“Everyone has the right to a nationality”

Prevention of statelessness at birth – adequate nationality law but inconsistent implementation

30 July 2013 | Milijana Trifkovic, Legal Analyst, Praxis

In December 2011, Serbia acceded to the Convention on the Reduction of Statelessness. The Serbian Law on Citizenship had already been in accordance with this international instrument, and contained appropriate mechanisms aimed at prevention of statelessness at birth. Specifically, Article 13 of the Law on Citizenship of the Republic of Serbia envisages the acquisition of citizenship according to the ius soli principle – by birth in the territory of Serbia for children who would otherwise be stateless. Thus, a child born or found in the territory of the Republic of Serbia shall acquire Serbian citizenship by birth if both parents are unknown or of unknown citizenship or stateless or if the child is stateless. The citizenship is acquired at birth, automatically, by operation of law. There are no additional conditions. However, the practice shows that liberal regulations on citizenship and simple conditions for acquisition of citizenship do not always imply an easy path towards exercise of the right to citizenship. Thus, in order to prevent statelessness, it does not suffice just to adopt adequate laws, but it is necessary to undertake a series of other steps, including consistent implementation and interpretation of those laws in practice. 

According to the Law on Citizenship, otherwise stateless children born in Serbia acquire citizenship ex lege. Such acquisition of citizenship is not conditioned by submitting of a request nor does it require an act of a competent body. However, it does stem from practice that, in order to acquire citizenship in these cases, one should submit an appropriate request, and that the citizenship is not acquired by operation of law but on the basis of a decision of the competent body.  A case of Praxis’ clients Mejrema and Bajramsa shows that significance of such differentiation is not only theoretical and that it has a far more important effect on lives and the status of individuals. 

Mejrema and Bajramsa are sisters and they belong to the Roma national minority. They were both born in Serbia, of an unknown father and a mother of unknown citizenship (their mother was not registered in birth registry and passed away without possessing a single document – see Zelfija case and Mejrema and Bajramsa case). Both Bajramsa and Mejrema were subsequently registered in birth registry in 2010, after their mother’s death, when they were 15 and 17 respectively. The fact of citizenship was not registered for either of them, so they later submitted requests for determination of citizenship (a procedure for persons who acquired the citizenship of the Republic of Serbia, but their citizenship status was not registered). 

Bajramsa, the younger sister, submitted the request for determination of citizenship when she was 17 years old (father of Bajramsa’s common-law husband was appointed as her temporary guardian and he submitted the request on her behalf). It was established that it was the case of a child born in Serbia, of unknown father and the mother of unknown citizenship, and she received the citizenship certificate within a short period of time. Still, judging from the decision on the basis of which the registration of the fact of citizenship was performed (and which stated that Bajramsa acquired citizenship), it can be concluded that the competent body did not consider that the citizenship in such cases was acquired by operation of law, but only on the basis of a decision of the competent body and following submission of an appropriate request, and that the decision of the competent body was not declaratory, but constitutive. In Bajramsa’s case, such differentiation did not have a practical significance because she acquired the citizenship and is retrospectively considered a citizen since birth. However, in case of her sister Merjema, such differentiation had far-reaching consequences. 

Mejrema was 18 years and two months old when she submitted the request for determination of citizenship. All the other circumstances of her case were identical to those of her sister – she was also born in Serbia, of unknown father and the mother of unknown citizenship. The decision of the competent body should have only stated that, at the moment of Mejrema’s birth, all the conditions prescribed by the law had been met and that she had acquired the citizenship on the basis of the Article 13 of the Law on Citizenship. However, in Mejrema’s case, the competent body concluded that Mejrema did not fulfil the conditions for determination of citizenship of Serbia as per the Article 13 of the Law on Citizenship of the Republic of Serbia. Since she came of age and was not considered a child any more, the competent body was of the standpoint that there was no possibility of acquiring citizenship on the basis of the provision aimed at prevention of statelessness among children. She was informed that she could acquire citizenship only by naturalization if she paid the fee and gave a statement on loyalty, and only after the expiry of two-year deadline from the day her uninterrupted stay in Serbia can be proven. 

The 1961 Convention does allow for the possibility of the states to enable the acquisition of citizenship for otherwise stateless children only after submitting an appropriate request and to condition the acquisition of citizenship by fulfilment of some of the conditions explicitly stated in the Convention. One of the permitted conditions is determination of a timeframe in which this request may be submitted. However, this timeframe must start not later than 18 years of age and must not end earlier than at the age of 21 years. When it comes to Serbia, even though it does not stem from the Law, the competent body is of the opinion that it is necessary to submit an appropriate request for acquisition of citizenship, and within a certain timeframe. The deadline until which one should submit the request is not prescribed by the law – since the law prescribes the acquisition of citizenship by virtue of law – but, in practice, the competent body derives it from the legal definition of “child”, resulting in the standpoint of the competent body that after 18 years of age otherwise stateless children born in Serbia can no longer acquire citizenship on the basis of the Article 13 of the Law. Injustice of such interpretation is best visible in Mejrema’s case. She spent her childhood without documents because her mother was not registered in birth registry and therefore could not register birth of her children. Mejrema was registered in birth registry only after her mother’s death, but her fact of citizenship was not registered even though she was born in Serbia, of unknown father and the mother of unknown citizenship. In terms of law, she had never had a guardian who could submit a request for acquisition of citizenship on her behalf. While her mother was alive, Mejrema could not submit a request for determination of citizenship because she was not registered in birth registry. When she finally managed to get registered and collected the necessary evidence for acquisition of citizenship, the competent body thought that the Article 13 could no longer be applied in her case, since she was already 18. This circumstance – that she reached 18 years of age – was the only difference between her case and that of her sister who acquired citizenship on the grounds of the Article 13. 

As of August 2013, Mejrema will have fulfilled the conditions for naturalization, as a person born in Serbia who can prove that prior to submitting a request for naturalization she had stayed in the country uninterruptedly for two years. Thus, she will most likely not be left stateless. However, one should bear in mind that providing for a discretionary naturalization procedure for otherwise stateless children is not permissible under the 1961 Convention (see Dakar Conclusions). 

The final decision in Mejrema’s case has not been brought yet, so there is a possibility that the competent body will change its standpoint and apply the law consistently. This is important not only for Mejrema’s case, but also for preventing the risk of statelessness in cases of otherwise stateless persons who spend their childhood without registered fact of birth and without a resolved citizenship issue. At this point, if no one submits an appropriate request for acquisition of citizenship on their behalf before these persons reach 18 years of age, after coming of age they would be deprived of the possibility to do it themselves. 

Finally, it is necessary to undertake some additional steps so that the persons to whom Article 13 relates may actually have some use of this provision. It primarily refers to enabling timely birth registration of every child. A year ago, Serbian Government adopted the Law on Amendments to the Law on Non-Contentious Procedure which prescribes a new non-contentious procedure for determination of time and place of birth for persons who cannot get registered in birth registry through the administrative procedure. However, no measures have been taken to ensure that every child is registered in birth registry immediately upon birth and regardless of the status of his/her parents, which undoubtedly causes difficulties in exercise of the right to citizenship. Besides, in Serbia, there is no specific procedure in which it could be determined that a person is stateless or of unknown citizenship. Thus, even though the children born in Serbia whose parents are stateless or of unknown citizenship have the right to citizenship according to the ius soli principle, there is a threat that they may be deprived of this right due to difficulties in proving that their parents are stateless or of unknown citizenship. Until the measures have been taken to remove the above-mentioned difficulties and until the consistent application and adequate interpretation of the citizenship related regulations has been provided, the text of the Law which is in compliance with the 1961 Convention is not sufficient to remove the risk of statelessness in practice. After all, this is one of the conclusions of a recently published report which analyses trends and regulations in Europe regarding statelessness prevention and which reminds us that „the analysis of nationality law provisions only provides part of the picture where protection against statelessness is concerned“.

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