UNHCR: Analysis and Comments Draft Law on Citizenship of Albania
|Publisher||UN High Commissioner for Refugees (UNHCR)|
|Publication Date||21 April 1998|
|Cite as||UN High Commissioner for Refugees (UNHCR), UNHCR: Analysis and Comments Draft Law on Citizenship of Albania, 21 April 1998, available at: http://www.refworld.org/docid/3ae6b31dab.html [accessed 3 May 2016]|
1. UNHCR has been entrusted by its Executive Committee and by the General Assembly of the United Nations with providing technical and advisory services pertaining to the preparation and implementation of nationality legislation to interested States. The Office's goal is to eliminate the creation of statelessness wherever possible, and to seek to ensure persons who nonetheless remain stateless have a recognised status under the law. The draft Law on Citizenship of Albania is of a high standard and, in principle, achieves this goal of the avoidance of statelessness. The following comments are proposed to the authorities for purposes of clarification and strengthening of certain provisions in the draft law. Given the urgency in submitting these recommendations, emphasis is placed on those articles for which change is proposed. UNHCR is grateful for this opportunity to comment on the draft citizenship law of Albania.
2. Article 3. The last paragraph of Article 3 stipulates that international legal obligations undertaken by Albania take precedence over contradictory obligations which may appear in the Citizenship Law. This provision will be useful in avoiding any confusion, should contradictions inadvertently arise. UNHCR has a special role to play with regard to the 1961 Convention on the Reduction of Statelessness, and would like to bring to the attention of the authorities Albania's potential accession to this international instrument. The draft Citizenship Law of Albania contains provisions which are in compliance with those of the 1961 Convention. UNHCR would, therefore, suggest that the authorities give favourable consideration to accession to this important legal instrument which is an international reference point for the reduction of statelessness.
3. Article 4. An addition to the second sentence is recommended, so as to read: "Any Albanian citizen has the right to renounce from the Albanian citizenship provided the person possesses or has been guaranteed the acquisition of another citizenship." Although this is indicated elsewhere in the law, in this way there will be no misunderstanding which might result in statelessness.
Granting of the Albanian Citizenship
4. The section on the "granting of the Albanian citizenship" includes the general principles reflected in both the 1961 Convention on the Reduction of Statelessness and the 1997 European Convention on Nationality. It is particularly laudable that provision is made for persons to acquire citizenship through birth on the territory as well as by descent from nationals, making it less likely that inadvertent cases of statelessness will arise through situations of conflicts of laws.
5. Article 9. An addition is recommended to the second paragraph for purposes of clarification. It could read: "If the parents of the child become known before the child reaches the age of 14, and they are of foreign citizenship, the Albanian citizenship may be waived with the consent of both parents provided the child will not thereby be rendered stateless". This will avoid the situation in which the child becomes stateless because the Albanian citizenship is waived but no other citizenship is actually acquired, which can occur when issues of identification arise.
6. Article 10. The facilitation of naturalisation of stateless persons and refugees is an important inclusion for States considering accession to or already party to the 1951 Refugee Convention, the 1954 Convention relating to the Status of Stateless Persons, and to the 1997 European Convention on Nationality. The final sentence of Article 10 does facilitate naturalisation for stateless persons by providing the possibility of disregarding the age and language criteria. This is a useful and important provision. The need to have accommodation and stable financial means remains, however, and this may be a difficult criteria for stateless persons to meet unless they have been granted a status in Albania allowing them to work and to have permanent residence. The 1954 Convention provides guidance to States on the granting of status to stateless persons on the State's territory and UNHCR would be pleased to discuss this instrument with the authorities. In determining the ability of stateless persons to naturalise, it is recommended that the need to have accommodation and stable financial means be waived, or applied less strictly, in the event stateless persons are not granted the status of permanent residents and do not have the right to gainful employment in Albania.
7. Additionally, Article 10 provides that a person cannot be naturalised "when penalty prosecuted in his own country or in the Republic of Albania for penal crimes charged with more than 3 years imprisonment". This criteria could be rather harsh in the case of a stateless person who has no other country, who has been convicted of a crime in Albania with a 3-year term of imprisonment and who can, thereafter, never seek Albanian citizenship even though there are no ties to any other country. It is recommended that, in the case of stateless persons, the possibility to disregard or to waive this provision be introduced, so as to reduce in appropriate cases the potentially severe effects which might otherwise follow.
8. Article 11. The reference to Article 8, paragraph 2 and 5 is presumed to be a reference to Article 10, 2 and 5? Some clarification is necessary.
9. Article 12. An addition to the second paragraph is suggested. Provision could be made for the child of a naturalised parent to acquire Albanian citizenship "provided such a thing is required by both parents or the other parent is stateless or has no parental authority and also provided the child is residing in the Republic of Albania". In this way the child's right to a citizenship, as stipulated in the Convention on the Right of the Child, the 1961 Convention and other international legal instruments will be safe-guarded.
10. Article 13. A change in the wording of the first paragraph is proposed, to the effect that: "The decision to grant the Albanian citizenship may be waived if it is proved that the foreigner has acquired the citizenship by means of fraudulent conduct, false information or concealment of any relevant fact attributable to the applicant". The critical element in fraud, both under the terms of the 1961 Convention and under the terms of the 1997 European Convention on Nationality, is that the fraud is directly attributable to the applicant. The fact that someone presents false data or counterfeit documents should have no bearing on their citizenship application or status if they received those documents unknowingly from, perhaps, a local official or other person they could legitimately have presumed to provide them with official documents. Moreover, false information or data may not be apparent to the individual. Hence, it is important that the provision be modified to indicate the applicant knowingly or wilfully participated in the fraud. Only then can the citizenship granted be withdrawn. Moreover, full procedural guarantees are required in any deprivation of citizenship, including the right to a fair hearing by an independent court or tribunal. Such a provision should be included under procedural rules.
11. Article 14. This provision as worded may lead to some instability in relations with other States and for individuals. It allows persons who renounced citizenship, so as to acquire citizenship in a country which does not accept dual citizenship, to then regain citizenship upon simple application. Naturally, countries which do not accept dual citizenship and which naturalised the former Albanian on the grounds that he/she would not be a dual citizen, will have difficulty with this provision if the person then seeks to regain Albanian citizenship. Such States might, in cases they become aware of, revoke the citizenship they had granted. It is not difficult to foresee complications, including the risk of statelessness for persons who may, then, fail to reacquire Albanian citizenship. The provision is helpful, however, in cases where the individual did not actually acquire the alternative citizenship and this is probably what is intended by the drafters. It could be redrafted in clearer terms to fit specifically these cases. The wording might be: "Persons who have renounced Albanian citizenship so as to acquire an alternative citizenship may have Albanian citizenship reinstated if the alternative citizenship is not acquired within a reasonable time".
Termination of Albanian Citizenship.
12. Article 15. This section deals with all aspects of the termination of Albanian citizenship, including renunciation, release, loss, and deprivation. Condensing the provisions for termination of citizenship into one section may simplify matters, but it is important to bear in mind differences between the will and the action of the State and the will and the action of the individual. In this regard it should be recalled that individuals have the right to change citizenship and, as stipulated by Article 15 of the Universal Declaration of Human Rights, "no one should be arbitrarily deprived of his nationality or of the right to change his nationality". This general principle of international law is reiterated in the 1961 Convention on the Reduction of Statelessness, in the 1997 European Convention on Nationality, and in many other international laws.
13. Hence, it is important to highlight certain issues with respect to Article 15. The first is that renunciation of citizenship is a right, conditioned upon the acquisition of an alternative citizenship. There is no right to renounce oneself into statelessness, but the right to change citizenship is protected by law. It should not, therefore, be made subject to criteria which might preclude the possibility of ever changing citizenship. Certainly, there are standard criteria, such as performance of military service which is generally regulated between States by treaty for persons with dual citizenship or for persons seeking an alternative citizenship. However, such criteria is limited in time and leaves open the possibility for changing citizenship once it has been met.
14. The 1997 European Convention allows a State to make the renunciation of citizenship subject to the individual being habitually resident abroad (Article 8(2)). Of course, renunciation must always be made subject to the acquisition of another citizenship. Judicial or administrative review of the State's refusal to allow renunciation is not included in the 1997 Convention because renunciation is deemed to be an individual's right. It is not, therefore, subject to the decision or will of the State outside of the conditions mentioned.
15. Article 15. The last paragraph of Article 15 could be clarified to ensure the avoidance of statelessness is seen as a paramount consideration in all cases. Hence, an addition at the end of the sentence might read as follows: "Even when one of the parents does not agree that his child loses the Albanian citizenship, the child may lose the citizenship, if such an action is considered to benefit the child and the child has or will acquire an alternative citizenship".
Procedures for Renouncing the Albanian Citizenship and for the Granting and Re-Acquisition of it through Naturalisation
16. With respect to safeguards, both the 1997 European Convention and the 1961 Convention require that any loss of citizenship be accompanied by full procedural guarantees including, as is indicated in the 1961 Convention, the right to a fair hearing by a court or other independent body. The European Convention stipulates that "decisions relating to the acquisition, retention, loss, recovery or certification of ... nationality [shall] contain reasons in writing" (Article 11). The procedural section of the draft law could, therefore, be modified to reflect these international legal principles in particular with regard to safeguards and procedural guarantees concerning negative decisions on the application. The time limits already included in this section are very useful and reflect Article 10 of the European Convention ensuring "applications relating to the acquisition, retention, loss, recovery or certification of ... nationality are processed within a reasonable time".
Transitional and Final Provisions
17. Article 18. This is an extremely important provision in the avoidance of statelessness and is worth publicising to ensure the population in general is aware of the possibility of regaining Albanian citizenship should they previously have renounced this citizenship and have not since acquired another. UNHCR would be prepared to assist with an information campaign on these and other important aspects of the Citizenship Law once in force.
18. Article 20. It is suggested that the word "invalidated" be replaced by the work "abrogated" to indicate that while previous citizenship laws are no longer in effect, the decisions taken under them are legally sound and remain effective.
19. UNHCR is pleased to have had the opportunity to provide these comments in writing. Should further discussion be deemed useful, the Office is prepared to elaborate upon these brief comments and to cooperate with the authorities in their drafting and promulgation of this law. UNHCR would also like to take this opportunity to inform the authorities of possible workshops on citizenship, including consultations with Parliamentarians as well as with the various Ministries. Technical and advisory services are also available if the authorities are interested in the benefits and implications for Albania of accession to either the 1954 Convention relating to the Status of Stateless Persons or to the 1961 Convention on the Reduction of Statelessness.
Carol A. Batchelor
Legal Officer Statelessnes