“Everyone has the right to a nationality”

Statelessness in Sweden - changes ahead?

12 September 2012 | Sebastian Kohn

Sweden was one out of only four countries that pledged during the 2011 UNHCR Ministerial Meeting to address statelessness through foreign policy (the other three were South Africa, the US and Hungary). So far the Swedish government has not done much at the international level – Sweden was not, for example, among the co-sponsors of the US Human Rights Council resolution on the right to nationality, adopted in July 2012 – and at the domestic level things have been moving slowly too. However, the situation may change in the near future.

 

In September 2011, a couple of months before the Ministerial Meeting, four members of the Green Party presented a parliamentary motion on “Statelessness and similar conditions.” The motion draws attention to the situations of stateless persons in Syria and the Dominican Republic, and urges Parliament to call on the Swedish Government to use diplomacy to pressure other countries to avoid statelessness. While this is an important initiative – as is the subsequent pledge by the government – words have yet to be translated into action.

 

At the domestic level, too, things haven’t moved as quickly as they should and there appears to be some confusion as to what Sweden’s international obligations are with respect to stateless people. Although it was among the first countries in the world to ratify the 1954 Convention relating to the Status of Stateless Persons, Sweden does not have a stateless specific protection mechanism. Rather, stateless persons are protected under a complementary protection regime.

 

The Aliens Act (2005) provides three protection statuses – refugee status, alternative/subsidiary protection status, and other protection status. Under paragraph 2 of the Aliens Act, stateless persons have access to alternative/subsidiary protection if “the alien is unable, or owing to such risks referred to in 1 [capital punishment, bodily harm, torture, other inhuman and degrading treatment, risk of being victim of indiscriminate violence as a result of international or civil conflict], unwilling to avail himself of the protection of his own country.” Many stateless persons are not in fact protected internationally by their country of origin – although there are exceptions – and as a result would in theory qualify for protection in Sweden.

 

The Migration Board  - Migrationsverket – is the authority responsible for assessing protection needs of stateless persons (Ordinance (2007:996) with instruction for the Migration Board, paragraph 3(9)), but the Board lacks clear instructions on how to deal with them. The Aliens Act is accompanied by implementing regulations – the Aliens Ordinance (2006) – which does not refer specifically to stateless persons other than in relation to issuance of travel documents. This glaring omission means that it is unclear how Sweden assesses protection needs of non-refugee stateless persons. This is a significant gap which must be addressed. Without an effective procedure in place, Sweden will not be able to live up to its international obligations under the 1954 Convention.

 

Despite the shortcomings when it comes to protection of stateless persons, the Swedish Citizenship Act (2001)  provides reasonably strong protections against statelessness from birth. Adopted in 2001, the Act gives a right to citizenship for a child born in Sweden if she would otherwise be stateless. However, this right is conditional: the child must have permanent (legal) residence and reside in Sweden, and registration for citizenship must take place before the child turns five (i.e. it is not granted automatically at birth).

 

While this fulfills Sweden’s obligations under the European Convention on Nationality, it is not in line with the 1961 Convention on the Reduction of Statelessness to which Sweden is also a party. Under the 1961 Convention it is not permissible to require legal residence; rather, “habitual residence” is the applicable norm. For example, a stateless child born in Sweden to an irregular migrant has a right to nationality in Sweden under the 1961 Convention but Swedish law does not currently honor this right. Past the age of five, however, the law does provide other opportunities for stateless children to acquire Swedish nationality, and stateless persons do enjoy – on par with refugees – a reduced residence requirement (four years of permanent residence prior to application for citizenship rather than five years, which is the standard for other applicants). Unfortunately, without an effective statelessness status determination procedure in place, it is difficult to imagine that many stateless persons are actually able to realize these rights.

 

Interestingly, in January 2012 the Swedish Government appointed a “special investigator” – Mr. Gunnar Strömmer, the founder of the Centre for Justice, a non-profit public interest law firm specializing in human rights litigation – to examine, by April 1, 2013, certain issues pertaining to citizenship. In addition to considering whether or not Sweden should introduce citizenship ceremonies for new citizens; how EU-membership affects citizenship legislation; and whether Swedish citizenship could be better utilized as an incentive for improved integration, Mr. Strömmer will also analyze the impact of the Citizenship Act, and assess whether or not Sweden should sign and ratify the Council of Europe Convention on the Avoidance of Statelessness in relation to State Succession.

 

The assessment of the Citizenship Act promises to be of particular importance. In a communiqué, the Government asks Mr. Strömmer to consider in particular a set of priority issues:

  1. Assess how the dominant mode of jus sanguinis (citizenship acquired by descent as opposed to by birth on the territory) affects Sweden;
  2. Assess whether or not the current residence requirements for naturalization fulfill their purpose, and propose any changes to legislation in light of Sweden’s international obligations;
  3. Assess whether or not the current protections against statelessness from birth are sufficient or if further improvements are necessary. The communiqué mentions in particular the registration requirement as a potential obstacle, but as I have pointed out above another problems is the legal residence requirement;
  4. Assess whether access to citizenship for children and youth should, more generally, be improved in light of the Convention on the Rights of the Child and the 1961 Convention on Reduction of Statelessness.

 

Unfortunately, the question of a dedicated statelessness status determination procedure is not specifically mentioned in the assignment. However, towards the end of the communiqué the Government does give Mr. Strömmer space to analyze the wider impact of the Citizenship Act and propose legislative changes. Although currently protection issues are dealt with in the Aliens Act, this seems to offer an opportunity to propose that while protections against statelessness from birth are of tremendous importance, Sweden needs a procedure to determine statelessness status in order for people concerned to be able to realize this right.

 

The citizenship investigation is a really great opportunity for Swedish civil society to engage with the Government to improve both legislation and practices. And it is a great opportunity for the Government to improve its own track record on these issues, and serve as a model of best practice internationally – something which is imperative for their Ministerial Meeting pledge to be effective.         

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