Sunday, 17 February 2013

GUEST POST: Naturalization of stateless persons: The standards of facilitated access to citizenship

One of the measures, proposed as a durable solution of statelessness, is facilitated access to citizenship for stateless persons. Nevertheless, the issue of facilitated naturalization of this particular group,1 stays still grossly overlooked. There exists some international instruments,2 explicitly recommending that states should facilitate the acquisition of their nationality for the stateless, however, there are still no clear and comprehensive guidelines explaining, what the states should do to comply with this recommendation.
 I  addressed this problem within my master thesis called Facilitated naturalization of stateless persons: Solution of statelessness? where I  set out to identify international obligations of states relating to attribution of nationality via naturalization and to derive international and European standards for facilitated access to citizenship for stateless persons. In addition, based on my comparative study of three states – Estonia, Hungary, Slovakia - with very different approach to statelessness, I  formulated reccomendations which could help to eliminate “unreasonable impediments3 to naturalization for this category of applicants. Within my research I focused in particular on the assessment of material requirements (residence, language and other integration requirements, good character, economic resources requirements, loyalty to the state and security) and procedural aspects of naturalization (application, proceedings), as well as other areas of concern arising when it comes to facilitated access to citizenship.
In light of the foregoing, the states should, at the occasion of the next review of their nationality law, consider the following key measures, which would help to ensure that stateless people have access to a durable solution:4
–to adopt provisions providing for a stateless status determination procedure; this procedure can efficiently identify stateless persons in need. Moreover, a separate procedure regulating the legal status of stateless persons may substantially contribute to the acceleration of the subsequent naturalization procedure.
–to reduce the prescribed period of residence such that this does not exceed five years. If a statelessness determination procedure is in place, the period of residence should start to count since the submission of the application concerned, provided that the stateless status is granted. If no stateless protection status is in place and stateless person have to establish their lawful residence first, states are encouraged to give stateless persons access to a residence permit on preferential grounds.
–to waive language requirements or require only basic knowledge of the language (A1 standard). If language tests are required, the states should provide assistance to individuals to help them to learn the language and to familiarize themselves with the content of the tests.
–to waive integration requirements or introduce them on a voluntary basis. If integration tests are applied, the state should again provide assistance to individuals to help them to prepare for the tests and to familiarize themselves with their content.
– regarding the good character requirement, to take into account only crimes with sentences of imprisonment for more than 5 years and use qualifying periods instead of an absolute refusal to grant citizenship. Examination of criminal records from other states should be done critically and there should be a possibility to grant an exception with regard to the special circumstances of the case.
–to waive economic resources requirements or/and to consider applications by stateless persons in need with sympathy.
–to reconsider the requirement of loyalty, especially if formulated in a way to deny the access to citizenship to a group of people sharing a certain characteristic without the consideration of all circumstances of the case; and to exempt certain categories of applicants from the oath of allegiance if necessary (e.g. minors, incapable persons etc).
–to adopt provisions allowing for alternative forms of evidence if some documents, generally required for naturalization, cannot be submitted or/and to shift the burden of proof to the state where necessary.
–to reduce or waive costs of naturalization (including application fees, translation fees, administrative fees for issuance of required documents etc.).
–to accelerate the procedure and to implement legal guarantees for administrative proceedings, in accordance wth the rule of law and international standards of due process (e.g. reasoned decision, right to appeal, representation before an independent administrative authority and/or a court).
– if the procedure is discretionary, to consider all circumstances of the case and an impact of refusal of the application on an individual.

In conclusion, I have to emphasize that I realize that the call for facilitated naturalization, even though set out in different international documents, is rather soft, and it neither requires the states to grant their citizenship, nor stateless persons to accept any such offer. The duty of facilitated naturalization therefore has to be understood as an effort to encourage states “to dispense with as many formalities in their naturalization process as possible so that [stateless persons] are positioned to acquire citizenship with the absolute minimum of difficulty.5 In my view, this is exactly the reason why states should be informed about possible difficulties which stateless persons may face applying for citizenship. I hope I managed to outline at least some of them.

Eva Mrekajov√°, Human Rights LLM Programme graduate of Tilburg Law School, reflecting on the lessons learned from the research for her Masters Dissertation

1 Please note, that I further focus only on facilitated naturalization of stateless persons in its strict sense of grant of nationality upon application later in life.
2 See. e.g. Article 32 1954 Convention Relating to the Status of Stateless Persons; Article 6 (4) (g) Council of Europe: 1997 European Convention on Nationality; Recommendation 564(1969) of the Consultative Assembly of the Council of Europe, para 1(b); Explanatory report to 1997 European Convention on Nationality. para 52; Recommendation R (1999) 18 of the Committee of Ministers to Member States on the Avoidance and Reduction of Statelessness, section IIB and per analogiam Article 34 of the 1951 Convention relating to the Status of Refugees and Recommendation 564(1969) of the Consultative Assembly of the Council of Europe, para 1(b)
3 Human Rights Committee: Individual complaint of Capena v. Canada. para. 11.3.
4 See also MIPEX 2010 Indicators (http://www.mipex.eu/methodology); For the purposes of my study I adjusted the indicators related to access to citizenship for the context of naturalization of stateless persons to benchmark the laws and policies of the chosen states. For more information see my thesis via http://www.mipex.eu/naturalisation-stateless-persons-solution-statelessness
5per analogiam Hathaway, J.C. The rights of refugees under International law. p. 985-986

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