Maarten Peter Vink and Gerard-René de Groot
In the Netherlands, stateless persons can opt for Dutch citizenship provided they are born on Netherlands territory and since birth have had main habitual residence in the Netherlands, the Netherlands Antilles or Aruba for at least three years and have been stateless since birth (NET 6(1)(b)).
In Sweden a stateless child born in Sweden who lives there in possession of a permanent residence permit can opt for Swedish citizenship. The declaration of option has to be lodged before the child reaches the age of five years (SWE 6). In Austria, stateless persons born in Austria and resident there for at least ten years (of which five years must be immediately preceding the naturalisation), have, if they fulfil certain legal requirements, an entitlement to naturalisation (AUT 14).
Of the countries included in this publication, most opted for the possibility first mentioned above: attributed of citizenship ex lege at birth (see Table 5). In most of these countries, a provision also can be found dealing with the loss of citizenship if it is later discovered that the person involved was not stateless (see De Groot and Vink 2010: 45). The Belgian provision also includes acquisition of citizenship by a person born on Belgian territory who becomes stateless during his minority. The Czech Republic provides that Czech citizenship is acquired by a potential stateless child born on the territory of the republic if at least one parent has his permanent residence there.
In respect of these rules for avoiding statelessness, a new development can be observed. In Finland, for example, a child acquires Finnish citizenship by birth if he or she is born in Finland and does not acquire the citizenship of any foreign state at birth, and does not even have a secondary right to acquire the citizenship of any other foreign state (FIN 9(4)). A similar step was taken by the French and Belgian legislators in 2003, respectively 2007 (FRA 19-1; BEL 10(1)). The reason for both modifications is obvious: sometimes a foreign parent does not make use of the possibility to register a child in the consulate of his state in order to avoid the acquisition of the foreign citizenship by the child involved, and does this to activate the rules avoiding statelessness of the country of birth of the child. Finland, France and Belgium refuse to accept this tactical behaviour on the part of parents of a child born on their territory. This attitude is understandable, but makes it – in view of Article 7(1) of the Convention on the Rights of the Child – even more important to stimulate the creation of international instruments which oblige states to confer the citizenship ex lege at birth to children of their citizens born abroad if these children would otherwise be stateless.
Since 2009 the Luxembourg provision is restricted to children born in Luxembourg without another citizenship because of the fact that their parent(s) are stateless (LUX 1(3)) or because the citizenship of the parent(s) can on no way be transmitted to them (les los étrangères de nationalité ne permettent en aucune fa,con qu’il se voit transmettre la nationalité) (LUX 3(4)).
An interesting extension of the facilitation of the acquisition of citizenship by children born on the territory who otherwise would be stateless can since 2003 be found in Finland: a child who was born in Finland to parents with unknown citizenship is considered to be a Finnish citizen as long as it has not been established that he or she possesses another citizenship before reaching the age of five (FIN 12(2)).
RSCAS/EUDO-CIT-Comp. 2010/8 - © 2010 Authors