European States’ Obligations to Repatriate the Children Detained in Camps in Northeast Syria
meet burdensome administrative requirements to acquire a nationality. 243
The highly burdensome DNA requirement in itself is an unreasonably high
threshold of evidence and requiring it runs against the protective mandate
States have over the best interest of the child, creating a policy that is
virtually impossible for individuals in the camp to meet, thus making any
legal protection practically inexistent. The UN High Commissioner for
Refugees (“UNHCR”), in establishing guidelines for the protection of
stateless populations, has delineated an obligation by States “to consider all
available evidence, oral and written, regarding an individual’s claim,”244 and
underlined that special consideration is needed in situations that require
shifting the burden of proof to the party with access to said evidence.
Generally in the case of statelessness determination “the burden of proof is
in principle shared, in that both the applicant and examiner must cooperate
to obtain evidence and to establish the facts.” 245 Given the nature of
statelessness, applicants for statelessness status are often unable to
substantiate the claim with much, if any, documentary evidence, let alone
DNA evidence. This applies to both the process of repatriating the children
from the camps and the process of determining their parentage, where the
applicant has a duty to be “truthful and to submit all evidence reasonably
available,”246 but where securing a DNA test is an unsurmountable task.
UNHCR has noted that “further flexibility is also warranted where it is
difficult for individuals to obtain documents,”247 advising States to adopt a
“reasonable” standard of proof, as required in refugee status
determination.248
Therefore, European States should lower their standard of evidence of
nationality and adopt flexible rules of evidence. 249 European States should,
HRComm, “X.H.L. v. Netherlands,” Views on Communication No. 1564/07, CCPR/C102/D/1564/2007,
22 July 2011, para. 10.2.
244 UNHCR, “Handbook on Protection of Stateless Persons,” 30 June 2014, para. 87.
245
Ibid, para. 89.
246
Ibid.
247 Ibid.
248 Ibid, para. 91.
249 Note that sometimes a country may be willing to lower its standard of evidence for proving nationality,
e.g. in the context of a readmission agreement with another country, see: “List of Documents for Indirect
Evidence of Nationality” in Annex 3 to the 2006 Agreement between the European Community and the
Russian Federation on Readmission, cited in UNHCR, “Handbook on Protection of Stateless Persons,”
30 June 2014, footnote 163. Also note that: “Definite proof of nationality, which frequently cannot be
supplied by the requesting state, or only at disproportionately high cost, cannot be demanded, as this
would constitute a frustration of the state’s obligation to admit. As a result, a state is not permitted to
refuse the readmission of persons, whose nationality has been substantiated, for purely formal reasons,”
see: Kay Hailbronner, “Readmission Agreements and the Obligation on States under Public International
Law to Readmit their Own and Foreign Nationals”, Zeitschrift für ausländisches öffentliches Recht und
Völkerrecht, Heidelberg Journal of International Law, Volume 57, Issue 1, 1997, pp. 14-15. See, also:
243
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