High Court of Justice in Northern Ireland Queen's Bench Division Decisions

"27. Furthermore, consideration has been applied as to your right to citizenship under the laws of Ukraine, formerly the Ukrainian Soviet Socialist Republic within the USSR. Within your Asylum Interview Record, you have stated that you were born in the city of Kirovogard or Dnepropetrovsk, which lay within the former Ukrainian SSR (Answer 2 of the Asylum Interview Record (AIR). You have stated that when you were a young child, your family relocated to the city of Kremenchug which also lay within the former Ukrainian SSR where you remained until 1980 (Answer 7 of AIR). However, it is noted that Ukrainian nationality can be obtained through birth. According to Article 13 of the law, children both of whose parents are Ukrainian nationals automatically acquire the nationality of their parents, regardless of the place of birth. This is also the case for children of a Ukrainian national and a stateless or unknown person (Article 14.3). Children of a Ukrainian national and a foreign national acquire Ukrainian nationality automatically, if born on Ukrainian territory. Such children may also acquire Ukrainian nationality automatically if, at the time of birth, one of their parents is permanently residing in Ukraine.

28. In response to questions fourteen and fifteen of the AIR, you claim to be unaware of the nationalities of your parents, but were able to state their ethnic origins. You have clearly stated that your Mother was of Ukraine ethnicity. You further claim that you were born in a town which now lies within the borders of Ukraine, and you remained there until 1980. As such it appears highly likely that Article 13 and Article 14 of Ukraine law would apply and that you have an avenue to Ukrainian citizenship.

29. Moreover it is noted that in response to question twenty seven of the AIR, you have clearly stated that your wife was also rendered 'Stateless'. However, during her Asylum Screening Interview, your wife appears to have obtained a Russian passport in 1998 (Q15) and was of the opinion that she would be able to obtain a Ukrainian passport, should she choose to apply for such (Q21). She also mentioned that a house fire burnt her documents (Q16). This would imply that your wife is undocumented rather than stateless and raises the question whether this also applies to you. In view of these doubts, the criteria laid down in the Bradshaw determination becomes of great importance. You have not provided the required proof that you have been denied citizenship by either the Ukrainian or the Russian Federation authorities. Consequently it is not accepted that you are without an avenue to the citizenship of any country and are stateless."

"Article 3. Belonging to the citizenship of Ukraine.

The citizens of Ukraine are:

1. All citizens of former USSR permanently residing within the territory of Ukraine at the moment of declaration of independence of Ukraine (24 August 1991);

2. Persons, irrespectively of their race, color of their skin, political, religious and other beliefs, sex, ethnic and social origins, material status, place of residence, language of other characteristics, who were residing in Ukraine at the moment of entry into force of the Law of Ukraine "On Citizenship of Ukraine" (13 November 1991) and who were not citizens of other states;

3. Persons who came to Ukraine for permanent residence since 13 November 1991 and who had "the citizen of Ukraine" inscription inserted into their 1974-type passport of the USSR by the domestic affairs authorities of Ukraine, as well as the children of such persons who arrived to Ukraine together with their parents, provided that they had not attained their majority before the entry to Ukraine;

4. Persons who have acquired the citizenship of Ukraine in accordance with the laws of Ukraine and the international treaties of Ukraine;

The persons referred to in the paragraph 1 of part 1 of this Article are the citizens of Ukraine since 24 August 1991; those referred to in the paragraphs 2 are the citizens of Ukraine since 13 November 1991; those referred to in the paragraph 3 are the citizens of Ukraine since the insertion of inscription about their citizenship of Ukraine."

"3. I have been invited to consider this issue in order to assist the Court. I can state that the Ukrainian Parliament adopted the Law on Introduction of Amendments to the Citizenship Law of Ukraine on 16^th June 2005. Article 6 of the Amended Law of 2005 outlines grounds for the acquisition of citizenship of Ukraine by birth. It provides that a person whose parents, or one of whose parents, were (was) the citizen(s) of Ukraine at the date of that persons birth, shall be treated as the citizen of Ukraine. A person that was born in the territory of Ukraine from any stateless person, lawfully residing at the territory of Ukraine, shall be treated as the citizen of Ukraine.

4. Pursuant to Article 8 of the Law of 2005 citizenship can be acquired by way of territorial origin. Thus, if a person himself/herself, or one of his/her parents, or his/her grandfather or grandmother, (full or half) blood brother or sister, a son or a daughter, or a grandchild, was born or permanently resided before August 24, 1991, at the territory that became the territory of Ukraine in accordance with the Law of Ukraine On Succession of Ukraine (1543-12), or if the person himself/herself, or, at least, one of his/her parents, or his/her grandfather or grandmother, (full or half) blood brother or sister, was born or permanently resided at any other territory, which was at the time of his/her born or permanent residence thereat a part of the territory of Ukrainian People's Republic, West Ukrainian People's Republic, Ukrainian State, Ukrainian Socialist Soviet Republic, Transcarpathian Ukraine, or Ukrainian Soviet Socialist Republic (Ukr.S.S.R.), and if such person is stateless, or is a foreigner, and has filed an obligation of renunciation of foreign citizenship and an application for Ukrainian citizenship acquisition, such person, as well as his/her underage children, shall be registered as a citizen of Ukraine. I to refer to a copy of the amended Law of 2005 (pages 5-7) in the exhibited bundle marked KK1 and signed by me."

"3. The Convention Concerning Certain Questions Relating to the Conflict of Nationality Laws

At the Hague Codification Conference of 1930 the First Committee stated in its report that although nationality `is primarily a matter for the municipal law of each State, it is nevertheless governed to a large extent by principles of international law'. In spite of the fact that the committee could not agree on the principles to which they referred, the Conference did produce a Convention of some interest, though of limited importance. Article I thereof provides: 'It is for each State to determine under its own law who are its nationals. This law shall be recognized by other States in so far as it is consistent with international conventions, international custom, and the principles of law generally recognized with regard to nationality'. It will be at once apparent that the antithesis between autonomy in legislation and the limited duty of recognition, which is evident in the replies governments, recurs. The antithesis, taken together with the independent force of the second part of the article, deprives the principle of autonomy of its integrity. However, the antithesis might perhaps equally be said to make the provision a legal curiosity, of little strength, and not giving respectability to any proposition. Article 18, paragraph 2, provides in part that the inclusion of the principles and rules stated in the Convention 'shall in no way be deemed to prejudice the question whether they do or do not already form part of international law'. In relation to Article I this takes one neither forwards nor backwards. But, with its limitations, Article I remains a useful authority for the view that international law sets limits to the power of a state to confer nationality.

Certain principles concerning conferment of nationality are adopted in the legislation of states often enough to acquire the status of 'general principles'. It is proposed to give a relatively short exposition of these principles while postponing a general consideration of their precise legal status. Without prejudging too much the question of their legal status, account will be taken of the existence of a sufficiency of adherence to a principle to establish the principle as 'normal' though not necessarily adopted generally in the sense of either a simply or absolute majority.

The two main principles on which nationality is based are descent from a national (jus sanguinis) and the fact of birth within state territory (jus soli).

Jus sanguinis. Weis remarks that jus sanguinis and jus soli are 'the predominant modes of acquisition of nationality'. In 1935 Sandifer concluded that legislation in forty-eight states followed the jus sanguinis principally and referred to 'the 'widespread extent of the rule of jus sanguinis, and its paramount influence upon the law of nationality throughout the world'. There is no reason to think that this assessment is out of place today. The Harvard Research survey polled seventeen states with law based solely on jus sanguinis; two equally on jus sanguinis and jus soli; and twenty-six principally on jus soli and partly on jus sanguinis. Experts commonly regard the two principles as permissible criteria, but do not always indicate an opinion on their precise legal status. Van Panhuys considers the two principles to be sanctioned by customary law.

In regard to the modalities of the jus sanguinis, Sandifer calculated that forty-seven states had rules under which the status of the father governed (conditional in fourteen cases); thirty-five had rules under which the status of either parent or both governed (conditional in twenty-two cases); and twenty-nine, including the United States, had rules under which the status of the unmarried mother governed.

Jus soli. The role of jus soli will be evident from what has gone before. However, it may be remarked that, as a principle, it has a relative simplicity of outline, with fairly clear exceptions, when compared with jus sanguinis. Indeed, in terms of adherence to a particular system, with a minor degree of dilution, jus soli seems to have predominance in the world. Except in so far as there may exist a presumption against statelessness, it is probably incorrect to regard the two most important principles as mutually exclusive: in varying degrees the law of a very large number of states rests on both, and recent legislation gives no sign of any change in the situation. However, the Harvard draft provided in Article 3 that states must choose between the two principles. Of particular interest are the special rules relating to the jus soli, appearing as exceptions to that principle, the effect of the exceptions being to remove the cases where its application is clearly unjustifiable. A rule which has very considerable authority stipulated that children born to persons having diplomatic immunity shall not be nationals by birth of the state to which the diplomatic agent concerned is accredited. Thirteen governments stated the exception in the preliminaries of the Hague Codification Conference. In a comment on the relevant article of the Harvard draft on diplomatic privileges and immunities it is stated: 'This article is believed to be declaratory of an established rule of international law'. The rule receives ample support from the legislation of states and expert opinion. The Convention on Certain Questions relating to the Conflict of Nationality Laws of 1930 provides in Article 12: 'Rules of law which confer nationality by reason of birth on the territory of a State shall not apply automatically to children born to persons enjoying diplomatic immunities in the country where the birth occurs.'"

"Valid for travel to Russian Federation and the Republic of Belarus. The passport was issued by former USSR Ministry of Interior till 1991 and by Ministry of Interior of Ukraine till 1994."

"Art 1. For the purposes of this Convention, the term "stateless person" means a person who is not considered as a national by any State under the operation of its law".

This definition makes it clear that a person cannot be stateless unless he is excluded from being considered as a national by a potential candidate state, it is not a condition that can be wished upon one's self. If that were permissible international order would be prejudiced as persons might opt for statelessness in order to secure the benefits of obligations placed on host states by the Convention.

". . . it seems to me that before a person can be said to be stateless in terms of the definition in the Convention, he or she would have had to apply to those states which might consider her to be and might accept her as a national."