Three years since it was published by the Dutch Government in 2016, a legislative proposal for a statelessness determination procedure in the Netherlands is long overdue for discussion in Parliament. Meanwhile, local municipalities are responsible for registering people who are legally resident in their population registers, which includes registering their nationality. Statelessness determination is complex and municipal rules set high evidential thresholds, which means that many people, including children, are registered as having ‘unknown nationality’.
The Index update shows little change in the Netherlands over the course of 2018, as proposed Bills introducing a statelessness determination procedure and amending safeguards in the citizenship law are yet to progress through parliament, leaving continuing gaps on both protection and prevention of statelessness.
Positively, the Netherlands is party to most 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.
- 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 actions of their 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.
- Dutch law distinguishes between 'strong' and 'weak' adoption. An adoption is 'strong' if the legal ties between the child and the birth parents are broken, or 'weak' if they remain. In the latter case, the adopted child becomes a citizen when acknowledged by a Dutch judge. Although this process is not automatic and there are conditions, there are no reports of any risk of statelessness during the procedure.
- 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. So ultimately birth registration is possible, even in absence of legal residence and ID documents. 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.
- NGOs and lawyers have noted that there may be barriers or complications relating 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 population register (BRP) entry for someone legally residing in the country to the immigration authorities, but there are no mandatory reporting requirements relating to people who are undocumented.
- 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, due to the registration system being inadequate for these communities.
- A legislative proposal currently before parliament proposes to introduce an SDP, remove reservations from the statelessness conventions, and remove the obligation on stateless children to reside legally in the country in order to opt for Dutch citizenship (although new requirements are set in place (‘stable principal residence’) that are considered to be discriminatory because of the requirements set on the parent of the undocumented child).
- Provisions on deprivation and loss of nationality are established in Dutch law.
- There are safeguards against statelessness in all cases of withdrawal except for where citizenship has been acquired through fraud.
- Automatic loss of Dutch nationality is never possible if it results in statelessness.
- The competent authority is the Minister of Justice and Security and there is a right to appeal and to legal aid to challenge the decision.