ENDING CHILDHOOD STATELESSNESS: CASE STUDY OF LATVIA
Name: Anastasija Kuznecova
Masters track: Public International Law
Supervisor: Maarten den Heijer
ABSTRACT
The paper analyses the issue of child statelessness in Latvia. Specifically, it examines the right of access to Latvian citizenship for children of non-citizens and stateless persons. The main argument is that despite a substantial increase in registration of non-citizen children as Latvian nationals, the implementing measure has a limited scope of application that does not provide access to citizenship for every child born in Latvia who would otherwise be stateless, and thus, is incompatible with the international obligations on reduction and prevention of statelessness. It determines that the implementing measure contains a number of restrictions one of which is a requirement for both parents to hold a status of a non-citizen or a stateless person. There are currently no safeguards against statelessness for children born in Latvia whose one parent is neither a non-citizen, nor a stateless person, such as, for example, a refugee or another state’s national who are unable to transmit own nationality to a child. Some of the other restrictions are related to the Latvian language proficiency and the maximum age for citizenship registration that contradict the internationally prescribed norms. The assessment of Latvian obligations to reduce statelessness is based on the relevant provisions of the 1961 Convention. The argument for identification of non-citizens as stateless persons is based on the standards for identification of the 1954 Convention.
KEYWORDS
Statelessness — child’s rights— Latvia — non-citizens — the 1961 Convention — prevention and reduction
INTRODUCTION
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1. INTERNATIONAL LEGAL FRAMEWORK RELATED TO STATELESSNESS
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2. STATELESSNESS SITUATION IN LATVIA
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3. THE PREVENTION ANS REDUCTION OF CHILD STATELESSNESS IN LATVIA 16
4. INTERNATIONAL STANDARDS FOR AGAINST CHIDL STATELESSNESS: 1961
CONVENTION
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5. ANALYSIS
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6. CONCLUSION
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“ Statelessness is a profound violation of an individual’s human rights. It would be deeply unethical to
perpetuate the pain it causes when solutions are so clearly within reach.” 1 INTRODUCTION
The right to nationality is a basic human right that serves as a premise for resolving variety of issues pertaining to protection of other human rights. The international law codifies a number of principles and norms related to right to nationality. The unique position is attributed to the specialised framework established on the basis of the two UN Conventions, Convention Relating to the Status of Stateless persons of 1954 and Convention on the Reduction of Statelessness of 1961. While the international rules and norms offer guidance, it is still within the discretion of each individual State Party to these Conventions to implement them by adjusting domestic legislation accordingly. Considering the differences between statelessness that occurs in both migratory and non-migratory contexts, the examples of prolonged statelessness are found in connection with the state succession. When the new or restored state adopts different nationality laws, it affects the status of longterm residents of that state and its ethnic minorities by creating a risk of statelessness. In Latvia, upon restoration of independence, the laws were reinstated pursuant to the principle of state continuity that highlights the illegality of Soviet occupation, denies that Latvia was part of it and reflects accordingly on the citizenship policy. According to this policy a right of access to nationality was established only for the direct descendants of persons who were Latvian nationals prior to occupation. It follows that the rest of the former Soviet Union nationals who immigrated in Latvia during those years left in legal limbo. While the majority had successfully completed the naturalisation process, thousands who did not were assigned a provisional status of non-citizens.
Since its introduction in 1995, Latvia insists on peculiarity of the situation with its non-citizens. It argues that their status cannot be compared to any other status in the framework of international law, because it is based on specific history circumstances. The argument is based on the fact that the non-citizens are afforded a greater standard of treatment in comparison to the scope of rights provided within the 1954 Convention relating to the status of stateless persons, and thus, should not be recognised as stateless. Yet, 2 the topic of whether the status of non-citizen should be maintained and, most importantly, be applied to newborn children remains highly debatable in Latvian politics. The most recent proposal by the Latvian President to amend the Citizenship Law considered establishing an automatic mode of acquisition of nationality for children of the non-citizens or stateless persons in order to completely eliminate the practice of assigning these statuses to newborn children. Nevertheless, the amount of its supporters in the
Antonio Guterres (2014) 2
1
UNHCR, ‘Submissions on Latvia’ (2015) 2
Parliament was insufficient to pass the amendment. Considering that Latvia is a party to both UN 3 Conventions on statelessness it is bound by international obligations to prevent and reduce incidents of statelessness within its jurisdiction by implementing appropriate measure for identification of stateless persons and access to nationality for otherwise stateless persons born in its territory. 4
Thus, the aim of this paper is to analyse the Latvian citizenship framework by focusing on specific measures implementing the right of access to citizenship for stateless children born in Latvia in the light of relevant international rules in order to establish whether Latvia complies with its international obligations to prevent and reduce statelessness. The paper argues that, although, the vast majority of children at risk of statelessness became Latvian nationals since the introduction of the right of access to citizenship for children of non-citizens and stateless persons, the scope of application of this right is limited to the extent that it is fundamentally insufficient to address all incidents of child statelessness, and thus, it is not compatible with the Latvian international obligations to prevent and reduce statelessness.
The paper maintains the following structure. First, it considers the background information on international framework for addressing the issue of statelessness with a focus on the instruments that establish the binding international obligations for Latvia. The section includes a discussion on the two UN Conventions of 1954 and 1961 and the international rules for identification of statelessness persons. Second, the paper provides the background information on population of Latvia and identifies the scope of persons affected by statelessness pursuant to the rules provided in the 1954 Convention. In particular, it argues that Latvian non-citizens are stateless for purpose of mentioned international rules on prevention and reduction of statelessness. Third section examines the development and practice of nationality laws in Latvia. It describes in detail the right of access to citizenship for children of non-citizens and stateless persons and determines a number of issues pertaining to its limited scope of application and a lack of reasonable alternatives. In order to later analyse these issues the fourth section describes the international rules for implementation of a right of access to citizenship for stateless persons born in the State’s territory pursuant to article 1 of the 1961 Convention. Specifically, it discusses to what extent the State Party may limit the right of access to its citizenship for stateless persons. The relevant international obligations are interpreted according the authoritative guidelines developed for both Conventions by the UNHCR. Considering that the focus of this paper is on stateless child, the section also considers the relevant rules and principles of the Convention on the Rights of the Child in the context of implementation of state measures against child statelessness. The final section analyses to whether the existing limitation to the right of access to Latvian citizenship for children of non-citizens and stateless
Kluga, M., ‘The Parliament denies the President’s initiative regarding the non-citizens’ (21 September 2017)
3
UNHCR ‘Handbook on Protection of Stateless Persons’ (30 June 2014) (Handbook Stateless Person) 14;
4
persons are compatible with international obligations of Latvia to prevent and reduce child statelessness. Lastly, the paper draws a conclusion and outlines relevant recommendations.
1. INTERNATIONAL LEGAL FRAMEWORK RELATED TO STATELESSNESS
The Universal Declaration of Human Rights proclaims that, “Everyone has a right to a nationality and shall not be arbitrarily deprived of it ”. The Declaration was adopted by a decisions of the General 5 Assembly and has no binding effect in general, however some legal scholars argue that a right to nationality has become a norm of customary international law, which is supported by jurisprudence of domestic and international judicial bodies. And yet, the rule does not create a corresponding obligation 6 on any party to provide this right. Moreover, the current practice suggests that States may deny and withdraw nationality based on various grounds ranging from foreign residence to treason, even when it results in statelessness. Although there is no agreement on a general right to nationality, many States 7 commit to preventing and reducing individual incidents of statelessness.
There are two core binding instruments that address the issue of statelessness in international law: the 1954 Convention relating to the Status of Stateless Persons (hereafter, the 1954 Convention) and the 1961 Convention on Reduction of Statelessness (hereafter, the 1961 Convention). While the former focuses on identification of stateless persons and regulation of the national standards of treatment for stateless persons to ensure protection of their rights, the latter is primarily concerned with the safeguard measures in nationality laws of different jurisdictions to prevent statelessness from occurring. In the other words, there are essentially two sets of rules: the protection rules and the avoidance rules. The 1961 Convention 8 adopted definition of stateless persons from the earlier instrument. It follows that both instruments are fundamentally linked, thus it is important to analyse them jointly as part of a single specialised framework.
This UN framework on statelessness was intended to address the needs of those who became stateless in the aftermath of the Second World War and were not entitled for international protection rendered by the 1951 Convention Relating to the Status of Refugees. While the Conventions of 1951 and 1954 share the drafting history and most of the provisions are identical, in certain aspects the former offers a higher standard of treatment, like prohibition against refoulement or protection against penalties for illegal entry. 9 Considering that both instruments were developed to address the issues of post-war world, one could
United Nations Declarations of Human Rights art 15
5
6. Gunnar G. Schram, “Article 16” 239-241; Hannum H, 'The Status of the Universal Declaration of Human Rights
in National and International Law.' (1995) 347. The article refers to jurisprudence of the German Constitutional Court and the Inter-American Court of Human Rights.
Stephen Hall, “The European Convention on Nationality and the right to have rights” (1999), 588
7
Swider, K., Den Heijer, M., "Why Union Law Can and Should Protect Stateless Persons”, 106.
8
Convention Relating to the Status of Refugees (Refugee Convention) art 31 and 33
argue sensibly against their relevance in the current context of statelessness. Nevertheless, the UNHCR continues to strongly advocate for accession to these Conventions based their pivotal role within international human rights as they address the issues specific to non-refugee stateless persons that are not addressed elsewhere. In comparison to the Refugee Convention, the Conventions of 1954 and 1961 10 received considerably less political prominence at the time. In fact, the Refugee Convention entered into force within the following three years after adoption, while the virtually identical instrument for stateless persons was ratified after six years and it took almost fifteen years to gather enough ratifications for the reduction of statelessness instrument.
Although more states have acceded to all three conventions over the years, the ratio of political interest is similar. Currently, there are 145 States Parties to the Refugee Convention, whereas two instruments on statelessness were enforced in total by 90 and 71 States respectively. The UNHCR associates this issue 11 with a lack of supervisory body or other mechanisms to promote the accession. Nonetheless, a low 12 accession rate suggests a persistently moderate interest among states to have internationally binding obligations on statelessness that ultimately negates the likelihood of any other, perhaps more comprehensive measures, to be developed in future. Given that the two Conventions are the only specialised instruments, it follows that combined they provide a unique international legal framework for cooperation in identifying statelessness and ensuring uniform applications of safeguards against it across different jurisdictions. Thus, for the purpose of this paper the binding obligations enshrined in the UN 13 Conventions of 1954 and 1961 are considered as the core foundation for international standards on statelessness.
Meanwhile the guidelines developed, by the Office of the UN High Commissioner for Refugees and its Executive Committee, offer authoritative interpretations of provisions of both Conventions. The Office’s original mandate was extended to cover non-refugee stateless persons by 1976 as an alternative to creating a separate body that would execute the functions foreseen under the Conventions. The UNHCR 14 areas of responsibility include identification and protection of stateless persons, prevention and reduction of statelessness. Its overall goal is to strengthen the international protection regime and to assist
UNHCR, ‘Global Action Plan to End Statelessness’ (4 Nov 2014) 23
10
UN, ‘Treaty Collection Depositary’ (2018)
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UNHCR, ‘Information and Accession Package: The 1954 Convention Relating to the Status of Stateless Persons
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and the 1961 Convention on the Reduction of Statelessness’ (1996) 5
Cooperation mechanism for identification shall be understood in the light of article 1 of the 1954 Convention that
13
requires a State to ensure a person is not a national of another State. European Network on Statelessness ‘Why the 1961 Convention on Statelessness Matters’ (30 August 2011)
UNGA RES 3274 (XXIX) (10 December 1974) ; UNGA RES 31/36 (20 April 2016) ; UNHCR A/RES/50/152
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Governments in meeting their obligations, including a promotion of progressive implementation of international standards and mechanism through national public policy. Hence, the UNHCR guidelines 15 are relevant for understanding the context of national implementation of the UN statelessness Conventions. This section further considers the international obligations of Latvia related to identification of stateless persons, including the definition and procedure for determination (the 1954 Convention) that are applied in the following section in the situation of statelessness in Latvia.
Definition of Stateless Persons
The 1954 Convention identifies a stateless person as anyone “who is not considered as a national by any State under the operation of its law”. The definition is part of customary international law, thus the 16 17 scope of its application extends to the other international instruments on statelessness, such as the 1961 Convention which does not contain a separate definition. The definition of stateless persons should be interpreted according to its ordinary meaning and in a context of the object and purpose of the 1954 Convention, which is to ensure the widest possible exercise of fundamental rights and freedoms to 18 stateless persons. The drafters intended to improve the status of stateless persons recognising that many 19 of them do not enjoy the protection granted by the Refugee Convention. Based on the fact that the status 20 of a stateless person is inferior to nationality, the definition implies that a State should take all appropriate measures to avoid false recognition of a persons with nationality as stateless. Further, the definition 21 should be interpreted by looking at its constituent terms: first, ‘by any State’, second, ‘not considered as a national… under the operation of its law’.
The concept of a state is understood strictly as defined by the legal criteria of the Montevideo Convention, regardless of other common factors, such as diplomatic recognition. Even in the case of 22 ineffective government, the entity is still recognised as a state for the purpose of Article 1(1). Only the “states with which a person enjoys a relevant link”, usually a place of birth or residence, are relevant for
! UNGA A/RES/61/137 2-4
15
The 1954 Convention art. 1(1) 16
“This definition can no doubt be considered as having acquired a customary nature.” The UN ‘Articles on
17
Diplomatic Protection with commentaries’ (2006) 49 Vienna Convention art. 31(1)
18
The 1954 Convention (n 16) preamble 2 19
The 1954 Convention (n 16) preamble 3-4
20
Handbook Stateless Person (n 4) 14
21
Montevideo Convention art 1
definition of statelessness. In regard to understanding of the second term, the UNHCR highlights 23 possibility of occasional inconsistencies between the formal rules for application or withdrawal of nationality and the actual practice that includes a possibility of an individual, who according to domestic requirements is entitled for a nationality, but in fact is stateless. Thus, in the context of defining statelessness ‘the law’ encompasses situations when written legal provisions were modified in implementation. The interpretive guideline provides a list of practical considerations that are relevant 24 for establishing whether a State considers a person to be its national, such as, inter alia, the (non-)automatic mode of acquisition or withdrawal of nationality, competent authority that makes a decision, the way evidences are evaluated, possibility of inconsistent treatment by different authorities, impact of the appellate/review body’s decisions. 25
Lastly, a concept of national relates to “a formal link, of political and legal character, between the individual and a particular State…that is persons over whom a State considers it has jurisdiction on the basis of nationality, including the right to bring claims against other States for their ill-treatment”. In 26 other words, when a State considers to have jurisdiction over a person, and therefore grants him or her a legal status “on the basis of nationality rather than a form of residence”, that person is a national for the purpose of Article 1(1). There is no distinction in the sense of terminology or types of nationality, if 27 relevant, as long as the relationship between the person and a State exists. Moreover, particular link is understood in its formal legal sense, hence there is no question of its genuineness or effectiveness. In 28 regard to overall (in)effectiveness of nationality, the 1954 Convention does not cover the individuals who lack protection of their international human rights, and thus, are de facto stateless. 29
As a final point, the universal definition of stateless persons acknowledges the fundamental respect for state sovereignty and the broadest discretion the states enjoy in granting and withdrawing their nationalities. While this negative formulation implies a state obligation to define who is considered a national, there is no corresponding international obligation to define who is stateless within its national
Handbook Stateless Persons (n 4) 18-21 23
Handbook Stateless Persons (n 4) 23-24 24
Handbook Stateless Persons (n 4) 25-51 25
Handbook Stateless Persons (n 4) 52 26
Handbook Stateless Persons (n 4) 53 27
Handbook Stateless Persons (n 4) 54 28
The term de facto stateless is not officially recognised within any international legal instrument. Although the
29
Convention contains an implicit reference to this group suggesting to the State Parties to accord them the same protection as stateless persons, this recommendation of a non-binding character and is supplementary to the remaining provisions. UN Treaty Series, (1960)
legal order. Thereby, the Convention does not safeguard against the divergence across jurisdictions in identification of stateless persons due to immanent differences in nationality laws. In this respect establishing comparable procedures for determination of statelessness across the states facilitates compliance with the implicit state responsibility of the 1954 Convention to identify stateless persons to accord them appropriate treatment. 30
Procedures for the Identification of Stateless Persons
Given that the 1954 Convention does not contain an explicit requirement to institute a procedure for determination of statelessness, its design or operation, if applicable, are also left to the discretion of a State. However, there are certain considerations related to its implementation. While a State adopts the approach that it deems the most appropriate, for a procedure to be effective the determination of statelessness must be one of specific objectives. It can be part of a combined procedure also aimed at 31 determination of refugees, operated by immigration or naturalisation authorities, but the objective has to be with the view to identifying stateless persons. If the established procedure, which is not determined 32 to effectively address the problem of identification of stateless persons, it is in contravention to the purpose of the Convention and negates attempt by the State to comply in good faith with its international obligations.
The other necessary safeguards, for the purpose of the 1954 Convention, should include, inter alia, unconditional access to the procedure for every applicant, due process guarantees and effective right to appeal. Moreover, the involvement of UNHCR can ensure fairness of determination results and enhance 33 existing procedures. Statelessness determination procedures generally are meant to assist States in 34 fulfilling their commitments stipulated in the two Conventions. However, there are certain groups of individuals who are stateless for reasons not related to migration and they are considered as remaining in their ‘own country’. In their case the determination procedures with the view to obtain a stateless status and a corresponding treatment, are inappropriate due to a prior lasting connection that they have with a State based on their residence. The alternative may be a targeted nationality campaign that immediately 35 resolves the issue by granting nationality instead of a stateless status and a corresponding minimal
Handbook Stateless Persons (n 20) 55-56 30
Handbook Stateless Persons (n 20) 62 31
Handbook Stateless Persons (n 20) 65-66 32
Handbook Stateless Persons (n 20) 69-71 & 76
33
Handbook Stateless Persons (n 20) 116 34
Handbook Stateless Persons (n 20) 58-59 35
treatment. 36
The following section discusses the context of statelessness in Latvia in the light of these international standards in order to identify the persons among its residents who are affected by statelessness. It considers whether the Latvian non-citizens and their children should be recognised as persons affected by statelessness for the purpose of the international provisions on prevention and reduction statelessness.
The alternative of granting nationality is more appropriate for the purpose of the Convention in the light of
36
ineffective use of resource for individual determination procedure in the case of a stateless group who holds “significant ties to only one State in which they are resident” in UNHCR‘Action to Address Statelessness: A Strategy Note’ (March 2010)
2. STATELESSNESS SITUATION IN LATVIA
The national legal framework in Latvia distinguished between persons within its territorial jurisdiction according to six different legal statuses, which are as follows: the nationals of Latvia, nationals of the third states, refugees, persons holding alternative status, stateless persons and the Latvian non-citizens. 37 Three of these statuses of Latvian residents may be assigned to persons whom Latvia identifies as stateless according to the international definition prescribed by the 1954 Convention, namely a refugee, a person holding an alternative status and a stateless person. While the determination of statelessness of a 38 child born to stateless persons is consistent, the other two groups of residents are treated differently. The children born in Latvia to stateless persons who were granted the refugee or alternative status, are automatically assigned the legal status of their parents at the time decision is made, either a refugee or an alternative. It follows that the provision provides safeguards against identifying as stateless children of 39 internationally protected persons in Latvia. Yet, they are still not recognised as nationals by any state under operations for its laws. Although the standard of treatment afforded to refugees or persons with an alternative status is extensive, the Latvian State does not recognise these groups of residents as nationals 40 under the operations of its laws. Thus, the children born in Latvia to parents, who were recognised as stateless before acquiring a refugee or an alternative status, should be considered stateless for the purpose of the assessment of measures implemented by Latvia to prevent and reduce statelessness.
In regard to non-citizens and their children born in Latvia the domestic rules prescribe that an international definition of stateless persons should not apply to them. Moreover, a person who has a 41 non-citizen status may only be recognised as stateless upon loss of the original status. In the same line, 42 the position of non-citizens in the international legal framework was defined in the judgement of the Constitutional Court of Latvia as “a new category of persons, up to this time unknown in public international law”. However, so far there has been no international legal instrument that would stipulate 43
The Office of Citizenship and Migration Affairs (‘the OCMA’) ‘Population Register’ (1 January 2018)
37
The definition contains a direct reference to international instrument: “A person may not be recognised as stateless
38
in Latvia, unless the provisions of the 1954 Convention … apply to that person” Latvian Law on Stateless Persons (2004) art.2(1) and 3(1); An alternative status may be granted to a third-country national or a stateless persons who is not entitled to a refugee status, but there is a reason to believe that he or she may be exposed to serious harm after return to a country of origin. Latvian Asylum Law (2016) art. 40(1); art. 37(1) similarly refers to third-country nationals and stateless persons entitled to refugee status.
Latvian Asylum Law (2016) art. 40(3) and 37(3)
39
Djačkova, S., Zonberga, K., ‘The minors without nationality’(28 April 2016)
40
Law on Stateless persons (2004) art. 3(2)
41
ibid, art. 2(2)
42
The Constitutional Court of Latvia (7 March 2015) No 2004-15-0106 para 15
to this fact. Hence, given that stateless persons in Latvia are identified according to the relevant international rules, it is important to consider how differently non-citizens are recognised under the operation of Latvian laws in order to determine their international status.
As a brief background, the status of non-citizen was established on the basis of the Law On the Status of those Former USSR Citizens.When it originally came into force in April 1995, approximately 730000 residents (29% of total population) obtained the temporary status of non-citizens. This law was 44 instituted as a temporary measure on account of gradual implementation of the Latvian naturalisation policy or acquisition of citizenship in another states. It follows that in this context of state succession a 45 large part of population with a prior lasting connection with the Latvian State was rendered without the necessary protection pertaining to nationality. As mentioned earlier, with respect to population that has a long-established ties to the country, the statelessness determination procedures with the purpose of obtaining stateless persons status are inappropriate for resolving the statelessness. Thus, although Latvia 46 did not implement such statelessness determination procedure in respect of its long-term residents, the adopted measure with the purpose of obtaining non-citizen status, instead of a nationality, lead to the same result of prolonging the issue. However, the government denies the existence of statelessness problem with regard to citizens by emphasising the same scope of social and economic rights of non-citizens and Latvian nationals which is greater than the international standard prescribed for stateless persons and outlines other important differences. 47
The most relevant difference pertains to the fact that, unlike stateless persons, the non-citizens belong to the Latvian State. The national legal order distinguishes between the terms ‘valstspiederība’ and ‘pilsonība’ that are equally translated as nationality, yet the former stipulates the state of belonging of objects and persons to a State, while the latter refers to nationality and/or citizenship. A state of 48 belonging of non-citizens to Latvia is based on equal rights provided to them under the Constitution. In particular, both nationals and non-citizens have a right to passport issued by Latvia that indicates their belonging to the Latvian State to the foreign authorities. Although there is a difference between the two 49 documents pertaining to their titles, they are of the same type. The passport gives its holders a right to
Ministry of Foreign Affairs, ‘Citizenship Policy in Latvia’
44
supra (n 44) para 16
45
see section statelessness determination procedure
46
The Ombudsman Latvia, ‘Difference between Non-citizens and Stateless persons’ (29 September 2017)
47
Latvian Academy of Science Terminology Commission (27 May 2008) Decision No 75
48
Latvian Personal Identification Documents Law (12 January 2012) art.9
state protection while abroad, as well as a right to return and permanently reside in Latvia. It is 50 distinguishes non-citizens from the rest of non-nationals in Latvia whose identification documents are of temporary character and pertain to their residence status. It follows that, from international law 51 perspective, there is a formal link of legal character between a non-citizen and the Latvian State. This link gives the basis for state exercise of jurisdiction irrespective of persons’ residence at the time. In terms of statelessness determination this formal legal link indicates that a persons is recognised as national by the relevant State, and yet it not the case for Latvian non-citizens. 52
The definition provides that the Latvian non-citizens are former USSR citizens and their children who reside in Republic of Latvia, while they are not citizens of Latvia or any other state, including in the past. In the other words, this status is only applicable to those persons who have never had a nationality 53 of any state besides the Soviet Union. Although the title of this rule emphasises its application to the former USSR citizens, it is equally relevant to the stateless persons who legally resided on the permanent basis within the Latvian territory prior to July 1992. While the other stateless persons, who have arrived after the mentioned date have to establish their status according to the general rules of the Immigration Law. It follows that the scope of this rule strictly considers persons who are not formally nationals of 54 any State. Although in practice Latvia recognises non-citizens equally as its nationals under operation of its laws implementing the social and economic human rights as well as some civil rights, there are other laws within national legal order were it is not the case. From the definition it follows that non-citizens 55 are clearly outside of the scope of Latvian nationals. Neither it is possible to consider the status of non-56 citizens as a variety of Latvian citizenship. Consequently, in accordance with the international rules on 57 identification of stateless persons Latvian non-citizens should be considered as stateless for the purpose of further analysis of domestic measures for prevention and reduction of statelessness.
The Constitution of the Republic of Latvia (15 Oct 1998) (Latvian Constitution) art.98 and Law on Non-citizens
50
(n 41) art.2(1) equal rights under the Constitution
Personal Identification Documents Law of Latvia (12 January 2012), art.6. Apart from special cases of diplomatic
51
documents, there are two types of passports issued in Latvia for nationals and non-citizens. The remaining are travel documents.
Dörr, O., ‘Nationality’ (2006) Max Planck Encyclopedia of Public International Law 52
Latvian Law On the Status of those Former USSR Citizens who do not have the Citizenship of Latvia or that of
53
any other State, (1995) art. 1 (‘Law on Non-citizens’) Law on Non-citizens (n 44) art. 8(1) and 1(2)
54
Constitution of Latvia (1922) art. 101
55
Latvian Citizenship Law (1994) (‘Citizenship law 1994’) art 2 The provision defines the scope of individuals
56
entitled to Latvian citizenship, which does make reference to non-citizens. supra (n 44) para 17
3. THE PREVENTION ANS REDUCTION OF CHILD STATELESSNESS IN LATVIA
In accordance with the state continuity doctrine mentioned earlier, the original citizenship framework was re-instituted in Latvia after the restoration of state independence. In order to maintain the integrity of the Latvian nation, it provided for citizenship acquisition only by decent. Hence, nationality was 58 automatically reinstated for those who had it prior 17 July 1940 and their direct descendants, while the basic principles of naturalisation were introduced to establish access to Latvian citizenship for the remaining 48% of population and the future immigrants. The procedure came into force in 1995 giving 59 children a right to become citizens alongside a parent who have been successfully been naturalised, provided that the children are less than eighteen years old and reside in Latvia permanently. Otherwise, 60 the right to Latvian citizenship was accessible to children of foreigners, stateless persons or non-citizens only when the other parent was a Latvian national. It follows that the early citizenship framework had 61 no safeguards against statelessness for children born in Latvia who were unable to acquire Latvian or any other nationality by descent.
In practice this issue directly affected children of non-citizen parents and was addressed in 1998.
Against the government’s expectations the non-citizens, who originally constituted 29% of total population, were not prompted to actively naturalise, and obtain citizenship for their children. 62 63
Although the initial number of non-citizens gradually decreased by almost 11% before 1998, the percentage of them who had changed their status through naturalisation was only 8%. While some were able to obtain nationality in another state, the primary reason for this decline was related to death. 64 Hence, given that naturalisation, at first, was available only to adult applicants, its low trend among the 65
The Supreme Council of Latvia, ‘Decision on the restoration of the rights of citizens of the Republic of Latvia and
58
the basic rules of naturalisation’ (15 October 1991) art 2-3
Krūma, K., ‘Country Report on Citizenship Law: Latvia’ (2015) 5
59
Citizenship Law (1994) art. 15(1)(in force during 1995-1998) 60
Citizenship Law (1994) art. 3.The requirement of both parents to have Latvian nationality was effective prior to 61
1995. If one parent is not a Latvian national child’s citizenship is subject to mutual agreement by both parents. If a child is born abroad there is an additional requirement of permanent residence in Latvia for a parent living with a child.
Ministry of Foreign Affairs of Latvia, ‘Citizenship and Language Policy’ (2016)
62
The reasons against naturalisation according to survey results included, inter alia, the expectation of later policy
63
amendments either to alleviate strict procedural requirement or to grant citizenship automatically (42% of
respondents) and difficulty in passing the language and history exams (21%). Baltic Institute of Social Science,’The Analysis of Integration Process of Latvian Non-Citizens’ (2014) 25-26
The data corresponds to a period from 1995 to 1998. The OCMA, ‘Data on applications for naturalisation' (31
64
May 2018); Baltic Institute of Social Science, (n 53) 64-65
A right to naturalise from the age of 15 was introduced in article 17(1) Citizenship Law in 2013.
non-citizens would have consolidated a denial of access to citizenship for thousands of children living in Latvia and a contentious dissemination of non-citizenship. As a result of international scrutiny and political pressure, this issue was addressed through the amendments of the Latvian Citizenship Law adopted in 1998. The government simplified the naturalisation requirements, which in practice allowed 66 more children to become citizens alongside their parents as soon as they completed the procedure. Most 67 importantly, however, it introduced a right to citizenship specifically for non-citizen and stateless children born after 21 August 1991 in Latvia. While previously the acquisition of citizenship had been possible 68 only by descent, the amendment expanded access to nationality to include a new condition pertaining to place of birth within the state territory. It follows that children other than those born to Latvian nationals became entitled to Latvian citizenship, provided they were born within the state’s territory. This rule is still currently in force, although with few amendments adopted in 2013. This section analyses other 69 conditions for access to citizenship for non-citizen and stateless children born in Latvia.
Condition of legal status of both parents
Whether the parents belong to either of the two specified groups, defined according to their legal status as non-citizen or stateless persons, constitutes a threshold for facilitated access to Latvian citizenship. 70 While the provision includes a number of conditions that apply at different stages depending on the age of a child at the time of citizenship registration, a single common condition is that both parents are recognised as non-citizens or stateless persons according to the relevant provisions of Latvian laws.
Foreign political pressure was a result of the Latvian government’s attempt, as a newly re-established democracy,
66
to join the major international and regional organisation, which involved improving own human rights standards, including the issue of non-citizenship. For more details see: Council of Europe, ‘Opinion 183 on Application by Latvia for membership’ (31 January 1995) para 5 - 8; European Commission, ‘Opinion on Latvia’s Application for Membership of the EU’ (15 July 1997) 114; ‘Letter from OSCE High Commissioner on National Minorities Max van der Stoel to Latvian Minister for Foreign Affairs V. Birkavs about the assessment of naturalisation policy’(14 March 1996)
The improvements in naturalisation included abolition of the so-called ‘window system’, which imposed limits on
67
timing for naturalisation and exemption of certain groups of applicants from examination requirement. Latvijas Vestnesis, ‘Amendments to Citizenship Law’ (22 June 1998)
21 August 1991 is the date when the post-Soviet transition period ended and Republic of Latvia became de facto
68
independent. Thus, the children born within the current Latvian State territory before this date are not considered to be born in Latvia. The Supreme Council of Latvia, ‘Law on the Statehood of Latvia’ (21 August 2001) art 2
The amended conditions consider grant of citizenship at birth and exemptions from language test. See page 17, 19
69
Citizenship Law (1994) art. 3.1 70
However, citizenship may still be granted under exceptional circumstances, when both parents or just one are unknown while the other holds the necessary status. In general as a rule the provision of facilitated 71 access to citizenship does not apply to minors whose one parent is a non-citizen or stateless, while the other is not. This limitation directly affects children born to non-citizens or stateless persons and another 72 State nationals, who are not able to transmit their own nationality to a child born in Latvia. In these 73 circumstances, the Latvian citizenship framework does not provide for any safeguards against statelessness for a minor who has not yet reached the age of fifteen, when citizenship can be obtained through naturalisation. 74
Although the requirement that both parents have a prescribed legal status does not completely preclude some of non-citizen or stateless persons’ children from becoming Latvian nationals, it creates a disparity within the group pertaining to the difference in complexity of the two procedures for access to citizenship. Naturalisation is a general procedure available to any applicant, who meets all the criteria, which includes, inter alia, the assessment of language proficiency and knowledge of the state’s Constitution and history. Unlike the relevant provision in the Citizenship Law, naturalisation does not provide for 75 facilitated access to minors based on their non-citizen or stateless status. Moreover, naturalisation entails the payment of a mandatory state fee, whereas non-citizen and stateless child registration does not 76 involve any costs. 77
Citizenship Law (1994) art. 3.1(4). This article stipulates that the rule applies in case only one parent is a non-71
citizen or stateless, while the other one is dead, his or her legal status preceding the Soviet citizenship is unknown, or, in case of a single mother, there is no record about father in a birth certificate. Art. 2(1)(5-6) gives a right to citizenship to foundlings and orphan children.
It includes another state nationals, asylum seekers, refugees, persons holding a Latvian alternative status.
72
In these circumstances, the OCMA decides whether a child is stateless or a non-citizen depending on the status of
73
that parent who has no nationality according to the Latvian laws. However, a delay in taking this administrative decision may render a child even without a limited treatment available to all stateless persons. This risk is related to the application for a non-citizen status for a child, which, in these circumstance, requires a proof that he or she is not a citizen of another state in accordance with art.1(1)(3) Law on non-citizen status. In case parents fail to submit such proof timely a child remains with temporary unidentified legal status, which denies a child even the stateless person’s protection, from European Network on Statelessness, ‘Ending Childhood Statelessness: a Study on
Latvia’ (2015) 7
Citizenship Law (1994) art.17(1) 74
Citizenship Law (1994)art. 12 75
Citizenship Law (1994). State fee is mandatory to apply naturalisation art. 12(5); the state fee is waived for
76
children under 15 years who naturalise alongside their parents art. 15 Citizenship Law; children from the age of 15, who naturalise independently, are entitled to a reduction in state fee, provided that they are full time students, from low income family or disabled. Regulation No. 849 on state fee for naturalisation application art. 3
Citizenship Law (1944) art 3.1; The OCMA ‘Registration of Citizenship’ (2018) 77
Condition for access at different ages
The other conditions for this facilitated access to Latvian citizenship for children of non-citizens or stateless persons are divided according to their applicability at three different stages of registration, namely at a child’s birth registration, before a child has reached the age of fifteen and from the age of fifteen to seventeen. The provision does not apply to any non-citizen or stateless child from the age of eighteen, when a person is recognised as an adult, which leaves the already mentioned naturalisation procedure as the only available option. Overall, the access to citizenship for younger children depends 78 on their and their parent’s residence status. However, the oldest group of applicants is subject to closer scrutiny pursuant to some elements of the general naturalisation criteria. The discussion further outlines specific conditions for each of these age groups.
Since 2013 it became possible to recognise a child as a Latvian citizen upon registration of his or her birth merely based on such will being expressed by the parent. The two important amendments were:first, a possibility to circumvent the additional application procedure at the OCMA by acquiring citizenship for a child immediately at the Registry Office; second, that the rule made it sufficient for just one parent to 79 make a decision instead of two. The amount of children born to non-citizen parents, who have been 80 immediately registered as Latvian nationals increased from 52 to 88 percent after the 2013 reform. 81 Although the trend indicates a gradual decrease in a number of non-citizens among the newborn children, the issue is not completely remedied, because by 2017 there were still 365 children born in Latvia, who were assigned non-citizen status. In addition to the already mentioned requirement of the two parents 82 having legal status, there is a condition for registration at birth that pertains to parent’s residence. The requirement stipulates that a parent must have been a permanent resident in Latvia or, in case of immigration after 1 July 1992, have a permanent residence permit, otherwise granting a citizenship upon birth registration will be denied. It follows that the scope of rule application does not include children 83 born in Latvia to non-citizen parents, who have established a temporary or permanent residence outside of
Citizenship Law (1994) art 3.1 (5) 78
The OCMA is the governmental institution, under supervision of Ministry of Interior, entitled to make decisions
79
related to Latvian citizenship.
Citizenship Law (1994) art 3.1(2) Citizenship Law (in force during 1998 to 2013) prescribed that an application 80
for citizenship is submitted by both parents on behalf of a child until the age of fifteen. Hence, there was a risk of prolonged child statelessness, when parents were not able to reach an agreement or have lost contact.
Lambergs, E. ‘Citizenship Law: one year after the reform’ (13 October 2014)
81
<http://providus.lv/en/articles/8612/> (8 July 2018).
The data from 2013 to 2017. Central Statistical Bureau, ‘Non-citizen residents in Latvia’ (29 September 2017)
82
Citizenship Law (1994) art 3.1(1)(2). 83
Latvia, or children of stateless persons, who have not yet obtained the residence permit in Latvia. 84
When the rule does apply, but neither parent has expressed a wish for their child to acquire Latvian citizenship, the legal status is assigned according to the parents’ status. In case their statuses are 85 different, namely one is a non-citizen and the other is stateless, a child is recognised as a non-citizen. 86 While parents have a right to change their decision about their child’s citizenship by submitting a respective application to the OCMA, it is only possible until a child has reached the age of fifteen, provided that he or she has always been a non-citizen or a stateless person, and has a permanent residence in Latvia. However, there is still a requirement of permanent residence for a parent. According to this 87 rule a parent, who lives together with a child, must have had a permanent residence in Latvia (or a permanent residence permit) for at least five consecutive years prior to applying for citizenship for a child. In practice, in the light of recent migration trend in Latvia, this condition for parent’s prior residence may impair access to citizenship for non-citizen children in the upcoming decade.
Currently there is a continued trend of long-term migration from Latvia among young working age population, including the non-citizens. Yet, the data collected since 2010 also shows an increase in 88 immigration to Latvia among persons, who have a connection with the State. It follows that young non-89 citizens tend to move abroad temporarily, which is results in interruption of their consecutive residence record in Latvia. While a long-term emigration does not deprive non-citizens from their right to return 90 and re-establish a permanent residence in Latvia, such interruption of consecutive residence may 91 deprive their children born and living in Latvia from facilitated access. This condition of parents' residence is dropped in the procedure at the stage when a child may submit a citizenship application independently from the parents.
According to data form 01.2018 there were 11 462 non-citizens without a permanent residence in Latvia, and 5
84
stateless persons pending their residence application. The OCMA, ‘The Latvian Population Registry’ (1 January 2018)
Law on Non-citizens (n 50) art. 1 and Law on Stateless Persons.(2004) art. 2
85
Law on Non-citizens (n 50) art. 8(2)
86
Citizenship Law (1994) art 3.1(2). In reference to the amendments of 2013, it requires an application from only 1
87
parent.
The highest migration trend is note in 25-29 and 30-34 age groups. Central Statistical Bureau, ‘Statistics Yearbook
88
of Latvia 2017’ (2018) 155
The formulation ‘connection with Latvia’ encompasses both nationals, non-citizens, persons born in Latvia.
89
Central Statistical Bureau, ‘Brochure of the Main Statistical Indicators’ (2018) 10
Among the non-citizen, who choose not to naturalise, regularly travel to CIS states is one of the most common
90
reasons. Baltic Institute of Social Science, (n 53) 26.
Law on Non-citizens (n 50 ) art. 2(1); Latvian Constitution (n 45) art. 98
As mentioned earlier, the access to Latvian citizenship for minors from age of fifteen to seventeen is more demanding, because it involves additional conditions that correspond to certain elements of the naturalisation criteria. In particular, an eligible applicant must have had a permanent residence in Latvia during the five years prior to the application and has to prove a sufficient level of Latvian language proficiency. For example, the applicant may be asked to submit an education certificate, of at least basic 92 school level, which is completed in the Latvian language for no less than fifty percent of the whole 93 curriculum. Considering that the basis school education in Latvia is mandatory for all child residents, 94 usually from the age of seven to fifteen, including stateless persons and non-citizens, most of the minor 95 applicants are able to comply with this naturalisation requirement, provided that they have already successfully completed the corresponding assessment within their school program. 96
However, if the results of the school examinations were insufficient, the child applicant for citizenship is required to take a separate Latvian language exam pursuant to the rules of the naturalisation procedure. 97 While the passing rate for this exam is high, the studies have shown that children who experience 98 difficulty following the school program in Latvian language are unlikely to succeed in the naturalisation examination. An applicant, who fails each of the three attempts, misses the test date without a valid 99 reason or violates any exam regulation, will be faced with a dismissal of their citizenship application. 100 The procedure does not prescribe any special treatment for the non-citizen and stateless child applicants.
Citizenship Law (1994) art. 3.1 (3)(2 and 5) 92
The applicants who have passed the Latvian Language State Examination at basic or secondary school, or have
93
completed a higher education program in Latvian, are eligible for an exemption from language assessment. art. 21(1) (2) - 21(2) Citizenship Law; Regulation No. 976 Procedure for the Recognition of a Child of Stateless or Non-citizens (2013) art. 12 and 13 (‘Regulation No. 976’)
By 2018 approximately 20% of students were enrolled schools with Russian language of instructions. Central
94
Statistics Bureau, ‘Collection of Statistics: Children in Latvia’(2018)
While non-citizens have complete access to the State provided education on the equal basis with Latvian
95
nationals, the stateless minors are entitled only to mandatory basic school education, provided that their presence in the State is lawful. Otherwise, the basic education may be accessed temporarily upon determination of person’s legal status. Law on Education Latvia (1995) art. 3(1)(2 and 5), art. 3(3), art. 4
ENS, (n 66) 10, 15-16.
96
Regulation No. 976 (n 86) art. 13 ; Besides the school certificate, an alternative legal basis for an exemption form
97
this language assessment is a submission of disability certificate valid in Latvia, which proves that the applicant is incapable of taking the test. Citizenship Law (n 38)art. 21(1)(1); Regulation No. 976 (n 86) art.11
The data indicates 61.3% passing rate from 2013 to 2018. The OCMA,‘Statistical Data on Naturalisation’ (2018)
98
supra (n 66).
99
Regulation No. 976 (n 86) art. 17(2) 100
In addition to Latvian language proficiency a decision of the OCMA regarding a child applicant’s eligibility for citizenship involves considering limitations related to domestic or foreign criminal conviction and national interests. First, a non-citizen or stateless child who is eligible for Latvian 101 citizenship must not have ever been convicted for a serious or especially serious crime neither in Latvia nor abroad. A foreign conviction affects the citizenship application only if a crime constitutes a serious or especially serious offence under Latvian Criminal Law. Pursuant to its crimes classification, a serious 102 offence may result in deprivation of liberty for no less than three and no more than eight years, and from eight years to life imprisonment for especially serious offences respectively. This limitation should not 103 apply often, given that the amount of persons under age of seventeen convicted in Latvia did not exceed ten percent during the last decade. However, in case a conviction exists it is likely to affect the citizenship application, because two out of six most common crimes among convicted persons of this age group fall under the categories of serious and especially serious offences. 104
The second limitation makes direct reference to naturalisation, which stipulates that a person is not entitled to Latvian citizenship when their behaviour or activities constitute, inter alia, a threat to the security of the State and its society, democratic constitutional order, independence or sovereignty. 105 Considering the particular nature of listed activities, this limitation applies only in exceptional circumstances, especially in regard to minors. Nonetheless, the provision does not contain sufficient 106 safeguards against a risk of arbitrary denial of citizenship. In contrast to the first condition of criminal conviction, the rejection of citizenship application is not based on a previous judicial decision, but the discretionary assessment of relevant information collected by the OCMA. Although a negative decision 107
Citizenship Law (1994) art. 3.1. (3)(3-4)
101
A single exception to this limitation applies in cases, where it has been established that a foreign criminal
102
judgement leading to a sentence did not comply with the fundamental principles of fair trial or proportionality. However, in order to rely on this exception an applicant must be able to provide the OCMA with a decision from an international organisation or international court, or any other publicly available and verifiable information
confirming the fact of rights violation by the foreign national court, which constitutes an additional financial burden for the applicant. Regulation No. 976 (n 86) art. 6
Criminal Law of Latvia (17 June 1998) art. 7 (4-5) 103
Central Statistical Bureau of Latvia, ‘Children in Latvia’ (2018) 104-105
104
Citizenship Law (1994) art. 11(1)(1). A non-exhaustive list of such activities includes the applicant’s involvement 105
in a terrorist or anti-governmental organisations; legalisation of the proceeds from crime; spread of fascist,
chauvinist, national-socialist, communist, totalitarian ideas or incitement of ethnic or racial hatred or discord after 4 May 1990; acts against the independence of the State, the democratic parliamentary structure, existing State authority.
There have been seven appeals lodged against the OCMA’s decisions to refuse citizenship due to threat to
106
security, although none of them concerned children. European Network on Statelessness, (2015) 17. Regulation No. 976 (n 86) art. 15(2)
may be appealed before the administrative court, the Cabinet of Ministers is authorised to take the final 108 decision on granting citizenship. While there has only been one precedent, it confirms a lack of 109 safeguards in citizenship provision and a corresponding risk that a person may be denied the access to Latvian nationality by an executive order against which there is no legal remedy. 110
Overall, the safeguards against child statelessness developed over the years within Latvian citizenship framework have led to a substantial decrease in the number of non-citizen minors. From the establishment of the naturalisation procedure 14,528 children obtained nationality alongside their parents, which amounts to approximately 10% of all naturalised non-citizens. Even more minors were registered as 111 citizens by their parents since introduction of facilitated access provision for children of non-citizen or stateless persons born in Latvia after 1991. Currently there are only 10,000 persons born since 1991 who remain non-citizens. Meanwhile, from all permanent residents under the age of eighteen, a number of 112 non-citizens and stateless persons amounts to 1.3 %. Although these instruments provided for 113 substantial decrease in child statelessness rate, their conditions - which primarily reflect the national historical context - limit the number of children who have access to Latvian citizenship. Hence, these instruments are insufficient to reduce child statelessness completely and to prevent its occurrence in a different context. The following section considers the internationally prescribed standards for reduction and prevention of statelessness among children born in the state territory in order to further assess whether the described limitations in access to Latvian citizenship are compatible with them.
Citizenship Law (1994) art. 17(3)
108
Citizenship Law (1994) Art. 17(5)
109
The Court has interpreted naturalisation as a political decision. LHRC, ‘A submission for the report on racial and
110
ethnic-based discrimination through nationality and citizenship expulsion’ 16 February 2017 para 5; ECtHR, Petropavlovskis v Latvia, 44230/06, 13.01.2015.
OCMA, ‘Naturalisation Statistics’(1 January 2018)
111
There remain only 13 stateless persons born since 1991. Central Statistical Bureau, (n 72)
112
OCMA, ‘Latvian Population Residents Registry: Age’ (1 January 2018)
4. INTERNATIONAL STANDARDS FOR AGAINST CHIDL STATELESSNESS: 1961 CONVENTION
The 1961 Convention is a single international instrument that specifically addresses the issue of statelessness providing “a set of rules for the conferral and non-withdrawal of citizenship to prevent cases of statelessness from occurring”. The provisions of this Convention should be interpreted in the light of 114 its object and purpose which is “to prevent and reduce statelessness, thereby ensuring every individual’s right to a nationality”. Specifically, the scope of State obligations in regard to child statelessness should 115 be interpreted in accordance the relevant rules and principles of the Convention on the Rights of the Child. Particularly relevant in this respect are the international right of every child to acquire 116 nationality immediately after the birth, and the right to preserve their identity which includes nationality. The Convention contains a concurrent measure for signatory states to ensure 117 implementation of a right to nationality “in accordance with their national law and their obligations under the relevant international instruments in this field, in particular were the child would otherwise be stateless”. 118
Special importance should be given to the general principles of non-discrimination and best interests of the child. Thus, states are required in all their actions concerning children, including the matters of 119 nationality, to have the best interest of the child as their primary consideration. It follows that the state where a child was born, has to take all appropriate measures to ensure that they are not left stateless for an extended period of time. Although the rules of the 1961 Convention do not require State Parties to 120 grant citizenship to every stateless persons including the children within their jurisdiction, they oblige the governments to conform their legislation to prescribed standards which ultimately improves acquisition and maintenance of an effective nationality.
Article 1 is the core provision of the Convention in regard to prevention and reduction of incidents of
The 1961 Convention (n 8) introductory note
114
UNHCR, Guidelines on Statelessness No.4: Ensuring every child’s right to acquire nationality through articles
115
1-4 of the 1961 Convention on the Reduction of Statelessness (hereafter: ‘Guidelines on Statelessness No.4’) (21 December 2012) para 1.
Guidelines on Statelessness No.4 (n 107) para 9 116
UN Convention on the Rights of the Child (signed 20 November 1989, entered into force 2 September 1990),
117 (hereafter: CRC) art. 7(1), 8(1) CRC (n 109) art. 7(2) 118 CRC (n 109) art 2(1), 3(1) 119
Guidelines on Statelessness No 4 (n 107) para 11. 120
statelessness in the domestic context. This provision institutes a prima facie obligation for State Parties to grant their nationality to “a person born in their territory who would otherwise be stateless”. If applied unconditionally and universally, the rule would eventually eliminate statelessness. Nevertheless, in accordance with respect for sovereignty of the state parties the instrument provides for a number of acceptable restrictions. First, the States exercise discretion as to whether their nationality shall be granted automatically “at birth, by operation of law, or upon later application being lodged with the relevant authority”. Second, the latter option provides that an application may be subject to considerations of 121 age, residence status, criminal conviction and lifelong statelessness. The following section discusses 122 the interpretation of the term ‘would otherwise be stateless’, in order to identify the scope of persons considered for the purpose of this provision, and then the scope of possible limitations pertaining to application for nationality.
Would Otherwise Be Stateless
Pursuant to article 1(1) of the 1954 Convention a person is stateless if he or she “is not considered as a national by any State under the operations of its laws”. According to this premise a risk of statelessness for a newborn child is determined by whether he or she has access to nationality of any State which he or she has a link to. All States are distinguished according to two principles that regulate access to their nationality: jus soli, citizenship through the land and jus sanguinis, citizenship by descent. Following 123 the first principle the State shall grant its nationality to any child born in its territory, whereas the second suggests that nationality of parents shall be given to a child born either in their home state or abroad. Thus, for the purpose of this article an inquiry is made as to whether a child would be stateless, because he or she is not entitled to a nationality of either parent, or of the State he or she was born in. It follows that the scope of provision is not limited to children whose both parents are stateless. Instead, it should accommodate all different ways a child may be rendered stateless. Such as, for example, a children born in a state which does not provide access to its nationality pursuant to the jus soli principle, whereas neither parent is entitled to transmit their own nationality to a child. 124
In this regard, the UNHCR distinguishes the especially vulnerable position of children born abroad to refugee parents. When parents are stateless or unable to apply for child’s citizenship registration in their state, given the nature of their refugee status, a child should be recognised as ‘otherwise stateless’ for the
1961 Convention (108) art. 1(1)(a-b).
121
1961 Convention (108), art. 1(2). 122
Globalcit, ‘Global Birthright Indicators’ (2016)
123
Guidelines on Statelessness No.4, para 18.
purpose of the provision. However, in other circumstances, when the state of parents’ nationality 125 provides for automatic and unconditional grant of citizenship by decent, the authorities of the state of residence have discretion in giving children of refugees access to their own nationality. It follows that 126 consideration of whether a child would otherwise be stateless is not limited to a lack of citizenship registration, but it is a general assessment of possibility for a child to acquire nationality in other States. 127
Conditions for Citizenship Application
The State Party that chooses to grant its nationality to persons born in its territory who would otherwise be stateless upon application being lodged pursuant to the article 1(1)(b) may subject it to fulfilment of one or more of four conditions provided in article 1(2). First, a State may choose to accept applications for citizenship only during a certain period to time. Any age restrictions, which a State choses to impose, should begin no later than from the age of 18 and last until individual is at least 21 years old. In 128 accordance with mentioned principle of best interest of a child, the registration of nationality should be done immediately after birth or as soon as possible during childhood. While application during the early years of life is submitted on behalf of a child, he or she should not be deprived from a right to apply for nationality independently. Thereby, any deadline for application imposed by the State should provide for a timeframe of at least three years after a child reaches the age of maturity. 129
Second, although a state may require a person to present the evidence of prior habitual residence in a state, this mandatory period should not exceed five years immediately preceding the application or ten years in total. The term of habitual residence shall be understood as a stable and factual residence. It is 130 normally applicable to stateless persons, who have lived in a state for many years and have expectation to maintain their residence there. Most importantly, the habitual residence does not imply any requirement 131 of legal or formal residence. Hence, the purpose of this provision, the acquisition of nationality by a 132
Guidelines on Statelessness No 4 (n 107) para 27.
125
Guidelines on Statelessness No 4 (n 107) para 25, 28.
126
Guidelines on Statelessness No 4 (n 107) para 27, paras 26, When parents deliberately cause their child to be
127
stateless by failing to launch registration procedure at their State(s) of nationality without a valid justification, their child is not qualified as ‘otherwise stateless’ for the purpose of art.1.
1961 Convention (108) art. 1(2)(a)
128
Guidelines on Statelessness No.4 (n 107) paras 34; 38-39.
129
1961 Convention (108) art.1(2)(b)
130
UNHCR, ‘Handbook on Protection of Stateless Persons’ (2014) para 139. The term is consistently interpreted in
131
the context of both Conventions of 1954 and 1961. Guidelines on Statelessness No.4 paras 40 - 43.
