Refugees and stateless persons have “more right” than others to the nationality of the country where they live. At least, this is what international law – the 1951 Refugee Convention, the 1954 Statelessness Convention and the 1997 European Convention on Nationality – says. But how to measure whether a certain state lives up to these obligations? The pioneering study of the Hungarian Helsinki Committee gives a recipe to researchers and advocates world-wide, analysing the problematic Hungarian practice through law, statistics and case studies.
Despite the gradual “denationalisation” of human rights in the past two hundred years, having a nationality is still crucial for the enjoyment of human rights in practice. Stateless persons entirely lack this protective tie. Forced migrants, such as refugees, usually do not have an effective, functioning nationality, and cannot benefit from the protection of their state of nationality, even when they are not formally stateless. It is not surprising then that naturalisation in the country of residence is widely considered as a durable solution for both groups, which – beyond living under a specific protection status – finally leads out of the cycle of refugeehood and statelessness.
It is much more surprising that, apparently, the actual fulfilment of these important obligations has not really been researched in practice anywhere. To fill this gap, my recent research – supported by the UNHCR – analysed to what extent Hungarian law facilitates these two groups’ naturalisation, and whether or not statistics and case examples indicate any practical trend in this respect. Doing any research on naturalisation in Hungary is a tough job, as neither decisions, nor case files contain any justification, and no appeal is allowed against rejections. Against this particularly opaque national framework, I was also looking for benchmarks in EU law and the jurisprudence of the European Court of Human Rights, which would set general fair procedure standards applicable to naturalisation cases (beyond the clear-cut obligations specifically targeting refugees and stateless persons).
Some highlights from the research findings include:
- The only favourable treatment for refugees and stateless persons in naturalisation in Hungary is the reduced waiting time. Both groups are integrated into the most preferential category with regard to the mandatory minimum domiciled residence requirement before naturalisation (3 years). However, persons with a stateless status are not allowed to establish a domicile (only several years later, when and if they acquire a permanent residence permit); therefore, this favourable condition has a limited impact in practice.
- Hungary does not effectively fulfil its international obligation to reduce as far as possible the charges and costs associated with the naturalisation of refugees and stateless persons. Both groups are required to pass a mandatory “basic constitutional studies” examination, which costs 50% of the gross monthly minimum salary. They also have to present the official certified translation of several documents, a costly service provided exclusively by one company, for prices reflecting a monopolistic market position. These costs may easily constitute an insurmountable obstacle for many.
- Between 2011 and 2015, over 700 000 persons – the vast majority of whom do not live in Hungary – acquired Hungarian nationality in an extremely accelerated, simplified and facilitated procedure, based on their Hungarian ancestry (“simplified naturalisation”). In the same period, 3 122 migrants living in Hungary could naturalise in a standard procedure, among whom there were only 46 refugees and 38 stateless persons. The rate of positive decisions was only half of the average rate (57%) in case of stateless persons (33%), and only quarter of the average in case of refugees (14%). These statistics – read in conjunction with the legislative shortcomings and the experiences of individual cases – clearly indicate that the naturalisation of these two groups is in practice not facilitated, but actually rendered more difficult.
- No transparent and justified thresholds exist when assessing the livelihood and accommodation conditions for naturalisation, and it appears that unreasonably high requirements are being applied on certain occasions, which may have a particularly negative impact on refugees and stateless persons. Some cases encountered indicate that monthly incomes that far exceed the minimum salary or the statistical minimum of monthly subsistence may still be easily considered as insufficient to prove one’s livelihood as required by law for a successful naturalisation.
- Despite the preconception according to which nationality issues belong to a reserved domain of state sovereignty, in reality the European Convention on Human Rights and EU law (as interpreted by the European Court of Human Rights and the EU Court of Justice, respectively) do contain emerging procedural safeguards that are applicable to naturalisation procedures – at least in certain contexts. These norms emanate, in particular, from the right to private life (and the link between this right and social identity), the right to an effective remedy, the right to be heard and the strong connection between EU citizenship and the nationality of individual Member States. After a careful reading of the jurisprudence of the Luxembourg Court, one cannot but conclude that EU Member States act “in the scope of Union law” when deciding upon naturalisation claims, and thus on access to EU citizenship.
- In Hungary, decisions on naturalisation are made in a “black box”, with literally no one ever being able to see (let alone to challenge) why a certain claim has been rejected. The Hungarian procedural framework for naturalisation lacks the most fundamental transparency and fair procedure safeguards, and as such, raises concerns with regard to its compatibility with the above-mentioned emerging norms in EU law and Strasbourg jurisprudence, and even with the good administration standard embedded in the Hungarian Constitution.
I hope that my research will not only contribute to positive changes in Hungary, but will also inspire similar research and advocacy initiatives in other parts of the world, thus stimulating global awareness-raising about this important, yet still fairly under-researched topic.