ISSUE 1 – Gender Discrimination in the Nationality Law 35. Nepal’s legal framework does not uphold women’s rights to pass nationality to their children or spouses on an equal basis with men. This denies women the rights of equal citizenship and the ability to freely choose a spouse, and results in the children and spouses of Nepali women being denied social, economic, and political rights granted to the children and spouses of Nepali men. It also increases the risk of statelessness amongst children. 36. While, as set out above, the Constitution implies that women should have the right to confer nationality on their children without discrimination, it later provides in Article 11 that persons born to Nepali women and foreign fathers can only acquire citizenship in certain contexts. 37. Pursuant to Article 11 (3) of the Constitution, a child of a citizen who has acquired citizenship by birth before the commencement of the Constitution will only be able to acquire citizenship by descent after becoming an adult if both parents are citizens of Nepal. This provision has been criticised for its lack of clarity as to the legal path by which such children can acquire citizenship, creating (risks of) statelessness.29 Article 11 (3) is discriminatory as it limits single mothers’ ability to confer citizenship by descent on their children. 38. Article 11(5) of the Constitution states that persons born in Nepal to Nepali mothers can acquire citizenship by descent if their fathers cannot be traced. However, if it is later determined that the father is a foreign citizen, the child will lose citizenship by descent and become a naturalised citizen. This provision requires that Nepali women establish evidence of the citizenship of the child’s father as well as proof that the child was born in Nepal in order to obtain citizenship by descent; a burden of proof not imposed on a Nepali father. 39. The Nepal Citizenship Act contains similar provisions as the Constitution and grants the right to citizenship by descent to a person born to a father or mother who is a citizen of Nepal, per Article 3(1). However, this provision is directly contradicted by Article 3(2) and Article 5(2) of the Act. 40. Article 3(2) of the Citizenship Act provides that where a child is born “out of wedlock by a Nepali female citizen to a foreign national”, Article 5(2) of the Citizenship Act applies, which states that children of Nepali women and foreign men “may be granted naturalised citizenship”30 if they meet certain criteria and submit an application. 41. The legal framework for acquisition of naturalised citizenship is provided in Article 5 of the Citizenship Act. In the context of a child born to a mother who is a citizen of Nepal who is married to a foreign citizen, the child seeking a naturalised citizenship certificate must submit the following documents: a. a copy of the citizenship certificate of the mother; b. a recommendation by the concerned Municipality or Village Development Committee certifying birth and permanent residency in Nepal; and c. evidence to show that foreign citizenship has not been acquired based on the citizenship of the father. 42. Article 8 of the Citizenship Act stipulates that citizenship by descent cannot be given to the child of a Nepali mother married to a foreigner unless evidence is given to prove that the child 29 30 Constitution of Nepal (2015), Article 11(3). The Nepal Citizenship Act 2063 (2006), Articles 3(1)-(2) and 5(2). 7