42. It follows from the factual character of “habitual residence” that in cases where it is difficult to determine whether an individual is habitually resident in one or another State, for example due to a nomadic way of life, such persons are to be considered as habitual residents in both States. 43. States may establish objective criteria for individuals to prove habitual residence. Lists of types of permissible evidence, however, are never to be exhaustive. Criminal history (1961 Convention, Article 1(2)(c)) 44. As set out in Article 1(2)(c), the permissible condition that an individual who would otherwise be stateless has been neither convicted of an offence against national security nor sentenced to a term of imprisonment for five years or more on a criminal charge refers to the criminal history of the individual and not to acts by his or her parents. 45. Criminal consequences due to irregular presence on the territory of a State are never to be used to disqualify an individual who would otherwise be stateless from acquiring nationality 32 under Article 1(2)(c). 46. Whether a crime can be qualified as an “offence against national security” needs to be judged against international standards and not solely on the basis of a characterization by the 33 concerned State. Similarly, criminalization of specific acts must be consistent with rights guaranteed by international human rights law (for example, freedom of expression, assembly and religion) and acts protected by such rights may not be considered “crimes” for the 34 purposes of Article 1(2)(c). Sentencing standards must also be consistent with international human rights law. Has “always been stateless” (1961 Convention, Article 1(2)(d)) 47. The final permissible condition in Article 1(2) of the 1961 Convention for granting citizenship through an application procedure allows States to require that an applicant has “always been stateless” (i.e. since birth). If a State does not explicitly require that a person has always been stateless, then a person born in their territory has the right to acquire that State’s nationality if, for example, he or she was born stateless, acquired a nationality but lost 35 this nationality and is stateless at the time of the application. 48. Where a Contracting State requires that an individual has “always been stateless” to acquire nationality pursuant to an application under Article 1(2)(d), there is a presumption that the applicant has always been stateless and the burden rests with the State to prove the contrary. An applicant’s possession of evidently false or fraudulently obtained documents of another State does not negate the presumption that an individual has always been stateless. IV. GRANT OF NATIONALITY TO INDIVIDUALS WHO WOULD OTHERWISE BE STATELESS BORN ABROAD TO NATIONALS OF CONTRACTING STATES (1961 CONVENTION, ARTICLES 1(4), 1(5) AND 4) 49. Article 1 of the 1961 Convention places primary responsibility on Contracting States in whose territory children who would otherwise be stateless are born. The Convention also sets out two subsidiary rules. 32 Please see also paragraphs 40-41 in relation to the fact that Article 1(2)(b) of the 1961 Convention only allows the State to require a period of habitual residence in the territory of the State of birth preceding the application and not a period of lawful residence. This obligation may not be circumvented by criminalising unlawful residence. 33 This also applies for the corresponding requirement in Article 4(2). This condition of possible exclusion is in most cases of little relevance, because pursuant to international human rights obligations, nationality is to be acquired at a very young age, generally before criminal responsibility is attributable. Please see paragraph 11 above. 34 Please see considerations of a similar nature in UN High Commissioner for Refugees, Background Note on the Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees, 4 September 2003, available at: http://www.unhcr.org/refworld/docid/3f5857d24.html. 35 This also applies for the acquisition of the nationality of a parent under Article 1(5) and Article 4(2). 10