, the Handbook “is regarded as authoritative.”
73.

The expert report addresses a range of issues related to the structure of a possible status
determination procedure. Particularly relevant, however, are the recommendations for a
shared burden of proof and the interplay between residency rights and status
determination (at point of access, during pendency of procedures, and linked to a
determination of statelessness). With respect to a right of residence linked to
determination of statelessness status, the issue did not fall within the mandate of the
expert group as the government’s position is that no residency rights should attach
following recognition of statelessness.
Requirements for children born stateless in the Netherlands to acquire Dutch nationality

74.

Article 6(1)(b) of the Dutch Nationality Act currently requires children born stateless in
the Netherlands to demonstrate three years’ legal residence in the country in order to
acquire Dutch nationality.

75.

Also referenced above is the October 2014 report of
, Commissioner for
Human Rights of the Council of Europe, following his visit to the Netherlands from 20
to 22 May 2014, in which he also called on the country to establish a determination
procedure. 72

76.

The Dutch government issued a response to the Commissioner’s report, stating that
“[T]he government is currently examining the scope for expanding the right of
stateless children born in the Netherlands to opt for Dutch nationality to include
those who ‘habitually’ reside here and not only those with ‘legal’ residence status.
The government takes a positive view of this idea in principle, and is working to
formulate the conditions. Since nationality can only be registered in the Personal
Records Database on the basis of valid documents, the children of parents who do
not hold such documents must be registered as ‘nationality unknown’. Obtaining
either valid documents or Dutch nationality could put an end to this situation. The
determination procedure could provide a solution for children who are currently
registered as ‘nationality unknown’ but who are in fact stateless.” 73

77.

While a welcome recognition of the problem and expression of a “positive view of the
idea in principle,” the government’s response was silent on how a child in
situation might benefit from a status determination procedure: how would authorities
decide that
is “in fact stateless,” based on what evidentiary rules and standard of
proof?

78.

On 12 November 2014,
issued another letter specifically addressing
the requirement of legal residence for stateless children born in the Netherlands to opt
for Dutch nationality, and the need to make Dutch citizenship more accessible for
stateless children born in the country without a legal residence permit. The letter states,
“I intend to make this recommendation as follows to fill in the Law on Dutch
citizenship (RWN) … under Article 6, paragraph b, where to stateless children born

72

See Council of Europe: Commissioner for Human Rights, Report by Nils Muižnieks Commissioner
for Human Rights of the Council of Europe following his visit to The Netherlands from 20 to 22 May
2014, 14 October 2014, CommDH(2014)18, available at:
http://www.refworld.org/docid/54bd1d604.html.
73
Council of Europe: Commissioner for Human Rights, Response of the Netherlands government on
the report from the Council of Europe Commissioner for Human Rights, Nils Muižnieks, following his
visit to the Netherlands (20 - 22 May 2014) , 14 October 2014, CommDH/GovRep(2014)13, available
at: http://www.refworld.org/docid/54bd31194.html.

18

in the Netherlands an [alternative] option is given, provided that the following
conditions are met: (1) 5 years of stable residence; (2) the parents have done
everything in their power to obtain a different nationality for their children; and (3)
the parents have not resisted any immigration rules, regulations and deportations
attempts.” 74
79.

This proposal was criticized by UNHCR 75 and the UN Committee on the Rights of the
Child in its most recent examination of the Netherlands, as noted above, on the ground
that a child’s right to acquire a nationality, particularly born on the territory who would
otherwise be stateless, should not be contingent on their parents’ immigration status or
cooperation with state authorities. 76
2016 legislative proposal

80.

On 28 September 2016, two years after it first indicated an intention to create a
statelessness status determination procedure, the Dutch government published a
package of proposed legal amendments to the DNA. 77 The proposal provides no
certainty that
could acquire a nationality under its auspices if adopted. It is
unclear what evidence will be considered for the establishment of statelessness status
and whether the evaluation of evidence will be in line with relevant UNHCR
guidelines. There is no mention as to how the burden of proof will be divided between
the applicant and the state, for example. There is no right of residence pending the
outcome.
would therefore need to wait for a few years until the procedure is in
place, apply for it, hope not to be deported before or during the procedure, and be
recognized as stateless despite the lack of clarity surrounding the issues of proof. If
succeeds in securing recognition as a stateless person, he would need to apply
for Dutch citizenship with a municipal authority, and hope not to get deported while
that procedure is running. A mayor of the municipality where
is registered
would need to consider the application for Dutch nationality under the new procedure.
Even though it is no longer required that applicants have the right of residence under
the new procedure, the Explanatory Memorandum to the proposed procedure suggests
that children whose parents do not have a history of perfect compliance with Dutch
immigration authorities would not qualify as having a “stable” residence (one of the
requirements for accessing citizenship), and would thus also not qualify for the Dutch
nationality. This is not in line with, for example, the CRC’s requirement that children
are not discriminated against on the basis of their parent’s actions (art. 2(2)), and might
violate
right to acquire a nationality depending on how his mother’s behavior

74

Ministry of Security and Justice, Letter of State Secretary Teeven to Parliament providing the
additional response of the government to the ACVZ advice regarding statelessness, 12 November 2014,
available at:
https://www.rijksoverheid.nl/binaries/rijksoverheid/documenten/kamerstukken/2014/11/13/tk-briefaan-vz-tk-inzake-reactie-kabinet-op-het-acvz-advies-inzake-staatloosheid/lp-v-j-0000006830.pdf. See
also European Network on Statelessness, Change is in the air: An update on efforts to tackle
statelessness in the Netherlands, 6 March 2015, available at:
http://www.statelessness.eu/blog/change-air-update-efforts-tackle-statelessness-netherlands.
75
UN High Commissioner for Refugees (UNHCR), UNHCR's legal observations regarding the
Proposal to amend the Nationality Act - Conditions to grant stateless children born in the Netherlands
the right to apply for Dutch nationality, 30 January 2015, available at:
http://www.refworld.org/docid/5617c2c74.html
76
UN Committee on the Rights of the Child (CRC), Concluding observations on the fourth periodic
report of the Netherlands, 8 June 2015, CRC/C/NDL/CO/4, at para. 33.available at:
http://www.refworld.org/docid/566fc5a04.html.
77
See Legislative proposal regarding the determination of statelessness, opened for public consultation
28 September 2016 through 28 November 2016, available at:
https://www.internetconsultatie.nl/staatloosheid.

19

during her own immigration proceedings is assessed. The new law also requires
applicants for citizenship under the new option procedure to “not be able to resolve
statelessness otherwise” with no clarity as to how exactly this inability will be assessed,
in particular in
’s case.
81.

There are therefore too many unknowns for
in the current legislative climate in
the Netherlands. If one is to wait for the outcomes of such hypothetical future lengthy
and uncertain procedures,
might well reach into his teenage years without
citizenship, or worse be deported out of the Netherlands to another country he has no
connections with in the meanwhile, without necessarily a prospect for obtaining a
citizenship.
VI. ADMISSIBILITY OF THE COMPLAINT

82.

This communication should be declared admissible.
has exhausted all
available domestic remedies, resulting in his appeal being rejected by the
Administrative Division of the Dutch Council of State, which recognized the
deficiencies in the law, which denied him any effective remedy. The violations set out
fall within the jurisdiction of the Committee and have not been submitted to any other
mechanism of international investigation or settlement.
A. Domestic remedies exhausted

83.

has exhausted all available domestic remedies to seek protection against
childhood statelessness and to acquire a nationality in the Netherlands. His mother’s
requests to extend her residency permit were denied in 2010 and upheld on all appeals,
and Dutch authorities and the courts refused to change
entry in the Dutch
population register from “unknown” nationality to “stateless” – a prerequisite to
acquiring Dutch nationality.
has no further legal avenues of redress in the
Netherlands.

84.

The Administrative Division of the Dutch Council of State is the highest court in the
Netherlands to which
could appeal the denial of his request to change his
registration entry in the BRP (formerly the GBA). That court, in its decision of 21 May
2014, rejected
final appeal. The court plainly stated that the only solution to
registration as “unknown” was a legislative one:
“It has been established that at this moment there is no specific procedure to legally
establish the statelessness of persons. As long as the statelessness of persons
without nationality has not been determined, they cannot invoke protection based
on the Statelessness Conventions and the Dutch legislation pursuant to those
conventions. However, it goes beyond the lawmaking task of the judiciary to fill in
this gap.” 78

85.

On 26 March 2015,
applied to the municipality of Katwijk to be recognized as a
Dutch citizen by option, the avenue available to children born statelessness in the
Netherlands. In rejecting the application, the Mayor of Katwijk acknowledged that the
Netherlands lacks a status determination procedure, without which it will be impossible
for
to establish that he is stateless. Like the Council of State, the Mayor
concluded that it “goes beyond [his] responsibilities as mayor to make this
determination.” 79 The administrative Commission of Written Appeals upheld the

78

See Exhibit 14: X.J. Zhao v. Executive of the Municipality of Utrecht, Council of State
(Administrative Law Division), Judgment of 21 May 2014 [English trans.], at para. 4.4.
79
Exhibit 15: Municipality of Katwijk Kongen Julianalaan 3 2224 EW Katwijk, Confirmation of option
statement denied, 29 May 2015 (with English trans.).

20

Mayor’s decision in a 15 September 2015 written decision stating that there is no
procedure to determine statelessness, but that it is not the task of the Mayor to correct
this “omission in the law.” 80
“has a right to a nationality,” according to the
Commission, but “persons without a nationality, as long as their statelessness is not
determined, cannot claim protections on the basis of the statelessness conventions,” nor
does the ICCPR oblige states to take such a step in order to secure
right to a
appealed the decision to the Court of The Hague on 28 October
nationality. 81
2015. 82 On 3 March 2016, the Court rejected
appeal on the ground that he is
not registered as stateless. 83
appealed this verdict to the Council of State on 30
March 2016.
86.

On 2 November 2016, the Council of State declared the appeal unfounded on the
ground that
is not registered as stateless. 84 The citizenship application was an
extraordinary step, with minimal chance of success, but serves to confirm that
cannot access a nationality in the Netherlands and has no foreseeable prospect of doing
so.

87.

mother has spent nearly seven years seeking to regularize her son’s status in
the Netherlands – his place of birth and the only country he has ever lived in. The
African Committee of Experts on the Rights and Welfare of the Child has stated in an
important case on children’s right to nationality that “one year in the life of a child is
almost six percent of his or her childhood,” before holding that a six year delay in
consideration of cases on behalf of children experiencing statelessness is unduly
prolonged. The Committee went on to say:
“The implementation and realization of children’s right in Africa is not a matter to
be relegated for tomorrow, but an issue that is in need of proactive immediate
action and attention.” 85

88.

Not only are all available domestic remedies exhausted in
case, but the length
and complexity of these proceedings should be taken into account in examining both
admissibility and the merits of
claims before the Committee.
B. Other grounds of admissibility

89.

All other requirements set by the Committee in determining admissibility of
applications have been met in
case.

90.

This Committee has temporal (ratione temporis) 86 and substantive (ratione materiae)
jurisdiction over
claims, which arise under several articles of the Covenant as
further discussed in the legal arguments below.
claims are substantiated with
evidentiary support as set forth in the factual background and analyzed below. This
matter has not been submitted to any other international or regional body or tribunal.

80

Exhibit 16: Municipality of Katwijk, Commission of Written Appeals, Opinion from the Commission
of Written Appeals to the Mayor of the Municipality of Katwijk, 15 September 2015 (with English
trans.).
81
Ibid. at 2.
82
Exhibit 17: D. Zhao v. Municipality of Katwijk, Written Appeal, 28 October 2015 (with English
trans.).
83
Exhibit 18: D. Zhao v. Municipality of Katwijk, Regional Court of The Hague, 3 March 2016, SGR
15/7710.
84
Exhibit 19: D. Zhao v. Municipality of Katwijk , Council of State, 2 November 2016,
201602238/1/V6 (only have Dutch version).
85
African Committee of Experts on the Rights and Welfare of the Child (ACERWC), Nubian Minors v.
Kenya, Decision of 22 March 2011, at para. 33, available at:
http://www.refworld.org/docid/4f5f04492.html.
86
The Netherlands ratified the CCPR on 11 December 1978.

21

91.

The complaint should be declared admissible and considered on the merits.
VII. VIOLATIONS OF THE ICCPR

92.

The defining protection at stake in this case is Article 24(3), which safeguards
right to acquire a nationality. The violations of his rights under the Covenant fall under
three separate but closely related claims:
•

A. Every Child has the Right to Acquire a Nationality (Article 24(3)). The lack of a
reliable opportunity for
to acquire a nationality in his childhood and the
years of limbo he has already suffered on account of the Netherlands’ approach to
addressing statelessness and related rules pertaining to residency rights and
acquisition of nationality, violate the right of every child to acquire a nationality
protected by Article 24(3) ICCPR.

•

B. There is a Positive Obligation to Introduce Safeguards against Childhood
Statelessness. In view of the special protection accorded to children under Article
24, in addition to the positive measures of protection required under Article 2(2) of
the Covenant, the Netherlands is not meeting its obligation to ensure that every
child – including stateless children and children born to parents in an irregular
migratory status – enjoys all rights provided for in the Covenant. In order to do so,
the Netherlands must effectively implement safeguards to end childhood
statelessness.

•

C. Failure to Provide an Effective Remedy. The Dutch Council of State
pronounced itself incompetent to fill the gap in protection into which
, and
children like him, are currently falling, meaning that there is no effective means by
which
can challenge the overall lack of protection he is facing in the
Netherlands, in violation of Article 24 in conjunction with Article 2(3).

A. Every Child has the Right to Acquire a Nationality
93.

By leaving
registered as nationality “unknown” for over six years, with no
prospect of acquiring a nationality, or even of formally establishing that he is stateless
as a pre-requisite for such an acquisition, the Netherlands has violated his right to
acquire a nationality under Article 24(3). Article 24 recognizes the particular needs and
vulnerability of children and provides for specific protections to all children, and
Article 24(3) acknowledges the critical practical importance that a nationality has in
ensuring all children’s rights are respected. Leaving
without a recognized
nationality status in the country of his birth and the only country he has ever lived in
violates these obligations. That
has endured the state of uncertainty for his entire
young life is wholly incompatible with the purpose of this provision: to provide a
nationality to all children when they are born. 87

94.

Article 1(1) of the 1954 Convention relating to the Status of Stateless Persons (1954
Convention), to which the Netherlands is a party (ratification on 12 April 1962), defines
a stateless person as someone who is “not considered as a national by any state under
the operation of its law.” Because the Netherlands currently lacks a mechanism to
establish their statelessness at birth,
and thousands of similarly situated children
have no access to the protections the 1954 Convention and the 1961 Convention on the
Reduction of Statelessness (1961 Convention) are intended to provide, including the
right of children who would otherwise be stateless to acquire the nationality of the state
where they were born (Article 1, 1961 Convention). This omission is a major

87

UN Human Rights Committee, General Comment 17 on the Rights of the Child (Article 24), 7 April
1989, at para. 8.

22

contributing factor to the violations claimed in this communication, as described below.
For the same reason, for the purposes of this communication, the author is described as
stateless although no such determination has yet been made at the national level.
Relevant legal standards
95.

Right to acquire a nationality begins at birth. Article 24(3) of the Covenant provides
that “every child has the right to acquire a nationality.” In its General Comment No. 17,
the Committee elaborated on the meaning of Article 24(3) in the context of children’s
rights under the Covenant:
“Special attention should also be paid, in the context of the protection to be granted
to children, to the right of every child to acquire a nationality […]. While the
purpose of this provision is to prevent a child from being afforded less protection
by society and the State because he is stateless, it does not necessarily make it an
obligation for States to give their nationality to every child born in their territory.
However, States are required to adopt every appropriate measure, both internally
and in cooperation with other States, to ensure that every child has a nationality
when he is born. In this connection, no discrimination with regard to the acquisition
of nationality should be admissible under internal law as between legitimate
children and children born out of wedlock or of stateless parents or based on the
nationality status of one or both of the parents.” 88

96.

Children’s right to acquire a nationality is protected in many international and regional
instruments ratified by the Netherlands alongside the Covenant, 89 including the
Convention on the Rights of the Child (CRC, Articles 7 and 8), 90 the 1961 Convention
on the Reduction of Statelessness (1961 Convention, Articles 1-4), 91 and the European
Convention on Nationality (ECN, Article 6). 92

97.

As the dedicated international instrument on children’s human rights, the CRC and its
interpretation by the CRC Committee are of particular relevance to understanding and
applying the protections of Article 24 of the Covenant. The CRC is the most widely
ratified of all the major UN human rights treaties. Under the CRC, a paramount general
interpretive principle is to advance the best interests of the child, assessed from the
child’s perspective (as opposed to the perspective of the state, society or the parents). 93

98.

The Human Rights Committee has emphasized in its own interpretation of Article 24
that the best interests of the child principle is a “primary consideration” and an “integral
part of every child’s right to such measures of protection as required by his or her status
as a minor, on the part of his or her family, society and the State, as required by article
24, paragraph 1, of the Covenant.” 94 In X.H.L. v. The Netherlands, the Committee
examined the specific question of child protection in the context of children without

88

UN Human Rights Committee, General Comment 17 on the Rights of the Child (Article 24), 7 April
1989, at para. 8 [emphasis added]. See also UNHCR, Handbook on Protection of Stateless Persons, 30
June 2014, available at: http://www.refworld.org/docid/53b676aa4.html at paras. 96-99 (burden of
proof and cooperation between states in establishing statelessness are essential to implementation of
protection).
89
See also American Convention on Human Rights (Article 20(2)); African Charter on the Rights and
Welfare of the Child (Article 6).
90
The Netherlands acceded to the CRC on 6 February 1995.
91
The Netherlands ratified the 1961 Convention on 13 May 1985.
92
The Netherlands ratified the European Convention on Nationality on 21 March 2001.
93
CRC Article 3; see also Sarah Joseph and Melissa Castan, The International Covenant on Civil and
Political Rights: Cases, Materials and Commentary (3d ed. 2013), at 702.
94
UN Human Rights Committee, Bakhtiyari v. Australia, Communication No. 1069/2002, U.N. Doc.
CCPR/C/79/D/1069/2002 (2003), at para. 9.7.

23

documentation of their identity. The Committee considering that the Netherlands placed
unreasonable demands on an unaccompanied 12-year-old asylum applicant from China
in expecting him to understand and follow administrative obligations required to obtain
such documentation – namely registration in the hukou or household book. The
Committee rejected the implication that enjoyment of Convention rights should hinge
on a minor’s ability to comply with burdensome administrative requirements. 95
99.

The African Committee of Experts on the Rights and Welfare of the Child (ACERWC)
relied on the best interests of the child principle as articulated in the CRC in concluding
in the case of Nubian Minors v. Kenya, holding that “it cannot be in these children’s
best interest to leave them in a legal limbo for such a long period of time.” 96 The
ACERWC took a similar approach to this Committee, set out in General Comment No.
17, above, to the question of when a child must have the right to a nationality: it
applied a “purposive reading” to Article 6(3) of the African Charter on the Rights and
Welfare of the Child, stating that “children should have a nationality beginning from
birth.” 97 The ACERWC also declared that: “being stateless as a child is generally
antithesis to the best interests of children.” 98

100. “Unknown” nationality is to be avoided. With respect to the particular difficulties
presented by states’ use of categories like “unknown” nationality, especially in the case
of children, the Council of Europe Committee of Ministers advised in its
Recommendation 13/2009 that member states should register children as “unknown”
for “as short a period as possible” as a means of reducing statelessness among
children. 99
101. UNHCR has recommended that states should not register children as holding
“unknown” or “undetermined” nationality for a period exceeding five years, stressing
that:
“When this occurs, States need to determine whether a child would otherwise be
stateless as soon as possible so as not to prolong a child’s status of undetermined
nationality.” 100

95

X.H.L. v. Netherlands, Human Rights Committee, Views on Communication No. 1564/07,
CCPR/C102/D/1564/2007, adopted 22 July 2011 (finding the Netherlands’ decision to deport an
unregistered minor to China to face economic and social exclusion to be degrading treatment and
contrary to the protection of children required by Articles 7 and 24 of the Covenant), available at:
http://www.bayefsky.com//pdf/netherlands_t5_ccpr_1564_2007.pdf [PDF file]. While the Netherlands’
treatment of Ms. Zhao in her own asylum proceedings, brought when she was an unaccompanied minor
like the author in X.H.L., are not before the Committee in this case, the negative treatment she
experienced is not in accordance with the Committee’s views in X.H.L. and contributes significantly to
the situation Denny now faces in the Netherlands.
96
African Committee of Experts on the Rights and Welfare of the Child, Nubian Minors v. Kenya,
Decision of 22 March 2011, at para. 29.
97
Ibid., at para. 42 (emphasis added).
98
Ibid., at para. 46.
99
Council of Europe: Committee of Ministers, Recommendation CM/Rec(2009)13 and explanatory
memorandum of the Committee of Ministers to member states on the nationality of children, 9 May
2009, CM/Rec(2009)13, at para. 8, available at: http://www.refworld.org/docid/4dc7bf1c2.html.
100
UN High Commissioner for Refugees (UNHCR), Guidelines on Statelessness No. 4: Ensuring
Every Child's Right to Acquire a Nationality through Articles 1-4 of the 1961 Convention on the
Reduction of Statelessness, 21 December 2012, HCR/GS/12/04, available at:
http://www.refworld.org/docid/50d460c72.html. Beginning in February 2012, UNHCR issued a set of
authoritative guidelines. These guidelines result from a series of expert consultations in 2010-11 and
are “intended to provide interpretive legal guidance for governments, NGOs, legal practitioners,
decision-makers and the judiciary.” They were consolidated into the UNHCR Handbook on Protection

24

102. International and regional standards also call for children’s ability to acquire a
nationality independent of their parents’ migratory or residency status. As applied in the
context of every child’s right to acquire a nationality, the CRC Committee has made
clear in its review of state reports that children must enjoy this right and the protections
that flow from it irrespective of their parents’ legal status in the territory. 101 In its
General Comment No. 7 (early childhood implementation) the CRC Committee further
affirmed that “even the very youngest children must be respected as persons in their
own right.” This imperative should operate to protect children who would otherwise
suffer on account of enforcement policies targeting their parents. These conclusions
which, among other benefits, can help prevent the intergenerational transfer of
statelessness have been echoed by regional human rights protection mechanisms,
including the European Court of Human Rights, 102 the African Committee of Experts
on the Rights and Welfare of the Child 103and the Inter-American Court of Human
Rights. 104
103. Nationality is a core component of human identity and personal development. Finally,
there is widespread recognition by international and regional human rights bodies that
nationality is a critical, formative, component of a child’s legal and social identity. This
Committee, in considering the general scope and present application of Article 24(3),
should recognize the important links between the right to acquire a nationality and an
individual’s enjoyment of juridical personality and respect for human dignity – and the
responsibility to ensure a child’s personal development in relation to these important
facets of individual identity from birth. 105 The European Court of Human Rights
recognized in Genovese v. Malta that citizenship is an aspect of an individual’s “social
identity”, which is a component of their private and family life protected by Article 8 of
the European Convention on Human Rights. 106 The decision is part of a line of cases
acknowledging that denial of nationality, creation (and perpetuation) of statelessness
and denial of access to a secure legal status can, in certain circumstances, amount to an
of Stateless Persons, 2014, available at http://www.refworld.org/docid/53b676aa4.html See also
UNHCR, Guidelines on Statelessness No. 1: The definition of “Stateless Person” in Article 1(1) of the
1954 Convention relating to the Status of Stateless Persons, 20 February 2012, U.N. Doc.
HCR/GS/12/01, at p. 1.
101
See, e.g., CRC Committee Concluding Observations in respect of Turkmenistan
(CRC/C/TKM/CO/2-4) and Switzerland (CRC/C/CHE/CO/2-4), cited in Institute on Statelessness and
Inclusion, Realising the right of every child to acquire a nationality: An analysis of the work of the
Committee on the Rights and Welfare of the Child, Draft Policy Paper, September 2015, at 15,
available at: http://www.institutesi.org/CRC_nationality_paper.pdf.
102
European Court of Human Rights (ECtHR), Mennesson v. France, App. No. 65192/11, Judgment of
26 June 2014, at para. 97.
103
African Committee of Experts on the Rights and Welfare of the Child, Nubian Minors v. Kenya,
Decision of 22 March 2011, at para. 46 (statelessness is “always no fault of” children who are born
with or fall into it); African Committee of Experts on the Rights and Welfare of the Child
(ACERWC), General Comment No. 2 on Article 6 of the ACRWC: "The Right to a Name, Registration
at Birth, and to Acquire a Nationality", 16 April 2014, ACERWC/GC/02 (2014), at para. 94, available
at: http://www.refworld.org/docid/54db21734.html.
104
Case of the Yean and Bosico Children v. The Dominican Republic, Inter-American Court of Human
Rights (IACrtHR), 8 September 2005, at para. 156, available at:
http://www.refworld.org/docid/44e497d94.html.
105
Ibid., See also UN Human Rights Committee (HRC), Consideration of reports submitted by States
parties under article 40 of the Covenant: International Covenant on Civil and Political Rights:
concluding observations of the Human Rights Committee : Ireland, 30 July
2008, CCPR/C/IRL/CO/3, at para. 8, available at: http://www.refworld.org/docid/48c4ff452.html
(expressing concern over the lack of recognition of change of gender in issuance of birth certificates).
106
Genovese v. Malta, ECtHR, Judgment of 11 October 2011, at para. 33.

25

interference with the right to private life. 107 The connections between identity, legal
personality and dignity inform these opinions:
“[T]he right to legal personality is a normal, natural and logical consequence of
human personality and inherent human dignity; it is a natural and inherent part of
every human being and his or her personality.” 108
104. In Mennesson v. France, the European Court of Human Rights also found a violation of
the European Convention, Article 8, in light of “uncertainty as to the possibility of
obtaining recognition of French nationality” which might inflict “negative
repercussions on the definition of [the applicant children’s] personal identity.” 109
faces multiple obstacles to acquiring a nationality
105.

is denied a nationality as a result of the an overly formalistic approach by the
Dutch authorities to the registration of children as stateless, which is an extension of the
Netherlands’ overall disregard for the child’s best interests in the operation of its
nationality law. 110 Thus, while registration is not the only obstacle to acquisition of
Dutch nationality in
case, it is a primary one and illustrative of the state’s
fundamental failure to give effect to
Article 24 rights.

106.

has gone to great lengths to have her son registered as stateless, as detailed
above. As both UNHCR and the Netherlands Advisory Committee on Migration Affairs
(ACVZ) have reported following in-depth studies of the situation of stateless persons
and persons at risk of statelessness in the Netherlands, the process for making entries in
the national population register is not a status determination procedure. 111 It is
“inherently a registration system” and “not equipped with appropriate resources to
consider a wide variety of evidence and assess often poorly documented personal
circumstances of applicants for a statelessness status.” 112 This is obvious from some of
the clearly problematic statements made by registration authorities in the context of
administrative proceedings challenging
registration as unknown. The Dutch
administrative courts upheld decisions by these municipal authorities not to change
registration because of a stated presumption that he must be Chinese. 113 Such a
presumption has no basis in Dutch law or rules governing registration and is clearly not
in the best interests of the child seeking to prove his statelessness in order to enjoy the
right to acquire a nationality.

107. The entry as “stateless” within the registration system is not binding on other authorities
in the Netherlands; it does not give rise to rights or a protected status in and of itself. 114
107

Ibid., at para. 30; Kurić and others v. Slovenia, ECtHR [GC], Grand Chamber Judgment of 26 June
2012, at para. 356.
108
Kurić and others v. Slovenia, ECtHR [GC], Grand Chamber Judgment of 26 June 2012, Partly
Concurring, Partly Dissenting Opinion of Judge Vučinić.
109
ECtHR, Mennesson v. France, App. No. 65192/11, Judgment of 26 June 2014, at para. 97.
110
See, e.g., Convention on the Rights of the Child, Article 3 (“In all actions concerning children,
whether undertaken by public or private social welfare institutions, courts of law, administrative
authorities or legislative bodies, the best interests of the child shall be a primary consideration.”).
111
ACVZ, “Geen land te bekennen” (No Country of One’s Own), December 2013, at 71-72.
112
Katja Swider, Statelessness Determination in the Netherlands, Amsterdam Law School Legal
Studies Research Paper No. 2014-33, at 12, available at:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2434573.
113
See X.J. Zhao v. Executive of the Municipality of Utrecht, Court of Central Netherlands, Utrecht
Branch, Case UTR 13/11, Judgment of the single-judge chamber of 12 April 2013 (English trans.), at
para. 3.
114
See UNHCR, Mapping Statelessness in the Netherlands (2011), at para. 37 (“[A]ccording to Dutch
law statelessness in itself is not a ground on which one can acquire a residence permit. Moreover,

26

The “stateless” entry is also only one condition precedent to acquisition of Dutch
nationality for
– the other being three years’ lawful residence according to
Article 6(1) of the DNA. Although the requirement of legal residency has been
successfully challenged at the district court level and is contrary to the 1961
Convention to which the Netherlands is a party, 115 it remains in effect as an additional
hurdle for someone in
situation before he can benefit from the right of option.
For
the most immediate obstacle is his inability to obtain recognition in the
Netherlands that he is in fact stateless and to have that fact registered in the municipal
population register as required. 116 Without registration as “stateless”
cannot
acquire Dutch nationality. 117
The situation of prolonged legal limbo in

case contravenes Article 24(3)

108. Through no fault of his own,
has spent the first six years of his life segregated
from society in the country where he was born, classified as an illegal alien and
subjected to a series of legal obstacles to the realization of his right to a nationality that
are, in reality, designed to provide every possible avenue to his deportation. Article
24(3) requires special protections in the field of children’s right to acquire a nationality;
instead, the Netherlands’ legal framework is simply unforgiving for children in
situation, falling far short of promoting access to all rights under the Covenant, which is
a key function of Article 24 as a whole.
109. Through no fault of his own or his mother’s,
cannot prove that he is not Chinese
under the stringent evidentiary burdens imposed by the GBA/BRP Act, in order to be
registered as “stateless” instead of “unknown” nationality. The Council of State
concluded that it is not incumbent on executive authorities to “investigate” whether
only requested that the authorities consider the
is stateless, 118 but in fact
significant evidence already demonstrating that he is not considered to be a national by
any state with which he has a relevant link.
110. He also lacks a residence permit and the Netherlands makes access to a nationality
contingent on legal residency in contravention of the 1961 Convention on the
Reduction of Statelessness to which it is also a party. A legislative proposal may fix
this, but it will not come into effect for some time, if adopted at all and, for reasons
outlined above (para. 80-81), it is unclear that
would satisfy the requirements of
“stable” residence status and proof that he cannot otherwise resolve his statelessness.
although data from the GBA are indicative for all other governmental institutions, e.g. the IND [Dutch
migration authority], they are not binding.”).
115
Case No. ECLI:NL:RBZLY:2010:BN6394; See Katja Swider, Statelessness Determination in the
Netherlands, Amsterdam Centre for European Law and Governance, Working Paper Series 2014-4
(May 2014), available at: www.acelg.uva.nl/publications (“Firstly, both UN Statelessness Conventions
have a legally binding force within the national Dutch legal systems, by virtue of Arts. 93, 94 of the
Dutch Constitution (Grondwet voor het Koninkrijk der Nederlanden 2008), and some of the
Convention’s provisions have been found to be directly applicable in the Netherlands (see Judgment of
the Court Zwolle of 9 September 2010). Secondly, the Dutch migration and nationality laws contain
rights specifically addressed to stateless persons, such as the right to travel documents and simplified
access to Dutch nationality (See Vreemdelingencirculaire (Circular on Foreigners) of 2000, art. B/17;
and Rijkswet op het Nederlanderschap (Law on Nationality) of 1984, art. 6(1b) and Art. 8 (4))).”)
116
See judgment of Centrale Raad van Beroep (Administrative High Court), of 13-01-2004.
117
See Exhibit 15: Municipality of Katwijk Kongen Julianalaan 3 2224 EW Katwijk, Confirmation of
option statement denied, 29 May 2015 (with English trans.) (noting that the district court decision
“applies to people with the nationality ‘stateless’. Since [Denny Zhao] does not have the nationality
‘stateless’, there can be no talk of a comparable situation and no claim can be made based on this
decision”).
118
See para. 42, above.

27

111. The cumulative impact of these impediments is straightforward:
is trapped. His
mother undertook immense and ultimately unsuccessful efforts on her son’s behalf even
to change his registration to “stateless,” something that would overcome just one hurdle
toward a real solution.
112. He has already spent six years of his childhood in limbo. This prolonged uncertainty
alone is a clear violation of
right to acquire a nationality. But the implications
of limbo are more material in this case because in the meantime the Netherlands treats
as a removable foreigner rather than a stateless child in desperate need of
protection. While not in detention, the family location center where he is forced to live
with his mother entails serious restrictions on his psychological and social development
according to at least one domestic court and Dutch refugee and migrants rights groups.
113. The European Network on Statelessness (ENS) has made clear that the Netherlands is
simply not living up to its obligations in cases like
:
“The scale and duration of this practice [prolonged categorization as nationality
“unknown”] in the Netherlands and other countries suggests that, in fact, not
enough is being done to (subsequently) verify and resolve a child’s nationality
status.” 119
114. In another report ENS describes this practice as “one of the most troubling problems” in
relation to implementing safeguards against childhood statelessness, precisely where
such a designation functions as an alternative to what the Netherlands should be doing
in
case: identifying him as stateless and facilitating access to a nationality.
115. The Netherlands is violating its obligations under Article 24(3) to ensure that every
child has a nationality from birth, read in line with the international protection and
human rights frameworks designed to combat childhood statelessness.
B. There is a Positive Obligation to Introduce Safeguards against Childhood
Statelessness
116. The Netherlands’ obligation to ensure that every child enjoys the right to acquire a
nationality should be considered in the light of the positive measures of protection
required within the Covenant, in general and in the special case of children’s rights.
117. The violation of
right to acquire a nationality is not the result of an isolated
decision or specific to the facts of his case. Rather, it is the direct consequence of the
Dutch government’s failure to give positive effect to the rights in Article 24, and in
particular Article 24(3), in its legislation and administrative rules governing civil
registration, nationality and immigration status. The domestic legal protections against
statelessness are insufficient because (1) the Netherlands still lacks fair, balanced
processes for determining statelessness, including statelessness at birth, a deficiency
that has been recognized by the Council of State, the Advisory Committee on
Migration, and key members of the Dutch government; and (2) the Netherlands is not
implementing other safeguards relevant to preventing and reducing childhood
statelessness, particularly in cases of “undetermined” nationality and where children do
not have legal residence in the country, that would ensure
best interests and all
of his Covenant rights are respected on an equal footing with other children.

119

European Network on Statelessness, Preventing childhood statelessness in Europe: Issues, gaps and
good practices, 2014, at 14, available at:
http://www.statelessness.eu/sites/www.statelessness.eu/files/attachments/resources/Preventing%20chil
dhood%20statelessness%20in%20Europe%20%20issues%2C%20gaps%20and%20good%20practices.pdf.

28

118. No steps have yet been taken to comply with the government’s obligations, in violation
of Article 24 read in conjunction with Article 2(2).
Relevant legal standards
119. In addition to the specific protection under Article 24(3), discussed above, Article 24(1)
of the Covenant states that every child shall have:
“[T]he right to such measures of protection as are required by his status as a minor
on the part of his family, society and the State.”
120. Article 2(2) of the Covenant also states:
“Where not already provided for by existing legislative or other measures, each
State Party to the present Covenant undertakes to take the necessary steps, in
accordance with its constitutional processes and with the provisions of the present
Covenant, to adopt such laws or other measures as may be necessary to give effect
to the rights recognized in the present Covenant.”
121. The most important protection devised by the international community to help resolve
cases of statelessness among children is the obligation to grant nationality to children
born on the territory of a state who would otherwise be stateless. 120 This protection
mechanism flows from the obligation to avoid statelessness. The European Convention
on Nationality Explanatory Report states that avoidance of statelessness forms part of
customary international law, 121 finding expression in provisions like CRC Article 7,
Article 1 of the 1961 Convention and Article 24(3) of the Covenant.
(1) There should be Protection-oriented Procedures for Determining Statelessness
122. The Netherlands should institute a statelessness status determination procedure that
would provide a solution for children like
123. In order to give effect to the key safeguard that children who would otherwise be
stateless acquire the nationality of the state where they are born, states must have
reliable, accessible and well-functioning procedures for determining when children are
“otherwise stateless.” 122 With respect to determination of statelessness status for the
purposes of applying the 1954 Convention relating to the Status of Stateless Persons,
UNHCR has emphasized that “it is implicit in the 1954 Convention that States must
identify stateless persons within their jurisdictions so as to provide them appropriate
treatment to comply with their Convention commitments.” 123 The same principle
should apply when it comes to implementation of the 1961 Convention, given the
instruments’ shared aims of addressing statelessness and the centrality of identifying

120

See 1961 Convention (Article 1); ECN (Article 6(2); American Convention on Human Rights
(Article 20); African Charter on the Rights and Welfare of the Child (Article 6).
121
The International Law Commission has also made this determination, see Draft Articles on
Diplomatic Protection with commentaries (2006), at p. 49, available at:
http://legal.un.org/ilc/texts/instruments/english/commentaries/9_8_2006.pdf.
122
See, e.g., European Network on Statelessness, No Child Should Be Stateless (2015), at p. 1
(encouraging adoption of “special measures to actively facilitate access to nationality where
statelessness arises, including the enhanced identification of relevant cases, in order to avoid such
scenarios as where a child is labelled as being of ‘unknown nationality’ for a prolonged period of
time.”), available at:
http://www.statelessness.eu/sites/www.statelessness.eu/files/ENS_NoChildStateless_final.pdf.
123
UNHCR, Handbook on Protection of Stateless Persons, 30 June 2014, available at:
http://www.refworld.org/docid/53b676aa4.html at para 8.

29

stateless persons to that effort. 124 The two Conventions use the same definition of a
“stateless person,” contained in the 1954 Convention Article 1(1), 125 the uniform
application of which across the variety of circumstances in which statelessness can arise
is likewise facilitated through well-designed status determination procedures at the
national level.
124. As noted above, the CRC Committee has clarified through its monitoring of state
practice that protection to otherwise stateless children must be accorded regardless of
parents’ legal status, including residence status. 126 This is in line with Article 2(1) of the
Covenant, which requires states to accord rights and protection without distinction of
any kind. 127 It also follows the same reasoning adopted by the European Court of
Human Rights in
v. France, where the Court rejected the restriction of a
child’s right to recognition of his or her identity as a means of regulating parents’
behavior. 128
125. UNHCR guidance also confirms that states cannot avoid obligations by facial analysis
of another country’s laws: that statelessness is a mixed question of law and fact and
must be determined not only on the basis of legal provisions but also the practice of
competent state authorities. 129
126. It is important to note that any such procedure could have as an appropriate outcome a
finding that an individual is in fact not stateless but holds another nationality. 130 What is
absolutely critical is that the burden of proof be distributed rationally between the
individual applicant and the state and that authorities operating the procedure are
trained and comfortable in making the often complicated determinations required. The
standard of proof must not be unreasonably high; UNHCR, for example, recommends a
“reasonable degree” standard, noting that a higher standard of proof might defeat the
object and purpose of the 1961 Convention. 131 Decisions must be subject to
administrative and judicial review. And recognition of status must allow for a right to
stay.
127.

case poignantly illustrates how difficult it is to secure children’s right to
nationality without well-designed, protection-oriented statelessness status determination
procedures. Yet, in decision after decision, the Dutch courts have denied that their

124

See, e.g., UNHCR, Global Action Plan to End Statelessness (November 2014), at 10 (in order to
implement the 1961 Convention’s Article 1 safeguard, “States need to take steps to ascertain whether a
child born in the territory whose nationality is unclear, has acquired the nationality of another State.”).
125
See UNHCR, Guidelines on Statelessness No. 4: Ensuring Every Child’s Right to Acquire a
Nationality through Articles 1-4 of the 1961 Convention on the Reduction of Statelessness, 21
December 2012, at para. 16.
126
See Institute on Statelessness and Inclusion, Realising the right of every child to acquire a
nationality: An analysis of the work of the Committee on the Rights and Welfare of the Child, Draft
Policy Paper, September 2015, at 15, available at:
http://www.institutesi.org/CRC_nationality_paper.pdf.
127
See Human Rights Committee, General Comment No. 31: the Nature of the General Legal
Obligation Imposed on States Parties to the Covenant, 29 March 2004, at para. 10.
128
European Court of Human Rights, Mennesson v. France, Judgment of 26 June 2014, at para. 99.
129
See UNHCR, Handbook on Protection of Stateless Persons (2014), at para. 23.
130
See ACVZ, “Geen land te bekennen” (No Country of One’s Own), December 2013, at 71,
Recommendation 1 (“[T]he possible outcome that a person is not recognized as stateless, offers the
Netherlands clarity about the legal status of the alien concerned.”).
131
See UNHCR, Guidelines on Statelessness No. 4: Ensuring Every Child’s Right to Acquire a
Nationality through Articles 1-4 of the 1961 Convention on the Reduction of Statelessness, 21
December 2012, at para. 21.

30

obligations under the Covenant and other international human rights instruments
require any further steps to resolve
situation. 132
(2) The Netherlands should implement additional safeguards in cases of children with
“undetermined” nationality and children who do not have legal residence in the country
128. While in some cases it may be necessary to find that a child is of “undetermined”
nationality, the robust protections required for children in such a vulnerable situation
demand an affirmative, protection-oriented response. The opposite has been true in
case.
129. First, the Netherlands’ failure to resolve the uncertainty in
case cannot, in light
of the positive protections required under Articles 24 and 2(2), serve as an excuse for
continuing to deny him access to a nationality after nearly seven years. UNHCR
recommends that no child should be considered as holding “unknown” or
“undetermined” nationality for longer than five years. 133 Because of the length of time
that has already passed and
well documented inability to obtain recognition
or denial that
is a Chinese national, the Netherlands should have taken positive
action to ensure that he was not left in a state of indefinite limbo.
130. Second, as UNHCR’s guidance on this issue suggests, any child of “undetermined
nationality” should enjoy all human rights “on equal terms as children who are
citizens. 134 This has not been
experience: as described above, he has no
contact with children who are citizens, and lives in a restricted family center for failed
asylum seekers. 135
131. Third, even if they can prove they are stateless, Dutch law requires children born
stateless in the country to have “legal residence” for three years if they want to acquire
citizenship, rather than apply the “habitual residence” requirement under the 1961
Convention. 136 At present, in spite of positive individual decisions to the contrary, this
remains the law in the Netherlands. 137 Children born stateless who cannot legitimize
their status cannot get on the path to nationality as required by the Covenant, Article
24(3) and the Convention on the Rights of the Child, Article 7.
132. The Covenant and relevant international human rights law protections against
childhood statelessness command the opposite approach in
case: he should be
immediately and retroactively recognized as stateless since birth and acquire Dutch
nationality as a child born stateless in the Netherlands. This obligation properly arises
132

See, e.g., para. 60, above, citing Exhibit 14: X.J. Zhao v. Executive of the Municipality of Utrecht,
Council of State (Administrative Law Division), Judgment of 21 May 2014.
133
UNHCR, Guidelines on Statelessness No. 4: Ensuring Every Child’s Right to Acquire a Nationality
through Articles 1-4 of the 1961 Convention on the Reduction of Statelessness, 21 December 2012,
para. 22. See also Principle 8 of the Council of Europe, Recommendation CM/Rec (2009) 13 of the
Committee of Ministers to member states on the nationality of children, 9 December 2009 (“Register
children as being of unknown or undetermined nationality, or classify children’s nationality as being
‘under investigation’ only for as short a period as possible.”).
134
UNHCR, Guidelines on Statelessness No. 4: Ensuring Every Child’s Right to Acquire a Nationality
through Articles 1-4 of the 1961 Convention on the Reduction of Statelessness, 21 December 2012, at
para. 22.
135
See para 46, above.
136
See UNHCR, Guidelines on Statelessness No. 4: Ensuring Every Child’s Right to Acquire a
Nationality through Articles 1-4 of the 1961 Convention on the Reduction of Statelessness, 21
December 2012, at para. 41 (“The 1961 Convention does not permit Contracting States to make an
application for the acquisition of nationality by individuals who would otherwise be stateless
conditional upon lawful residence.”).
137
As noted above, para. 5, at least one court has granted nationality in such cases relying directly on
the 1961 Convention, but such a result is exceptional and contradicts the Nationality Act.

31

as a correlative protection to the right to acquire a nationality in Article 24(3), and is
required by the overall protective character of Article 24 and in light of the positive
obligations that states parties to the Covenant must fulfil pursuant to Article 2(2).
C. Failure to Provide an Effective Remedy
133. The Netherlands has failed to accord
an effective remedy to redress the violation
of his rights under Article 24 in conjunction with Article 2(3).
134. Article 2(3) of the Covenant requires that each State Party undertakes:
“(a) To ensure that any person whose rights or freedoms as herein recognized are
violated shall have an effective remedy, notwithstanding that the violation has been
committed by persons acting in an official capacity”
135. The Committee has addressed the contours of Article 2(3) in General Comment 31,
stating:
“[R]emedies should be appropriately adapted so as to take account of the special
vulnerability of certain categories of person, including in particular children.” 138
…it has been a frequent practice of the Committee in cases under the Optional
Protocol to include in its Views the need for measures, beyond a victim-specific
remedy, to be taken to avoid recurrence of the type of violation in question. Such
measures may require changes in the State Party’s laws or practices.” 139
136. The right to an effective remedy is of central importance in
case because the
violation of his rights stems from a systemic failure in the Netherlands’ approach to
children who are at risk of statelessness and in need of the protections guaranteed by
Article 24. As noted,
is one of over 5,000 children born in the Netherlands and
registered as holding an “unknown” nationality for longer than 5 years.
137. The Dutch Council of State acknowledged that the Netherlands lacks an effective
remedy to resolve
protracted situation of uncertainty: “As long as the
statelessness of persons without nationality has not been determined, they cannot
invoke protection based on the Statelessness Conventions and the Dutch legislation
pursuant to those conventions. However, it goes beyond the lawmaking task of the
judiciary to fill in this gap.” 140
138. The Netherlands is on notice that it is leaving many children in an untenable situation of
uncertainty year after year. The “gap” is identified; the recommendations and
guidelines are clear from numerous reports on childhood statelessness in the country.
The Netherlands must now be compelled to act – to do more for its thousands of
“unknown” children like
.
VIII. REMEDIES
139. States Parties are required to make reparation to individuals whose Covenant rights
have been violated. This requirement is an extension of the central obligation to provide
an effective remedy in Article 2(3). The Committee has clarified that remedies may be
of individual and general nature, encompassing the duty to ensure non-repetition of
Convention violations:

138

Human Rights Committee, General Comment 31, para. 15.
Ibid.
140
See Exhibit 14: X. X.J. Zhao v. Executive of the Municipality of Utrecht, Council of State
(Administrative Law Division), Judgment of 21 May 2014 (with English trans.), at para. 4.4.
139

32

“In general, the purposes of the Covenant would be defeated without an obligation
integral to article 2 to take measures to prevent a recurrence of a violation of the
Covenant. Accordingly, it has been a frequent practice of the Committee in cases
under the Optional Protocol to include in its Views the need for measures, beyond a
victim-specific remedy, to be taken to avoid recurrence of the type of violation in
question. Such measures may require changes in the State Party’s laws or
practices.” 141
140. Both individual and general reparations are required in this case, in light of the
structural nature of the harm suffered by
in respect of his right to acquire a
nationality.
141. In light of the facts and submissions above the Author respectfully requests that the
Committee declare violations of Article 24, standing alone and in conjunction with
Articles 2(2) and 2(3) of the International Covenant on Civil and Political Rights.
142. In addition, the Committee should also recommend that the Netherlands make
individual and general reparations so as to put an end to violations of this type.
a) BRP Record. The authorities should change
“unknown nationality” to “stateless.”
b) Permit of Stay. The authorities should grant
stay in the Netherlands, retroactive to his birth.

record in the BRP from
immediately a regular permit of

c) Statelessness Determination. In order to fulfil their obligations under the Covenant,
the Netherlands should establish in law an accessible, efficient framework for
determining statelessness status, which may include one or more specific
procedural mechanisms, with safeguards to ensure respect for human rights
obligations. 142 Any such procedure should contain the following features:
i)

Best interests of the child. All decisions taken in respect of children should hold
paramount the child’s best interests. 143 Article 3 of the Convention on the
Rights of the Child entitles all children to the right to have their best interests
assessed and taken into account as a primary consideration in all actions or
decisions that concern them, particularly the implementation of safeguards for
the prevention of statelessness. 144

ii) No discrimination of any kind. The principle of non-discrimination is central to
all international human rights instruments. Accordingly, the Netherlands must
ensure that children’s access to statelessness determination and consideration
of their claims is under no circumstance conditioned upon their parents’
migratory status. As the Human Rights Council has emphasized, Article 2(2) of

141

Human Rights Committee, General Comment 31, para. 17.
The Committee is generally referred to the conclusions and recommendations of UNHCR, Mapping
Statelessness in the Netherlands (2011) and ACVZ, “Geen land te bekennen’ (No Country of One’s
Own), December 2013.
143
See UNHCR, Guidelines on Statelessness No. 4: Ensuring Every Child’s Right to Acquire a
Nationality through Articles 1-4 of the 1961 Convention on the Reduction of Statelessness, 21
December 2012, at paras. 9-12.
144
UNHRC, Impact of the arbitrary deprivation of nationality on the enjoyment of the rights of
children concerned, and existing laws and practices on accessibility for children to acquire nationality,
inter alia, of the country in which they are born, if they otherwise would be stateless, 16 December
2015, A/HRC/31/29 para 9.
142

33

the Convention on the Rights of the Child protects children against all forms of
discrimination or punishment on the basis of the status of their parents. 145
iii) Accessibility. The procedure should be accessible to anyone regardless of the
lawfulness of their stay in the Netherlands. As UNHCR has clarified, limiting
access to those with legal residence “is particularly inequitable given that lack
of nationality denies many stateless persons the very documentation that is
necessary to enter or reside in any State lawfully.” 146
iv) Training. Authorities responsible for making statelessness determination
should receive training and support, including specialized training on
nationality law, international human rights and statelessness. 147
v) Standard and burden of proof. As recommended by UNHCR in its mapping
study of statelessness in the Netherlands, “the procedure should adopt an
approach to evidence which takes into account the challenges inherent in
establishing whether someone is stateless.” 148 The procedure should employ a
flexible, shared burden of proof between the individual and determination
authorities with respect to foreign nationality or lack thereof. 149 The standard of
proof should not be so high as to undermine the protective purpose of the
procedure itself.
vi) Time limits. As stated above, the high number of “unknown” nationality entries
is attributable in part to the lack of any time limit for the duration of such
annotation. 150 No child should be registered as unknown or undetermined
nationality for longer than five years. 151 For
it has been almost seven
years, in spite of all of his mother’s attempts to obtain a nationality for him and
without any solution being offered.
vii) Temporary protection and residence permits. Special measures of protection
should be granted to persons of undetermined nationality, those in the process
of statelessness determination, and stateless persons: (a) children born in the
territory of “unknown” or “undetermined” nationality should be treated as
“otherwise stateless” until a nationality is determined and should enjoy human
rights equally with children who are citizens; (b) individuals awaiting
statelessness determination should be granted an automatic permit of stay for
the duration of proceedings; and (c) determination of statelessness should result
issuance of a residence permit.

145

UNHRC, Impact of the arbitrary deprivation of nationality on the enjoyment of the rights of
children concerned, and existing laws and practices on accessibility for children to acquire nationality,
inter alia, of the country in which they are born, if they otherwise would be stateless, (2015) para 8.
146
UNHCR, Handbook on Protection of Stateless Persons (2014), at para. 69.
147
UNHCR Mapping Statelessness in the Netherlands (2011), at 60, Recommendation 3(f). See also
Katja Swider, Statelessness Determination in the Netherlands, Amsterdam Law School Legal Studies
Research Paper No. 2014-33, at 16-18, available at:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2434573.
148
UNHCR, Mapping Statelessness in the Netherlands (2011), at p. 59, Recommendation 3(b).
149
Ibid. Recommendation 3(c).
150
UNHCR, Mapping Statelessness in the Netherlands (2011), at para. 70.
151
See UNHCR, Guidelines on Statelessness No. 4: Ensuring Every Child’s Right to Acquire a
Nationality through Articles 1-4 of the 1961 Convention on the Reduction of Statelessness, 21
December 2012, at para. 22.

34

d)

Prevention of statelessness. The Author further respectfully requests that the
Committee urge the State to amend Article 6(1)(b) of the Dutch Nationality Act so
that Dutch nationality is accessible to stateless children – such as
– born on
the territory, but who do not hold a permit of stay. A habitual residence requirement
may be substituted for “legal stay” 152 though not for a period exceeding five years,
which is the approach taken in a draft law advanced in October 2016. At least one
district court in the Netherlands has already concluded that a lawful stay
requirement violates the 1961 Convention, as has the Dutch Advisory Committee
on Migration Affairs in its report on statelessness in the Netherlands. 153 UNHCR
takes the same position in its Mapping Statelessness in the Netherlands report and
general guidance on the implementation of the 1961 Convention. 154

Executive Director
Open Society Justice Initiative

Fischer Groep
www.fischergroep.nl
www.pilpnjcm.nl

152

See, e.g. UNHCR, Mapping Statelessness in the Netherlands (2011), at 63, Recommendation 21.
ACVZ, “Geen land te bekennen’ (No Country of One’s Own), December 2013, at 74.
154
See ibid., see also UNHCR, Guidelines on Statelessness No. 4: Ensuring Every Child’s Right to
Acquire a Nationality through Articles 1-4 of the 1961 Convention on the Reduction of Statelessness,
21 December 2012, at para. 41.
153

35

ANNEX 1: LIST OF SUPPORTING DOCUMENTS
Registration and Personal Information
Exhibit 1

birth record (extract from Extract from Dutch Municipal
Personal Records Database [GBA/BRP])

Exhibit 2

Extract of custody registry (indicating father has no parental authority)

Efforts to Obtain Proof of

Nationality or Lack Thereof

Exhibit 3

9 August 2010 letter from
copied to various state authorities
requesting to be informed of her registration number or to be issued a
registration number in order to apply for a Chinese passport (Chinese, with
English trans.)

Exhibit 4

Statements of
, coordinator of ex-AMA team Utrecht, Dutch
Refugee Council, 10 April 2009 and 11 January 2010 (with English trans.)

Exhibit 5

Statements of
, Red Cross Volunteer, 2 July 2010 and 21
November 2011 (with English trans.)

Exhibit 6

Statement of Dutch Refugee Council, dated 30 September 2010 (with English
trans.)

Exhibit 7

Letter from Red Cross, dated 25 October 2012 (with English trans.)

Domestic Proceedings
Request to Change

Civil Registry Record

Exhibit 8

Original request to amend registration, dated 12 July 2012 (Dutch only)

Exhibit 9

Letter from Municipality of Utrecht to
only)

, 9 August 2012 (Dutch

Exhibit 10

Letter from Municipality of Utrecht to
only)

, 15 August 2012 (Dutch

Exhibit 11

Letter from Municipality of Utrecht to
(Dutch only)

, 17 September 2012

Exhibit 12

Municipality of Utrecht, Head of Legal Matters Department, ref: b12.3062
letter nr. J12.621 146 (decision on administrative appeal), 22 November 2012
(with English trans.)

Exhibit 13

v. Executive of the Municipality of Utrecht, Court of Central
Netherlands, Utrecht Branch, Case UTR 13/11, Judgment of the single-judge
chamber of 12 April 2013 (English trans.)

Exhibit 14

v. Executive of the Municipality of Utrecht, Council of State
(Administrative Law Division), Judgment of 21 May 2014 (with English
trans.)
Dutch Citizenship Application

Exhibit 15

Municipality of Katwijk
Confirmation of option statement denied, 29 May 2015 (with English trans.).

36

Exhibit 16

Municipality of Katwijk, Commission of Written Appeals, Opinion from the
Commission of Written Appeals to the Mayor of the Municipality of Katwijk,
15 September 2015 (with English trans.).

Exhibit 17

v. Municipality of Katwijk, Written Appeal, 28 October 2015 (with
English trans.)

Exhibit 18

v. Municipality of Katwijk, Regional Court of The Hague, 3 March
2016, SGR 15/7710 (Dutch only)

Exhibit 19

v. Municipality of Katwijk, Council of State, Judgment of 2 November
2016 (Dutch only)

37