Country Position Paper: Statelessness in Iraq 2. IRAQ’S NATIONALITY LAW The Iraqi Constitution of 2005 sets the basic rules for the acquisition of nationality. Article 18(1) recognises nationality as a right for every Iraqi. The Iraqi Nationality Law of 2006 (the Nationality Law) further regulates acquisition and loss of citizenship.8 In cases arising from the application of the provisions of this law, administrative courts consider claims9 and the Federal Court hears appeals of Administrative court decisions.10 The following summary discusses key provisions of the Iraqi nationality Law. 2.1 Gender Discrimination – Children Born Abroad The Iraqi Constitution of 2005 does not discriminate on the basis of gender with regards to the acquisition of nationality.11 Article 18(2) of the Iraqi Constitution of 2005 states that everyone born to an Iraqi father or an Iraqi mother is an Iraqi. This rule is re-stated in Article 3(a) of the Nationality Law. However, the Nationality Law is internally inconsistent and contains a separate provision for situations where children are born abroad to an Iraqi mother and unknown or stateless father, thereby retaining an element of gender discrimination. Pursuant to Article 4 of the Nationality Law, nationality is not conferred automatically in such cases but is subject to further conditions and the completion of an application procedure. Article 4 of the Nationality Law: “The Minister [for Interior] may consider Iraqi any person born outside Iraq to an Iraqi mother and an unknown or stateless father, if he [the individual born outside Iraq] chooses the Iraqi nationality, within one year from coming of age (reaching the age of maturity), unless he fails to do so, due to difficult circumstances, provided that he is residing within Iraq at the time of application for the Iraqi nationality.” 12 The combination of article 3a and article 4 of the Nationality Law mean that two different routes exist in parallel for a child born outside Iraq to an Iraqi mother to acquire nationality via jus sanguinis. Neither is automatic, in contrast with the system for children of male citizens born abroad,13 and there is a risk of statelessness.14 Where the father is ‘known’ – his identity and his filiation to the child are established – and holds a foreign nationality, then article 3a applies, but administrative steps must still be completed inside Iraq for conferral of nationality by descent from the Iraqi mother.15 If the father is ‘unknown’ or if it is established that he is stateless, then article 4 applies 8 Iraqi Nationality Law [Iraq], Law 26 of 2006, 7 March 2006, available at: https://www.refworld.org/docid/4b1e364c2.html Article 19 of the Nationality Law: “Administrative courts shall have the competence to hear lawsuits arising from the application of the provisions of this law.” 10 Article 20 of the Nationality Law: “Both applicants for naturalisation and the minister, in addition to their respective capacities, shall have the right to contest a decision passed by administrative courts before the Federal Court.” 11 Constitution of the Republic of Iraq [Iraq], 15 October 2005, available at: https://www.refworld.org/docid/454f50804.html 12 Iraqi Nationality Law [Iraq], Law 26 of 2006, 7 March 2006, available at: https://www.refworld.org/docid/4b1e364c2.html 13 Even in the case of ‘automatic’ acquisition of nationality by descent from an Iraqi father, however, challenges may arise in practice in proving the father’s identity and filiation to the child that result in the child’s Iraqi nationality not being recognised. UNHCR, Acquisition of Iraqi Nationality by a Child Born Outside Iraq, May 2019, available at: https://www.ecoi.net/en/file/local/2007917/5cd198ad7.pdf 14 UNHCR, Background Note on Gender Equality, Nationality Laws and Statelessness 2018, 8 March 2018, at 7, available at: https://www.refworld.org/pdfid/5aa10fd94.pdf 15 UNHCR, Acquisition of Iraqi Nationality by a Child Born Outside Iraq, May 2019, available at: 9 5