“Everyone has the right to a nationality”

Nationality Unknown? Promising steps, but still a risk of statelessness at birth in Hungary

28 February 2014 | Gábor Gyulai, Hungarian Helsinki Committee, Chair of the ENS Steering Committee

Hungary is a state party to all statelessness-related international conventions, and as one of the few states in the world to operate a specific mechanism for the protection of stateless persons it is often referred to as a country implementing positive policies regarding statelessness. Yet, there are still significant shortcomings in the legislative framework and practice of authorities when it comes to the prevention of statelessness at birth. ENS member,the Hungarian Helsinki Committee’s recently published a study, Nationality Unknown? which presents these gaps, together with a set of concrete recommendations to the Hungarian government on how to better ensure that no child is born stateless or remain permanently of undetermined nationality in Hungary.

For children born in Hungary who are not foundlings, Hungarian law does not establish a general safety net against statelessness at birth. Instead, children who do not acquire any nationality at birth can obtain Hungarian nationality by declaration, a non-discretionary process created with a view to fulfil the country’s relevant international obligations. However, the rules relating to this procedure are clearly in breach of Hungary’s international obligations, as they include conditions not permitted under the 1961 Convention on the Reduction of Statelessness and the 1997 European Convention on Nationality. For example,

    • The child’s parents must have a domicile (see below) when the child is born (a condition not existing in relevant international treaties);
    • Instead of 5 years of habitual residence (as allowed under the country’s international obligations), 5 years of residence with a domicile is required before being able to acquire nationality by declaration;
    • The option is open to persons concerned until the age of 19, instead of 21 (as allowed under the 1961 Convention).

The restrictive legal concept of domicile (lakóhely) plays a crucial role in hindering access to Hungarian nationality for those entitled to it under the country’s international obligations. The country’s national rules do not allow certain categories of foreigners to establish a domicile in Hungary, regardless of the fact that they reside in the country in a lawful and habitual manner. These categories include recognised stateless persons, beneficiaries of a tolerated (befogadott) status, as well as all third-country nationals without a permanent resident status.

As a consequence, the prevention of statelessness is not properly ensured in all relevant cases. Research for this report has identified three particular groups of concern:

Group 1: Children born in Hungary to stateless persons with no domicile;

Group 2: Children born to parents who are unable to pass on their nationality to their children (because of jus soli or sex discrimination, for instance);

Group 3: Children born to beneficiaries of international protection (refugees, beneficiaries of subsidiary protection and tolerated status):

    • Group 3/A: ...who are unable to pass on their nationality to their children because this would require contact with the authorities of the country of origin (e.g. registration with consular authorities) which is impossible and prohibited in these cases;
    • Group 3/B: ...who – based on national law – pass on their nationality to their children, but this nationality cannot be registered in practice (based on the enduring impossibility/prohibition to contact the authorities of the country of origin).

Children belonging to Group 1, 2 and 3/A are born stateless in Hungary, yet they are neither granted Hungarian nationality ex lege at birth, nor are they entitled to acquire Hungarian nationality in a non-discretionary manner following five years of habitual residence in the country. This constitutes a breach of Hungary’s international obligations under the 1961 Convention on the Reduction of Statelessness, the 1997 European Convention on Nationality and the 1989 Convention on the Rights of the Child. Children belonging to Group 3/B may be at risk of statelessness (depending on the individual circumstances of the cases), and due to a lack of proper mechanisms ensuring their access to a nationality, they permanently remain registered as of unknown nationality. This constitutes a breach of the 1989 Convention on the Rights of the Child, and is in conflict with the relevant guidance of the UNHCR and the Council of Europe.

This report provides a detailed insight into these issues, together with personal case studies showing the “human impact” of these shortcomings. The author hopes that beyond the findings relevant for Hungary, the publication will inspire academics, civil society actors and UNHCR offices to conduct similar research in other states. In addition, the study is expected to demonstrate that safeguards against and solutions to statelessness should be explored and should function in all countries, even in those where this phenomenon is not reported to be particularly significant.

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