107. From the above, it follows that, in the absence of a statelessness determination
procedure, Article 3.4(1)w in conjunction with Article 3.6(1a) of the Aliens Decree,
although not explicitly referring to stateless persons, are particularly relevant to this
group. It should be stressed, however, that even when a situation of statelessness has
been established, this does not automatically lead to a no-fault residence permit.153
The stateless person has to meet a number of stringent cumulative requirements154
which are listed in paragraph B14/3.2. of the Aliens Act Implementation Guidelines
(Vreemdelingencirculaire):
“1. the alien must prove that he or she has independently (zelfstandig) tried to leave
the Netherlands;
2. the International Organization for Migration must have indicated that it is not able
to assist the alien in leaving due to lack of travel documents;
3. mediation by the Return and Departure Service (DT&V) to obtain the necessary
travel documents has not been fruitful;
4. the applicant must show through objective and verifiable facts and circumstances
that he or she cannot leave the Netherlands through no fault of his or her own;
and
5. the alien must be residing in the Netherlands without a valid title and not meet
other conditions for a residence permit.”
108. As stated above, an application for a no-fault residence permit can only be lodged after
an application for asylum or a regular residence permit has been rejected.155 In a number
of other countries, where there is also no procedure to determine statelessness:
“nationality, and thus statelessness, [may be considered] in deportation or refugee
determination proceedings even though statelessness is not itself a ground for
preventing deportation or for the receipt of protection. In such cases a finding of
statelessness may impact on the outcome of the refugee or complementary protection
determination in so far as it is pertinent to the identification of the State in respect
of which the risk of refoulement must be assessed but in itself it will not generally
affect the individual’s status. This would appear to be the situation, for example, in
Australia, Canada, Ireland and the UK.”156
109. In some cases, however, all that may then left is the possibility of a discretionary grant
of residence rights, for instance, on humanitarian grounds. The length of time individuals
may spend in sometimes lengthy procedures not designed to address statelessness
has led some commentators to argue in favour of a statelessness procedure separate
from the asylum procedure. Another main argument in favour of separate procedures is
that the need for confidentiality in refugee cases is hard to reconcile with the obligation
in statelessness cases to contact foreign authorities.157 UNHCR is not against combined
procedures per se, as long as adequate safeguards regarding the confidentiality required
vis-à-vis asylum-seekers and refugees are in place.
153
okters van de Wereld, “Stateloos maakt radeloos. De situatie van stateloze Roma in Nederland
D
2009”, Section 5.3.
154
T.P. Spijkerboer and B.P. Vermeulen, Vluchtelingenrecht (Nijmegen: Ars Aequi Libri, 2005); G.G.
Lodder, Vreemdelingenrecht in vogelvlucht 3rd ed. (Den Haag: Sdu uitgevers, 2008), 119ff.
155
This seems to follow from paragraph B14/3.4.3 of the Aliens Act Implementation Guidelines.
156
. Mandal, “Discussion Paper no. 3: Procedures for Determining Whether a Person is Stateless”,
R
Discussion papers series for the establishment of a UNHCR Handbook on the Determination of
Statelessness (2010), 7.
157
Ibid., 13–14.
in the Netherlands
45