Observations by the UNHCR Regional Office for the Baltic and Nordic Countries on the Ministry of Internal Affairs proposal no. 12-2398-02 introducing amendments to the Lithuanian Law on Citizenship I. UNHCR s mandate and responsibilities in the area of statelessness 1. UNHCR appreciates the opportunity to present its observations on the Ministry of Internal Affairs law proposal no. 12-2398-01 ( Draft Law on Citizenship No. 12-2398-01 ), with proposed amendments to Articles 18 and 40 in the Lithuanian Law on Citizenship. UNHCR understands that the law proposal is aimed at bringing the national law in line with the 1961 Convention on the Reduction of Statelessness 1 ( 1961 Convention ) in view of the planned accession to that treaty. 2. UNHCR provides these observations as the agency which has been mandated by the UN General Assembly to prevent and reduce statelessness around the world, as well as to protect the rights of stateless people. UN General Assembly resolutions 3274 (XXIV) and 31/36 designated UNHCR as the body to examine the cases of persons who claim the benefit of the 1961 Convention on the Reduction of Statelessness and to assist such persons in presenting their claims to the appropriate national authorities. In 1994, the UN General Assembly further entrusted UNHCR with a global mandate for the identification, prevention and reduction of statelessness and for the international protection of stateless persons. 2 This mandate has continued to evolve as conclusions of UNHCR s Executive Committee 3 have been endorsed by the UN General Assembly. Over time, UNHCR has developed a recognized expertise on statelessness issues and produced a number of Guidelines on the interpretation and application of provisions in the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention. 4 1 UN General Assembly, Convention on the Reduction of Statelessness, 30 August 1961, United Nations, Treaty Series, vol. 989, p. 175, available at: http://www.unhcr.org/refworld/docid/3ae6b39620.html 2 UNGA resolutions A/RES/49/169 of 23 December 1994 and A/RES/50/152 of 21 December 1995. The latter endorses UNHCR s Executive Committee Conclusion No. 78 (XLVI) 1995, Prevention and Reduction of Statelessness and the Protection of Stateless Persons, at: http://www.unhcr.org/refworld/docid/3ae68c443f.html. 3 UN High Commissioner for Refugees, Conclusion on International Protection, 05 October 2001, No. 90 (LII) - 2001, para. (q), at: http://www.unhcr.org/refworld/docid/3bd3e3024.html; General Conclusion on International Protection, 10 October 2003, No. 95 (LIV) - 2003, para. (y), at: http://www.unhcr.org/refworld/docid/3f93aede7.html; General Conclusion on International Protection, 08 October 2004, No. 99 (LV) - 2004, para. (aa), at: http://www.unhcr.org/refworld/docid/41750ef74.html; General Conclusion on International Protection, 07 October 2005, No. 102 (LVI) - 2005, para. (y), at: http://www.unhcr.org/refworld/docid/43575ce3e.html; Conclusion on Identification, Prevention and Reduction of Statelessness and Protection of Stateless Persons, 06 October 2006, No. 106 (LVII) - 2006, paras. (f), (h), (i), (j) and (t), at: http://www.unhcr.org/refworld/docid/453497302.html. 4 UNHCR has published a number of Guidelines pursuant to its mandate responsibilities to address statelessness, which are intended to provide interpretive legal guidance for governments, NGOs, legal practitioners,
3. In Conclusion No. 78 (XLVI) on the Prevention and Reduction of Statelessness and the Protection of Stateless Persons, the UNHCR Executive Committee Requests UNHCR actively to promote accession to the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness, in view of the limited number of States parties to these instruments, as well as to provide relevant technical and advisory services pertaining to the preparation and implementation of nationality legislation to interested States. 5 Further to its aforementioned mandate and this request, UNHCR is hereby pleased to provide the following observations on the Ministry of Internal Affairs proposal for amendments to the Lithuanian Law on Citizenship. II. General observations on the Republic of Lithuania s plans to accede to the 1961 Convention and efforts aimed at bringing the national legal framework in line with that Convention s standards 4. Article 15 of the Universal Declaration of Human Rights establishes the right of every person to a nationality, and other instruments to which Lithuania is party provides that this right should be guaranteed in a non-discriminatory manner. 6 Article 7(1) of the Convention on the Rights of the Child ( CRC ) as well as Article 24(3) of the International Covenant on Civil and Political Rights states that every child has the right to acquire a nationality. The object and purpose of the 1961 Convention is to prevent and reduce statelessness, thereby ensuring every individual s right to a nationality, including every child s right to acquire a nationality. Towards this aim, the 1961 Convention establishes rules on acquisition, renunciation, loss and deprivation of nationality. 7 5. UNHCR reiterates its appreciation for Lithuania s expression of commitment to accede to the 1961 Convention and the preparations taking place towards this aim. However, as noted in the letter from the UNHCR Regional Office for the Baltic and Nordic Countries (ROBNC) to the Minister of Foreign Affairs, dated 14 September 2012, there is no requirement to amend and bring national laws in harmony with the 1961 Convention prior to accession. In the same letter, ROBNC recalled that it is in the process of undertaking a regional mapping - in the eight Baltic and Nordic countries under its coverage - of the extent to which these countries national legislation, practice and institutional capacity complies with international and European standards in the area of prevention and reduction of statelessness and protection of stateless persons. The results of this mapping, which will be shared with the Ministry of Internal Affairs this spring, could usefully inform the Lithuanian decision-makers and the judiciary. The four Guidelines on Statelessness issued so far are: Guidelines on Statelessness No. 1: The definition of "Stateless Person" in Article 1(1) of the 1954 Convention relating to the Status of Stateless Persons, 20 February 2012, HCR/GS/12/01, available at: http://www.unhcr.org/refworld/docid/4f4371b82.html, Guidelines on Statelessness No. 2: Procedures for Determining whether an Individual is a Stateless Person, 5 April 2012, HCR/GS/12/02, available at: http://www.unhcr.org/refworld/docid/4f7dafb52.html, Guidelines on Statelessness No. 3: The Status of Stateless Persons at the National Level, 17 July 2012, HCR/GS/12/03, available at: http://www.unhcr.org/refworld/docid/5005520f2.html, and Guidelines on Statelessness No. 4: Ensuring Every Child s Right to Acquire a Nationality through Articles 1-4 of the 1961 Convention on the Reduction of Statelessness, 21 December 2012, HCR/GS/12/04, ( UNHCR Guidelines on Statelessness No. 4 ) available at: http://www.unhcr.org/refworld/docid/50d460c72.html. 5 UNHCR Executive Committee General Conclusion on International Protection, No. 95 (LIV) 2003, para. (c). 6 UN General Assembly, International Convention on the Elimination of All Forms of Racial Discrimination, 21 December 1965, United Nations, Treaty Series, vol. 660, p. 195, Article 5(d)(iii), available at: http://www.unhcr.org/refworld/docid/3ae6b3940.html 7 UNHCR Guidelines on Statelessness No. 4, para. 1.
Government s review of its national framework in relation to the standards set out in the 1961 Convention. III. Observations on the proposed amendments pertaining to the acquisition of nationality by children who would otherwise be stateless 6. The law proposal introduces the following provision in Article 18, which deals with the Granting of Citizenship of the Republic of Lithuania through Naturalisation : Proposed Article 18(2) 2.Citizenship of the Republic of Lithuania may be granted to a stateless person who was born in Lithuania if he has been legally permanent resident in the Republic of Lithuania during the previous 5 years, if he has never acquired citizenship of another state, if he at the time of the application for the granting of citizenship of the Republic of Lithuania and the decision regarding the granting of citizenship of the Republic of Lithuania, has the right of residence in the Republic of Lithuania and who meets the conditions 3-5 and 7 outlined in paragraph 1 of this article. 7. The law proposal also introduces the following paragraph in Article 40, which deals with Applications for the Granting of Citizenship of the Republic of Lithuania through Naturalisation : Proposed Article 40(4) 4. A stateless person born on the territory of the Republic of Lithuania shall enclose the following documents with his application for the granting of citizenship of the Republic of Lithuania through naturalisation: 1) a personal identification document; 2) a document confirming that, at the time of filing this application, the person concerned has the right of residence in the Republic of Lithuania; 3) documents confirming that the person has been legally resident in the Republic of Lithuania for the last 5 years; 4) documents confirming the person has a legal source of subsistance; 5) a document certifying the person has never acquired citizenship of another state; 6) documents certifying that the person concerned has passed the examinations in the state language and in the fundamentals of the Constitution of the Republic of Lithuania. These documents shall not be required from persons who have reached 65 years of age, persons whose capacity for work has been rated at 0-55 percent, persons who have reached pensionable age and been assessed in accordance with the procedure laid down by legal acts as having high or moderate special needs, as well as persons with serious chronic mental disorders. 8. UNHCR notes that the reference to otherwise stateless in Article 1 of the 1961 Convention in particular refers to the situation of a child. Thus, the test regarding the need to apply the article is not whether the parents are stateless, but whether the child would be rendered stateless. A child could be otherwise stateless even if both of parents have citizenship, but
cannot transmit it to the child. Such situations could arise, for example, when children cannot acquire the nationality of their mother because of gender discrimination or where there are restrictions on the acquisition of nationality by children born outside the country of nationality of his or her parents. Hence, it is important to ensure that the national law does not restrict the granting of Lithuanian nationality to stateless children whose parents are, for example, also stateless and/or who are permanent residents. 9. The use of the mandatory shall ( nationality shall be granted ), indicates that a Contracting State must grant its nationality to children born in its territory who would otherwise be stateless where the conditions set out in Article 1(2) and incorporated in its application procedure are met. 8 The exhaustive nature of the list of possible requirements means that States cannot establish conditions for the grant of nationality additional to those stipulated in the Convention. 9 As a result, it is not consistent with Article 1(2) to require that the parents of the individual concerned possess a specific type of residence in the State. 10 The reference to legally permanent residence in the law proposal will thus need to be deleted. 10. Article 3 of the 1961 Convention also establishes in that birth on a ship or in an aircraft shall be deemed to have taken place in the territory of the State whose flag the ship flies or in the Territory of the State in which the aircraft is registered, as the case may be. Currently, the Lithuanian Law of Citizenship does not include a provision confirming the applicability of this standard in respect of ships and aircrafts under the flag of the Republic of Lithuania. 11. UNHCR further notes that Article 1 of the 1961 Convention provides Contracting States with two alternative options for granting nationality to children who would otherwise be stateless born in their territory. States can either provide for automatic acquisition of nationality upon birth pursuant to Article 1(1)(a), or for acquisition of nationality upon application pursuant to Article 1(1)(b). However, the rules for preventing statelessness contained in Articles 1(1) and 1(2) of the 1961 Convention must be read in light of later human rights treaties, which recognize every child s right to acquire a nationality. Specifically, when read with Article 1 of the 1961 Convention, the right of every child to acquire a nationality (Article 7 of the CRC) and the principle of the best interests of the child (Article 3 of the CRC) require that States grant nationality to children born in their territory who would otherwise be stateless either (i) automatically at birth or (ii) upon application shortly after birth. If the State imposes conditions for an application as allowed for under Article 1(2) of the 1961 Convention, this must not have the effect of leaving the child stateless for a considerable period of time. 11 Hence, it is not acceptable to leave children stateless for a significant period by fixing a late beginning of the application period. 12. If the Government of the Republic of Lithuania nonetheless prefers to introduce provisions for the acquisition of nationality upon application, UNHCR would firstly like to note that Article 1(1)(b) of the 1961 Convention allows Contracting States that opt to grant nationality upon application to provide for the automatic grant of nationality to children 8 UNHCR Guidelines on Statelessness No. 4, para 37. 9 This also applies for the application procedures of Article 1(4) and Article 4. 10 In this context the scope of the non-discrimination provision set out in Article 2 of the CRC is relevant, specifically paragraph 2: States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child's parents, legal guardians, or family members (emphasis added). 11 UNHCR Guidelines on Statelessness No. 4, para. 34.
born in their territory who would otherwise be stateless, at an age determined by domestic law. 12 13. Moreover, a Contracting State may apply a combination of the alternatives for acquisition of its nationality by providing different modes of acquisition based on the level of attachment of an individual to that State. For example, a Contracting State might provide for automatic acquisition of its nationality by children born in their territory who would otherwise be stateless whose parents are permanent or legal residents in the State, whereas it might require an application procedure for those whose parents are not legal residents. Any distinction in treatment of different groups, however, must serve a legitimate purpose, cannot be based on discriminatory grounds and must be reasonable and proportionate. 13 14. If the Government opts for an application procedure for the acquisition of nationality by children born stateless in Lithuania, UNHCR recommends introducing a non-discretionary application procedure instead of the proposed discretionary naturalization procedure 14. Moreover, UNHCR considers that the application period should begin at birth or as soon as possible. 15. Pursuant to Article 1(1)(b) of 1961 Convention, Contracting States are obliged to grant citizenship to persons born on their territory upon an application submitted by the person or on their behalf. Article 1(2) provides an exhaustive list 15 of permissible conditions that States may introduce. These are: (i) a fixed period for lodging an application immediately following the age of majority (Article 1(2)(a)). Where Contracting States set deadlines to receive applications at a later time from otherwise stateless individuals born in their territory, they must accept applications lodged at a time beginning not later than the age of 18 and ending not earlier than the age of 21 in accordance with Article 1(2)(a) of the 1961 Convention. This provision ensures that otherwise stateless individuals born in the territory of a Contracting State have a window of at least three years after majority within which to lodge their applications. 16 (ii) habitual residence in the Contracting State for a fixed period, not exceeding five years immediately preceding an application nor ten years in all (Article 1(2)(b)). As noted above, it is not consistent with Article 1(2) to require the possession of a specific type of residence, such as legally permanent residence, since the Convention only refers to a period of habitual residence. The notion of habitual residence in the 1961 Convention is oriented to facts as opposed to a legal status, and the permissible period may not exceed 5 years immediately before the application and 10 years in total. (iii) restrictions on criminal history (Article 1(2)(c)). Specifically, the person concerned may be required not to have been convicted of an offence against national security or to have been sentenced to imprisonment for a term of 5 years or more on a criminal charge. (iv) the condition that an individual has always been stateless (Article 1(2)(d)). 12 UNHCR Guidelines on Statelessness No. 4, para. 32. 13 UNHCR Guidelines on Statelessness No. 4, para. 35. 14 See UNHCR Guidelines on Statelessness No. 4, para. 37, which state that providing for a discretionary naturalization procedure for children who would otherwise be stateless is not permissible under the 1961 Convention. 15 See UNHCR Guidelines on Statelessness No. 4, para. 36, which emphasize that imposition of any other conditions would violate the terms of the 1961 Convention, and highlight that similar lists of exhaustive conditions for the application procedures of Article 1(4) and Article 4(1) are given in Article 1(5) and Article 4(2) respectively. 16 UNHCR Guidelines on Statelessness No. 4, para. 39.
Summary of UNHCR s Recommendations in regard to the introductions of provisions in the Lithuanian Citizenship Law pertaining to the acquisition of nationality by children who would otherwise be stateless: UNHCR strongly recommends introducing a provision providing for the automatic grating of nationality to children born stateless in the Republic of Lithuania. However, if the Government of Lithuania nonetheless prefers to introduce an application procedure, pursuant to Article 1(1)(b) of the 1961 Convention, UNHCR advises that such a procedure must be non-discretionary, that the application period begins at birth or as soon as possible and in any case before adulthood, and that no additional requirements than those permissible under Article 1(2) are introduced, such as requirements relating to language skills and/or the type of status, citizenship and/or residence permit held by the child and/or his/her parents in Lithuania, as currently proposed in the Draft Law on Citizenship No. 12-2398-02. UNHCR further recommends introducing a provision in the Citizenship Act affirming that births on planes and ships flying the flag of the Republic of Lithuania shall be deemed to have taken place in the territory of Lithuania. IV. Observations pertaining to the naturalization of stateless persons and refugees 16. UNHCR takes this opportunity to also provide some views in regard to the facilitation of naturalization of stateless persons pursuant to the 1954 Convention relating to the Status of Stateless Persons and preferential treatment in regard to the naturalisation of refugees, pursuant to Article 34 of the 1951 Convention relating to the Status of Refugees. 17. UNHCR would welcome a reduced residence requirement for both these categories of persons, such as the one contained in the law proposal, reducing the requirement from 10 to 5 years. However, UNHCR recommends revising the proposal to eliminate the requirement of birth in Lithuania and include refugees within the scope of the provision. UNHCR s Recommendation pertaining to facilitated naturalization of stateless persons and refugees in the Republic of Lithuania: Pursuant to Articles 34 in the 1954 Convention and the 1951 Convention, UNHCR welcomes and encourages the introduction of reduced residency requirements for stateless persons and refugees wishing to naturalize. Specifically, UNHCR recommends revising the current law proposal to eliminate the requirement of birth in Lithuania and include refugees within the scope of the provision. V. Observations pertaining to the definition of stateless persons contained in the Lithuanian Law on Citizenship 18. Finally, UNHCR would like to take this opportunity to note that the definition of stateless person in Article 2 of the Law on Citizenship is not in line with the definition contained in Article 1 of the 1954 Convention, which stipulates that the term stateless person means a person who is not considered as a national by any State under the operation of its law.
UNHCR s Recommendation pertaining to the definition of stateless person in the Lithuanian Law on Citizenship: UNHCR recommends adopting the definition of stateless person used in the 1954 Convention on the Status of Stateless Persons. VI. Conclusion 19. UNHCR reaffirms its appreciation for this opportunity to provide its views on the Ministry of Internal Affairs law proposal No. 12-2398-02, aimed at bringing the Lithuanian Law on Citizenship in line with the 1961 Convention, and welcomes the Government s commitment to accede to that treaty. 20. UNHCR hopes that these observations will be useful for the Government s efforts to align its national legislation to the standards in the 1961 Convention, and the Regional Office for the Baltic and Nordic Countries stands ready to provide further technical guidance and advice. The forthcoming mapping of Lithuania s legislation, practice and institutional capacity vis-à-vis international and European standards in the area of statelessness is also likely to be helpful in this regard and UNHCR thus recalls that accession may take place prior to a review and subsequent harmonization of national law. 21. Lithuania s upcoming Presidency of the European Union would undoubtedly be an excellent opportunity to reaffirm the Government s commitment to human rights, democracy and the rule of law by announcing the country s accession to the 1961 Convention. UNHCR Regional Office for the Baltic and Nordic Countries Stockholm, February 2013