actually wish to return to their country of origin (or of former habitual residence), but
cannot because no State accepts responsibility for them, is unclear.
80. Numerous interviewees described the practice of being detained for months, in a regime
sometimes no different from criminal prisons103 and without indications as to when they
would be expelled, only to be released because a judge ruled that “the perspective of
deportation was absent”. Many interviewees said that upon being released, they were
then given notice to leave the country within 24 hours. In 2008 alone, 1,679 persons of
unknown nationality were told to depart from the Netherlands this way.104 Without means
or the right to either stay in or leave the country, most respondents were arrested a
second or third (and in some cases even fourth and fifth) time and then sent back to
aliens’ detention awaiting deportation. Usually, not being able to present identification
documents caused the arrest in the first place. This vicious cycle has a tremendously
detrimental effect on the mental state of stateless persons, who often do not dare to
leave their house or shelter at all anymore. Indeed, “[e]ven where detention is not initially
prohibited, it may become arbitrary over the course of time owing to the length [and
regularity] of detention”.105 It should be noted in this regard that up until 24 December
2010, when the EU Return Directive entered into force, the Netherlands operated without
legal restrictions on the duration of alien detention.106 Still, with this Directive now in place
detention may last as long as 18 months when “a lack of cooperation by the third-country
national” has been found or “delays in obtaining the necessary documentation from third
countries” arise.107 The latter issue is particularly common where people who are stateless
or of unknown nationality are concerned.
81. While it is undoubtedly true that in some cases self-proclaimed refugees or stateless
persons have destroyed their means of identification with a view to hindering their
expulsion, in general deportation is not just dependent upon the willingness of the person
to be removed. The cooperation of friends or kin in the individual’s country of origin may
be required to establish an identity and they may be found unable or unwilling to do so, or
not found at all; alternatively the Dutch government may not expend the resources required
to achieve removal; most importantly, a country of origin may refuse its cooperation for
a variety of reasons, chief among them a sincere or pretended unawareness of a link
with the person in question. In this context it has been suggested that “[i]f no information
can be acquired within a reasonable time the person involved should be deemed to be
stateless”.108 Especially when a failure to deport is not proven to be due to an individual’s
own (in)action, punishment for an inability to leave is particularly harsh. UNHCR would
therefore recommend the imposition of a time limit on these attempts at expulsion. In
fact, “under Article 7 of the ICCPR [International Covenant on Civil and Political Rights,
103
mnesty International, “Vreemdelingendetentie: In strijd met mensenrechten (updated version)”, 16.
A
See also European Committee for the Prevention of Torture and Inhuman and Degrading Treatment
or Punishment, “Report to the authorities of the Kingdom of the Netherlands on the visits carried
out to the Kingdom in Europe, Aruba and the Netherlands Antilles”, (2007), 33.
104
ederlands nationaal contactpunt voor het Europees migratienetwerk (EMN), “Statistisch
N
Jaaroverzicht Migratie en Internationale Bescherming – Nederland 1 januari 2008 - 31 december
2008”, 37.
105
K. Perks and J. Clifford, “The legal limbo of detention”, Forced Migration Review, no. 32 (2009), 42.
106
irective 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on
D
common standards and procedures in Member States for returning illegally staying third-country
nationals.
107
Ibid., Article 15 (section 6 under a and b).
108
.-R. de Groot, “A clarification of the fundamental rights implications of stateless and persons
G
erased from the register of residents”, Briefing paper European Parliament (2007), 3.
in the Netherlands
35