•
enabling children who remain stateless to acquire nationality upon application
(with the possibility to require maximum five years of habitual residence before
submitting the application, no other conditions);25
Respecting the guiding principles of the CRC, including the prohibition of
discrimination, and ensuring that the best interests of the child are a primary
consideration for authorities in dealing with all the matters above.26
18. Under Article 1 of the 1961 Convention, Contracting States have two alternative options
for granting nationality to children born on their territory who would otherwise be
stateless, either through automatic acquisition at birth (Article 1(1)(a)) or acquisition of
nationality upon application (Article 1(1)(b)). The State may impose certain conditions
on the granting of nationality by application, which are exhaustively listed in Article 1(2).
19. According to the 1961 Convention, a Contracting State may make the grant of its
nationality conditional upon the person being habitually resident in the territory, which
is understood as stable, factual residence and does not imply a legal or formal residence
requirement.27 The 1961 Convention does not allow for the acquisition of nationality to
be conditional upon lawful residence. Although the ECN allows for “lawful and habitual
residence” to be imposed as a condition for the acquisition of nationality,28 for States
such as Denmark that have acceded to both treaties, the 1961 Convention should prevail
as it provides the strongest protection (further details below).
Issue 1: Acquisition of nationality for stateless children born in
Denmark
20. Otherwise stateless children born in Denmark do not automatically acquire nationality.
Section 44(1) of the Danish Constitution states that ‘foreigners’ can only acquire Danish
nationality by an Act of Parliament, thus acquisition of Danish nationality is an exclusive
prerogative of the legislature. Acquisition of nationality by stateless persons is based on
the conditions stipulated in the Nationality Act Section 6(1) on naturalisation of
foreigners 29 and the Circular Letter on Naturalisation, Section 17 and 26 on
naturalisation of stateless children and stateless persons aged 18–21 years. 30 The
Ministry of Immigration and Integration administers applications for nationality and
drafts ‘Naturalisation Bills’, listing the persons who are eligible to acquire Danish
nationality, which are then submitted to and adopted by the Danish Parliament.
21. The application for acquisition of nationality by stateless persons born in Denmark is
subject to conditions. Stateless persons (born in Denmark) aged between 18 and 21
years are entitled to Danish nationality if they have “habitual residence” in Denmark (in
25
1997 European Convention on Nationality, Article 6(2); 1961 Convention on the Reduction of Statelessness, Article 1(2)(b).
1989 Convention on the Rights of the Child, Articles 2 and 3.
27 UNHCR (2012), Guidelines on Statelessness No. 4: Ensuring Every Child's Right to Acquire a Nationality through Articles 1-4 of
the 1961 Convention on the Reduction of Statelessness, HCR/GS/12/04, available at:
https://www.refworld.org/docid/50d460c72.html
28 Article 6.2 of the European Convention on Nationality states that “Each State Party shall provide in its internal law for its
nationality to be acquired by children born on its territory who do not acquire at birth another nationality. Such nationality
shall be granted: (a) at birth ex lege; or (b) subsequently, to children who remained stateless, upon an application being lodged
with the appropriate authority, by or on behalf of the child concerned, in the manner prescribed by the internal law of the
State Party. Such an application may be made subject to the lawful and habitual residence on its territory for a period not
exceeding five years immediately preceding the lodging of the application.”
29 cf. consolidation act no. 1029 of 10 July 2018 with later amendments.
30
cf. circular no 9779 of 14 September 2018 with later amendments.
26
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