A new proposal by the Norwegian Government will leave children born stateless in Norway who are habitually resident without a nationality until they turn 18. The new proposal, put forward by the Ministry of Justice, clearly violates provisions in international law which safeguard every child’s right to a nationality by stipulating that a 5 year lawful residence is required for acquisition of Norwegian citizenship.
This will mean that stateless children will be left in legal limbo without rights, services and opportunities, including access to secondary education.
Habitual residence, not lawful residence
Stateless persons in Norway cannot currently apply for Norwegian citizenship unless their residence is authorised as lawful. Since Norway failed to implement a statelessness determination procedure, those who do not qualify for asylum often remain in legal limbo, unable to normalise their status.
The lawful residence requirement currently also applies to children born stateless in Norway. As pointed out by UNHCR in the report “Mapping statelessness in Norway” published in October 2015, this directly violates the UN Convention on the Reduction of Statelessness from 1961. The Convention obliges states to grant nationality to children born on their territory who would otherwise be stateless either automatically at birth or upon an application, which may be subjected to certain conditions exhaustively listed under article 1(2). The Convention does not allow states to impose the requirement of lawful residence. It does allow the requirement of “habitual residence”, i.e., stable, factual residence, but this is a substantially lower threshold.
In the legislative draft submitted by the Ministry of Justice to the Parliament in March 2015, the Ministry proposed to increase the residence requirement for acquiring Norwegian citizenship from three to five years of lawful residence for stateless persons, including children (section 8.3.4 of the draft). The draft presupposed that only stateless children residing in Norway lawfully would be able to acquire Norwegian citizenship. Stateless children without residence permit, including those born in Norway, would not be able to acquire Norwegian citizenship, and, as a result, would remain in legal limbo. During the legislative process, both UNHCR (se paras. 12-15) and NOAS (see section 8) reminded the Norwegian Government of Norway’s legal obligations to reduce statelessness.
The Government wants to avoid parliamentary scrutiny
The Ministry of Justice however did not address our concerns through the original legislative proposal, but instead included the proposal into a bigger “restriction package”, submitted to the parliament in April 2016 (see section 22.214.171.124 of the proposal). On page 145 of the proposal, which mostly deals with asylum, the Ministry writes the following: “The Ministry agrees with UNHCR and NOAS that lawful residence cannot be required of stateless persons covered by the 1961 Convention.” Despite this admission of violation of international law, the Ministry proposes the Norwegian Citizenship Act to nevertheless impose the lawful residence requirement on all stateless persons. An exception from this requirement, the Government writes, will be regulated later through a by-law, i.e., outside the Parliament’s control.
Alarmingly, the Government explicitly writes that children born stateless in Norway could be required to wait with their citizenship application until they turn 18. The ministry writes, inter alia, that “Applicants covered by the convention will be able to apply for citizenship subject to the requirements there when they are of age” and explicitly refers to article 1(2)(a) of the Convention, which allows states to restrict the period of application for citizenship to persons who are between 18-21.
The proposal fails to properly apply the Convention on the Rights of the Child
Even though the UN Convention on the Reduction of Statelessness from 1961 allowed, at that time, imposition of such requirement, this is no longer acceptable under international law. Article 13 of the 1961 Convention requires it to be applied in compliance with later treaties that provide better protection. The 1989 Convention on the Rights of the Child (CRC) does not allow states to postpone granting citizenship until the end of childhood.
It follows from Articles 3 and 7 of the CRC that a child must not be left stateless for an extended period of time: a child must acquire a nationality at birth or as soon as possible after birth.
In addition to breaching the CRC, such delay would go against the UNHCR guidelines (see paras 11 and 40) and constitute a breach of the general prohibition of discrimination. It is potentially also possible to see this as degrading treatment contrary to article 3 of the European Convention on Human Rights (ECHR) and, in light of the case Genovese v. Malta, also as a restriction of the right to private life contrary to article 8 of the ECHR.
The European Convention on Nationality does not affect Norway's obligations under other treaties
The fact that Norway ratified the European Convention on Nationality (ECN), which allows state parties to subject granting of citizenship to stateless children born on their territory to the requirement of lawful residence, does not relieve Norway of its obligations under the UN Convention on the Reduction of Statelessness. This is made clear, inter alia, by the ECN itself. Article 26(1) of the ECN forbids states to apply the ECN in a way that would prejudice the application of provisions in other binding treaties "under which more favourable rights are or would be accorded to individuals in the field of nationality".
Norway can neither use the ECN for the purposes of reading the requirement of lawful residence into the Convention on the rights of the Child (CRC). The ECN is a regional convention signed by a handful of states, while the CRC enjoys almost universal ratification. The practice of state parties to the ECN therefore hardly represents "subsequent practice" within the meaning of article 31(3)(b) of the Vienna Convention on the Law of Trieaties and is therefore not sufficient to affect the meaning of provisions under the CRC. In any case, as article 41 of the CRC makes clear, the CRC cannot be read to affect any provisions in other treaties binding for that state "which are more conducive to the realization of the rights of the child". The rights under the UN Convention on the Reduction of Statelessness, insofar these provide better protection than the CRC, therefore continue to apply.
Denying rights and opportunities
It is shocking that the Norwegian Government wants children born into statelessness without a residence permit to wait until they turn 18 before allowing them to regularize their status. A stateless child will be denied rights, services and opportunities. In this way, the Government will actively deny them the experience of belonging and prevent them from taking part in the opportunities other children who grow up in Norway enjoy. Among other issues, this would mean that stateless children can in practice be excluded from high school education.
Yet the solution is simple
As pointed out in the latest report “No Child Should be Stateless” by the European Network on Statelessness, 17 countries in Europe, including Finland, have introduced systems whereby children who would otherwise be stateless acquire citizenship automatically by the operation of the law. The experience from these countries has shown the measure is cheap, with low socio-economic costs.
Norwegian parliamentarians should reject the existing proposal and require – at the very minimum – the law to clearly state that children born in Norway who would otherwise be stateless, irrespective of their immigration status, acquire Norwegian citizenship either automatically at birth or upon an application and latest after five years of habitual residence in the country. Anything less than this will violate international law.