Acquisition of nationality for permanent residents

Art. 15, para. 1 of the Universal Declaration of Human Rights states that everybody is entitled to a nationality.3 It has been rightly remarked that this provision does not indicate under which provisions a person is entitled to a specific nationality (de Groot 2001: 67). State practice lends little support to the assumption that art. 15 has replaced the traditional understanding of nationality as a sovereign prerogative of the state with an individual rights-orientated approach that would be based upon an individual's free choice in determining his or her destiny as a member of a community legally defined by nationality law (for a different view, see Cassuto 2001: 41, 59).

This does not mean that a state's right to determine nationality law has remained unaffected by the development of human rights and human dignity, which has shifted the very foundation of public international law from a system of coordination of sovereign states to the wellbeing of human beings. Rather than making general assumptions about to what extent the sovereign rights of states are replaced or limited by human rights concepts of self-fulfilment and personal identity, it seems appropriate from a legal point of view to differentiate different areas in which human rights considerations influence the determination of nationality or have been recognised in the process of obtaining increasing recognition by states. As examples, we refer to the naturalization of migrant workers, the issues of denationalisation and arbitrary deprivation of nationality and, finally, discrimination in granting naturalisation. The right to a nationality as a human rights concept raises a number of issues with regard to the acquisition of nationality by second or third generation migrants (Chan 1991: 1). The Inter-American Court of Human Rights, in an advisory opinion, proclaimed that the right to nationality must be considered an inherent human right and that the powers of states to regulate matters relating to nationality are determined by their obligations to ensure the full protection of human rights.4 Under customary international law, neither a right to a specific nationality nor a right to change nationality to acquire an additional nationality exists. One may raise the question of whether the rule of unlimited discretion of states in deciding on the acquisition of nationality adequately reflects the human rights implications of second and third generation migrants.

There has as yet been no similar treaty provision for migrant workers and their families. Recent European state practice, however, shows a clear tendency to grant certain categories of migrants a right to acquire nationality either ex lege or on the basis of an application. Art. 6, para. 3 of the European Convention on Nationality (ECN) provides that internal law shall contain rules which make it possible for foreigners lawfully and habitually resident in the territory of a state party to be naturalised. The maximum period of residence which can be required for naturalisation is fixed at a maximum of ten years. This corresponds to a common standard in Europe, most countries requiring between five and ten years of residence. In addition, other justifiable conditions for naturalisation, in particular as regards language, lack of a criminal record and the ability to earn a living, may be required.

Some other categories of foreigners generally receive preferential treatment in acquiring nationality in terms of an easier procedure, a reduction in the required length of residence, fewer integration requirements, etc. Art. 6, para. 4 ECN lists foreign spouses6 and adopted children in particular, as well as second and third generation migrants.

The Parliamentary Assembly of the Council of Europe recommended to make it easier for young migrants to acquire the nationality of the immigration country, if they have either been born or completed most of their education there.

This recommendation has been taken up by the Committee of Ministers in a slightly weaker version. The Committee of Ministers to the Member States recommends that Member States, concerning second generation migrants: - 'provide all the information needed by parents and second-generation migrants concerning the conditions on which nationality may be acquired and lost and also on the consequences thereof, as well as reinstatement of nationality of origin and the procedures to be followed;

- do everything that is necessary and possible to ensure that procedures regarding nationality or reinstatement of nationality of origin

are as simple and speedy as possible and that charges are as limited as possible and do not exceed administrative costs;

- ensure, within the framework of international agreements, that young migrants holding the nationalities of two or more Member States are subject to national service or military service obligations in only one state.' (see Hannappel 1986: 58; de Groot 2001: 37).

A survey of the nationality laws in most Western European states shows a clear tendency towards privileged access by migrant workers to naturalisation, usually in connection with an increasing acceptance of dual nationality (for a comparative survey see Hailbronner & Renner 2005: 27 ff.; Hansen & Weil 2001: 34 ff.; Hecker 1999: 21). A comparative survey shows different techniques of easier access by migrant workers and their descendants to the nationality of the country of residence.

A number of countries have introduced elements of ius soli by granting nationality to children of migrant workers who have either been born already in the country of permanent residence or who have had a permanent lawful residence for a specified number of years in the host country. Other European states have opted for simplification of the conditions for naturalisation, reducing the number of years of permanent residence necessary to acquire nationality.

The European Convention on Nationality has taken account of these developments in the rules relating to nationality in Chapter III. State parties, according to art. 6, para. 4, shall facilitate in their internal laws the acquisition of nationality for persons who were born on its territory and reside there lawfully and habitually as well as persons who are lawfully and habitually on its territory for a period of time beginning before the age of eighteen, leaving that period to be determined by the internal law of the state party concerned. The wording of this provision as well as its systematic context and the general principles regarding the acquisition of nationality, however, show that customary law rules on simplification have not yet evolved, resulting in an individual right to acquire the nationality of the host state for migrant workers and their descendants upon fulfilment of certain requirements. Art. 6, para. 4 obliges the state parties to ensure favourable conditions for the acquisition of nationality for the persons belonging to the categories of persons listed in the sub-paragraphs. However, the Explanatory Report makes clear that state parties 'still retain their discretion whether to grant their nationality to such applicants'..

Refugees

Art. 34 of the 1951 Convention relating to the status of refugees stipulates that the contracting states shall as far as possible facilitate the assimilation and naturalisation of refugees. They shall in particular make every effort to expedite naturalisation proceedings and to reduce as far as possible the charges and costs of such proceedings. Art. 34 does not provide for an individual right of naturalisation for refugees. The duty to facilitate implies an obligation for naturalisation authorities and courts to take into account the special situation of refugees in exercising their discretionary authority. According to the jurisprudence of the

German Federal Administrative Court, not only does art. 34 have interstate effect. Art. 34 implies a directly applicable obligation which entitles refugees to rely upon the provision before administrative authorities and courts applying nationality law.10 The obligation to take into account the particular situation of refugees is derived from the human rights character of acquisition of nationality. The German administrative courts have therefore taken the view that in cases of discretionary naturalisations, an application can only be refused if predominant public interests are against the naturalisation of a refugee. The limitation of the discretionary authority is based on the fact that refugees are typically lacking the protection which a national usually receives from his home state. Therefore, the Federal Republic of Germany under public international law has a duty to protect refugees, including the appropriate regulation of their nationality. If, on balance, public interests are both in favour of as well as against the naturalisation of a refugee, the administrative authorities have to decide, within the framework of their discretionary authority, whether the naturalisation of a refugee is in the public interest. A refugee has an individual right to a discretionary decision, taking into account a proper evaluation of his particular situation.

The Bremen Administrative Appeal Court has, therefore, held that German authorities are in violation of art. 34 of the Geneva Convention when refusing the naturalisation of a refugee exclusively on the grounds that he or she holds a humanitarian temporary residence permit.

To what extent art. 34 reflects a customary rule of public international law is doubtful. In the European sphere, however, there can be no question that a duty to facilitate the naturalisation of refugees is part of a common European standard. Art. 6, para. 4, g ECN contains a duty to facilitate the acquisition of nationality for stateless persons and recognised refugees lawfully and habitually resident on its territory.

The term 'recognised refugees' includes, but is not limited to, refugees recognised under the 1951 Geneva Convention. State parties are free to include other types of refugees in this group. The requirement of a habitual residence should not be interpreted as an exclusion of those refugees who receive only a temporary residence permit. Unless there is a concrete assumption that refugees may find protection elsewhere, the reception of refugees recognised under the Geneva Convention can be generally considered as a habitual residence.

The duty to facilitate naturalisation means that the authorities and administrative courts have to take into account the particular situation of refugees when applying domestic law. This may also imply a duty to take account of the special difficulties of refugees in procuring documents in cooperation with the authorities of the country of origin of a refugee, which would be generally required in order to naturalise an applicant. In addition, difficulties may arise with respect to the language knowledge required to naturalise a person. A similar principle applies with respect to the duty to renounce a previous nationality.

While, generally also in case of refugees, such an obligation may be required, it must be taken into account that renunciation of a nationality may require particular cooperation with the country of origin which may pose difficulties for refugees resulting from the danger of persecution.

Other categories of persons

Other categories of persons also exist, who generally enjoy privileged treatment with respect to acquisition of nationality under international treaties and under domestic law of most European states. Art. 6, para. 4 of the European Convention on Nationality mentions as categories whose naturalisation is to be facilitated:

- spouses of its nationals,

- children of one of its nationals if, under an exception envisaged under internal law, such children born abroad do not possess at the

time of birth the nationality of the state party,

- children, one of whose parents acquires or has acquired its nationality,

- children adopted by one of its nationals,

Nationality in public international law and european law 41

- persons who were born on its territory and who reside there lawfully and habitually,

- persons who are lawfully and habitually resident on its territory for a period of time beginning before the age of eighteen, that period

to be determined by the internal law of the state party concerned,

- stateless persons and recognised refugees lawfully and habitually resident on its territory.

A more detailed discussion of some of these categories will follow in the subsequent sections. In the general human rights context discussed in this section, one may note that the European Convention on Nationality - while recognising the right of each state to determine under its own law who are its nationals - does at the same time recognise a substantial duty to take into account the particular situation of human beings as being dependent on nationality as a fundamental legal status. Although the term 'facilitate' is not defined in the Convention, the jurisprudence of national courts indicates that facilitation implies a duty and not a mere procedural possibility to apply for naturalisation. Facilitation means not only a differentiation between different categories of persons but also, in the words of the Explanatory Report, ensuring favourable conditions for the acquisition of nationality for the persons belonging to each of the categories of persons listed in the sub-paragraphs. Examples include a reduction in the required length of residence, less stringent language requirements, an easier procedure, lower procedural fees.12 Facilitation in this sense means making the acquisition of nationality significantly easier than for foreigners generally (Hall 1999: 586).

Human rights implications of nationality law are traditionally most notably recognised in the treaty provisions on loss and deprivation of nationality. Although loss and deprivation are also generally considered a matter for the discretion of states, there has been early recognition of the limitations of such discretion. Art. 15 of the Universal Declaration of Human Rights already provides for a prohibition of arbitrary deprivation or refusal of the right to change one's nationality. Further details will be discussed in the section on loss and deprivation (see section 1.3).