UPDATE: Recent changes in citizenship law and policy. May 2010-January Lithuania. Ramutė Ruškytė

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1 UPDATE: Recent changes in citizenship law and policy May 2010-January 2015 Lithuania Ramutė Ruškytė The most significant event the past 5 years concerning the regulation of citizenship was the modification of the Law on Citizenship in respect of which new wording came into force on 1 April 2011 (with some minor exceptions). The modified Law on Citizenship was adopted on 2 December 2010 after long and arduous debate not only in the Parliament the Seimas of the Republic of Lithuania -- but also amongst the public and the academic community. These debates began towards the end of 2006, following the judgement by the Constitutional Court entitled On the Compliance of the Provisions of the Legal Acts Regulating the Citizenship with the Constitution of the Republic of Lithuania, handed down on 13 November. In its ruling, the Constitutional Court recognised that various provisions of the original Law on Citizenship, adopted on 17 September 2002, were in conflict with the Constitution. The various debates over the new wording of the Law on Citizenship, which took place in the public sphere, revealed a prevailing determination to consolidate the law by providing for greater opportunities for persons of Lithuanian descent to become Lithuanian citizens, and also by expanding the circle of persons who are allowed to hold dual citizenship. 1

2 The adoption of such a standpoint was greatly influenced by the specificity of Lithuanian history. Before independence was lost in 1940, 1 and again in , large numbers of residents emigrated from Lithuania. Enormous losses were sustained between 1940 and 1952 when 275,697 2 Lithuanian citizens were exiled to Siberia on social, political, or religious grounds. Although some were rehabilitated before the restoration of Lithuania's independence, and others after its restoration, nevertheless, before the restoration of independence, a not inconsiderable number of people and their descendants remained resident outside Lithuania, as their return to the country was hindered by obstacles. According to various calculations, prior to 1990, former Lithuanian citizens living outside the borders of Lithuania, along with their descendants, represented around a million persons. This number increased by more than half a million emigrants between 1990 and 2011 following the restoration of Lithuania's independence. The anthropologist V. Čiubrinskas, who has researched the identity of emigrants, maintains that the number of people of Lithuanian descent who reside outside the borders of Lithuania is certainly more than a million. On 1 December 2014, Lithuania had 2,923 million residents. 3 The descendants of Lithuanians who reside in foreign countries (mainly in the US and Western Europe) who left Lithuania for political reasons in are particularly active in their attempts to acquire Lithuanian citizenship and to hold dual citizenship. Prior to 1990, support for Lithuanian independence among for these persons or their parents, obliged Lithuanian political organisations to support this group's aspirations to obtain Lithuanian citizenship. Individual politicians have declared their support not only for this group of persons, who were forced to emigrate for political reasons, but also with respect to another, smaller, group of persons, who emigrated following the restoration of independence from 1990 to 2014 and those who are still emigrating, although their departure is in no way related to politics. However, this attitude, on the basis of which it is urged that cases calling for dual citizenship should not be limited, is not based upon the Constitution of the Republic of Lithuania and it obviously ignores the doctrine of the Constitutional Court. In its ruling of 30 December 2003, while construing, inter alia, Paragraph 2 of Article 12 of the Constitution, which stipulates that, with the exception of individual cases provided for by law, no one may be a citizen of both the Republic of Lithuania and another state at the same time, the Constitutional Court held that: [The provision in Article 12 of the Constitution that a person may be a citizen of the Republic of Lithuania and, at the same time, a citizen of another state only in individual cases established by law, means that such cases established by law may be very rare (individual), that cases of dual citizenship must be extraordinarily rare, exceptional, and that under the Constitution, it is not permitted to adopt any law under which cases of dual citizenship would be not extraordinarily rare exceptions, but a widespread phenomenon.] 1 In its ruling of 8 July 2005, the Constitutional Court held that in 1940 Lithuania was occupied, 2 date of access

3 Attempts to reconcile this Constitutional Court doctrine (regarding rare cases of dual citizenship and the grounds for granting citizenship to persons of Lithuanian descent) and the differing attitude prevailing in the public sphere 4 towards the issue of citizenship, were made after the Constitutional Court had pronounced its 13 November 2006 ruling. The first efforts led to the adoption of new wording in the Law on Citizenship on 30 June The aim of the new wording was to implement the Constitutional Court's ruling of 13 November However, the President of the Republic of Lithuania, while taking account of the fact that certain provisions of the law did not comply, in his opinion, with the Constitution and the Constitutional Court's doctrine, referred it back to Parliament for reconsideration. The President also proposed that this law be in force only until 1 January 2010, thereby ensuring that by then an essentially new Law on Citizenship would be prepared. This proposal received the assent of the Seimas. The Seimas adopted the law on 15 July In Article 3 of the Law on Amending the Law on Citizenship, whereby the Seimas set out the Law's new wording, it is provided that the revised Law on Citizenship be in force until 1 January As already mentioned in the report by Professor E. Kūris, it was expected that by March 2009 the President of the Republic would submit a new draft Law on Citizenship. Although the President submitted a new Draft Law on Citizenship prepared by the working group formed pursuant to his decree No. 1K-1558 of 27 October 2008 on 17 February 2009, owing to prolonged debates, the Seimas failed to adopt law by 1 January Therefore, the Seimas was compelled to change the previously scheduled effective date of the valid Law on Citizenship. The Seimas amended the aforementioned Article 3 and entered 1 July 2010 as its effective date. The revised Law on Citizenship was not adopted by the set effective date envisaged of 1 July Taking account of the fact that it did not adopt the revised Law in the summer of 2010, on 18 June 2010 the Seimas adopted the Republic of Lithuania Law on Amending Article 3 of the Law on Citizenship (No. XI-910), whereby it amended Article 3 of this law and, rather than the former effective date (1 July 2010), it entered a new effective date of1 January Eventually, on 4 November 2010, the Seimas adopted the Law on Citizenship with its new wording. This law established a wide circle of persons entitled to dual citizenship. For instance, Article 7 prescribed that dual citizenship may be granted to, inter alia, persons of Lithuanian descent who left the Republic of Lithuania after 11 March 1990, i.e. after the restoration of independence, and who acquired citizenship of a Member State of the European Union or of the North Atlantic Treaty Organisation. 4 Contrary to the prevailing opinion among the public, the various surveys conducted of Lithuanian residents do not show that dual citizenship would be approved by the majority of Lithuanian residents. 3

4 This law was not signed by the President. 5 Thus the attempt to align the provisions of the Law on Citizenship with the provisions of the Constitutional Court ruling of 13 November 2006 once again proved futile for the second time the revised Law on Citizenship was vetoed by the President (actually, by his successor). By Article 1 of the Decree of the President of the Republic No. 1K-529 of 18 November 2010, this law was referred to the Seimas for reconsideration, and by Article 2 thereof the proposals to improve this law were put forward. The Presdeint's proposals received the assent of the Seimas. The revised Republic of Lithuania Law on Citizenship was adopted on 2 December 2010 (No. XI-1196) and came into force on 1 April 2011, with the exception of Article 46 6, which came into force on 9 December Article 12 of this law came into force on 1 January We should also mention several peculiarities of a more general nature that concern the new Law on Citizenship. The main principles of citizenship of the Republic of Lithuania, which were scattered throughout different articles in the law in its previous wording, have been consolidated in one article with its new wording, and certain concepts have been specified in greater detail. Separate articles of the revised law identify the institutions which consider and decide citizenship issues and define the competence of these institutions. Separate articles also specify in detail which documents are needed to exercise the right to citizenship on the basis of each particular ground for acquiring citizenship of the Republic of Lithuania, as, for instance, through naturalisation under the simplified procedure or by way of exception. The revised law sets out detailed regulations for the consideration of applications for reinstatement of citizenship, restoration of citizenship, etc. Under the law in its previous wording, these particular issues used also to be regulated by sub-statutory legal acts. In the Law on Citizenship as presently in force, the previously valid [institute] (legal concept) of retention of the right to citizenship of the Republic, which used to be entrenched in Article 17 of the Law on Citizenship (wording of 15 July 2008), was reorganised into two institutes: the institute of reinstatement of citizenship of the Republic of Lithuania (Articles 9 and 38) and that of acquisition of citizenship of the Republic of Lithuania under the simplified procedure (Articles 10 and 39). Under the previous regulation, the institute of retention of the right to citizenship was applied to the following two categories of persons: 1) persons who held citizenship of the Republic of Lithuania before 15 June 1940, their children, grandchildren, and greatgrandchildren who reside in other states, and 2) persons of Lithuanian descent who reside in other states. 7 5 Under Article 70 of the Constitution of the Republic of Lithuania, the laws adopted by the Seimas come into force after they are signed and officially promulgated by the President of the Republic, unless the laws themselves establish a later date for their coming into force. 6 This article is related to the proposals for the Government to adopt the legal acts that are necessary for the implementation of this law. 7 A person of Lithuanian descent is considered to be a person whose parents or grandparents or one of whose parents or grandparents are or were Lithuanians and who considers him or herself Lithuanian 4

5 Under the current regulation, persons of the aforementioned first category may have their citizenship reinstated under the same conditions as persons who, under the previous regulation, were entitled to retain their right to citizenship, except that the law no longer contains the previous requirement for residence in another state. The removal of this requirement introduces preconditions for persons of this category to reinstate their Lithuanian citizenship while also residing in Lithuania. There are hardly any essential differences between those persons qualified to hold dual citizenship who retained citizenship of the Republic of Lithuania under the Law on Citizenship (wording of 15 July 2008), and those who reinstated this citizenship under this law (wording of 2 December 2010). These persons were (are) allowed to hold dual citizenship provided that they fall under one of the following three categories of persons: 1) persons who were exiled from the occupied Republic of Lithuania before 11 March 1990 and acquired citizenship of another state; 2) persons who left (fled) the Republic of Lithuania before 11 March 1990 and acquired citizenship of another state, or 3) descendants of the aforesaid persons up to greatgrandchildren. However, one should emphasise that, under the Law on Citizenship (wording of 2 December 2010), the opportunity to hold dual citizenship has also been opened up to those persons, belonging to the category who fled Lithuania before 11 March 1990 and acquired citizenship of another state, who left Lithuania even before 15 June Under the previously valid regulation (wording of 15 July 2008), the start of the period of departure from Lithuania was related to the start of the occupation, that is, 15 June Thus, at present, the Law on Citizenship creates preconditions for a slight growth in the number of persons qualified to reinstate Lithuanian citizenship and to hold dual citizenship at the same time. As mentioned, the Constitutional Court has held that cases of dual citizenship must be extraordinarily rare. In addition to the already-enumerated cases of dual citizenship, the Law on Citizenship in its current wording provides for six more cases (nine cases in total) when a citizen of the Republic of Lithuania may be a citizen of another state at the same time. Four of these nine cases are new and were not provided for in the Law in its previous wording (15 July 2008). One case is related to children who acquired citizenship of Lithuania and citizenship of another state at birth and who have not reached the age of 21. Such an exception was (is) important to families of persons who emigrated from Lithuania during the last two decades. Another new exception for dual citizenship is established in relation to cases where a citizen of Lithuania has, by virtue of marriage to a citizen of another state, ipso facto acquired citizenship of that state. Two more new cases of dual citizenship relate to the adoption of persons before they reach the age of eighteen a citizen of the Republic of Lithuania may be a citizen of another state at the same time where: the person is under 21 years of age, provided that they were adopted by citizen(s) of the Republic of Lithuania before reaching eighteen years of age and, as a result of the adoption, acquired citizenship of the Republic of Lithuania pursuant to Paragraph 1 of Article 17 of the Law on Citizenship; and declares it by written statement. Lithuanian descent is proved by documents wherein it is indicated that the person s parents or grandparents or one of the parents or grandparents are or were Lithuanians, as well as by the person s written statement whereby he/she declares that he/she considers himself/herself Lithuanian. Under the new regulation, the latter persons are granted citizenship of the Republic of Lithuania under the simplified procedure. 5

6 the person is under 21 years of age, provided that being a citizen of the Republic of Lithuania, they were adopted by citizen(s) of another state before reaching eighteen years of age and, as a result of the adoption, acquired citizenship of that state. One should note that the new wording of the Law on Citizenship creates preconditions for a larger number of persons to reinstate Lithuanian citizenship, by means of the institute of reinstatement (rather than the former institute of retention), and for a larger circle of persons to hold dual citizenship. Number of persons who acquired citizenship of the Republic of Lithuania according to the bases of the acquisition of citizenship Compiled by the author with the data published by the [Migration Department.] Bases of the acquisition of citizenship of the Republic of Lithuania Under the reinstatement procedure (from 01/04/2011) Under the simplified procedure (from 01/04/2011) Implementation of the right to citizenship under the retention procedure (till 01/01/2011) Acquisition of citizenship through naturalisation Under the restoration procedure

7 This data shows that, after the newly-worded law was adopted, the number of persons who made use of the institute of the right to reinstatement of citizenship of Lithuania and that of the right to citizenship under the simplified procedure, when taken in conjunction, is several times larger since 2012 than the number of the persons who exercised their right to citizenship by means of the institute of retention of citizenship in After the newly-worded Law on Citizenship was adopted, debates in the public sphere subsidedr but did not cease. If the legislator indeed wished to adopt a provision to the effect that dual citizenship may be a widespread phenomenon, it would be necessary to correspondingly amend the provisions of Article 12 of the Constitution. 8 Certain politicians and members of Parliament called for amendment of Article 12 of the Constitution which forms an obstacle to unlimited expansion of the circle of persons who may hold dual citizenship. Data from various surveys does not give rise to any reason to believe that such an amendment to the Constitution would be approved by referendum. R. Narušienė, Chairwoman (until mid-2012) of the Board of the Lithuanian World Community, who resides in the USA, does not approve of the idea of the referendum on this issue: A referendum on the legitimisation of unlimited dual citizenship does not meet the interests of the present-day Lithuanian state. The referendum is neither necessary nor useful. 9 On 10 August 2012, the XIV Seimas of the Lithuanian World Community adopted the Resolution On Citizenship, wherein it is emphasised that citizenship of the Republic of Lithuania should be retained by all persons, as well as their descendants, whose parent(s) or grandparent(s), or who themselves were citizens of, Lithuania before 15 June 1940 (until the beginning of the Russian occupation), irrespective of when they left Lithuania and acquired citizenship of another state. Despite the foregoing, asof 14 October 2012 problems of dual citizenship were raised in the election programmes of some liberal and newly-formed small parties. On 3 September 2012, A. Lydeka, Member of the Seimas and a representative of the Liberal Movement in the Seimas, presented a Draft Law on Amending Article 7 of the Law on Citizenship, whereby he proposed establishing that a citizen of another state who left Lithuania before 11 March 1990 and acquired citizenship of another state, or who left Lithuania when one of his parents or grandparents or he himself was a citizen of Lithuania before 15 June 1940 and has acquired citizenship of another state, may at the same time be a citizen of Lithuania. 8 V. Sinkevičius. Jurisprudencija (105) Dviguba pilietybė: pasiūlymo papildyti Konstitucijos 32 straipsnį analizė [Dual Citizenship: An Analysis of the Proposal to Supplement Article 32 of the Constitution]. 9 R. Narušienė. Apie pilietybės įstatymą [On the Law on Citizenship]. www. Bernardinai.lt, date of access

8 Hence, the Draft Law sought to realise the aforementioned resolution On Citizenship of the XIV Seimas of the Lithuanian World Community of 10 August If such a Draft Law were adopted, the number of cases of dual citizenship would rise considerably. Dual citizenship could be acquired inter alia by persons indicated in the Draft Law who left Lithuania after 1990 or who will leave Lithuania in the future. To summarise, we may conclude that attempts to amend the Law on Citizenship, which came into force [a short while ago,] show that persons of Lithuanian descent residing outside Lithuania, and some Lithuanian politicians, do not agree that there is optimal reconciliation between the cases of dual citizenship enabled by the Constitution of Lithuania and those established in the law. According to the available statistical data, at the beginning of 2001 the number of stateless persons residing in Lithuania was 10,541[; in ] The state has sought to furnish the possibility for persons to acquire citizenship: 1. Conditions for acquiring citizenship by stateless persons were eased when, on 9 May 2013, the Lithuanian Parliament (Seimas) adopted the Law on the Ratification of the United Nations Convention on the Reduction of Statelessness, which came into force on 25 May 2013 (XIIP-291). Since the ratification of the Convention by Lithuania, stateless persons may acquire citizenship of the Republic of Lithuania if they have been resident in Lithuania for the last five years, rather than ten years as previously provided by the Law on Citizenship. Together with the Draft Law on the Ratification of the Convention, the Government of the Republic of Lithuania submitted to the Seimas a Draft Law Amending and Supplementing the Law on Citizenship which stipulated that stateless persons could acquire citizenship of Lithuania if they had resided there for the last five years. It should also be noted that Lithuania has availed itself of the opportunity provided under Article 8(3) of the Convention to leave a person stateless. On the basis of Article 8(3) of the Convention, the Seimas declared by Article 2 of the aforementioned law (XIIP-291) that Lithuania retains the right to deprive a person of their nationality on the grounds provided for in Article 24(4) and (6) of the Law on Citizenship. 8

9 2. Any person applying for citizenship can now make use of the procedure set out in a single legal act. By its resolution No. 280 of 25 September 2013 (which came into force on 4 October 2013), the Government of the Republic of Lithuania approved the Description of the Procedure for Drawing up Documents of Citizenship of the Republic of Lithuania (hereinafter also referred to as the Description). From 1 May 2011 until the approval of the Description (25 September 2013), the relevant government resolution only regulated the procedure for taking the oath of allegiance to the Republic of Lithuania. The Description of the Procedure for Drawing up Documents of Citizenship regulates in a clear manner the following issues: the submission and consideration of applications to reinstate citizenship of the Republic of Lithuania, as well as the adoption of decisions in relation to these applications; the submission of applications to acquire citizenship of the Republic of Lithuania under the simplified procedure and through naturalisation and applications to restore citizenship of Lithuania, as well as the submission of documents in connection with these questions to the Citizenship Commission; the submission and consideration of applications to renounce citizenship of the Republic of Lithuania, as well as the adoption of decisions in relation to these applications; the submission of notifications of the acquisition of citizenship of another state; the consideration of documents and adoption of decisions regarding the loss of citizenship of the Republic of Lithuania; the submission and consideration of applications regarding children s citizenship of the Republic of Lithuania, as well as the adoption of decisions in relation to these questions, and the coordination of draft decrees of the President of the Republic on granting or restoring citizenship of the Republic of Lithuania. From May 2010 until 1 December 2014, the main question which concerned the public, the Parliament, and other politicians with regard to citizenship involved efforts to expand the circle of persons who may hold dual citizenship. Public interest was sparked as a result of reactions to particular events, ranging from sentiment that Lithuanian citizenship should be granted to US citizens I. Tobias, as well as the belief that well-known National Basketball Association player and Lithuanian citizen Ž. Ilgauskas should not be deprived of Lithuanian citizenship after acquiring US citizenship, to the proposal that Article 12 of the Constitution, which limits cases of dual citizenship, should be amended by way of referendum. 10 These discussions resulted in the drafting and/or adoption of the following legal acts. At the beginning of 2013 the President applied to the Constitutional Court with a petition requesting the interpretation of the Constitutional Court s rulings of 30 December 2003 and 13 November 2006 in relation to citizenship of the Republic of Lithuania. In substance, the petition requested an examination inter alia of the question of whether, without making amendments to the Constitution, it is possible to adopt by law a legal regulation under which citizens of Lithuania who departed to reside in other states after restoration of independence on 11 March 1990, and acquired citizenship of those states, could be citizens of the Republic of Lithuania and of another state at the same time date of access

10 In its judgement (13 March 2013), the Constitutional Court did not depart from its previously stated constitutional interpretation. The Constitutional Court held that, under the Constitution, an expansive interpretation of the provisions of the Law on Citizenship relating to the possibility of being a citizen of Lithuania and another state simultaneously was not possible, since, under such an interpretation, dual citizenship would not constitute individual and extraordinarily rare exceptions, but would be a widespread phenomenon. As ruled by the Constitutional Court, this means that, without making certain amendments to the Constitution, the law may not prescribe that citizens of Lithuania who departed to reside in other states following restoration of Lithuanian independence on 11 March 1990 and acquired citizenship of those states, may be citizens of Lithuania and of another state at the same time. By decree No 1K-1662 on 6 December 2013, the President granted citizenship of Lithuania to the aforementioned Mr. I. Tobias by way of exception pursuant to Article 20 of the Law on Citizenship. 11 At the beginning of November 2014, the President submitted certain amendments to the relevant articles of the Law on Citizenship. In substance, the amendments concerned the possibility of restoring citizenship of Lithuania, without requiring the renunciation of citizenship of another state, to a former Lithuanian citizen by reason of their outstanding merits to the Republic of Lithuania where such a person has lost their Lithuanian citizenship as a result of acquiring citizenship of another state. The Parliamentary deliberation procedure regarding this draft amendment commenced on 13 November In relation to issues concerning the extension of cases of dual citizenship in the Law on Citizenship, which have been raised by the Lithuanian World Community on more than one occasion, in a discussion held in Parliament in November 2014, Vytautas Sinkevičius, a former Constitutional Court judge, referred to amendments of Article 12 of the Constitution by way of referendum as the sole possible means of resolving these questions. This idea was soon publicly approved by the President, the Prime Minister, and the Speaker of the Seimas. However, it was not supported by the President of the Lithuanian World Community. Previously, an amendment to Article 12 of the Constitution by referendum had been proposed by Artūras Paulauskas, the then Speaker of the Seimas, but the idea failed to find favour. It may be assumed that this was due to the fact that Lithuanian citizens living abroad had not supported (nor do they support) the proposed means to legitimise dual citizenship, since opinion polling data for Lithuanian residents offers no confidence that such a proposed referendum will take place and lead to a favourable outcome for the issue of dual citizenship. 10

11 In recent years, the prohibition of dual citizenship for persons who are 21 years of age or older and who acquired Lithuanian citizenship, as well as the citizenship of one or more other countries, at birth is becoming a pressing issue. The number of persons who were born in foreign countries following the restoration of independence is constantly growing. Such persons usually keep close ties with Lithuania (their parents as a general rule have Lithuanian citizenship), but they cannot have dual citizenship, unlike the descendants 12 of persons entitled to dual citizenship who left Lithuania before 11 March (most of them prior to 15 June 1940), and acquired citizenship of another country. This problem might be another reason to amend the Constitution of the Republic of Lithuania (Article 12) by referendum in the near future. 11

12 Bibliography Bauböck, R. (ed.) (2005), Migration and citizenship: legal status, rights and political participation. Amsterdam: Amsterdam University Press. Brubaker, R. (1998), Pilietybė ir tautiškumas Prancūzijoje ir Vokietijoje [Citizenship and nationhood in France and Germany]. Vilnius: Pradai. Kalvytė, V. (2008), Pilietybės samprata. Dviguba pilietybė [The concept of citizenship. Dual citizenship], Justitia 1 (67): Sinkevičius, V. (2008), Dviguba pilietybė: pasiūlymo papildyti Konstitucijos 32 straipsnį analizė [Dual citizenship: an analysis of the proposal to supplement Article 32 of the Constitution], Jurisprudencija 3 (105): Sinkevičius, V. (2001), Nuolatinis gyvenimas Lietuvoje viena iš natūralizacijos sąlygų [Permanent living in Lithuania one of the conditions of naturalization], Jurisprudencija, 19 (11): Taljūnaitė, M. (2005), Pilietybė ir socialinė Europos integracija [Citizenship and social integration of Europe]. Vilnius: Publishing Centre of Mykolas Romeris University. Vaišvila, A. (2008), Dviguba pilietybė ne tik dvigubos teisės [Dual citizenship not only rights are dual], Jurisprudencija 7 (109):