FNA as not requiring a person applying for statelessness status to have entered the
country legally or to have some form of residence permit.63 If a person is recognised as
stateless, that person is granted a right to remain and has the right to freedom of
movement within the entire Swiss territory. This practice is consistent with UNHCR´s
interpretation of the 1954 Convention according to which ´there is no basis in the
Convention for requiring that applicants for statelessness determination be lawfully
within a State´.64 If a person is recognised as stateless, that person should be granted a
residence permit in order to fulfil the object and purpose of the 1954 Convention.65
26. The failure to recognise statelessness as a protection issue and the lack of a dedicated
statelessness determination procedure also has the consequence that applicants are not
granted any residence status or rights during the procedure. This gap in the legal
framework exposes stateless persons to particular risks, including the risk of arbitrary
detention, destitution and attempted removal while waiting for a decision on the
recognition of statelessness. 66 In order to avoid violations of the rights of stateless
persons, applicants should not be removed during a determination procedure and
instead be granted a temporary legal status and rights, in line with UNHCR guidance and
good practice.67 At a minimum, persons applying for statelessness recognition should be
issued with identity documents and be granted assistance to meet basic needs, as well
as the right to work, freedom of movement and protection against expulsion and
arbitrary detention. It is recommended that applicants are offered the same standard of
treatment as asylum-seekers.68
Issue II - The Right of Every Child to Acquire a Nationality
27. Swiss nationality law does not prevent statelessness at birth. In accordance with the
principle of ius sanguinis, Swiss nationality is acquired at birth if the parents are Swiss
nationals. If a child is born to stateless parents or if the parents cannot pass on their
nationality to their children, the child is also born stateless. Under Swiss nationality law,
a stateless child can only acquire Swiss nationality by means of a ‘simplified’
naturalisation if they have five years of legal residence, one year of which must be
immediately before the application for naturalisation is made.69 Provision is made for
simplified naturalisation in certain cases, but the authorities retain discretion when
deciding whether the child is integrated, respects the Swiss legal order and does not
pose a threat to Switzerland’s internal or external security. 70 The legal residence
requirement is contrary to Switzerland’s international obligations and can have the
result that children born stateless in Switzerland are unable to acquire Swiss nationality,
simply because their parents are have irregular residence status. 71 Simplified
63
Karen Hamann, Statelessness determination; the Swiss experience, Forced Migration Review 54, (February 2017), p. 97,
available at: http://www.fmreview.org/resettlement/hamann.html.
64 UNHCR, ‘Handbook on protection of stateless persons', (2014), note 12, para. 69, available at:
https://www.refworld.org/docid/53b676aa4.html.
65 Ibid. para. 147.
66 For more information, see Karen Hamann, Statelessness determination; the Swiss experience, Forced Migration Review 54,
(February 2017), p. 98, available at: http://www.fmreview.org/resettlement/hamann.html.
67 UNHCR, ‘Handbook on protection of stateless persons', (2014), note 12, para. 72, para. 145 and para. 146, available at:
https://www.refworld.org/docid/53b676aa4.html.
68 Ibid. para. 145 and para. 146.
69
Article Federal Act on Swiss Citizenship of 20 June 2014 (Swiss Citizenship Act, SCA; SR 141.0).
70 The general requirements for a facilitated naturalisation are enshrined in Article 20 SCA and have to be fulfilled in case of a
simplified naturalisation for stateless children (Article 23 SCA).
71 Committee on the Rights of the Child, Concluding observations on the combined second to fourth periodic reports of
Switzerland, (26 February 2015), CRC/C/CHE/CO/2-4, para 31.
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