A nationality for Denny
Six years and counting. That is how long Denny has been stuck in “legal limbo". Ever since the day he was born, all of his mother’s efforts to secure a nationality for Denny have been futile. So have her subsequent attempts to get Denny recognised as stateless so that he can benefit from the very safeguards that are designed to deal with his situation – i.e. with the exceptional and regrettable case in which the regular operation of nationality rules fails to provide a child with a nationality…
Denny was born in the Netherlands: a country which has made strong international commitments to dealing with situations of statelessness, as a state party to both UN statelessness conventions, a wide array of human rights instruments and the 1997 European Convention on Nationality. The Dutch Nationality Act seeks to protect the right of every child to a nationality through the promulgation of certain safeguards, including a pathway to Dutch nationality for stateless children who are born on the territory of the Netherlands. So, while Denny was unlucky that he could not acquire a nationality from either his mother (a victim of human trafficking, brought from China to the Netherlands when still a minor) or his father (a man who has not recognised paternity, nor stayed in touch), he is surely fortunate to have been born in a place where children’s right to nationality is protected through dedicated safeguards. Yet he remains in legal limbo.
To benefit from a safeguard that operates in contexts where a child would otherwise be left stateless, it must first be apparent that the child in question is just that: stateless. In the Netherlands, the evidentiary burden imposed for establishing statelessness is generally very high – a situation compounded by the absence of a dedicated statelessness status determination authority and procedure. Denny’s mother has been unable to meet that burden on his behalf. Her numerous and documented attempts to have Denny recognised as a national of China all failed and even though this is the only other country with which he has any connection (through his mother’s origins), this was not considered enough to prove Denny’s statelessness. His registration in the Dutch population registry remains as a person of “unknown nationality”, but there is no provision in the Dutch nationality act for acquisition of nationality by a child of “unknown nationality” born in the country. Activating the safeguard to solve his statelessness relies entirely on Denny first being recognised as stateless.
“Denny lives with his mother in a restricted freedom centre 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 centres throughout the Netherlands are intended to serve as temporary, sober facilities, designed to encourage efforts by residents to facilitate their deportation, but Denny and his family have been there for three years.”
Extract from the case of Denny Zhao v. the Netherlands, communicated to the UN Human Rights Committee on 23 November 2016
Somewhat remarkably, when challenged in the national courts, the ineffectiveness of this bureaucratic quagmire was acknowledged and yet no remedy was offered. The Council of State, the highest court of appeal in the country, concluded that “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”.1 Denny’s case has now been communicated to the UN Human Rights Committee, with the Netherlands accused of violating the International Covenant on Civil and Political Rights, Article 24(3) child’s right to nationality, Article 2(2) obligation to take positive measures to give effect to the rights in the Covenant, and Article 2(3) right to an effective remedy.
As Denny approaches his seventh birthday, his situation remains precarious and the impact of his legal limbo on his wellbeing must be considered a growing cause for concern. Responding to domestic and international criticism for the gaps in its statelessness policy, the Netherlands is in the process of developing a law reform initiative that, if framed appropriately,2 could prevent cases such as Denny’s from arising in the future. However, the key lesson to take from Denny’s story is not about the shortcomings of the Dutch legal framework. Denny is not the only child and the Netherlands is not the only country in which safeguards do not always operate as they should. His case and others like it around the world demonstrate the importance of legislative safeguards against childhood statelessness being set in a broader framework which is sympathetic to the difficult circumstances in which statelessness can arise and proactively helps children, where necessary, to benefit from the relevant safeguards in practice, fulfilling their individual right to a nationality.
1 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.
2 A Draft Law introducing a statelessness determination procedure in the Netherlands was presented for public consultation on 28 September 2016. According to the analysis and comments offered by legal practitioners, UNHCR, the Netherlands Human Rights Institute and civil society, the Draft Law exhibited numerous problems, including some of a fundamental nature. See further https://www.internetconsultatie.nl/staatloosheid/reacties.