3.Granting nationality to otherwise stateless children 3.1 The issue States determine who can obtain nationality and under what circumstances this is possible in their national laws. Usually, when a child is born, he or she receives nationality either based on the place of birth (referred to as ‘jus soli’) or on the nationality of the parents (nationality by descent or ‘jus sanguinis’) or on a combination of the two. In some circumstances, a conflict between different nationality laws may mean that a child fails to obtain any nationality, therefore ending up stateless. An, admittedly oversimplified, example is that of a child who is born to parents with a jus soli-nationality, but on the territory of a jus sanguinis state. In that case the state of birth will presume that the child obtains the nationality of the parents, but the parents cannot pass on their nationality because their state’s legal system does not foresee this. Neither country’s law is intrinsically wrong, yet the combined effect is to produce a conflict which is catastrophic in its result for the child concerned. International and regional standards provide a framework to ensure that children who would otherwise be stateless do obtain a nationality. Safeguards are directed towards the state on whose territory the child is born, and to the state of nationality of the child’s parents where the child is born abroad. 3.2 Birth on a state’s territory 3 . 2 . 1 Th e in ternational standards Article 1 of the 1961 Convention obliges states to grant their nationality to a person born on their territory who would otherwise be stateless. A state can choose to automatically grant nationality at birth or to make a system in which nationality can be acquired following an application procedure.31 States may also use a combination of these options.32 Similarly the ECN tells state parties to provide for the acquisition of nationality ex lege or upon application to children born on their territory with at least one parent with the state’s nationality.33 It is important to point out that a system of automatic conferral of nationality at birth to otherwise stateless children is the preferred option given that it does not allow for any – even a temporary – period of statelessness for the child, while it also circumvents any problems that may arise in the context of an application procedure (e.g. lack of knowledge, related costs or other practical barriers to accessing or completing the procedure). If a state chooses to make use of the application-option, it can make the granting of nationality subject to certain conditions. These conditions must be read in the light of principles on the protection of children; meaning that they may not leave the child stateless for a long period of time.34 Under the ECN, lawful and habitual 8 31 These options are laid down in Article 1(1)(a) and 1(1)(b) of the 1961 Convention respectively. 32 This is, for instance, the case in Hungary (see further below). 33 See Article 4 and Article 6(1) and (2) ECN respectively. 34 See also UNHCR Guidelines No. 4, para 34. residence on the state’s territory for a period not exceeding five years immediately preceding the lodging of the application may be required.35 The manner in which the application must be lodged can be defined in the national law of the state. The conditions that a state can impose under the 1961 Convention are exhaustively summed up in Article 1(2); imposing other conditions would mean that the state violates the 1961 Convention. Moreover, the application procedure must be non-discretionary. Where a person submits an application and has met the conditions set, nationality must be granted. Providing for a naturalisation procedure in which the authorities have the discretion to deny an application is not in conformity with these international standards.36 The first condition permitted by the 1961 Convention is a limited timeframe for lodging an application for nationality. This period cannot start later than the age of 18 and may not end sooner than the age of 21.37 This means that a state is not allowed to require that a person is 19 before he/she can apply for nationality, or that nationality must be applied for already within two years after birth. The ages mentioned in the 1961 Convention ensure that there is always a window of opportunity for adults to apply for nationality, giving them an option when parents or legal representatives did not choose to apply for nationality on behalf of the child. However, when considering the needs of children, applications should be possible at birth or as soon as possible after birth so that a child is left stateless for the shortest time possible.38 States are also allowed to require a period of habitual residence prior to making an application. ‘Habitual residence’ is to be understood as stable, factual residence (not implying a legal or formal qualification). This means that the condition of ‘lawful residence’ may not be imposed.39 The period of habitual residence that states are allowed to require may not exceed five years immediately preceding the application or ten years in total. Moreover, a state may not require a certain period of uninterrupted habitual residence since birth.40 The period of five years is already lengthy when taking the best interest of the child into consideration. It is better to allow for application at birth or as soon as possible after birth so that a child is not left stateless for too long.41 The third permitted condition is a criminal conviction test whereby a person should not have been convicted of an offence against national security or sentenced to imprisonment for a term of five years or more for a criminal offence.42 This requirement relates to the person involved, not the parents, so any convictions of the parent(s) 35 Article 6(2) under (a) and (b) ECN. 36 See further UNHCR Guidelines No. 4, para 37. 37 Article 1(2)(a) of the 1961 Convention. 38 De Groot (n 14) forthcoming. 39 See UNHCR Guidelines No. 4, para 41. 40 Background paper, 29. The Netherlands require for example that a person is born in the Netherlands and has resided there since birth before he or she can obtain citizenship. EUDO Citizenship Database, at <http://eudo-citizenship.eu/ databases/modes-of-acquisition?p=&application=modesAcquisition&search=1&modeby=idmode&idmode=A05>. 41 In cases where the child is part of a nomadic group and crosses a state’s borders regularly, the child must be considered to be habitually resident on both territories. UNHCR Guidelines No 4, para 42. 42 Article 1(2)(c) of the 1961 Convention. 9