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Submission to the National
Inquiry into Children in Immigration Detention from
and the Right to Nationality of Children Born into Immigration Detention
By: Danielle Chifley 
The Right to Nationality
The Problem of ‘Statelessness’
Relevant domestic law
Problems associated with citizenship and detention
This submission will
consider the issue of ‘statelessness’ and its consequences
for the nationality of children in detention , focussing
specifically on those children who are born into immigration detention
in Australia. It will address the first term of reference 
for the Inquiry. The submission will first consider the right to nationality
at international law and the problem of ‘statelessness’, before
discussing Australia’s domestic law. The submission will demonstrate
that although the legislation appears to meet Australia’s international
obligations in respect of nationality and statelessness, this is arguably
not the case when applied to children in detention. It will also highlight
concerns about illegal non-citizens using childbirth to circumvent Australia’s
Right to Nationality
Articles 7 and 8
of the Convention on the Rights of the Child (1989)
(hereafter ‘CROC’) seek to protect the child’s legal
identity  and enshrine the right to nationality. In
particular, Article 7(1) protects the ‘right to acquire a nationality’
and Article 8(1) requires States Parties to ‘respect the right of
the child to preserve his or her identity, including nationality’.
This right has also been reflected in various other international instruments,
including Article 15(1) of the Universal Declaration of Human Rights
(1948) , Principle 3 of the Declaration of
the Rights of the Child (1959)  and Article 24(3)
of the International Covenant on Civil and Political Rights 
may be defined at international law, as ‘a continuing legal relationship
between the sovereign state on the one hand and the citizen on the other’
. Further, ‘[i]t is for each State to determine
under its own law who are its nationals’ 
and as a result, ‘[a]ny question as to whether a person possesses
the nationality of a particular State shall be determined in accordance
with the law of that State’ . Various legal
implications attach to the concept of ‘nationality’, including
the diplomatic protection by the state of nationality while a person is
overseas, and the right to re-enter one’s own country .
Generally at international
law, there are two ways that nationality is acquired, that is, by grant
Citizenship may be acquired at birth in different ways depending upon
competing principles, that of jus sanguinis where the child acquires
the nationality of the parents at birth, and the principle of jus
soli where nationality is conferred according to the state in the
territory of which the child is born. Article 7(2) of the CROC,
through the use of the phrase ‘in accordance with their national
law’, respects a State’s right to determine which principle
will be applied under their national law. However, problems may arise
for particular individuals seeking refugee status depending on the application
of these principles by different countries and may lead to the problem
Problem of ‘Statelessness’
A person may be considered
‘stateless’ if they are ‘a person who is not considered
as a national by any state under the operation of its law’ .
Attempts to reduce the incidence of statelessness through international
regulation  are demonstrated primarily by the Convention
Relating to the Status of Stateless Persons (1954), which sought
to regulate those stateless persons who were not considered to be refugees
covered by the Refugee Convention (1951) and the Convention
on the Reduction of Statelessness (1961) ,
which aimed to eliminate the international sources of statelessness. Australia
is a party to these two conventions.
particular significance for people seeking refugee status. Hathaway argues:
Not all stateless
persons can secure refugee status. While citizenship guarantees legal
returnability to the country of nationality, many stateless persons
are not legally returnable to any country. It is therefore impossible
in practice for them to face the risk of persecution, and hence to qualify
as refugees .
often the result of deliberate state policy not to confer nationality
on children born to asylum seekers or refugees. One consequence of this
is that statelessness has particular implications for child asylum seekers,
as if a child has lost the protection of one State, but not gained the
protection of another, the child may be unable to exercise her or his
rights under the CROC. Thus, the issues of citizenship, nationality
and statelessness are inextricably linked and have particular implications
for children. It is now necessary to consider how Australia addresses
Relevant domestic law
Citizenship is granted
in Australia pursuant to Part III of the Australian Citizenship Act
1948 (hereafter ‘the Act’). In general, citizenship is granted,
pursuant to s 10(2) of the Act, to a child born in Australia if one parent
is an Australian citizen or permanent resident at the time of the child’s
birth; or if the child has been ordinarily resident in Australia, throughout
the period of 10 years commencing on the day on which the child was born.
Further, s 23D of the Act provides special provisions to enable the acquisition
of Australian citizenship by children born in Australia who do not acquire
any citizenship by birth and who would otherwise be stateless. Under s
23D(1), the Minister must register, on application, a person as an Australian
citizen if that person (a) was born in Australia; (b) is not and has never
been, a citizen of any country; and (c) is not, and has never been entitled
to acquire the citizenship of a foreign country.
meet its international obligations in respect of children born in detention?
Section 23D was last amended in 1986 and consideration of the Second Reading
Speech demonstrates the provision is intended to meet Australia’s
international obligations to prevent statelessness, particularly in relation
to ‘children born in Australia, who are not eligible to acquire
Australian citizenship at birth’, namely ‘the children of
illegal immigrants, visitors and others temporarily in Australia’
.  Prima facie, these provisions suggest that Australia
has met its international obligations in relation to the right to nationality
for children and the reduction of statelessness. However, when the legislation
is considered in respect of children born in immigration detention, the
complexity of the issue becomes apparent. Despite the clear intention
behind the legislation, it does not meet Australia’s international
obligations in practice. Various problems associated with the legislation
as applied to those in detention, will now be canvassed.
Problems associated with citizenship and detention
There are three main
problems associated with the intersection of citizenship and detention.
First, neither ss 10 or 23D of the Act refer specifically to ‘detention’.
This means that in applying the provisions of the Act to children born
in detention is somewhat ambiguous. It is unlikely that applications for
citizenship could be made by children born in detention, pursuant to the
general provisions in s 10(2), as their parents, as unlawful non citizens,
are neither Australian citizens nor permanent residents. This means that
such children would have to wait for 10 years and be resident in Australia
before they could apply for citizenship.
It is clear that
the combined effect of ss10 and s23D is that children born in detention
who have, or are entitled to apply for, foreign citizenship, must wait
for a period of 10 years before they may apply for Australian citizenship.
This is what happened in Communication No. 930/2000: Australia
, discussed below. But how do these provisions apply
to statelessness? Although s 23D appears to prevent a child born in detention
from being stateless by allowing them to apply for citizenship, the requirement
in s 23D(1)(c) relating to foreign citizenship, means that the child’s
right to nationality depends not on the circumstances of the child, but
on the rights and status of the child’s parents and the domestic
citizenship legislation of the parent’s state of origin or former
habitual residence. This is unsatisfactory.
Further, there are
serious practical concerns relating to discharging the onus in s 23D(1)(c)
relating to foreign citizenship. Given that the child has to apply
to the Minister for citizenship, pursuant to s 23D, the parents would
be required to present evidence that the child is not entitled to any
other citizenship. This would require the parents to approach consular
officials to obtain appropriate documentation to this effect. It is unlikely
that a person who is in detention seeking Refugee Status would be able
to do this. Arguably, the result of this is that there would be few, if
any, applications to the Minister pursuant to s 23D of the Act. Thus,
children born in detention who are stateless, but due to practical reasons,
are unable to prove this for the purposes of s23D, may well remain stateless
until they reach the age of 10 years and are able to apply for Australian
citizenship under s 10. This goes against Australia’s international
obligations in respect of the right to nationality, the prevention of
statelessness and is against the ‘best interests of the child’
principle enshrined in the CROC .
The second concern
in relation to this legislation is that it is unclear how it applies to
children of immigration detainees. In ‘Australia’s Response
to Issues Raised by the Committee on the Rights of the Child’
, the Australian Government was asked in question
15 to ‘provide further information on the measures being taken to
ascertain that stateless refugee children are granted their right to a
nationality’ .  In response, Australia briefly
mentioned s 23D but relied primarily on s 13(9) of the Act. Section 13(9)
provides a general discretion to the Minister to grant, on application,
Australian citizenship to a child under the age of 18. However, the response
to the Committee stated that:
as a matter of
policy: the consent of a responsible parent is usually required; children
are required to be permanent residents for grant of citizenship –
although the Minister, or his or her delegate, retains the discretion
to waive the permanent residence requirement in exceptional circumstances
… [such as if] significant hardship or disadvantage would result
if they were not granted Australian citizenship … [t]he discretionary
nature of this provision enables the decision maker to take into consideration
the circumstances of the child in each particular case (eg a stateless
child who arrived in Australia as an asylum seeker) and the relevant
Articles of the Convention, such as Article 3 and Article 8 .
The problem with
these policy restrictions is that children are required to be permanent
residents for the grant of citizenship. Children born in detention before
their claim for asylum is determined are clearly not permanent residents.
Further, although the Minister retains the ability to waive the permanent
residence requirement in exceptional circumstances, this is a discretionary
power and would be weighed against opposing interests, such as the Government’s
interest in giving effect to its immigration laws. The concerns over ss
10, 23D and 13(9) of the Act, demonstrate that due to the practical problems
when the legislation is applied to those in detention, there may still
be periods during which time a child born in detention may have no nationality.
Finally, what is
most evident from the Second Reading Speech of the amendment to s23D of
the Act, is the tension between Australia’s the desire to meet its
international obligations in relation to statelessness and nationality
and the fear that the grant of citizenship automatically at birth would
‘be exploited’ and lead to the ‘Trojan horse’
style acquisition of residence by ‘visitors and illegal immigrants
who have children born here in order to seek to achieve residence in Australia’
This fear of avoidance
of immigration control through childbirth was discussed in Chen Shi
Hai v The Minister for Immigration and Multicultural Affairs . 
That case involved a child born in detention who sought refugee status
independently of his parents, whose applications had been denied. Although
the child in this case was not stateless  , Kirby
J dismissed the issue by arguing:
It may be suggested
that by the simple expedient of procuring a pregnancy, the parents have
circumvented Australian migration laws, delaying their own deportation,
perhaps secured a right for themselves to stay in Australia …
That does not follow … [and] ought not to be exaggerated. Many
events must coincide to produce the circumstances of this case .
More recently the
issue was raised by the Human Rights Committee (HRC) in Communication
No. 930/2000: Australia , where former Indonesian
nationals, now stateless, had remained unlawfully in Australia. They had
a thirteen year old son, who had acquired Australian citizenship by virtue
of his birth and subsequent residence for 10 years. The parents had been
refused Refugee status and complained their removal from Australia interfered
arbitrarily with their right to a family life pursuant to article 17 of
the ICCPR. Although the Committee did find the removal was arbitrary
in this case, four members dissented and were also critical of the Committee’s
statement that the State party must provide additional factors besides
simple enforcement of its immigration laws, to avoid such decisions being
characterised as arbitrary .  They argued:
of this interpretation, adopted by the Committee, are that if persons
who are unlawfully in a State party’s territory establish a family
and manage to escape detection for a long enough period they in effect
acquire a right to remain there … [which] allows potential immigrants
to “jump the queue” by remaining unlawfully in the State
party’s territory .
has demonstrated that although the Australian Citizenship Act 1948
appears to address Australia’s international obligations in respect
of the right to nationality and statelessness, this is not the case in
practice. When applied to children born in detention, the legislation
does not unequivocally ensure they have a nationality. Further, the operation
of the legislation has failed to resolve concerns that childbirth may
be used to circumvent migration laws, which was one of its principle aims.
BA(Hon) (ANU); final year LLB(Hon) undergraduate at the ANU (2002).
the same meaning as that adopted by the Inquiry in to Children in Immigration
Detention (‘the Inquiry’) as outlined in Background Paper
8: Deprivation of Liberty and Humane Detention, at 2.
its international human rights obligations regarding child asylum seekers,
including unaccompanied minors”.
religious beliefs and cultural practices are protected by Articles 14
and 30 of the CROC respectively.
to … a nationality”.
cited in D. Hodgson, “The Child’s Right to a Legal Identity”
(1993) 7 Australian Journal of Family Law 121, 124.
Relating to the Conflict of Nationality Law (1930) 179 League of
Nations Treaty Series 89.
marriage and legitimation.
Status of Stateless Persons.
It adopts the jus soli principle in Article 1(1) which states in part
that ‘[a] contracting state shall grant its nationality to a person
born in its territory who would otherwise be stateless’.
18. J. Hathaway, Law of Refugee Status, http://www.refugeecaselaw.org/Refugee/chapter2.asp?.
Second Reading Speech, 19 February 1986, Parliamentary Debates, House
of Representatives, at 868.
16 August 2001.
of Australia’s first report under the CROC.
the Committee on the Rights of the Child, http://law.gov.au/publications/crocreports/responses/body2.html
of China pursuant to the Nationality Law 1980 (PRC), Art 5.
16 August 2001.
Updated 9 January 2003.