Program statusnih i socioekonomskih prava

sreda, 6. mart 2013.

No Residence, No Rights

Blog by Milijana Trifkovic, Praxis Legal Analyst, published on ENS website

In many countries there is a circle of rights which are reserved only for their own nationals and that is one of the main facts that gives significance to nationality. In Serbia, however, having nationality is not a sufficient condition for a person to be able to access rights that the citizenship status should imply. In order to access their rights and obtain documents such as ID card or passport, Serbian citizens also must register their permanent residence, which is a precondition that a number of members of marginalized groups cannot fulfil. According to the survey conducted for the purpose of the UNHCR report “Persons at Risk of Statelessness in Serbia”, 3 % of Roma (approximately 4,500) do not have registered residence. In December, Praxis issued the report entitled “No Residence, No Rights”, explaining all the difficulties one can encounter when registering residence in his/her own country and the way in which the absence of registered permanent residence can deprive Serbian nationals of the rights normally attached to nationality or of the possibility to transfer the nationality to their children. Such consequences almost exclusively arise in cases of Roma from informal settlements, who cannot document ownership or any other legal basis of housing, as well as in the cases of citizens of Serbia originating from Kosovo, with habitual residence in Serbia. The report gives an insight into the obstacles they face when trying to register their permanent residence and explains the manner in which unregistered residence causes violation of their rights.

The national legislation recognises permanent residence as a place where rights can be enjoyed. As a result, a person may be born in Serbia, have its citizenship and spend all his/her life in one place in its territory, but if the person concerned does not have permanent residence registered, most institutions will remain inaccessible to him/her. That person will not be able to obtain ID card or passport, leave the country or access basic human rights. Both in the case of Roma from informal settlements and citizens originating from Kosovo the issue of possession of nationality is indisputable, but unregistered residence denies them the opportunity to benefit from nationality. Unlike other citizens of Serbia, some members of the Roma ethnic community cannot submit evidence of legal basis of housing when registering permanent residence due to their particularly vulnerable position, poverty and the life in informal settlements. In case of citizens from Kosovo, however, the problems arise from the difficulties related to fulfilling additional conditions for registration of permanent residence that are imposed solely on this category of citizens. The procedure for issuance of passport and registration of permanent residence for these persons has been defined by a separate act – a regulation adopted by the Government of Serbia in 2009 with the aim to meet the criteria for visa liberalization. The requirements that citizens originating from Kosovo should meet for the registration of permanent residence are far more onerous in comparison to other citizens of Serbia. Practice shows that, in order to register permanent residence in the country where they live and the citizenship of which they possess, these persons must fulfil conditions imposed on foreigners in the procedure for approval of residence permit (secured income, family reunion, etc). Those who fail to do so are not able to exercise any rights or obtain ID card or passport.

In addition to preventing citizens from accessing the rights normally attached to nationality, the difficulties that arise when members of aforementioned groups submit a request for registration of residence may also hinder the exercise of the right to nationality and registration of children in birth registry books. The parents who want to register the fact of birth of their child are required to submit their birth certificates and ID cards. If parents cannot register permanent residence and, consequently, cannot obtain an ID card, they will not be allowed to register their child’s birth. Moreover, the failure to register the child’s birth causes uncertainty with respect to the facts that are crucial for the acquisition of nationality, such as the place of child’s birth or its descent. As a result, the system of residence registration may cause risk of statelessness among children. The aforementioned UNHCR report suggests that the most important reason for many persons not being able to obtain a birth certificate is the lack of residence registration.

Permanent residence had a significant role in the acquisition of Serbian nationality after the breakup of the former Yugoslavia. In the cases of people originating from other republics of the former Yugoslavia who happened to live in Serbia at the time of the breakup of the common state, permanent residence was the key fact in the process of deciding on whether these persons would find themselves in the status of foreigners or would be allowed to acquire the nationality of the republic in which they lived in a facilitated manner. Namely, the persons who acquired nationality of some other republic of the former Yugoslavia and who had permanent residence registered in the territory of the Republic of Serbia for at least nine years could acquire Serbian nationality by simply submitting a request for registration in citizenship registry books. Those who were living in Serbia without registered permanent residence (mostly Roma from informal settlements) were not allowed to acquire citizenship in a simplified procedure, by registering in the citizenship records. They found themselves in the status of foreigners without granted residence permit and often with undetermined nationality. Their long-term habitual residence in Serbia was irrelevant for acquiring nationality.

Some of the described obstacles could be overcome based on the new Law on Permanent and Temporary Residence of Citizens if the conditions were met for consistent application of the provisions of significance for the homeless and poor citizens without a legal basis of housing. The Law provides that the permanent residence of those citizens who do not have the opportunity to register their residence based on immovable property rights, lease or any other legal basis, may be established at the address where they permanently live, at the address of their spouse or common-law partner, their parents’ address or at the address of the social welfare centre. Owing to this change, a number of persons without residence should be significantly reduced. However, some issues remain unresolved even after the adoption of the new legal solution. They are explained in more detail in the aforementioned Praxis report. Apart from giving an insight into new legal solutions and explaining why “no residence” means “no rights” in Serbia, the report also points out to additional steps that should be taken to make the concept of permanent residence close to the notion of home, instead of the system that generates inequality among citizens and causes deprivation of rights. If one bears in mind the relation between lack of registration of permanent residence and lack of registration of the fact of birth, which is the main cause of risk of statelessness in Serbia, it is clear to what extent the changes in this field would contribute not only to higher respect for the rights attached to nationality, but also to facilitated exercise of the right to nationality among members of vulnerable groups.

See the blog on ENS website

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