Netherlands

Positively, the Netherlands is party to all relevant international and regional instruments, but there are some gaps in its domestic legal framework to protect stateless people and prevent statelessness. The definition of a stateless person in Dutch law is narrower than the 1954 Convention, and without a statelessness determination procedure (SDP) or status, there is limited protection for stateless people in the country. Although a legislative procedure for an SDP is planned, currently statelessness can only be identified through other administrative procedures. If identified, legally residing stateless people may be granted a travel document and access to citizenship, but there is no route to protection for those without legal residence. Although the law contains some protections and safeguards against arbitrary detention, stateless people without legal residence are at risk of detention.

There are safeguards in Dutch nationality law to prevent statelessness in the case of foundlings and adopted children. However, the safeguard for children born stateless in the Netherlands is not automatic, requiring registration as stateless and three years’ legal residence, before a child can acquire citizenship. Children born to unmarried Dutch fathers abroad are also disadvantaged. The law provides for universal, immediate birth registration, but in practice, undocumented parents may struggle to meet documentation requirements and the procedure for late birth registration is very complex.

Last updated: 
Dec 2017
Next scheduled update: 
Dec 2018
Country expert(s): 

Marlotte van Dael, ASKV

ASSESSMENT KEY

++POSITIVE
+ SOMEWHAT POSITIVE
+-POSITIVE and NEGATIVE
- SOMEWHAT NEGATIVE
--NEGATIVE

ADDITIONAL INFO

-NORMS & GOOD PRACTICE

 

International and Regional Instruments

Assesses whether countries are state party to the relevant international and regional instruments, including whether reservations have an impact on statelessness, and whether instruments are incorporated into domestic law. The four core statelessness treaties (1954 Convention relating to the Status of Stateless Persons; 1961 Convention on the Reduction of Statelessness; European Convention on Nationality; Council of Europe Convention on the Avoidance of Statelessness in Relation to State Succession) carry more weight than other relevant human rights instruments in the assessment.

The Netherlands has a strong record on accession to the relevant human rights instruments. It is party to all four of the core statelessness conventions, although it does retain reservations to the 1954 Convention, it has committed to removing these. It is state party to all other relevant regional and international treaties. Its reservations to the Convention on the Rights of Child do not directly impact on statelessness, but may impact on stateless children in the country.

  • The Netherlands is party to the 1954 Convention and it has direct effect. It retains reservations to Articles 8 and 26, though it has committed to removing them.
  • The Netherlands is party to the 1961 Convention with no reservations and it has direct effect.
  • The Netherlands is party to all relevant international and regional conventions, though it retains some reservations.
  • Its reservation to Article 7 European Convention on Nationality impacts on childhood statelessness.
  • Its reservations to the Convention on the Rights of the Child, including in relation to the right to legal representation, age of majority, and access to social security, do not directly affect statelessness but may affect stateless children in The Netherlands.
  • Its reservations to other international human rights instruments do not have a direct or negative impact on statelessness or stateless people in The Netherlands.
  • The Netherlands is bound by the EU Returns Directive.

Statelessness Population Data

Examines the availability and sources of disaggregated population data on statelessness. Provides recent figures and assesses reliability of measures countries have in place to count stateless persons, including in the census, population registries and migration databases. Notes whether statelessness has been mapped in the country and whether there are sufficient measures in place to count stateless persons in detention.

The Dutch national statistical database contains some data on the stateless population that is disaggregated, but due to inconsistencies in how nationality and statelessness is recorded and the lack of an effective mechanism to identify stateless people in the country, the size of the stateless population is very likely to be underreported. UNHCR reports government figures for the stateless population in the Netherlands, estimating there to be some ten thousand stateless people in the country. Mapping studies of statelessness have been undertaken by NGOs and UNHCR.

  • There are inconsistencies in how nationality and statelessness are recorded in the Dutch national statistical database (StatLine). The two categories 'stateless' and 'nationality unknown' are sometimes combined and sometimes reported on separately. Data in StatLine is disaggregated by age and sex. Figures from 2014 record 1978 people as ‘stateless’. Figures from August 2016, record 74,055 people as having ‘no nationality or unknown nationality’. Government figures on registrations in the Dutch Population Register (Basisregistratie Personen (BRP)) record 4,000 registered stateless people in the country.
  • UNHCR reports government figures for the stateless population and estimates there to be around 10,000 stateless people in the country.
  • Asylum statistics provide data on applications by stateless people with some disaggregation. In 2014, 12% of total applications were made by stateless asylum seekers (mainly Palestinians from Syria). In 2016, 5% of total asylum requests were from stateless people. The total number of applications in 2016 was 31,642, of which 1,471 were made by stateless people.
  • Various surveys and mapping studies of statelessness have been carried out by NGOs and UNHCR.
  • Previously unpublished figures from the Central Office for Statistics (Centraal Bureau voor de Statistiek) showing an increase in the number of people registered as stateless in the Netherlands from 2,005 in January 2012 to 12,477 in Janury 2017 were reported by the Dutch media in October 2017. 
  • The lack of a stateless determination procedure (SDP) means that it’s unclear who is included in the reported numbers, and the numbers are likely to be underreported.
  • No specific data is published on the number of stateless people in detention, but information is published on the number of people in detention with 'unknown nationality'. For example, 2.8% of the 2,570  people who entered detention in 2016 were recorded as having 'unknown nationality'. 

Statelessness Determination and Status

Identifies whether countries have a dedicated statelessness determination (SDP) procedure; or, if not, whether there are other procedures or mechanisms by which statelessness can be identified and status determined. Countries are subdivided in four groups to enable comparison between those with an SDP in place (Group 1), those with other administrative procedures (Group 2), those with a status but no clear mechanism (Group 3), and those without any status or mechanism (Group 4). Where a procedure exists, this is assessed against good practice, and the rights granted to recognised stateless people are examined.

There is no dedicated statelessness determination procedure (SDP) in the Netherlands, although the parliament is due to consider legislation in this area. Currently, there are two possible administrative procedures for a person to register as stateless depending on whether they are legally residing in the country, so it falls within Group 2. Both have significant gaps in terms of access and flaws in the assessment process, and neither confer 1954 Convention rights and protections. Identification as a stateless person does not lead to permission to stay, though a legally residing stateless person who registers may have access to a travel document and a facilitated route to naturalisation. The definition of a stateless person in Dutch law is narrower than the 1954 Convention.

  • There is no dedicated SDP in the Netherlands. Although statelessness can be identified through other administrative procedures, there are significant gaps in these procedures.
  • A legislative procedure for an SDP is planned and due to be discussed in Parliament, but there are concerns about the draft that require addressing.
  • Although there is no dedicated SDP in the Netherlands, there are other administrative procedures through which it is possible to identify statelessness.
  • Basisregistratie Personen (BRP) – Dutch Population Register: people staying legally in the Netherlands can be registered as stateless based on identity documents evidencing statelessness or a statement by the Minister of Security and Justice at the Dutch immigration Service; however, there are challenges with how this is implemented in practice, leading to significant protection gaps. Registration as stateless in the BRP provides a stateless person with some legal rights (for example, to a travel document, and accelerated access to Dutch citizenship after three years' legal stay at reduced cost).
  • Another procedure through which statelessness may be identified is registration in the Immigration and Naturalisation Service (IND) Basisvoorziening Vreemdelingen (BVV) (Database on Foreigners), which allows stateless people without legal residence to be registered, though registration does not lead to any legal rights.
  • The Immigration and Naturalisation Service (IND) can register someone as stateless in the Database on Foreigners (BVV) or refer them to the Population Register (BRP), but there are no obligations in law on the authorities to consider a claim for statelessness made within another procedure and there is no dedicated protection status. An assessment of statelessness is not made during the asylum procedure, though the IND has a responsibility to assess the birth date and nationality as best they can when deciding on admissibility of a claim. A referral mechanism between procedures is envisioned in the new SDP legislation currently before parliament.
  • The rules for registration of nationality in the BVV are not regulated by law, but there is an internal administrative protocol describing how to use a wide range of evidence (for example, witness statements or language tests).
  • There are no clear instructions on how to be identified as stateless. A legally residing stateless person can ask their municipality to register them as stateless if they have relevant documents, but municipalities implement the procedure differently. Examination of the evidence is sometimes conducted locally and sometimes centrally by the IND. There is provision in law for the IND and municipalities to cooperate, but this is not consistent.
  • There is no standard training for officials on statelessness, but some state officials have attended ad hoc trainings.
  • The definition of a stateless person in the Netherlands is slightly narrower than the 1954 Convention: a stateless person is someone not considered a national by any state ‘under its legislation’ rather than ‘under the operation of its law’.
  • The burden of proof in the process to register as a stateless person in the BRP lies fully with the applicant.
  • The standard of proof is higher than in asylum procedures: the applicant must provide documents to prove statelessness.
  • The municipality can request information from the IND, but it has no obligation to do so.
  • There is no clear guidance for the process of registering as stateless. Instructions on evidence do not differentiate between stateless people and other non-nationals, and their specific circumstances are not considered.
  • There is no fee for the procedure of registering as a stateless person in the BRP. Free legal aid is available to challenge a decision in the court where the applicant cannot meet legal costs.
  • There is no interview, and no interpreter is provided, though the applicant can bring someone with them to assist with language barriers.
  • Decisions are given in writing and with reasons in line with general rules for administrative procedures.
  • Identification and registration as a stateless person does not lead to permission to stay nor an official legal status, since statelessness is only an administrative category and only people who are legally residing can register as stateless in the BRP.
  • Registration as a stateless person in the BRP gives the right to a travel document and accelerated access to Dutch citizenship (following three years' legal stay and at a reduced cost). 
  • Stateless people without legal residence do not have a right to an identity or travel document.

Detention

Analyses law, policy and practice relating to immigration detention generally, but focusing on protections in place to prevent the arbitrary detention of stateless people during removal and deportation procedures. Subthemes examine areas such as detention decision-making, how alternatives to detention are legislated for and implemented, procedural safeguards such as time limits, judicial oversight and effective remedies, as well as protections on release.

Dutch law provides for some procedural safeguards and limited protections against arbitrary detention, but there are significant gaps. Although it is set in law that detention should only be a last resort and there must be a real prospect of removal, statelessness is not considered a juridically relevant fact in decisions to detain and a country of removal is not required to be set prior to detention. Alternatives to detention exist in practice though not in law, and reports suggest these are not fully considered prior to detaining. There is a time limit, a right to legal aid, judicial oversight, and rules governing the redocumentation process, but there are barriers to accessing legal assistance in practice and no legal status is granted on release, putting people at risk of immediate re-detention.

  • Powers for immigration detention are provided for in law, but the grounds go beyond Art 5(1)(f) EHRC. Grounds for detention include: danger to public order or national security; irregular entry and avoiding supervision; disregarding obligation to depart; not leaving the Netherlands after being ordered to; no or insufficient cooperation with establishing identity and nationality; presenting wrong or contradicting information; destruction of documentation; presenting fraudulent documentation; having been declared an 'undesirable foreigner'; ignoring obligations when crossing the border; possible serious criminal past; handover to another country; and need for additional inquiry into a person's identity.
  • Although there is no need to identify a proposed country for removal prior to the decision to detain, detention is only permitted when a real prospect of removal exists.
  • Statelessness is not considered a juridically relevant fact and there is no statelessness determination procedure (SDP) to refer into.
  • Stateless people are detained in practice, but this must be inferred from general statistics as there is no SDP and data is not fully reliable. The use of detention has reduced in recent years: in 2011, 5,844 people entered detention for the purpose of deportation. In 2015, this had reduced to 1,852 people, but in 2016 it increased again to 2,230 people.
  • The law provides for detention to be used only as a last resort.
  • New draft legislation currently before parliament would require greater attention to be given to vulnerability but it is not yet clear what this would mean in practice.
  • There are no specific measures in place to protect stateless people who have a criminal conviction from arbitrary detention.
  • It is set out in law that detention should be a measure of last resort. An 'investigative duty' on the authorities to consider alternatives to detention was included in new draft legislation laid before parliament but there is no further information about what this might entail in practice.
  • A range of alternatives to detention exist in practice though not in law: notice to leave the Netherlands, a duty to report combined with intensive case management, bail to prevent absconding, confiscating documents combined with reporting, freedom restricting measures, and an airport lounge alternative for departures. These are not subject to statutory time limit nor periodic review.
  • In practice, reports suggest that detention is currently not only used as a last resort.
  • The maximum period for detention set out in law is 18 months: six months plus 12 months extension.
  • The law provides that individuals must be informed in writing of the reasons for detention, as well as how to challenge the legality of their detention and access free legal aid. 
  • People may be held in pre-detention at the police station for a few days, before being transferred to a detention centre where the removal process is initiated, and the initial decision to detain is then submitted to a court by an assistant public prosecutor (Hulpofficier van Justitie) within four weeks (in practice 10-12 days). The court must make a decision within two weeks, which can be appealed. After six months, another judicial review is mandatory if the detention is to be extended up to a maximum of 12 more months. The Return and Departure Service (DT&V) is key to the decision to extend detention, which is partially based on their advice, meaning in practice it has significant decision-making power in the detention and return process. Detainees can appeal the decision to extend detention and can ask a judge to re-examine the lawfulness of their detention at any time, for example, to check the continued prospect of deportation (but these decisions cannot be appealed).
  • There are rules and guidelines for the process of re-documentation, which involves a return interview conducted by the authorities and visits to the appropriate embassy arranged and accompanied by an official, but the burden of proof lies on the applicant and is stringent. The process is lengthy and in many cases applicants are released after the maximum detention time limit and then re-detained.
  • Although free legal aid is available, barriers to access have been reported in practice, including a lack of interpreters and inability to contact lawyers from within detention centres.
  • There is no protection from re-detention on release, and immediate re-detention is possible.
  • No legal status is granted on release and people do not have access to any rights, including social services, accommodation, welfare, education, healthcare, or work.
  • Re-detention regularly occurs, and cumulative time spent in detention is not counted towards the maximum time limit in law, so in practice, detention can be indefinite.
  • One legal possibility where return has proven impossible is for a stateless person to apply for a “no-fault” residence permit (buitenschuldvergunning), valid for a year and extendable annually. However, the approval rate for this procedure is low, as the burden of proof is on the applicant to prove beyond doubt that return to a former country of habitual residence is impossible and they are not to blame for this.

Prevention and Reduction

Assesses the adequacy of safeguards in nationality laws to prevent and reduce statelessness, including protections for otherwise stateless children born on the territory or to nationals abroad, foundlings and adopted children. Examines law, policy and practice on birth registration, including access to late birth registration, and measures taken by states to promote birth registration among groups at high risk of remaining unregistered.

Full safeguards are in place in the Netherlands to prevent statelessness in the case of foundlings and adopted children, but there are gaps for other stateless children born on the territory or to Dutch nationals abroad. Law and practice in relation to birth registration is also problematic, with strict deadlines, documentation requirements and a complex late birth registration procedure. The provision in Dutch nationality law for children born on the territory who would otherwise be stateless is not automatic and requires continuous, legal, permanent residence of at least three years, as well as proof of the child’s statelessness. Children born to unmarried Dutch fathers abroad are also disadvantaged by a requirement that the father officially acknowledges paternity before the child is seven.

  • There is a provision in law for otherwise stateless children born in the Netherlands to acquire nationality, but it is not automatic. A written 'option statement' must be completed and submitted to the Immigration and Naturalisation Service for approval and the child must have at least three years' continuous, legal residence in the country.
  • The child's statelessness must be proven, and they must be registered as stateless before acquiring nationality. The burden of proof lies on the applicant.
  • There is no age limit for a stateless child born on the territory to acquire nationality.
  • Children who are born in the Netherlands and have residence as beneficiaries of international protection, Dutch birth certificates or birth certificates from signatories to the Apostille Convention are exempt from the requirement to provide passports and some other documentation in the naturalisation process.
  • New draft legislation before parliament proposes to amend the safeguard for stateless children born on the territory, introducing some positive changes (such as revoking the residence requirement), but the proposals are problematic as they still make a child's right to acquire nationality conditional on the status or actions of its parents. 
  • There is a provision in law to grant citizenship automatically to foundlings. There is no explicit age limit, but the legislation uses terms such as 'young age' and 'child', which are interpreted to mean under 18 years-old.
  • The law protects a foundling from statelessness if parents are later identified.
  • The law prevents any loss of Dutch nationality as a result of adoption by foreign parent/s leading to statelessness and enables a Dutch child adopted by foreign parent/s to retain Dutch nationality in certain circumstances.
  • There is provision in law for a child adopted by Dutch parent/s to acquire Dutch nationality.
  • Children with parents of Dutch nationality have access to nationality by descent, but there are discriminatory elements to the provision. In the case of a Dutch father and a foreign mother, the father must officially acknowledge the child before they reach seven years-old if they are not married. If the Dutch father acknowledges the child at or after the age of seven, they must present DNA evidence of paternity.
  • The law provides for registration of all births on the territory to take place immediately (legally, within three days), but an identification document must be provided by the parents. If the parents do not have legal stay, there are various options set out as to who can certify the birth. If the child is born in hospital, a medical statement is also required with the date and time of birth and sex of the child. For parents who are not legal residents to be included on the birth certificate they must present a legalised birth certificate; statement of non-marriage or copy of the marriage certificate; and an identity document.
  • There are credible reports from NGOs and lawyers that there are barriers to birth registration for undocumented parents who either cannot meet the documentation requirements or are afraid to approach the authorities due to their irregular status.
  • The municipality may pass on information about any change to a BRP registration to the IND.
  • The deadline for birth registration is three days (which can be extended by two working days if birth takes place on a holiday or weekend).
  • Late registration is possible in law, but there are practical barriers. It is a long process as proof of where the birth took place is required and a DNA test may be necessary. It is often necessary to go to court, which is expensive and takes time. The public prosecutor will be informed of any late registration and parents may be fined.
  • There is no evidence of any proactive government campaigns to promote birth registration.
  • There are credible reports of low rates of birth registration among Roma communities in the Netherlands as well as survivors of human trafficking and undocumented migrants.

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