Laura Bingham (Open Society Justice Initiative) and Jelle Klaas (Public Interest Litigation Project of the International Commission of Jurists). This article was originally published on the blog of the European Network on Statelessness and we are reposting with permission of the authors.
Ten years without protection
Denny Zhao was born in Utrecht on 18th February 2010, which means his 11th birthday is right around the corner. He has never left the Netherlands, but also never had a secure legal status or residency permit, and he has barely seen the outside of a harsh restricted freedom center for refused asylum seekers awaiting deportation, where he’s lived with his family for the past seven years.
The Netherlands had plenty of chances over the past decade to correct this treacherous state of limbo and honor the child’s human rights. It’s a familiar story in wealthy European and North American nations that have constructed fortresses out of their immigration systems, inside their territories and at borders.
Like 6,303 other children under age 14 in the Netherlands (as of 2019), Denny’s situation originates with his inability to prove a negative – that he holds no nationality – and a corresponding entry in the country’s civil registration records: “unknown nationality.”
This registration has impacted Denny since birth and, as reported to the UN Human Rights Committee in his case, a change to the entry would be the first of too many complex steps toward acquiring a nationality; something the International Covenant on Civil and Political Rights (ICCPR) requires signatory states to provide from birthwhen the child would otherwise be stateless. The Human Rights Committee oversees the implementation of the Covenant, but until now it has never considered a case under Article 24(3) on children’s right to a nationality.
Denny’s case presented an obvious question: how can children enjoy this protection if states, by will or by omission, make it impossible to prove that someone is “otherwise stateless” and in need of a safeguard? Dutch law also requires legal residency in order for stateless children born on the territory to access nationality, another insurmountable hurdle for many people.
Given what’s at stake, it ought to be simple enough to amend a child’s registration to “stateless” in order to afford the protections that the Netherlands has agreed to provide. These many thousands of cases are anything but simple, however, due to the Netherlands’ unwillingness, to date, to adopt a status determination procedure to identify stateless people, stemming from political motivations welded to the dehumanisation of migrants.
The Netherlands may be an outlier in the sheer number of people registered for prolonged periods as holding “unknown nationality,” but it is not an outlier in failing to set up a protection-oriented procedure to correct this gap. Just twelve countries in Europe have established a status determination procedure in law leading to a protection status, in spite of the fact that all European states – and 173 states worldwide – are parties to the ICCPR.
The Human Rights Committee’s decision
Last month, the Committee, whose members hail from all over the world, intervened, and held the Netherlands’ actions violated Denny’s right to a nationality.
With its decision in Zhao v. the Netherlands, the Committee joins other human rights bodies, notably the African Committee on the Rights and Welfare of the Child and the Inter-American Court of Human Rights, in establishing a precedent that forecloses many common “technical” exceptions erected to make it harder for children at risk of statelessness to enjoy the right to nationality. The decision states that the protections in Article 24(3) apply equally to all children in the Netherlands, regardless of their residency or legal status or that of their parents. Considering the many obstacles presented in this case – the lack of a residency permit, the inability to alter his registration to “stateless,” the difficulty of obtaining evidence, to name a few – the Committee’s decision is all the more welcome for its foregrounding of the core protections that must apply, however complex the web in which a child is entangled.
In reaching this result, the Committee recognised that the problem is structural, and so it called on the Netherlands to establish a procedure that would guarantee an effective remedy so that similarly situated children do not suffer the same fate, rather than simply recommending a solution for Denny alone.
This landmark outcome also reflects more than a decade of research and advocacy by a broad range of actors concerned that the protections in law to prevent and reduce statelessness and vindicate the right to a nationality were not translating into material improvements on the ground. The submission relied on a 2011 UNHCR mapping study on statelessness in the Netherlands, a years-long effort by the UN High Commissioner for Refugees (UNHCR) that led to the authoritative Handbook on Protection of Stateless Persons cited repeatedly in the decision, and careful documentation of statelessness in the Netherlands and regionally by the European Network on Statelessness and its members.
Strategic litigation
The Committee’s decision in Denny’s case can be seen as the legal capstone on ten years of strategic litigation and campaigning by a (inter)national team of lawyers, legal scholars, experts, activists and children’s rights, human rights and statelessness NGOs.
The campaign started when UNHCR published its 2011 report on statelessness in the Netherlands, showing that only 2,000 people in the Netherlands were registered as stateless (and could make use of the Dutch legislation regarding statelessness), while a staggering 83,000 people were registered as having an ‘unknown nationality.’
Denny’s case was one of the cases selected in 2011 by a children’s rights NGO, the Dutch Refugee Council and Dutch lawyers to try to advocate for children with an ‘unknown nationality’ registration to have access to a nationality, to more social-economic human rights, and to humane living conditions.
The case was lost in 2014 at the highest domestic court, but the court did remark in its verdict that the Dutch situation was in violation of its international commitments to address and prevent statelessness, because of the lack of a statelessness determination procedure. It was up to the government to change that, the court said.
Shortly before that verdict, the Dutch Advisory Committee on Migration Affairs, had also written a report, urging the government to act and install a procedure that would be in accordance with international human right standards.
Because of the clear facts in Denny’s case and the failure by the government to make a new law, Denny’s case was brought to the Human Right Committee by strategic litigators from OSJI and PILP-NJCM in 2016. They were supported by (inter)national NGOs and experts and the case was meant to be both about Denny and at the same time about all other vulnerable people in a similar situation.
When the case was launched, Dutch parliamentarians asked the government for a response.
The government said they aimed to draft and introduce a new law soon and promised parliament it would be notified of the decision by the Committee.
What happens now?
The Dutch government has had the obligation to establish a solid statelessness determination procedure since ratifying the 1954 Convention relating to the Status of Stateless Persons in 1962. The government was alerted to this gap in 2011 by UNHCR, in 2013 by the Dutch Advisory Committee, and in 2014 by the high administrative court, not to mention countless letters, campaigns and calls to action by civil society.
Nearly seven years have passed since the government committed to amending its legal framework. As other human rights bodies have observed, an inordinate delay cannot be consistent with the best interests of children, nor is it in the interests of any of the thousands of stateless and at-risk individuals left in limbo.
However, in December 2020, the government sent a new draft bill to parliament. The bill has serious shortcomings. It will not provide a solution for children in Denny’s situation. The bill proposes a waiting period of 10 years for children who were born in the Netherlands to apply for Dutch nationality. It also fails to provide for a permit to stay linked to statelessness status determination.
Needless hurdles to real protection such as these run contrary to the Human Rights Committee’s decision, and the Committee has clearly shown how to steer away from such harmful measures.
Over the coming months, in the run up to the debate of the new bill in parliament, the same wide coalition of advocates, service providers, experts and so many others will work to help parliamentarians understand and support the conclusions of the Committee.
In doing so, we hope the Dutch parliament will ensure that the new Dutch law will finally close this chapter and bring relief, free exercise of human rights, and a high standard of protection to stateless people in the Netherlands.