case mentioned after paragraph 40 above, of a Syrian Kurd who claimed to be stateless
and therefore contested his registration as “nationality unknown” in the GBA indeed
raises the question whether non-specialized courts should be burdened with the task of
assessing a person’s statelessness.
136. In de Groot and Evers’ view, the court’s conclusion that a person is stateless does not
per se have any automatic consequences in terms of residence rights, but it would allow
the stateless person to invoke the rights granted by the 1954 and 1961 Conventions.
UNHCR, however, favours a residence right being granted in principle in the Netherlands
whenever the court concludes that a person is stateless and where no residence right
in another country exists.186 Only then would the spirit of the 1954 Convention be
truly “activated”, since most of the Convention’s rights are dependent on lawful stay.
Virtually all cases in the demographic analysis show that people lacking a nationality
have difficulties accessing basic rights such as health care, education and employment.
Mere recognition as stateless would not, strictly speaking, change anything for them in
this respect, since it does not currently translate into a right to legal stay.
137. UNHCR is aware that granting recognized stateless persons a right to legal stay may
be viewed as a far-reaching proposal. At the same time, to do so would seem to be a
logical corollary of recognition which is necessary to ensure that the Netherlands is able
to uphold its obligations under the 1954 and 1961 Conventions. One good practice
example in this respect is that of Spain, where all recognized stateless persons are
provided with a five-year, renewable residence permit, which includes the right to work.
In Latvia, a four-year renewable residence permit is provided to recognized stateless
persons, while France, Italy and Mexico offer renewable residence permits of one or
two years on recognition of statelessness.187 In any case, in view of the wider goal of
reducing statelessness, possession of a nationality is generally preferable to recognition
and protection as a stateless person.
138. The no-fault procedure is not the solution to the problem. Under the current no-fault
procedure188 the burden of proof lies exclusively with the applicant. The Aliens Act
Implementation Guidelines explain that this policy is allowed under the 1954 Convention,
because this instrument does not contain procedural provisions.189 UNHCR recommends
that the burden of proof be shared between the individual and the State and that a
specifically designated authority be assigned the task of assessing the evidence.190
Moreover, the State may well be in a better position than the individual to find out the
content of foreign nationality law which, in turn, allows for a better assessment of the
veracity of the applicant’s statelessness claim.
54
186
ee UNHCR “Stateless Determination Procedures and the Status of Stateless Persons”, Summary
S
Conclusions, of the Expert Meeting, Geneva, 6–7 Dec. 2010, paras. 25–27.
187
ee Ruma Mandal, “UNHCR Handbook on the Determination of Statelessness, Discussion Paper
S
No. 4, What Status Should Stateless Persons have at the National Level?”, (draft prepared for
Expert Meeting on Statelessness Determination Procedures and Statelessness Status, Geneva, 6-7
Dec. 2010), Nov. 2010.
188
This procedure is laid down in paragraph B14/3 of the Aliens Act Implementation Guidelines.
189
See B11/17.2 of the Aliens Act Implementation Guidelines.
190
ee UNHCR, “Statelessness Determination Procedures and the Status of Stateless Persons”,
S
Summary Conclusions of an Expert Meeting Held in Geneva, Switzerland on 6-7 December 2010.
“If an individual can demonstrate, on the basis of all reasonably available evidence, that he or she
is evidently not a national, then the burden should shift to the State to prove that the individual is a
national of a state.”
Mapping statelessness