“Everyone has the right to a nationality”

Important victory for stateless children born in Norway

7 November 2016 | Marek Linha, Adviser at the Norwegian Organisation for Asylum Seekers (NOAS)
#StatelessKids - Every child has the right to a nationality

The Norwegian Ministry of Justice and Public Security has issued a new instruction to the immigration authorities to align their practice with Norway’s international obligations – making an important step towards ensuring that no child born in Norway remains stateless, following advocacy efforts made by the UNHCR and the Norwegian organization for Asylum Seekers (NOAS), with support provided by the European Network on Statelessness – including through its #StatelessKids campaign and using the tools developed by the Institute on Statelessness and Inclusion.

Positive surprise

As highlighted by UNHCR in the report “Mapping statelessness in Norway” from October 2015, historically Norway has largely ignored its obligations under UN conventions on statelessness. Among other issues, children born stateless in Norway without lawful residence have been unable to acquire Norwegian nationality – in direct violation of article 1(2) of the UN Convention on the Reduction of Statelessness of 1961. As I wrote in my previous ENS blog, the Norwegian government seemed to have had little appetite to bring the Norwegian Citizenship Act in line with Norway’s international obligations.

It is thus exciting news that the Norwegian Ministry of Justice and Public Security issued on 28 October 2016 a new instruction G-08/2016 to the immigration authorities on this very issue. According to the instruction, stateless persons born in Norway have the right to acquire Norwegian citizenship subject to the following requirement:

Stateless applicants born in Norway must be residing in Norway at the time of application for citizenship and have been continuously residing in Norway for the period of three years before application. The residency period is counted from the date of the decision when this is in favor of the applicant.

The requirement of lawful residence is no longer to be applied in cases concerning persons born stateless in Norway, aligning the Norwegian practice with the limits set by the 1961 Convention. Factual, stable residence of three years is enough for persons covered by the Convention to acquire Norwegian nationality.

Stateless persons under the age of 18 born in Norway may be granted Norwegian citizenship even earlier if the child or the parents of the child have resided in the country lawfully.

The instruction contains some minor caveats regarding exclusion of persons who have committed a criminal offence punishable by 5 years of imprisonment or more and of persons who represent a threat to national security. In such cases a qualifying or waiting period may be imposed before citizenship is to be granted.

Result of a combined effort

The new instruction has come after close engagement with the Norwegian authorities by the UNHCR and the Norwegian organization for Asylum Seekers (NOAS), the latter having benefitted from the expertise, profile and support provided by the European Network on Statelessness – including through its #StatelessKids campaign.

The instruction has been issued shortly after NOAS submitted our comments (in Norwegian) to the parliament on Norway’s draft of its State party report to the Committee on the Rights of the Child (CRC). When preparing our comments, we utilized the toolkit for civil society actors to leverage the CRC in their work developed by the Institute on Statelessness and Inclusion. The toolkit helped us quickly identify relevant points of concern that had already been raised by the CRC in its Concluding Observations on other State party reports.

Remaining issues

The new instruction represents an important step towards ensuring that no children born in Norway are left stateless. Nevertheless, certain important issues remain, including the following:

  • The instruction is simply just that – an executive instruction, which could possibly be withdrawn without parliamentary scrutiny. The text of the Norwegian Citizenship Act continues to be at variance with international law and therefore needs to be brought in line with the instruction and international law at the earliest opportunity.
  • Neither the Citizenship Act nor the instruction define statelessness. The instruction refers to the 1954 Convention Relating to the Status of Stateless Persons, but not specifically to the definition of statelessness in Convention’s article 1(1). As pointed out by the UN International Law Commission (pp. 48-49, para. 3), there is “no doubt” that the definition of statelessness in that specific paragraph reflects customary international law.
  • Norway still lacks a statelessness determination procedure and a statelessness-specific protection regime. Stateless children born in Norway without a residence permit may thus still potentially face deportation before acquiring Norwegian citizenship – to a country where they will most likely remain stateless for the rest of their lives.
  • The instruction explicitly excludes from its scope persons who have “by their own actions or omission chosen to be stateless or who in a simple way can acquire citizenship of another state”. The term “in a simple way” is too vague, especially in light of UNHCRs Handbook on Protection of Stateless Persons (at page 54): “In UNHCR’s view protection can only be considered available in another country when a stateless person: […] is able to acquire or reacquire nationality through a simple, rapid, and non-discretionary procedure, which is a mere formality; […]”.
  • There is an issue of making sure that the information about the recent change in practice actually reaches the persons concerned. Immigration Directorate’s website that is used in the application process does not yet contain special instructions for stateless persons born in Norway who lack lawful residence.

Norway’s example shows that a combined advocacy effort can lead to a positive change even in a political environment where restrictions of the rights of migrants are high on the agenda. The new instruction issued by the Norwegian Ministry of Justice and Public Security to the immigration authorities represents a very important step towards ensuring that no child born in Norway is left without nationality. However, statelessness is a complex phenomenon, requiring a comprehensive approach. Without a statelessness-specific protection regime, reduction of statelessness in Norway will remain undermined by serious gaps.

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