2021
Statelessness & Citizenship Review
3(1)
practice. It is important that SDP norms are strengthened and designed to fill the
gaps by indicating a timeframe for the referral of cases and the issuance of a
decision between the SDP authority and the national civil registry system, as well
as by clarifying how the inter-institutional coordination between them will
operate. An express deadline established in the norm, by which the SDP authority
must refer the case to the national civil registry system, constitutes a guarantee on
behalf of the applicant. However, the civil registry system or the competent
authority in this matter should also have an express timeframe established in the
SDP norm in which they must answer the request from the SDP authority and
proceed accordingly.
SDP norms from Costa Rica, Panama, Paraguay and Argentina (the Americas)
constitute good practice for cases when the applicant may be a national of the
country in which they have applied for a determination of their status. These norms
expressly indicate the suspension of the SDP while the final investigation takes
place at a national civil registry system. When the SDP authorities receive the
conclusive decision from the civil registry or competent authority, the SDP
process shall continue or conclude by filing the case.
However, it is important to include a safeguard expressly written in the norm
in cases of omission or lack of answer from any authority. Such a safeguard would
allow the applicant to take legal action or seek a remedy (either administrative or
judicial) against administrative delays and reactivate the SDP process.
Nevertheless, placing the obligation on the applicant to push the proceedings
forward in the SDP and civil registry system constitutes a prejudicial burden on
the applicant in terms of cost and time. Also, it is important to take into
consideration the special vulnerabilities of the applicant and the challenges faced
accessing free legal assistance.
On the other hand, the decision issued by the SDP authority rejecting the
application would not recognise the right to nationality as a result of the SDP
process, since the competent jurisdiction to decide on this matter is the national
civil registry system. However, this administrative decision issued by the SDP
authority rejecting statelessness recognition is itself recognition of the person’s
entitlement to nationality. The applicant could then claim the nationality at the
corresponding national civil registry authority or jurisdiction. In other words, a
decision issued by the SDP authority rejecting an applicant on the basis that they
are ‘eligible’ for citizenship of the state in which have applied for a determination
of statelessness, constitutes official evidence of the applicant’s right to citizenship
and, therefore, they are not stateless.
When the applicant has official knowledge that the application for
statelessness status recognition has been rejected and they must pursue a
citizenship process at a national civil registry system, it is important to ensure there
are appropriate procedures for late birth registration. In this situation, a simple,
flexible and expedited special procedure for the validation or recognition of
nationality 97 and late birth registration should be expressly established through
administrative norms issued by the national civil registry system, taking into
consideration special vulnerabilities. This would avoid applicants being subject to
the requirements for ordinary late birth registration and procedures. 98 Especially
97
98
Good Practice Paper 2020 (n 3) 3; Guidelines No 2 (n 55) [6]–[7].
Handbook on Protection of Stateless Persons (n 2) 26 [61]:
84