IMPLEMENTING THE RIGHT OF OPTION FOR STATELESS CHILDREN IN THE NETHERLANDS A-legality in Article 6(1b) of the Dutch Nationality Act
June 2016
University of Amsterdam Master’s thesis in Sociology Migration and Ethnic Studies (MES) First Supervisor: Dr. Simona Vezzoli Second Supervisor: Prof. Dr. Hein de Haas
Iris Klaver [email protected] 11094699 ABSTRACT
The topic of childhood statelessness and how to prevent it has become increasingly important on the political agenda. Nevertheless, no information is available on the implementation and outcome of Article 6(1b) of the Dutch Nationality Act, which enables stateless born children to opt for the Dutch nationality. This research is therefore an implementation analysis of the Article. In order to gain insights from the perspective of the implementation agents themselves, civil servants of various municipalities are interviewed. Their experience shows that a lot is happening in practice that is not covered by law. These practices can be considered ‘a-legal’: neither illegal nor legal but still undefined by law. The different actors involved have colliding interests in this a-legality, and the process is further complicated by the lack of an official determination procedure for statelessness. Without rules to follow, the civil servants are faced with many uncertainties in which they have no choice but to rely upon their own subjectivity. This in turn results in inconsistent implementation that negatively affects the beneficiaries, for the stateless children are treated unequal. This research contributes to the field of policy implementation as it reveals the presence of a-legality in the implementation process. It furthermore proves that the lack of a determination procedure for statelessness complicates other procedures as well. What is more is that the Netherlands does not comply with international treaties concerning the protection of stateless children. Only by reducing this grey area of a-legality the Netherlands will be able to live up to these international standards.
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TABLE OF CONTENTS
Introduction ...... 4 Theoretical Framework ...... 7 Policy Implementation ...... 7 Discretionary Power ...... 8 Statelessness versus Citizenship: Bauböck’s dimensions ...... 9 Statelessness in the Netherlands ...... 12 A Cultural Conceptualisation of Dutch Citizenship ...... 12 Dutch nationality law explained ...... 13 Article 6(1b) DNA ...... 16 Methodology and methods ...... 18 Results ...... 20 Practice versus formal procedures ...... 20 Bridging practice with formal procedures ...... 23 Keeping the borders in place ...... 24 Political pressure: ambiguous measures ...... 25 A-legality ...... 28 Uncertainty and Subjectivity ...... 29 Uncertainty ...... 29 Subjectivity ...... 31 Inconsistent Implementation ...... 32 Recommendations ...... 36 Conclusions and Discussion ...... 37 Bibliography ...... 40 Appendix ...... 44 I – Overview of respondents ...... 44 II – Overview of cases per municipality ...... 45 III – Interview Guide Civil Servants ...... 46
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INTRODUCTION
The prevention and reduction of childhood statelessness is one of the top priorities of the UNHCR’s Campaign to End Statelessness by 2024 (UNHCR, 2014). Under international law, a stateless person is defined as someone ‘who is not considered as a national by any state under the operation of its law’ (United Nations Convention relating to the Status of Stateless Persons, Article 1, p.1). Nevertheless, the exact meaning of statelessness and how to define it still is an unsettled and ongoing topic of discussion among both scholars and politicians (Van Waas, 2008), which becomes all the more apparent by the lack of an official determination procedure for statelessness in the Netherlands. The State Secretary of Security and Justice has however recognised the need for such a determination procedure and has promised to take the first steps towards its realisation in the near future.1 Contrary to the definition of statelessness its consequences are not difficult to recognise. Stateless people are exposed to extreme forms of exclusion: they cannot get an ID card or passport and other documentation which makes it impossible to rent an apartment, to have access to education, to open a bank account, to be entitled to healthcare, to get married, and so on (UNHCR, 2007). The UNHCR believes the number of this excluded population to be close to 12 million worldwide (UNHCR, 2011). As for the Netherlands, 2.005 persons were registered as ‘stateless’ and 88.313 persons were registered as of ‘nationality unknown’ in January 2012 (ACVZ, 2013). Among those of ‘nationality unknown’ it is expected that there are many actual stateless as well (UNHCR, 2011). The lack of an official determination procedure for statelessness however makes this difficult to determine.
As a member state to several international treaties that aim to prevent and reduce statelessness, the Netherlands has made adjustments in its nationality law that intend to reduce these numbers by facilitating naturalisation procedures for stateless persons. Article 6(1b) of the Dutch Nationality Act (Rijkswet op het Nederlanderschap) is one of such facilitated naturalisation procedures. Specifically aimed at stateless born children in the Netherlands, this right of option gives them the opportunity to opt for the Dutch nationality after three years of
1 Letter from the State Secretary for Security and Justice, Mr. F. Teeven, to the ACVZ. ‘First response of the cabinet to the ACVZ’s recommendations concerning statelessness’ (‘eerste reactie van het kabinet op het advies van de ACVZ inzake staatloosheid’), of September 10 2014, 548084.
4 legal residence instead of five (which is the requirement for other refugees).2 It does however require official registration of statelessness, meaning that only those children registered as ‘stateless’ (and not, for instance as ‘nationality unknown’) in the BRP database (Basisregistratie Personen) are considered to be stateless for the Dutch Nationality Act.3 Who decides upon these requests? In the Netherlands, it is the mayor who is vested with the final power to grant the Dutch nationality through the right of option (Swider, 2014). Stateless children who wish to apply for the right of option therefore have to submit an application at their municipality. The Manual for the Implementation of the Dutch Nationality Act (hereafter: the Manual) gives the municipalities some further guidance in how to assess requests through Article 6(1b).
The number of applications however seems relatively rare4 as compared to applications for other option Articles, and no information is available about how exactly the requests for Article 6(1b) DNA are assessed within the various municipalities. There still remains some ambiguity about to what level the municipalities are free to make decisions independent from national-levelled governmental authorities, and some are of the opinion that the applications should be assessed less narrow in general (De Groot, 2006). It is moreover argued that the BRP database, on which the Dutch Nationality Act bases its assessments, is simply a register and that the organs of the state would therefore be free to deviate from its data whenever they think it right (Swider, 2014). All of these questions become even the more urgent when considering that the State Secretary of Security and Justice has announced a proposal for adjustments to the Article, which would allow stateless children without a legal residence permit to apply for the Dutch nationality.5 How can such a proposal be done without seeing the full picture of the implementation process of Article 6(1b)? There clearly seem to be some
2 Rijkswet op het Nederlanderschap, Hoofdstuk 3, Verkrijging van het Nederlanderschap door Optie. Retrieved on December 15, 2015 on: http://wetten.overheid.nl/BWBR0003738/2014-04-01#Hoofdstuk3.
3 Manual for the Application of the Dutch Nationality Act 2003 1-1-f. Retrieved on February 17th, 2016 on: http://wetten.overheid.nl/BWBW33099/2016-01-07#Circulaire.divisie1_Circulaire.divisie1.1.f.
4 For the period of 2005 to 2009, an average of 25 persons per year have been documented. Source: Trendrapportage Naturalizatie VI. Aanvragen en verkrijgen van het Nederlanderschap door naturalisatie en optie. Ontwikkelingen in de periode 2005-2009. Immigratie- en Naturalisatiedienst (IND). Ministerie van Binnenlandse Zaken en Koninkrijksrelaties, p. 25.
5 Letter from the State Secretary for Security and Justice, Mr. F. Teeven, to the ACVZ. ‘Additional response of the cabinet to the ACVZ’s recommendations concerning statelessness’ (‘aanvullende reactie van het kabinet op het advies van de ACVZ inzake staatloosheid’), of November 12 2014, 573379.
5 questions regarding the implementation of Article 6(1b) DNA, both in itself as with regards to the larger theoretical framework. More insights into the matter could provide useful information for future adjustments to the Article and possibly to the coming determination procedure for statelessness. This would help the UNHCR and the Netherlands in attaining their goal to prevent and reduce childhood statelessness. Besides practical matters, more information on the implementation process of Article 6(1b) DNA would also contribute to close the existing gaps within the theoretical knowledge on naturalisation procedures (Spiro, 1999; Yang, 1994) and implementation analysis for migration policies (Lahav & Guiraudon, 2006). For these reasons the following research question can be formulated:
How has the implementation of Article 6(1b) of the Dutch Nationality Act (DNA) affected the naturalisation of stateless children in the Netherlands on a procedural level?
. What are the current implementation procedures of Article 6(1b) of the DNA, both formally and in practice? . Are there constraints to the implementation of Article 6(1b) of the DNA? If so, what are they? . How do these constraints affect the naturalisation of stateless children in the Netherlands on a procedural level?
Answering these questions provides us with insights into the implementation of Article 6(1b) DNA and what this means for nationality law concerning stateless children. As there is a chance that the previously outlined ambiguities might pose practical problems to the implementation, the research focuses on possible constraints that could arise during the implementation process. By concentrating on the implementation process and putting this side-by-side to the official procedures, the expected constraints to the implementation and the degree of impact of the actors involved in the implementation process will become visible. This implementation analysis can be seen as a sociological perspective to a juridical matter, as the personal experiences of the implementation agents themselves make the central source of information. These implementation agents mostly concern civil servants working at the department for Public Affairs in various municipalities.
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THEORETICAL FRAMEWORK
The implementation process of Article 6(1b) DNA is a topic that has not yet been brought under attention. In order to adequately fill this gap, and to provide answers to the questions surrounding the implementation of the Article, there is a need for insights into the different elements that can play a part in policy implementation processes.
Policy Implementation
Starting with a definition of the key concept, Berman (1978) explains implementation as ‘the carrying out of an authoritative decision, i.e., a policy choice’ (p.4). The act of carrying out brings the formally created principles, policies, laws and regulations into life by enacting them. Even though it gained more attention during the past decades, the issue of policy implementation still is an often missing subject in public policy literature, especially within the wide field of migration policies (Lahav & Guiraudon, 2006). In order to gain more understanding into the effectiveness of laws and policies, however, implementation analysis is an essential piece of the puzzle. Implementation analysis challenges the policy’s validity and presumes that authoritative decisions do not invariably lead to the desired results (Berman, 1978). A so-called ‘implementation gap’ can exist, pointing to a certain discrepancy between the formal policies on paper and their actual implementation in practice (Czaika & de Haas, 2013). Many policy analysts largely explain the existence of an implementation gap by pointing to the role of the implementation agent (Lipsky, 1980; Meyers & Vorsanger, 2007; Schiller, 2015). It was Lipsky (1980) who first recognised the importance of these ‘street- level bureaucrats’. Whether being teachers, police officers, or civil servants working for the municipality, these agents find themselves in an in-between position where they have to interact with citizens on the one hand and the State on the other. In their job of translating and delivering the laws and policies from the State to the people, several factors can play a part. First of all, the work includes a certain amount of unpredictability that is inherent to working with people, as the implementation agents for a large extent depend on cooperation from the people involved in achieving the desired policy outcome (Meyers & Vorsanger, 2007). Not only can the implementation process be influenced by the direct contact with people, but also by the State. A certain degree of political control can be felt, whether direct or indirect (Meyers & Vorsanger, 2007). The ability of political overseers to constrain the discretion of
7 local bureaucrats can result in a tension between local flexibility and national control (Whitford, 2007). Thirdly, personal beliefs, norms and values have been recognised as powerful incentives for bureaucratic performances. Fortunately for the people, however, the street-level bureaucrats tend to show a preference to serve the public. Those policies that do not match their personal agendas and opinions are more likely to be modified or opposed. This does not mean however that the implementing agents should be portrayed as if they were intentionally circumventing policies to meet their own agendas. Rather, it means that a certain worker ideology can be present that is not only guided by following the rules but also by personal beliefs about what is fair (Spillane, Reiser & Reimer, 2002). Lastly, the implementation process can be influenced by the complexity of the policies and the inadequacy of policymakers to provide clear directives and goals for the implementation, making the implementation process at local level more complicated (Spillane et al., 2002).
Discretionary Power
The extent to which these four elements are present determine the autonomy of the implementing agent and ask for a substantial level of discretion in the execution of their work (Meyers & Vorsanger, 2007). In balancing these elements, they can exert a significant amount of influence in their job of delivering and translating the policies and laws, possibly resulting in an implementation gap (Meyers & Vorsanger, 2007; Oberfield, 2009). According to Lipsky (1980), their influence often reaches far beyond their formal authority. Not only do they deliver policy but they also actively shape policy, as they have to interpret rules and outcomes. Rouban (2007) takes it even further by saying that it is sometimes difficult to distinguish between the creation and implementation of rules, as the effect for a large part depends on how the policies are implemented. The extent to which the actors have the freedom to exert their own discretionary power during the process can considerably influence the outcomes, especially in implementation processes where a large degree of assessment is involved (Schiller, 2015). In a study of Danish farm inspectors, Winter (2000) therefore poses the very relevant question: Are street-level bureaucrats servants or masters? It is clear that the central of implementation agents in relation to their context of institutional structures and other actors involved should not be overlooked in implementation analysis (Schiller, 2015). For this reason this study especially focuses on the implementation phase of Article
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6(1b) DNA and its actors, by analysing the experiences of the actual implementation agents and linking this to the formal laws and regulations on paper.
All things considered, it seems reasonable to assume that an implementation gap might be present in the implementation of Article 6(1b) DNA as well. The of option for stateless children involves for a large part assessing a person’s eligibility for the right of option, asking the civil servants for a high level of discretion and integrity in the judgement. What is more is that the lack of an official determination procedure for statelessness in the Netherlands presumably poses conceptual difficulties in the implementation of Article 6(1b), for it means that there are no procedures on how to define the central concept of statelessness. To better understand these possible conceptual problems in the implementation of Article 6(1b) it is therefore necessary to shed some light on the meaning of statelessness. This will moreover give us some understanding in the goal of the article, namely the reduction of statelessness amongst children, and why it is necessary to achieve this goal.
Statelessness versus Citizenship: Bauböck’s dimensions
Statelessness, state-less-ness, is a negative. In order to fully understand what it means not to be a member of any state, it is necessary to explain what it does mean to be a member of a state. The concept of statelessness will therefore be explained by putting it side by side to its direct opposite, being citizenship. Bauböck (1997), who explained citizenship from a sociological perspective, set out four dimensions of citizenship which all point to a dichotomy between the citizen and its opposite the noncitizen, making them well suited to enrich our understanding of statelessness. The first dimension of citizenship entails the subjection to territorial sovereignty. States are sovereign within their territory and national sovereignty is the highest political power, meaning that the population living within that territory should subject to the laws of that state (Bauböck, 1997). Now this would not be a problem in a world where citizenship and residence would coincide. The reality of the increasingly globalizing world, however, is different:
‘We live in a World of nation-states. Each one defines itself by claiming a certain fraction of the earth’s surface and a certain fraction of the human population as its own. Usually, the
9 territory and citizenry thus claimed are roughly congruent. This means that most citizens are residents, most residents citizens. If congruence were perfect, all citizens would be residents, all residents citizens. Perfect congruence is unrealized and unrealizable in the modern world.’ (Brubaker, 1989, p.145).
The second dimension of citizenship follows automatically from this first dimension. According to Brubaker (1989) this territorial dimension of citizenship excludes those persons who are considered residents but who have not naturalised and are therefore no citizens of the state in which they reside. Consequentially, citizenship thus implies that noncitizens are excluded from political participation and have no claim to social and civil rights. The absence of membership entails a change to their very human status, for the stateless experience a loss of what Hannah Arendt calls public visibility: the possibility to appear to others in the public- political domain. According to Arendt (1996), having access to the political community and having one’s opinion heard by others is the condition sine qua non to live a life that is fully worthy and dignified (Borren, 2010). Arendt (1966) even refers to the public visibility as the right to have rights, inasmuch as the membership to a political community facilitates in all the other rights. Citizenship, in this way, is therefore not only a matter of formal rights, but also of social inclusion (which automatically entails exclusion) to the social and political community (Somers, 2008).
The third dimension of citizenship as developed by Bauböck (1997) points to the fact that states are sovereign in determining the rules for the acquisition and loss of their citizenship, as national sovereignty is the highest political power. This is formally laid out in the 1930 The Hague Convention on Certain Questions relating to the Conflict of Nationality Laws, which states that ‘it is for each State to determine under its own law who are its nationals’.6 This free determination of nationality is bound to create conflicting problems between the nationality laws of different nation-states (Bauböck, 1997). Statelessness is a perfect example of such conflicts in coordination. Perhaps the most fundamental distinction between the determination procedures in different states is the consideration between the implementation of either a jus soli (right of soil) or a jus sanguinis (right of blood) principle. The former attributes a nationality to those individuals born on the territory of the particular state whereas the latter principle attributes a nationality to those with parents who are considered nationals of that
6 Convention on Certain Questions relating to the Conflict of Nationality Laws, 12 April 1930, The Hague.
10 state (Borren, 2010).7 When a child is born to parents that have been given a nationality according to the jus soli principle, whereas the delivery took place on the grounds of a nation that holds the jus sanguinis principle, the child does not qualify for either of the principles and therefore technically8 becomes stateless. States have the power to deprive entire population groups of their nationality, often decided in a discriminatory manner and usually concerning minorities. The nationality is withdrawn or denied intentionally, though often disguised, for economic reasons (for instance to restrict the access to the right to own property), political beliefs, security grounds, or gender discrimination.9 What is perhaps the most influential factor causing statelessness, however, is the fact that in all countries that apply the jus sanguinis principle, stateless parents can pass it on to their children through inheritance. The inheritance of statelessness reinforces the effect of conflicting nationality laws and the almost unlimited freedom in determining the rules for nationality acquisition (UNHCR 2007). It is therefore of extra importance that statelessness is prevented for children, so that they will not pass it on to their future children. Article 6(1b) DNA is the Dutch medium to do this.
The fourth and last dimension of citizenship explains something about the consequences of statelessness. This dimension states the fact that human rights are premised upon citizenship (Bauböck, 1997). Currently, only the state has the power to recognise people as its citizens and to guarantee their civil rights that provide their human rights. In other words, people can only be safeguarded in their universal human rights on the condition that they are members of a nation-state. The existence of statelessness proves that this is apparently not always the case, forcing us to question the extent to which the universal human rights are in fact universal (Arendt, 1966). According to Arendt (1966), it can be said that the existence of statelessness points to the paradox of national sovereignty versus the human rights system. This problem, ironically enough, becomes clearly visible in the title of the French translation of the 1789 Declaration of Human Rights, Déclaration des droits de l’homme et du citoyen. Man
7 The jus soli principle is, among other countries, followed in the United States, France and Anglo-Saxon countries, whereas most European countries, including the Netherlands, are in accordance with the jus sanguinis principle (Borren, 2010).
8 I say ‘technically’, because in most cases the 1961 Convention on the Reduction of Statelessness offers protection here.
9 The Somali nationality law, for example still states that only the father can pass on his nationality to his children, resulting in statelessness when the father is either unknown, he passed away, or when he simply denies paternity (ACVZ, 2013).
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(‘l’homme’) and citizen (‘citoyen’) are equals here and are put side by side. It shows that being human is defined as being a citizen, and consequentially human rights are defined as civil rights from the very beginning. What is more is that no specific authority had been named to safeguard the human rights, because they were seen as an inherent part of men: ‘Man himself was their source as well as their ultimate goal. No special law, moreover, was deemed necessary to protect them because all laws were supposed to rest upon them’ (Arendt, 1966, p. 291). The jurisdiction is furthermore ascribed to the nation-state: ‘The principle of all sovereignty resides essentially in the nation. No body or individual may exercise any authority which does not proceed directly from the nation’ (Déclaration des droits de l’homme et du citoyen, 1789, third article). As human rights were considered to be an inherent part of men, and men were assumed to be citizens of a nation in all cases, no one would argue the seemingly natural fact that human rights would rest upon the principle of national sovereignty. For Arendt (1966), only a reformulation of human rights in such a way that the right to have rights should be guaranteed by humanity itself can provide a solution to the situation of stateless people.10 Even though a reformulation of human rights did not yet happen, international treaties have attempted to break with this paradox, trying to ensure the human rights for stateless people. Article 6(1b) DNA is a result of these treaties, facilitating naturalisation requirements for stateless children so that they can be protected by human rights.
Statelessness in the Netherlands
A Cultural Conceptualisation of Dutch Citizenship
When focussing on the Netherlands, one can notice a general shift from what Van Houdt and Schinkel (2009) call a formal level of citizenship to a moral level of citizenship. Where it was first thought that after one gained the formal status of Dutch citizenship, integration into the Dutch society would automatically follow over time, within recent decades this idea reversed: the not-yet-citizen is first ought to integrate into society before he is allowed to formally possess the Dutch nationality. As citizenship increasingly got associated with social integration, the meaning of citizenship attained a more moral interpretation. One should
10 She further explores this view in ‘The human condition’ (1958). Chicago: University of Chicago Press.
12 deserve the Dutch citizenship (Van Houdt & Schinkel, 2009), and in order to acquire the Dutch nationality one should be able to prove a genuine link between the state and him- /herself (De Groot, 2002). Within the current policy, naturalisation is perceived as the final remuneration for integration, the crown to a completed integration program, and the proof that one belongs to the community (Van Oers, de Hart & Groenendijk, 2006).
To make sure that these cultural expectations are met when one applies for the Dutch nationality, criteria for naturalisation have to be formalised, details which are usually covered by nationality law. Even though naturalisation is such a large part of nationality law, however, little literature has been directed at the criteria for naturalisation or naturalisation processes in general (Spiro, 1999; Yang, 1994). According to Spiro (1999), this should be different, for as long as an individual’s place in society depends upon citizenship, barriers to its acquisition should be justified and more should be known about the politics of naturalisation. One could turn this around and say that as long as statelessness means the automatic exclusion from society, as we have seen in Bauböck’s (1997) second dimension, and even the exclusion from human rights as explained in his fourth dimension, more should be known about the naturalisation policies that put an end to statelessness. Article 6(1b) DNA, being one of such policies by providing a facilitated naturalisation procedure for stateless children, should therefore be studied, especially considering the fact that nothing is yet known about its implementation process. This is exactly where this research comes into the picture, providing insights in the practices of naturalisation for stateless born children in the Netherlands.
Dutch nationality law explained
A more legal approach is therefore needed to understand the situation of statelessness and nationality law in the Netherlands. The section below will sketch the framework for the Dutch nationality law in general and more specifically Article 6(1b) DNA. This information forms the juridical part of this implementation analysis research, which is presented by the most left square in Figure 1. Once this legal framework is fully framed, the analysis of how the law is actually implemented and how this results in a certain outcome can proceed. The next section thus makes up the first part of our implementation analysis of Article 6(1b) DNA.
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Figure 1
Dutch nationality law is designed based on both national and international regulations. On national the level, statelessness is mainly regulated by the Rijkswet op het Nederlanderschap, the Dutch Nationality Act (hereafter referred to as ‘DNA’), and the organisations involved in the implementation of the DNA. The DNA, however, is partially based upon several international treaties, conventions and declarations to which the Netherlands is a party11. Besides the 1948 Universal Declaration of Human Rights which provides the fundamental right to a nationality, the 1989 Convention on the Rights of the Child which states that all children should be able to acquire citizenship, the 1997 European Convention on Nationality by the Council of Europe which tries to regulate the European practices with statelessness, probably the cornerstones of international policies regarding statelessness are the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness.
The 1954 Convention attempts to fill the gaps in the legal protection of the stateless, in particular the gaps that would normally be covered by the Human Rights. Those who appeal to the Convention receive travel documents and identification papers to be able to meet the Dutch obligation to always be able to identify oneself. Additionally, on the condition that the concerning stateless person has a legal residence permit, the Convention also provides in the right to work, freedom of movement and the right to a higher education. However, this should not be understood as if the Convention makes a distinction in those with and those without lawful residence, but it should be read in such a way that the Convention provides its rights in phases (ACVZ, 2013). The 1961 Convention focuses on the reduction and prevention of
11 For a detailed listing on this topic, see: ‘Mapping Statelessness in the Netherlands’ (UNHCR, 2011), p. 40 (nr. 89).
14 statelessness. It attempts to guarantee newborn children their right to a nationality, by coercing states to combine the principles of jus soli and jus sanguinis whenever a child would otherwise turn stateless. The Convention also adds a relative (not absolute) injunction to the deprivation of nationality, saying that a contracting state should not deprive someone of his nationality whenever this would render him or her stateless.
However, for these stateless people to receive protection through these Conventions, the determination of statelessness is a crucial element. Only those who are officially recognised as stateless can receive protection in accordance with international law (Swider, 2014). Unfortunately, recognising statelessness is not a straightforward matter. In the definition of statelessness mentioned in the introduction, ‘...proving statelessness is like establishing a negative. The individual must demonstrate something that is not there’ (UNHCR, 2003, p. 13). The way statelessness is determined in the Netherlands mainly results from the interplay of three authorities and procedures: the BRP database (Basisregistratie Personen, hereafter BRP), the IND (Immigratie- en Naturalizatiedienst, the Dutch Immigration and Naturalization Service), and the Dutch Nationality Act.
The BRP database, to start with, is a registration body that registers all available information (including nationality) of those Dutch inhabitants with legal residence.12 It is argued that the BRP functions as a register and nothing more, meaning that other authorities are free to deviate from its information whenever they wish. Moreover, the registration of statelessness is openly discouraged in the Handbook on the implementation of the Law on BRP and registration of ‘nationality unknown’ is preferred instead (Swider, 2014). Secondly, the IND is there to assess all applications for residence permits.13 To collect information, the IND has its own Database on Foreigners (BVV, Basisvoorziening Vreemdelingen). Even though it is argued that the BVV as a database is more suited to determine statelessness (Swider, 2014), the BVV is nonetheless subordinate to the BRP (PIL, 2014, p. 8). This is highly contradicting: despite the fact that the information registered in the BRP is not binding, the IND (and other authorities) do base their decisions on the statistics in the BRP, regardless of how someone is
12 Rijksoverheid (2014). Basisregistratie personen (BRP). Retrieved on May 5, on: http://www.rijksoverheid.nl/onderwerpen/persoonsgegevens/basisregistratie-personen-brp.
13 Immigration and Naturalization Service (IND), s.a. What does IND do? Retrieved on May 6, 2015 on: https://ind.nl/EN/organisation/Pages/Organisation.aspx.
15 registered in the BVV. For stateless persons this means that when they wish to apply for a residence permit with the IND, they will have to be registered as stateless in the BRP (Swider, 2014). Thirdly, the Dutch Nationality Act regulates the Dutch citizenship. In doing this, it follows the jus sanguinis (right of blood) principle: the Dutch nationality is granted to those children with at least one Dutch parent (Van Waas, 2008).14
Article 6(1b) DNA
The right of option for stateless children, Article 6 (1b), is part of the Dutch Nationality Act. Its international basis derives from the 1961 New York Convention on the reduction of statelessness, the 1963 Strasbourg Convention on the reduction of cases of multiple nationality and military obligations in cases of multiple nationality, and the 1973 Bern Convention on the reduction of the number of cases of statelessness. Of the 9 chapters, chapter 3 contains the right of option procedures, designed for those minorities who somehow have the right to a cheaper and faster naturalisation procedure as compared to the ‘regular’ migrant. Furthermore, whereas the IND has the final say over the naturalisation requests, the mayor assesses the option procedures (in practice the civil servants authorised by the mayor). The stateless born children are one of such minorities who can apply for option through Article 6(1b) DNA. Those stateless children born in the Netherlands, Aruba, Bonaire, Curacao, Sint Maarten or Sint Eustatius and Saba who have been admitted to and who have had their principal place of residence there for a minimum of three years continuously can opt for the Dutch nationality.15 In the first chapter of the Dutch Nationality Act, where the general terms are defined, a definition of statelessness is given that follows the definition of statelessness in international law.16 Furthermore, a definition is given of the requirement which I previously defined as
14 However, until the 1985 amendment the jus sanguinis a patre principle stated that only a Dutch father could pass on the Dutch citizenship.
15 Translation by the author. Original Dutch text reads as follows: ‘de vreemdeling die in het Europese deel van Nederland, Aruba, Curaçao, Sint Maarten of de openbare lichamen Bonaire, Sint Eustatius en Saba, is geboren, aldaar gedurende een onafgebroken periode van tenminste drie jaren toelating en hoofdverblijf heeft en sedert zijn geboorte staatloos is’. Rijkswet op het Nederlanderschap, Hoofdstuk 3, Verkrijging van het Nederlanderschap door Optie. Retrieved on December 15, 2015 on: http://wetten.overheid.nl/BWBR0003738/2014-04-01#Hoofdstuk3.
16 Rijkswet op het Nederlanderschap, Hoofdstuk 1, Algemene Bepalingen. Retrieved on December 15, 2015 on: http://wetten.overheid.nl/BWBR0003738/2014-04-01#Hoofdstuk1.
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‘admission’ and for which the DNA uses the word ‘toelating’: ‘permission by the competent authority with respect to a lasting place of residence of an alien in the Netherlands, Aruba, Bonaire, Curacao, Sint Maarten or Sint Eustatius and Saba’17. Lastly, what I defined as ‘principal place of residence’, in the DNA phrased as ‘hoofdverblijf’, can be explained as: ‘the place where a person has his or her actual place of residence’.18
Despite this framework of institutions and definitions, as we have seen there still remains some uncertainty and discussion. The lack of an official determination procedure for statelessness further complicates the implementation process, leaving room for conceptual difficulties. This ties together with the fact that policy implementation can largely be influenced by the inadequacy of policymakers to provide clear directives (Spillane et al., 2002). The lack of a determination procedure might very well be such an inadequacy, asking the implementation agents a substantial level of discretion, possibly resulting in an implementation gap (Meyers & Vorsanger, 2007; Oberfield, 2009). What is more is that the criteria for Article 6(1b) seem to confirm the Dutch view on citizenship and naturalisation, serving to secure a genuine link between the state and the applicant. The fact that these criteria can be asked by the Dutch government in turn confirm the power of national sovereignty in naturalisation policies as explained by Bauböck (1997). In any case it is clear that statelessness should be prevented and reduced, to safeguard all children in their human rights and to keep them from being excluded from society. Article 6(1b) of the Dutch Nationality Act is one of the means to do this, and therefore its implementation should be analysed.
17 Translation by the author. Original Dutch text reads as follows: ‘instemming door het bevoegd gezag met het bestendig verblijf van de vreemdeling in het Europese deel van Nederland, Aruba, Curaçao, Sint Maarten of de openbare lichamen Bonaire, Sint Eustatius en Saba’. Rijkswet op het Nederlanderschap, Hoofdstuk 1, Algemene Bepalingen. Retrieved on December 15, 2015 on: http://wetten.overheid.nl/BWBR0003738/2014-04- 01#Hoofdstuk1.
18 Translation by the author. Original Dutch text reads as follows: de plaats waar een persoon zijn feitelijke woonstede heeft.. Rijkswet op het Nederlanderschap, Hoofdstuk 1, Algemene Bepalingen. Retrieved on December 15, 2015 on: http://wetten.overheid.nl/BWBR0003738/2014-04-01#Hoofdstuk1.
17
METHODOLOGY AND METHODS
To gain more insights into the implementation of Article 6(1b) of the Dutch Nationality Act, it follows previous research on policy implementation in recognising the important effect of the implementing agents in the implementation process (Lipsky, 1980; Meyers & Vorsanger, 2007; Schiller, 2015). This research therefore focuses on the personal experiences of those people actually involved in the implementation process. A qualitative approach is most suited to do this, for it enables detailed and personal information, allowing a combination of both a deductive as well as an inductive approach (Patton, 2002). Deductive, as existing theories have been used as a theoretical background and therefore make a point of departure, and inductive, as the information gathered from the respondents will be used to complete and/or criticise the theories. Conclusions will be drawn based on how the people involved interpret the law and how they act upon this interpretation. A great deal of constructivism is therefore applied, for the research revolves around subjective interpretations and perceptions of the implementation agents.
This study relies on two types of data sources: first, governmental documentation is used to present the official procedures for the implementation of Article 6(1b). More specifically, this documentation includes: Article 6(1b) of the Dutch Nationality Act in its recent version and its Manual for the Application of the Dutch Nationality Act. Secondly, information coming from the experiences of people who have had to work with Article 6(1b), the ‘implementers’ themselves, have been analysed. More specifically, a total number of twenty-one respondents have been interviewed. This includes advisors and civil servants working at the Civil Affairs department within various municipalities and who have been given the responsibility of assessing applications for Article 6(1b) by mandate; two lawyers who have personally accompanied several applicants in opting for Article 6(1b); and a mayor who himself was faced with issues concerning the implementation of the Article. The large majority of the group therefore exists of the civil servants, for they have the most direct experience in the implementation.
Interviews with these three different types of actors allowed the research to combine and compare their experiences in order to paint a more complete picture of the implementation process. It should however be noted that a more ‘balanced’ division has not been possible, due to the very limited number of lawyers with experience in these specific cases. This goes for the mayors as well: most mayors have not been directly involved with the process of
18 implementation, for the responsibility has been placed within the hands of their civil servants by mandate. Because of a unique set of circumstances this mayor did however have his own experience which he was willing to share. For an overview of the twenty-one respondents and their job functions, see Appendix I. It should be noted that while many different job titles exist within different municipalities, most civil servants have in fact similar positions.
Finding respondents was done through purposive sampling, in order to make sure that only those persons who have had to do with the implementation of Article 6(1b) DNA were selected. The rather limited number of cases of requests of Article 6(1b) DNA unfortunately did not allow the research to be selective in choosing municipalities, by for instance selecting municipalities from every province. Once respondents were willing to cooperate, information was collected through in-depth interviews, as this is the best suited method to collect detailed information on individual’s experiences, opinions and beliefs (Patton, 2002). These interviews are be based on a semi-structured interview guide, with tentative questions written out that serve to navigate the researcher during the interview, but with enough flexibility to deviate from the questions when necessary. The interview guide for the civil servants is presented in Appendix III (those for the lawyers and mayor were slightly different but covered the same topics). The interviews have been put side-by-side to the DNA and its Manual, as a method of triangulation. Combining the interviews with the document analysis enriches the information coming from both data sources, by revealing the similarities, contrasts and disparities between the formal and actual implementation practices of Article 6(1b) DNA.
To analyse the results, the coding program ‘Atlas.ti’ was used. The program enables the researcher to easily recognise and structure recurring themes and other matters of importance. Codes were made, linking a certain word code to one or more quotations in the interviews. A ‘code network’ was made, which easily structured the codes into groups and visualised the relations between those groups (cause, consequence, part of, the same as, etc). Several central themes arose from this code network, which now shape the backbone of the following results section.
19
RESULTS
After having presented the law on Article 6(1b) DNA and the more broader framework of the Dutch Nationality law, the experiences of the implementation agents themselves are used to provide insights into how the law is actually implemented in practice, and what this means for the outcome.
Figure 1
Practice versus formal procedures
In an ideal situation, one would want the formal laws and regulations on how to implement a certain law or policy to be the same as how it is actually implemented in practice. It would mean that for every real-life scenario related to that specific law or policy, rules would have been written on how to properly deal with it. No ‘implementation-gap’ would exist, where a discrepancy exists between formal policies on paper and their actual implementation in practice, as pointed out by Czaika and De Haas (2013). In the implementation of Article 6(1b) DNA, however, this is not the case. As is presented below, the implementation practices of Article (1b) DNA are broader than the formal policies, and there exists a disconnect between the more defined set of laws and the broader set of practices that civil servants and other professionals have devised over time. Nevertheless, it should not be seen as a sharp distinction between what is legal and what is not legal, for sometimes it is slightly unclear and it seems that actions can be categorised as both. Therefore a dotted line can be drawn:
20
Figure 2
It are mostly the discussions surrounding the meaning of statelessness and the requirement for legal residence which cause for some disagreement and confusion. According to the DNA Manual, someone is considered stateless only when he or she is registered as such in the BRP database, and someone registered as ‘nationality unknown’ cannot opt for the Dutch nationality.19 A number of respondents however described cases that were a little more complicated. They concluded after some research that applicants registered as ‘nationality unknown’ were in fact what they considered to be stateless, and they therefore changed their registration to ‘stateless’ so that they could opt for the Dutch nationality after all. Appendix II shows a total overview of the cases and tells us that six out of fourteen of the cities have had applications of persons registered as ‘nationality unknown’, of which four got approved, one denied and one is still undecided. Where the Manual states that such a request should simply be rejected, the civil servants cleverly circumvented this by actively helping the applicant and taking steps that they are not obliged to take. Because of the lack of a determination procedure for statelessness, and because the Manual did not offer them any further guidance in how to do this, the civil servants themselves decided what type of proof was sufficient to prove statelessness:
Interviewer: ‘So the official statement of the government from the country of origin was enough proof to change the status?’ Respondent: ‘That is how we handled it, yes.’20
19 Handleiding Rijkswet op het Nederlanderschap 2003, Artikel 1-1-f. Retrieved on December 15, 2015 on: http://wetten.overheid.nl/BWBW33099/2014-04-01/2#Circulaire.divisie1_Circulaire.divisie1.1.f.
20 Something that should be taken into consideration here is the fact that the interviews have been held in Dutch, whereas the research is presented in English. Quotes used from the interviews are therefore translated by the researcher herself, requiring sensitivity to possible language-barriers and differences in meaning. This goes for each of the following quotes.
21
This confirms the importance of the implementation agents involved in the implementation process, especially in situations where they are given much freedom to exert their own discretionary power, as explained by Schiller (2015). The previous example showed that due to the lack of guidelines and directives provided by policymakers can ask the implementation agent for a large degree of his own discretionary judgement (Spillane et al., 2002).
The Dutch term ‘toelating’ which I translated as ‘admission’ also caused some controversies. The DNA Manual explains this admission as the requirement to have legal residence, which has to be proven by a residence permit.21 This criterion put forward by the Dutch government seems to confirm Van Houdt and Schinkel’s (2009) analysis on the moralisation of the Dutch citizenship. With a moral interpretation of citizenship, where citizenship is something someone has to deserve, the requirement of legal residence which only allows those legally residing in the Netherlands seems logical. It excludes those who do not have legal access to the Dutch society. The criterion is a way of proving a genuine link between the State and the applicant, which is often the thought behind the Dutch naturalisation criteria (De Groot, 2002).
International law concerning the requirement of legal residence is however inconsistent: the 1961 Convention does not allow the State to require lawful residence, only habitual residence, whereas the ECN does allow the requirement of both habitual and legal residence (UNHCR, 2011). The Netherlands is a contracting State to both. What to do then? Is the Netherlands allowed to make such an extra requirement? One of the cases discussed during the interviews has been of special relevance here. As is summarised in Appendix II, one of the applications coming from a child without a residence permit did in the end get approved by the city Court. Interesting here is that at the moment it was about to be discussed in the Council of State, the highest level of justice in the Netherlands, the child was unexpectedly given a residence permit with retroactive effect by the IND. Now, the child did comply with all of the criteria and there was no need for the case to be discussed in the Council of State. Why this happened will be discussed later on. Important for now is that mainly because of this case, more awareness was raised about the meaning and consequences of this extra criteria. The State Secretary of Security and Justice even put forward a bill in which a new right of option for
21 21 Handleiding Rijkswet op het Nederlanderschap 2003, Artikel 1-1-f. Retrieved on December 15, 2015 on: http://wetten.overheid.nl/BWBW33099/2014-04-01/2#Circulaire.divisie6.
22 stateless children is proposed, with the possibility to apply without the necessary requirement of legal residence.
Despite the fact that this possible new procedure would partly narrow the gap between the legal and practical procedures, these examples and Appendix II still show that a lot is happening in the application of Article 6(1b) that is not prescribed in the Manual or the DNA itself, pointing to the previously discussed ‘implementation gap’.
Bridging practice with formal procedures
Why do the implementation agents take such extra measures? Many of the respondents expressed the constant need to somehow bridge those real life situations on the one hand with the formalities on the other:
‘.. it is all about the large mass of stories and not about specific situations. There never is an opening for that; they [the State] do not look at specific situations. And we can do this, especially with option requests because the mayor has the authority.’ – Civil Servant
The majority of the civil servants showed this need to include the context of every specific case in their evaluations, and saw it as their job within the municipality to do this. Why do these civil servants feel the urge to do this?
‘They [the State] don’t look at the specific situation of that person, but they simply look at “This is our procedure, and we will not deviate from it. End of story”. Yes, but, there is a specific case, and not only a case but a person and this person is stateless and has the right to all kinds of protection. But that person does not receive all protection within your policies!’- Civil Servant
In other words, the respondents feel that because of the narrow and rigid conceptualisations of the law, people are excluded who should not be excluded. The policies in a way overlook the specific context of every case, and forget that they are dealing with people. They feel that it is their job as part of the municipalities to include this context and to keep an eye on the human side of things. While this ‘in-between’ position can be an asset, it also comes with some dilemma’s. Several civil servants felt the need to emphasise that they ‘are people too’, explaining the difficult position they sometimes find themselves in, when their own personal opinions and beliefs contradict the law that they have to follow.
23
‘...That is of course the danger, you are pushing up against the margins. When do you cross them? We don’t see it as a file, but there is a person, and before you know it you find yourself thinking along in all humanity but you do have to stay a civil servant and say “these are the margins and this is what I can do until here, but after this you have to go to the Court because this is not my position”.’ – Civil Servant
The civil servants that deal with the implementation of Article 6(1b) find themselves in a position where they, on the one hand, have to work with the law, and on the other hand, have to work with the people. As a typical example of Lipsky’s street-bureaucrats (1980) their personal values play a part in the process as well. Their worker ideology is not only guided by following the rules but also by personal beliefs about what is fair (Spillane, Reiser & Reimer, 2002). They are aware of the danger of this position and remind themselves not to get too emotional because ‘you are also bound by the rules and sometimes you really have to set aside that sentimental part’. Still, in some cases where they feel that the law does not do justice to the needs of a certain applicant, they are pushing against the borders of the law, the legal part, to include as much of the non-legal practices.
Keeping the borders in place
Another interesting question to ask is why these borders are there. Who or what is pushing back at the other side of the wall, and why? Why do the formal procedures not cover the real life practices? First of all, many respondents point to the lack of a determination procedure. Because of this lack, there are many persons registered as ‘nationality unknown’, whereas they should be in fact registered as ‘stateless’. The non-legal part is growing because of this group of people who are actually stateless but not formally and who do apply for Dutch nationality through option. The lack of a determination procedure is therefore not only problematic in itself, but also because it largely affects the implementation of Article 6(1b) DNA:
‘I think it is very problematic to require official registration as ‘stateless’, when there is no official determination procedure for statelessness (...). That is of course the main issue. There is a procedure to abolish statelessness which in itself could be quite all right, apart from the admission requirement, but what happens next is that you do not recognise anyone as stateless. Then you do not solve the problem of these 80000 people, of which lets say half of them are stateless, which simply is a violation of the international treaties.’- Lawyer
24
Second of all, the margins are upheld by political pressure exerted on national level, which will be explained below.
Political pressure: ambiguous measures
Even though there are relatively few requests for Article 6(1b) DNA as compared to other option articles, it is of interest to the government and political pressure is felt. Different actors are involved, and respondents (both the civil servants, as well as the mayor and the lawyers) especially experience this political pressure mostly in contact with the IND and the national government. The ‘higher up’ political opinions did not always match the municipal approach:
‘The message from the Chamber was “we are harder than stone”, and the question is whether as a municipality you think this should apply for your residents as well. Or do we get to have our own opinion about this? The latter is of course the case. Let the national level decide for their own on how to play this game, but we don’t have to be bothered by it.’ – Mayor
Many of the respondents painted a somewhat ‘us versus them’ picture with regards to the IND and the State, where the civil servants and mayor as part of the municipality seemed to be more tempted to be on the side of the ‘people’ in these matters, whereas the IND and State had other interests according to the respondents. These interests mainly seem to boil down to the same thing: safeguarding the rules in order to keep the number of approved applications to a minimum. Afraid for an increase in applications and family reunification after approval, meaning more successfully naturalised migrants. This need to keep the number of naturalised stateless to a minimum does seem to resonate with the idea of the moralisation of Dutch (Van Houdt & Schinkel, 2009), where the Dutch nationality is something of value that has to be earned, with the Dutch nation state trying to preserve its value. What some of the respondents experience as persistent attempts to stick to the rules sometimes frustrates them:
‘But I am a little bit recalcitrant. I clash a little, but you’ve probably heard the same from others, with the often rigid attitude in this type of policy’- Civil Servant
This rigid attitude sometimes takes shape in somewhat ambiguous measures exerted by the State, experienced by several respondents. To explain this we need to delve a little deeper into the Dutch juridical framework. Once an application for Article 6(1b) DNA is denied by the civil servant working for the municipality, the applicant has the right to submit an objection with the Objection Committee of the municipality (Bezwaarschriftencommissie). If the
25 applicant does not agree with their final decision again, then the matter can be taken to court. Lastly, if court decides negatively upon the request as well, it can be evaluated by the Council of State (Raad van State). If the Council of State then decides to grant the application, jurisdiction is made: all future applicants in the exact same legal position as that one applicant can be judged the same way, meaning that the Council of State’s judgement is directly applicable to them as well. In a way, the law is changed.
Especially that last step, possible jurisdiction created by the Council of State, is important for understanding the State’s ‘ambiguous measures’. The previously explained case of an applicant without legal residence is a perfect example of such measures. As mentioned, the request was approved by court on the grounds that it would be against international treaties to require a legal residence permit. The government did not agree with this decision, and they wanted to take the matter to the Council of State. Just before this was about to happen however, the IND gave the child a residence permit with retroactive effect. The child now legally resided in the Netherlands from birth and therefore complied with each of Article 6(1b)’s requirements after all. The option request was approved, and there was no need for the case to be discussed in the Council of State. Why did the IND do this?
‘The government went to appeal to higher court with the Council of State, and five days before – how miraculously – the child’s parents very unexpectedly received a residence permit. (...) so this was a very strange grant of legal residence, but it erased the need for a procedure (...). The government must’ve been counting and saying “there are thousands who want this and we are going to lose this, what do we do? We give these people what they want so they can’t proceed to the Council of State and it won’t be written on paper.” Yes, and now this was five years ago and still practically nothing has changed.’ - Lawyer
In other words, the aim was presumably to stop the creation of new jurisdiction that would change the law, to avoid a relaxing of the rules that will allow an increase in applications in the future. This is not the only time that such a measure was taken. One of the few mayors who himself has been actively involved in assessing an application of Article 6(1b) experienced the political pressure in another way. After he decided to grant a request of two children without a residence permit on the grounds that denying it would be against the international treaties, he was summoned to the State Secretary of Security and Justice. It was announced that his decision would officially be annulled, for he had made the wrong decision because it was not in his power to directly apply international law. This would not change the situation for the applicants, they would remain Dutch, but there would have been sent out a message to all municipalities stating that ‘this is what the mayor of X did, his decision has
26 been annulled. So, municipality, retrace your footsteps and know what to expect when you are considering this’. The mayor objected, hired a lawyer and demanded a proper evaluation by the Council of State. In the end however it did not come to this. The mayor received a letter from the State Secretary saying that they decided to leave the matter alone after all. Again, the reason behind this sudden withdrawal presumably points to the aim to keep the number of applications down:
‘Perhaps this played a part in the State’s consideration, that “if we proceed now and suppose that the municipality in X is proved to be right, then we can expect an increase in the number of cases and we would be better off to leave things the way they are. Only the municipality of X will know about it then and the others won’t”.’ - Mayor
Another example of a similar action is the fact that the parents of an applicant were very unexpectedly given the nationality of their country of origin, giving rise to the suspicion among several actors and NGO’s that ‘their country’s authorities have been bribed’. Of course, whether this is actually true we do not know. These examples must however be somewhat nuanced, not to paint the picture of one big ‘us versus them’ conspiracy theory. The respondents do see the positive side of the more political approach from the IND and State. With each authority having their own point of departure and expertise, most can be done when all parties collaborate and share their knowledge. The civil servants also see the necessity of ‘protecting some boundaries once in a while’. This does not take away the fact that some of their measures have been rather rigorous, and one might question the fairness of how and why these actions take place. What is more is that apparently it is not unusual for such practices to take place:
‘This is a regular technique of the State, you know. They do the same in the European Court. If they fear that it will go wrong then they just give the individual what they want to remove the need for a juridical judgement, so that the judgement of which they know they will lose, will be postponed. They know it is coming, but they can easily win five years like this’ - Lawyer
Whether fair or unfair, and whatever the reasons might be, it is safe to conclude that these practices do not follow the correct formal procedures in the implementation of Article 6(1b). The majority of the municipalities shows approved applications while they did not meet all of the criteria. Civil servants circumventing the law, trying to make ends meet and do justice to the individual’s specific context while filling in the blanks that arise from the lack of a determination procedure for statelessness, mayors being called to account for their decision after applying international law, and the State on the other side of the line rigidly and slightly
27 ambiguously trying to uphold national law. A situation of tension between local flexibility and political control, as explained by Whitford (2007). The few examples of rigorous moves on national level and the political pressure felt in these situations seem to be in line with what Bauböck (1997) recognised as the third dimension of citizenship, being territorial sovereignty. With the State as the highest political power it has the freedom to overrule other actors. Bauböck’s (1997) fourth dimension of citizenship also seems to be in place: the Dutch State is clearly sovereign in determining the rules for acquisition and loss of nationality.
A-legality
With all that is happening in the implementation process that is not covered by law, one might question the nature of these practices. Should they be considered illegal, directly opposing the formal law, or rather as something that is simply not described by the law? The actions of the civil servants always in the end meet the requirements of the law. They turn those applications that do not meet the criteria and are ‘against’ the law into applications that do meet the criteria. How they do this, is not necessarily illegal or legal but rather ‘a-legal’: the DNA and its Manual do not prescribe that they can do this nor do they say that they cannot do this. As for the State exerting political pressure, this might be more undecided. Is it illegal to avoid jurisdiction? Did the Dutch government really bribe another country to give migrants the nationality from their country of origin? The main part of the implementation process can therefore be considered as a field of a-legality, still non-existent for the law. Sometimes the borders between illegal, legal and a-legal are not that straightforward. Ironically, the a-legality of the implementation process of Article 6(1b) DNA is of a similar nature as the status of its beneficiaries itself. The stateless children, as often non-existent and a-legal in the eyes of the law, have to go through a-legal practices in order to receive a full legal status. Figure 3 visualises this a-legality in our scheme. The two external factors that largely influence the implementation process, being political pressure and the lack of a determination procedure, are also represented.
28
Figure 3
This situation of a-legality, where the formal procedures do not cover everything that is actually happening, raise questions about how to deal best with those practices that are not covered by law. How do we decide here? Who decides? What is best for whom?
Uncertainty and Subjectivity
Uncertainty
‘Why do children become stateless anyway? What is that? What does it mean, statelessness? That word alone causes nothing but incomprehension. You have to prove that you do not and will not possess something.’ – Civil Servant
In dealing with the a-legal practices that are not covered by law, the civil servants were left with many questions and uncertainties. Starting with perhaps the biggest question of all: what is statelessness and how to determine it? The lack of an official determination procedure for statelessness and the lack of guidance on this in the DNA and its Manual caused many of the civil servants to decide upon this for themselves. Especially those cases where an applicant was registered as ‘nationality unknown’ caused for some confusion. As presented in Appendix II, we can see that in quite a few of those cases the civil servants decided that their status should be changed to ‘stateless’, which enabled them to meet the criteria after all. In
29 doing this, however, civil servants were left with questions about how exactly to determine statelessness,
‘Do they have to prove that they are stateless, or do they have to show documentation that proves that they cannot get a nationality?’ – Legal Advisor whether the criteria are fair to ask,
‘The criteria in itself are very clear. You can however have some doubts about whether it is right to have all of these criteria. Can you expect a stateless person to have legal residence all those years?’ - Civil Servant what documentation should be used as proof and what is enough of this documentation,
‘Yes, they [the IND] weren’t too happy that we changed those people’s registration to stateless. Because, who knows, they might have been White-Russian. What is it that you want then? A statement from 230 different states? That’s pushing things too far.’ – Civil Servant
and with whom to put the burden of proof.
‘That’s a hard one. I think the burden of proof lies partly with the people and partly with the government (...). I think you should assess something like this separately for each case, asking yourself “Can I ask this person to provide documentation of proof?”, depending on the situation in their country of origin.’ – Civil Servant
The large majority of the respondents struggled with these questions. When asked about their opinion however, not everyone had something to say or simply refused to openly make up their minds on the topic because they felt it was not up to them to have an opinion on the matter. It was simply their job to apply the law as it is, and their opinion on things would not make a difference. For those who did feel strongly about the questions raised, the answers seemed to differ. For one, ‘it is impossible to be 100% certain that someone is stateless’ and determining statelessness will always remain a presumptive story. Some admit that to register someone as stateless feels ‘kind of scary’ because it involves a thorough assessment with many elements involved, causing them to feel unsure about whether they have made themselves familiar with everything. They therefore prefer to register someone as ‘nationality unknown’. For the other, however, things are more clear-cut and an applicant is only recognised as stateless if he is registered as such in the BRP.
What is more is that in some cases it seems to be unclear who has the final say, and whether some actors are accountable to others. Even though officially it is the mayor who has been given the power to decide over the right of option, the previously mentioned case of the mayor who had been summoned to the State Secretary of Security and Justice for directly
30 applying international law, forces us to question the extent to which this is in fact true. According to some, the mayor does not have the freedom to apply international law:
‘I don’t think it is the mayor’s job to test it, that is up to the judge. The judge tests whether national law is against higher law, and not the mayor.’ – Civil Servant
According to others, the mayor has the full responsibility to draw his own conclusions and also to directly apply international law, thereby passing national law:
‘Those treaties are directly applicable, so in that sense I could advise the mayor to directly apply this treaty and move aside the DNA. This is tricky though, not all mayors have the guts to do this.’ – Civil Servant
Nevertheless, the fact that ‘not all mayors have the guts to do this’ again seems to confirm the presence of a higher political pressure exerting power in the field. When the respondents were asked whether they felt that the mayor is in a way accountable to the IND or State, who receive a copy of the file after a case is closed, the opinions differed as well. Some were of the opinion that the mayor was not accountable to the IND and sending a copy of the file was simply used to keep the IND’s nationality register up to date. For others, however, it was also used as a way for the IND to check whether they agreed with the assessment and the way things were handled. None of the respondents had however experienced a situation where the IND had gotten back to them after reading the file.
In other words, the still lawfully undetermined practices of the a-legal parts in the implementation process of Article 6(1b) leave the implementation agents with more questions than answers. There is uncertainty about the meaning of statelessness as a whole, how to determine this, where to place the burden of proof, who is responsible, etcetera. No insignificant questions. How to fill in these questions then?
Subjectivity
For a large part, the respondents have no choice but to turn to their own personal opinion and judgement in deciding on these matters. Often in consultation with colleagues, they decide whichever they think is best. The respondents are aware of the fact that this is happening, and they themselves keep stressing the large role of subjectivity during the implementation process. Because nowhere is prescribed how to act in some situations, ‘you simply have to
31 speculate a bit’. Not only can opinions differ between municipalities, but also between civil servants themselves:
‘...Municipality X might agree and municipality Y might not. I agree, a colleague does not. It will always be a bit of a grey area.’ – Civil Servant
Consequentially a large extent of integrity and discretion is needed, especially since their personal opinion on the subject does not always coincide with what would be the most logical thing to do when trying to apply the law. As we have seen, the civil servants often feel the need to favour the people and help them as much as they can, but the limits of the law force them to remind themselves to ‘set aside the sentimental part’. How do the civil servants feel about all of this? For the most part, a slight frustration. Frustration, first of all, because they themselves are not pleased by the uncertain way of working and they express the need for less ambiguity:
‘I like clear directions, guidelines by which to evaluate something. Those applications now are all very difficult. You don’t know where to start, and what to advise people.’- Civil Servant
And frustration second of all on a larger scale, because the uncertainty and subjectivity affect the implementation of Article 6(1b) in a way that is unfavourable for the beneficiaries, in this case the stateless children:
‘As it is now we leave it up to those 400 municipalities, individually. And that is not right. You can’t leave it up to the municipalities because they do not always have the expertise. You can’t leave it up to the people either because they have been left, I don’t want to say to arbitrariness, but to the expertise of municipalities (...). I don’t want to say arbitrariness but it does come awfully close to that.’ – Civil Servant
Inconsistent Implementation
Whether arbitrary or not, it does seem to be true that the decision to either approve or deny an application for the right of option for stateless children depends for a large part on the expertise and discretion of the civil servant and municipality. In the previous sections we already came across several cases that proof inconsistencies in the implementation of Article 6(1b) DNA. Many of the respondents however point to a crucial moment that comes prior to the right of option: the moment of birth registration. ‘It is the only moment where we as a municipality can really mean something’, for the nationality registered on the birth certificate
32 often remains unchanged for the rest of one’s life. It therefore determines one’s eligibility for Article 6(1b) DNA. According to some this is not done right, because again the civil servants feel uncertain about registering ‘stateless’ and therefore prefer to register ‘nationality unknown’. This partly explains the large number of people registered as ‘nationality unknown’ and the comparatively small number of stateless. Some municipalities apply more strict regulations in this than others. Those municipalities following the Manual Amsterdam (a manual on the implementation of everything related to Public Services offered by the municipality of Amsterdam, to which other municipalities can be a member) in some cases apply a more strict approach and more often tend to register someone as ‘nationality unknown’. Once registered as ‘nationality unknown’, it was previously described how some municipalities denied these applications, whereas others actively changed the registration to ‘stateless’ in order to approve the application. Furthermore, as we have seen, similar cases of applications that did not meet the requirement of legal residence were handled in a different manner as well. Lastly, concerning the question of with whom to put the burden of proof, some civil servants take over a part of the burden to help the applicant, whereas others do not.
‘I think that’s just a part of me, as a bit of service. If you don’t feel that then I think you should get out of here fast. This will however be different for other municipalities.’ – Civil Servant
All in all, the a-legal implementation procedures that are defined by the presence of many questions and uncertainties, subjectivity and therefore inconsistency, consequentially bring about a certain outcome. First of all, the respondents agree that the current implementation process is unfair to those whom it concerns, the stateless children themselves. They admit that it leads to situations where applicants in a similar position are treated differently and therefore unequal. The direct evidence that this is already happening can be seen in Appendix X. The inconsistency negatively affects the beneficiaries for they might not always get granted the Dutch nationality, whereas in a different context they would have. This seems to be in line with Schiller’s theory (2015) that such an implementation gap is more likely to be present in situations where a large degree of discretion and assessment is involved in the implementation phase, leaving room for subjective interpretation and political pressure. The extent to which the actors have the freedom to exert their own discretionary power during the process can considerably influence the outcomes. As we have seen for the implementation of Article 6(1b), the lack of formal procedures leaves the civil servants with a lot of freedom, resulting in different outcomes. On a larger scale some are of the opinion that this inconsistency in
33 implementation means a violation of the international treaties concerning statelessness, for not all stateless receive the protection that they should get. This results in the following figure, where the complete process of the implementation process of Article 6(1b), including both internal and external factors, and its consequences for stateless children in national and international law are presented:
Figure 4
This results section started out by pointing out the fact that the formal procedures in the DNA and its Manual do not cover everything that is happening around the implementation of Article 6(1b) in practice, indeed confirming the existence of an implementation gap. In fact, the larger part is not covered. Perhaps the most concrete example of this is Appendix II, where it becomes clear that the majority of the municipalities have found ways to approve requests despite the fact that the applicants did not comply with all of the criteria at first instance. This suggests that the actual population of possible eligible applicants is in fact larger than the official, formal population. All together this results in a large grey are of a- legality: practices in the implementation that are neither illegal nor legal, but no law has yet been written on it. The different actors have different interests in this a-legality. Whereas the implementation agents themselves, the civil servants, try to favour the people and bridge the practices with the formal procedures, the respondents feel that the IND and State try to keep the borders in place, sometimes by exerting fairly rigorous measures. The State is therefore an external factor trying to keep the law as it is by however exerting a-legal (and sometimes arguably illegal) political pressures to the implementation process.
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Due to the lack of guidance in this grey area, the respondents often feel uncertain about what to do in various situations. On a more abstract level they cannot comprehend the meaning of statelessness, and on a more practical level they do not know how to determine statelessness by law. More confusion exists about the criteria for eligibility to Article 6(1b), the burden of proof, responsibility, and so on. Finding themselves in these ‘grey area’s’, the respondents sometimes have no choice but to base their decisions upon their own opinions, or subjectivity. This constraint of a large degree of subjectivity consequentially leads to inconsequent implementation, where similar situations are handled differently amongst the various municipalities, and it is arguable whether the practices are entirely ‘lawful’. The outcome of these mostly a-legal implementation practices is that the inconsistency negatively affects the stateless children, because not all of them receive their rightful protection, meaning a violation of the international treaties.
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Recommendations
‘Hypothetically, if it were up to you, what would you do with Article 6(1b)?’ - Researcher
Often the closing question of the interview, this question rendered various responses. First of all, the majority of the respondents agreed on the fact that the criterion for legal residence was unfair and should be dropped. They felt that this was too much to ask of stateless persons. A second recommendation did not necessarily involve the content of the Article itself, but rather the way it was presented. Many respondents noticed that most eligible persons were not aware of the possibility to naturalise through Article 6(1b), most of them never having heard of the Article. Some municipalities actively reminded the people of the possibility at the time of birth registration, but this did not happen everywhere. Some felt that this should be actively done by the municipalities, as they expected that part of the rarity of applications could be explained by unawareness among the people.22
A further recommendation points to the larger framework of statelessness in the Netherlands. All respondents were of the opinion that there was a definite need for an official determination procedure of statelessness. This should best be done by one single, independent authority specialised in the topic. Some suggested the Court of The Hague. One of the lawyers was however afraid that once after the determination procedure would have been set up, the government would set a limit to the maximum number of applications per year, something that happens more often when new procedures are launched.
‘So that doesn’t amount to anything. And yet the people are given the impression like “look what we did for you”. That’s what I’m a little afraid of, that if it were up to the government they would give us a dummy teat again, instead of a real procedure.’- Lawyer
In general, respondents expressed the need for both unity and transparency. Unity, so that every civil servant and every municipality would act the same and would know what to do in every situation. Transparency, so that more stateless people would be aware of the possibility, but also transparency in the sense of honest and open contact from the national levelled authorities towards the municipalities.
22 In fact, a number of municipalities took action after I got in touch with them. Several discovered that they had a number of children who could or could almost apply for the Article (depending on their total years of residence in the Netherlands), and they decided to get in touch with their parents to inform them about the possibility.
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CONCLUSIONS AND DISCUSSION
Over the recent years, the prevention and reduction of statelessness among children is getting higher on both the international and the Dutch political agenda. Nevertheless, little information is known about how Article 6(1b) of the Dutch Nationality Act, which enables stateless born children in the Netherlands to opt for the Dutch nationality. This thesis can be seen as a contribution to partly fill in these blanks, and on a larger scale as a contribution to the theoretical framework of naturalisation policies and policy implementation processes. The question was asked of how the implementation of Article 6(1b) among various municipalities affects the naturalisation for stateless children in the Netherlands on a procedural level. In answering this question, this implementation analysis departed from the experiences of the implementation agents, the civil servants themselves.
This sociological perspective to a juridical matter resulted in various findings that are consistent with and also complement previous research on policy implementation, naturalisation and statelessness. In comparing both the current formal and informal implementation procedures, it was concluded that a lot is happening in practice that is not covered by the formalities. This is consistent with previous policy research that pointed to the possibility of an implementation gap (Czaika & de Haas, 2013), partly resulting from the strong influence of the implementation agents in the implementation process that should not be underestimated (Lipsky, 1980; Meyers & Vorsanger, 2007; Schiller, 2015). This research however further defined this gap as a divide between the legal procedures and the largely a- legal practices of implementation, with those practices that follow the law on the one hand, and the majority of undefined practices on the other hand about which no law yet has been written. Not legal, nor illegal, but rather a-legal and non-existent in the eyes of the law. The a- legality in academic research on policy implementation is something that has not yet been defined up to now. It may very well be that the sociological perspective allowed this research to recognise the a-legality in law, as an outsider perspective that challenges the juridical dualism between legal and illegal. With regards to statelessness it is interesting to see that the procedures they have to go through to become legal are of the same a-legal kind as their own status. What is more is that the different actors involved all seem to have different interests concerning this field of a-legality. Whereas the civil servants and the municipalities try to stretch the reach of the formal law in order to favour the people and enable them to naturalise, the IND and State seem to want to keep the range of the formal procedures as limited as
37 possible, sometimes turning to somewhat ambiguous measures. The State therefore also plays part in the a-legal practices, however only in order to keep the legal rules in place. This political pressure still proves the national sovereignty in determining nationality law. It should nonetheless be mentioned that this research cannot truly paint a complete picture of the different actors involved and their interests, as the IND and national-levelled government have not been included. It could very well be that the experience of IND officers can shed another light on the issue. This research can only present how the civil servants, lawyers and mayor experienced the role of the IND and State. Future research might therefore include IND officers and possibly even the beneficiaries, the stateless children and their families themselves, to paint an even more complete picture of the implementation process. For this research it was nevertheless decided not to do this, for it would not fit within the reach of the research questions.
The presence of an implementation gap forms constraints to the implementation of the Article, as it is unclear for the implementers how to act in those grey area’s about which no procedures have been written. Due to the limited information in the DNA, it’s Manual and also due to a lack of an official determination procedure for statelessness, uncertainties arise in different parts of the implementation process, leaving the implementers with no choice but to rely on their personal opinion and discretion. The relatively large extent of subjectivity results in inconsistent implementation practices, where some similar cases are treated differently and not always following the lawful procedures. The naturalisation of stateless children in the Netherlands is therefore negatively affected, for the applicants get treated unequal and some might not receive the protection to which they have the right. The inconsistent implementation means inconsistency in determining the eligibility for the naturalisation of stateless children. The assessment is not fully based on formal procedures, but also partly on the integrity and discretion of the civil servant and external political pressure from the State.
On a larger scale it can be said that this inconsistency results in a violation of the international treaties regarding the reduction and protection of stateless persons. The expectation of a coming revised right of option procedure that would drop the criterion for a legal residence permit would partly solve this problem. However, the fact that a number of cases where an applicant was registered as ‘nationality unknown’ got nevertheless approved, proves that there is more. It suggests that the actual population of possible eligible stateless persons is still larger than the formal population. This points again to the urgent need of a determination
38 procedure for statelessness, considering that it also severely affects the effectiveness of Article 6(1b) DNA and possibly other Articles as well. A future determination procedure should take into account the possible effect on other policies. The creation of a determination procedure for statelessness is a promising first step in decreasing the a-legality in implementation practices. Only by reducing the grey area of a-legality in the implementation process of Article 6(1b) and by finding ways in which the different actors can agree, the Netherlands can fully live up to the international goals to reduce and prevent statelessness among children.
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APPENDIX
I – Overview of respondents
1. Lawyer specialised in immigration law 2. Lawyer specialised in social-economic human rights 3. Mayor 4. Second-line employee Civil Affairs Department (deals with the ‘difficult’ cases in naturalisation and option, but also marriages, death certificates, name changes, etc) 5. Former specialist naturalisation and option, now policy advisor in the Civil Affairs Department 6. Specialist naturalisation and option in training 7. Back office employee at the Civil Affairs Department (quality advisor, checking colleagues’ work) 8. Legal advisor at the Civil Affairs Department 9. Former manager at the Department for Naturalisation and Option 10. Dutch Nationality Act Advisor for the municipality 11. Senior employee Customer Contact Centre (naturalisation and option, registration in the BRP database, etc) 12. Specialist BRP 13. Senior employee Public Service (naturalisation and option, service desk) 14. Advisor of the city council 15. Specialist Public Service and owner of an advisory/training company in Public Service 16. Senior employee at the Civil Affairs Department (naturalisation and option, back office and front office) 17. Employee Public Service and teaching courses in Nationality Law for other municipalities 18. Employee Customer Contact Centre (checks the quality of the BRP) 19. Specialist Public Affairs 20. Employee Customer Contact Centre 21. Advisor at the Civil Affairs Department
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II – Overview of cases per municipality
Number of Did the If not, what was different? Was the How was it accepted? applicants in applicant(s) application city meet all the accepted? criteria?
2 No No legal residence Yes Mayor approved 3 No Registered as nationality Yes Civil Servant, after discussing unknown with IND, changed status to 'stateless' 1 Yes X Yes X 9 Yes X Yes X 13 Yes X Yes X 1 Yes X Yes X 2 No Registered as nationality Yes Civil Servant changed status to unknown 'stateless' 1 No Registered as nationality Yes Civil Servant changed status to unknown 'stateless' 3 Yes X Yes X 1 No Registered as nationality Yes Decided by Committee of unknown Objections that status should be changed to 'stateless' 1 No No legal residence Yes Decided by Court that should not have to have legal residence. Child was however given legal residence permit with retroactive effect by IND 1 No Registered as nationality No Council of State concluded that unknown government should create a new procedure for this case, but government does not take action 1 No Registered as nationality Still Undecided Committee of Objections unknown denied the application, Court still has to decide. However, their country of origin now unexpectedly offers to grant them their nationality
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III – Interview Guide Civil Servants
Functie / Position . Wat is uw functie en welke taken vallen hierbinnen? What is your position and what are your responsibilities? . Wat is/zijn uw voormalige functie(s) geweest waarin u te maken krijgt/kreeg met het optierecht? What are/have been your (previous) position(s) in which you have/had to work with the right of option? . Wanneer/hoe krijgt u te maken met Artikel 6(1b)? When and how do you have to work with Article 6(1b)?
Casussen / Cases . Hoe vaak is een dergelijk optieverzoek voorgekomen binnen uw gemeente? How many applications of the Article have there been within your municipality? . Kunt u zich nog herinneren wat de specifieke casussen waren? Voldeden de optanten aan alle criteria? Waren alle optanten officiële geregistreerd als ‘staatloos’ en hadden ze drie jaar legaal verblijf in Nederland gehad? Can you remember the specific cases? Did the applicants meet all of the criteria? Were they officially registered as ‘stateless’ and had they legally resided in the Netherlands for three years? . Is er ooit een verzoek geweest wat hiervan afweek? Has there ever been a request that did not comply with these criteria?
Aanpak & Besluit / Approach & Decision . Hoe wordt een dergelijk verzoek behandeld binnen uw gemeente? Wat zijn de stappen die worden doorlopen? How is such an application assessed within your municipality? What are the steps that have to be taken? . Is in elk van deze gevallen de Nederlandse nationaliteit toegekend? Have all of the requests been approved? . Hoe wordt een verzoek behandeld dat wel afwijkt van de criteria (bv: als ‘nationaliteit onbekend’ geregistreerd maar wel de facto staatloos)?
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How is an application treated that does not comply with the criteria (e.g.: when someone is registered as ‘nationality unknown’ but the person is practically stateless)?
Betrokken partijen & Verantwoordelijkheid / Parties involved & Responsibility . Wie zijn er betrokken bij de beordeling? Meerdere collega’s? Who are involved with the assessment? Several colleagues? . Wat zijn de bronnen/hulpmiddelen die worden geraadpleegd (wetsartikelen/handboeken/adviesorganen/etc)? What are the sources of information that are used as support (Articles/manual/advisory organisations/etc)? . In hoeverre is de burgemeester er bij betrokken (geweest)? To what extent has the mayor been involved in the process? . Wat is de rol van de IND? What is the role of the IND? . Wie draagt de uiteindelijke verantwoordelijkheid? Who has the final responsibility? . Moet er verantwoording worden afgelegd bij IND/burgemeester? Is there a certain extent of accountability towards the IND/mayor?
Ervaring & Visie / Experience & Opinion . Hoe ervaart u in het algemeen de behandeling van zulke verzoeken? Soepel/stroef? In general, how do you experience the assessment of such cases? Easy/difficult? . Zijn er zaken geweest die het proces hebben bemoeilijkt? Have there been factors that complicated the process? . Wat is in het algemeen uw visie op dit Artikel? Wat vindt u van de voorwaarden die worden gesteld om te kunnen opteren voor het Artikel? In general, what is your view on the Article? What do you think about the criteria that have to be met in order to apply for the Article? . Als u de mogelijkheid had, zou u het Artikel aanpassen/herinrichten? Zo ja, hoe en waarom? Hypothetically, if you would be given the possibility, would you change the Article? If yes, how and why?
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