MARLOTTE VAN DAEL, ASKV REFUGEE SUPPORT AND CAIA VLIEKS, TILBURG UNIVERSITY
After being detained for the fifth time, Ivan from the former Soviet Union is out on the streets again. Or was this the sixth time in detention? He has lost count.
Ivan was born in what is now Uzbekistan. After he fled the country in 1990, he travelled through various countries before eventually arriving in the Netherlands in early 2000. The first time he was arrested, he was unable to show identification when he was walking down the street. This was the beginning of a vicious circle. The Dutch Repatriation and Departure Service (DT&V) has made numerous attempts to deport Ivan. He cooperated with the authorities by following the instruction of DT&V. He wrote to both the Russian and Uzbek embassies, but the status of these attempts remains unclear. After months of detention, returning Ivan to either country proved impossible. As Ivan himself describes “I am an ethnic Russian, born in Uzbekistan, from a country that is now 17 countries. I do not know who I am”. He is not allowed to stay legally in the Netherlands and build his future. Without recognition of his statelessness, Ivan’s freedom has been taken away too many times for fruitless attempts to deport him.
Individual freedom is, at the same time, one of the foundations of a state under the rule of law. That someone cannot be deprived of his or her freedom for no reason is a clearly follows from that. This is also enshrined in Article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) by means of a right to freedom and security. However, as the above case shows, persons are still placed in detention in the Netherlands even where there is no prospect of removal. Typically, the situation of stateless persons entails that no country feels responsible for the person concerned or is willing to take him or her back, precisely because they are not considered a national by any country. Only in exceptional cases, a country of earlier legal residence might be willing to accept such a person, but in most instances this will not be the case. If the country where the stateless person finds him/herself in then also does not take responsibility, that person faces a life in limbo.
ASKV Refugee Support and the European Network on Statelessness (ENS) have studied the situation in the Netherlands with regard to the detention of stateless persons in the context of ENS’s research project Protecting Stateless Persons from Arbitrary Detention. Despite some positive policy developments in the Netherlands in recent years, the study demonstrates that there are still a number of significant concerns. An important point in this regard is that the Dutch authorities do not recognise that statelessness usually means that return is impossible, because this is inherent to such status. This is significant given that an individual should not be placed in detention if there is no prospect of removal. This implies that it is necessary to establish whether a person is stateless before placing him or her in detention.
At the moment, the Netherlands has no such procedure for determining statelessness, but there are plans to introduce it. A functioning statelessness determination procedure could play an important role in the prevention of (arbitrary) detention of stateless persons who cannot be expelled. The ASKV/ENS study on protecting stateless persons from arbitrary detention in the Netherlands makes a number of recommendations for the identification of stateless persons, but also draws attention to alternatives to detention and the worrying living conditions in detention centres, such as lack of access to employment and education.
ENS’s research on the detention of stateless persons in six European countries reveals that stateless persons face long periods of detention without prospect of removal. ENS’s new report Protecting Stateless Persons from Arbitrary Detention: An Agenda for Change and accompanying statement, co-signed by the authors of this blog and open for endorsement as part of the ENS #LockedInLimbo campaign, calls upon European states to take urgent action to end the arbitrary detention of stateless persons and those at risk of statelessness. In particular, the report makes five clear recommendations for reform of legislation, policies and practices so that they can be brought into line with international human rights standards. States can end the arbitrary detention of stateless persons in Europe, by:
1. Implementing a range of alternatives to detention in line with international standards and good practice, improving guidance to ensure that statelessness is considered as a relevant factor in all decisions to detain, and that decisions adhere to international standards on the prohibition of arbitrary detention.
2. Developing Statelessness Determination Procedures that meet international standards and good practice, are fully accessible to all those subject to their jurisdiction (including in detention), and which enable states to identify and grant protection to those recognised as stateless.
3. Putting in place robust mechanisms to protect individuals’ rights, respond to vulnerabilities, and exercise the duty to not discriminate, including through prohibiting the detention of children and combatting gender and disability related discrimination.
4. Facilitating integration in the community through providing protection from re-detention, access to basic rights and freedoms for those awaiting determination of their status, and regularisation and a facilitated route to naturalisation for those recognised as stateless.
5. Improving recording and reporting on statelessness, building accountability into the operation of immigration detention systems, publishing disaggregated statistics, and facilitating access for independent monitoring bodies, lawyers and community members.
It is clear that the Netherlands still has a number of steps to take if it is to end the arbitrary detention of stateless persons. For instance, statelessness needs to be taken into account as a relevant factor in all decisions to detain. Currently, this is not taken into account, which is one of the main reasons that stateless persons like Ivan repeatedly end up in immigration detention without prospect of removal. Furthermore, the proposal for a statelessness determination procedure in the Netherlands – which would be very helpful in combatting arbitrary detention of stateless persons – is full of major drawbacks. One of the most worrying weaknesses in the current legislative proposal is the lack of granting legal residence after statelessness is established. Also, the government is not planning to issue an identity document after determination of statelessness. This hinders integration and access to basic services, and makes stateless persons more vulnerable for re-detention.
Ivan, and other stateless persons that find themselves in a similar situation in the Netherlands, have the right to an accessible, well-functioning and fair determination procedure. After their statelessness has been established, they should be entitled to legal residence and facilitated naturalisation. Only in this way, will they have the opportunity to end their life in limbo and work towards a brighter future.
This blog also appeared (in Dutch) on NederlandRechtsstaat.nl.