Doc. 7719
20 December 1996

OPINION1 on the draft European convention on nationality

(Rapporteur: Mrs Manuela AGUIAR, Portugal, Liberal, Democratic and Reformers' Group)


1. Introduction

1.       At their 572nd meeting in September 1996 the Ministers' Deputies decided to invite the Parliamentary Assembly to give an opinion on the draft European Convention on Nationality, which had been drawn up by the Council of Europe's Committee of Experts on Nationality (CJ-NA). The Assembly's Committee on Legal Affairs and Human Rights was requested to prepare the opinion, and the Committee on Migration, Refugees and Demography (hereafter "the committee") was invited to contribute to it.

2.       The committee pays great attention to nationality issues. Conditions for acquiring the nationality of a host country and rules governing multiple nationality are of particular importance to immigrant populations. The committee is also concerned about the large number of refugees who have become stateless and is very interested in nationality-related problems encountered by European citizens living abroad.

3.       The committee welcomes the draft opinion prepared by the Committee on Legal Affairs and Human Rights, which is very complete and already covers certain important problems with regard to migrants and refugees. The Committee on Migration, Refugees and Demography also has a number of additional comments and proposals on matters coming within its own sphere, which are set out below.

2. Questions of specific relevance to the integration of migrants

4.       The problems linked to migration in Europe have evolved considerably since the adoption of the 1963 Convention on Reduction of Cases of Multiple Nationality and Military Obligations in Cases of Multiple Nationality, which was characterised by concern to limit cases of multiple nationality, regarded at the time as an undesirable situation that should become increasingly infrequent. The trend of events has, however, decreed otherwise. Mass migration of workers in the sixties and seventies and the resulting flow of people joining their families led to the creation of large immigrant communities in many European countries. Closer European union has also generated a significant increase in mobility between EU member states, and, lastly, with the end of the Communist era migration between Eastern and Western Europe has grown.

5.       The committee welcomes the fact that these developments have been taken into account in European instruments on nationality. In 1993 the Second Protocol amending the 1963 Convention already provided for a relaxation of the rules on multiple nationality, and the current draft of the new convention on nationality represents a positive step for immigrant populations.

6.       Two issues are of special relevance to those populations: acquisition of nationality and multiple nationality.

a.       Acquisition of nationality

7.       The possibility for migrants to acquire the nationality of the country where they are permanently resident is an essential factor, although not the only one, in their full integration. Naturalisation must be a possibility open to first-generation migrants; as to second- or third-generation migrants, who were born or grew up in the host country and still live there, it is absolutely essential that they be allowed to acquire that country's nationality.

8.       The committee is therefore pleased to note the provisions on acquisition of nationality by migrants and refugees laid down in Article 6 paragraphs 3 and 4-e, f and g of the convention. Under those provisions, each State Party must make naturalisation a possibility and, as one of the conditions it imposes for naturalisation, must not require a period of residence of more than ten years before the application is lodged. A State Party to the Convention must moreover facilitate acquisition of nationality, inter alia, by persons born on its territory and lawfully and habitually residing there, persons lawfully and habitually residing on its territory for a period of time before the age of 18 (to be fixed in the State's domestic law) and stateless persons and recognised refugees lawfully and habitually residing on its territory.

9.       So that people are actually able to avail themselves of the legal provisions allowing acquisition of nationality, it must be ensured that the fairness of the administrative procedures is guaranteed. The committee therefore welcomes the provisions of Chapter IV of the draft convention, which requires that reasons shall be given in writing for decisions in matters of nationality, that such decisions shall be open to review and that the administrative fees involved shall be reasonable.

10.       However, with regard to the processing of applications in matters of nationality Article 10 of the draft convention ("Processing of applications") provides that each State Party shall take measures to ensure that such applications are dealt with within a reasonable time. The committee considers that this wording does not afford applicants sufficient protection against administrative delay and uncertainty and believes that a maximum time-limit should be set. It therefore proposes that the words "within a reasonable time" be deleted from Article 10 and that the phrase "within a period not exceeding 1 year" be added at the end of that Article.

b.       Multiple nationality

11.       Despite the restrictions contained in the 1963 Convention, the number of cases of multiple nationality has grown with time. It is a fact that dual nationality brings numerous advantages for many migrants as they thereby enjoy full rights of citizenship in both countries. The most frequently cited disadvantage, viz the obligation to perform military service in both countries, does not appear to be a major drawback for most of the people concerned, since a number of international agreements, including the 1963 Convention, afford them the possibility of fulfilling that obligation in only one of the countries. With regard to integration, the requirement that people acquiring a new nationality must renounce their nationality of origin seems to discourage potential applicants.

12.       States often argue that multiple nationality raises problems of loyalty to the countries concerned. The committee believes that the notion of loyalty to a given country has undergone far-reaching changes, in particular as a result of increased mobility within Europe, and that those changes should be reflected in legislation on nationality.

13.       In this respect, the committee considers that the provisions on multiple nationality contained in the draft convention do constitute a degree of, relative, progress. The draft convention confirms the provisions of the Second Protocol of 1993 amending the 1963 Convention with regard to retention of nationality on marriage and children's automatic acquisition of nationality on birth, but at the same time attempts not to take sides for or against multiple nationality, thereby leaving signatory States a choice between the two approaches. The committee regards this as a positive change of attitude compared with the restrictive provisions of the 1963 Convention. It is of the view that, given the very different policies adopted by European countries in this sphere, the wording chosen is probably the best compromise that could be arrived at by the authors of the draft convention. However, the committee would like all European States to recognise the principle of multiple nationality in future.

3. Nationality-related problems of European citizens living abroad

14.       The relations that European citizens living abroad maintain with their countries of origin are a matter of great interest to the Committee on Migration, Refugees and Demography. In May 1994 it submitted a report on this subject to the Parliamentary Assembly, which adopted Resolution 1035 (1994) on Europeans living abroad. In that Resolution the Assembly noted, among other things, that Europeans living abroad were still confronted with many problems, such as difficulties in returning to and resettling in their country of origin and in recovering their former nationality.

15.       It is to be welcomed that Article 9 of the draft convention (Recovery of Nationality - "Each State Party shall facilitate, in the cases and under the conditions provided for by its internal law, the recovery of its nationality by former nationals who are lawfully and habitually resident on its territory") contains an, at least partial, response to the Assembly's invitation in the above-mentioned Resolution to "facilitate the re-integration into their country of origin of those migrants wishing to return".

16.       On the other hand, the committee is concerned about those provisions of the draft convention which seem to undermine the possibility for European citizens living abroad to retain their nationality of origin and pass it on to their children.

17.       Firstly, Article 6 paragraph 1 of the draft convention, which makes it binding on each State Party to provide for its nationality to be acquired ex lege by children one of whose parents possesses the nationality of that State at the time of the child's birth, allows an exception to this rule for children born abroad. It is clear that this amounts to discrimination against nationals living abroad. The committee considers that there is no case for such discrimination and proposes that the words "or born abroad" be deleted from Article 6 paragraph 1-a.

18.       Secondly, under Article 7 paragraph 1-e of the draft convention a State Party is permitted to provide in its internal law for the loss of its nationality ex lege or at its own initiative where there is a lack of any genuine link between the State Party and a national habitually residing abroad. Although paragraph 3 of Article 7 stipulates that such loss of nationality cannot take effect if the person concerned would thereby become stateless, paragraph 1-e might in some circumstances be tantamount to an arbitrary deprivation of nationality, which is expressly forbidden under Article 4-c of the draft convention. What is more, paragraph 1-a of Article 7 already provides for the possibility of loss of nationality where a person voluntarily acquires another nationality. The committee therefore proposes that Article 7-1-e be deleted.

19.       Lastly, the committee wishes to draw attention to Article 18 of the draft convention, under which "Nationals of a State Party in possession of another nationality shall have, in the territory of that State Party in which they reside, the same rights and duties as other nationals of that State Party." Although it fully concurs with this provision, the committee considers that it should also apply in the opposite sense, that is to say that nationals of a State Party living abroad should, whether or not they possess another nationality, have the same rights and duties as other nationals of that State Party. For example, some States currently do not allow their nationals living abroad to vote after a certain period of absence from their home country. The committee nevertheless believes that it would not be realistic at present to insist on the inclusion of such a provision in the draft convention as it would not meet with a consensus. The committee hopes that this principle will be widely acknowledged in future, as is the case in the many European countries which already apply it.

4. Conclusion

20.       The Committee on Migration, Refugees and Demography is of the opinion that the present draft Convention on Nationality is a necessary text and appreciates the effort made by the draft's authors. It hopes that the above comments and proposals will be taken into account in the final draft and that the convention will be adopted and come into force as quickly as possible.

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Reporting committee: Committee on Legal Affairs and Human Rights (Doc. 7719)

Committee for opinion: Committee on Migration, Refugees and Demography

Reference to committee: Ref. No. 2139 of 7 November 1996

Opinion approved by the committee on 13 December 1996

Secretaries to the committee: Mr Newman, Mr Sich and Mrs Nachilo


1 1       by the Committee on Migration, Refugees and Demography.