Skip to main content

Commission Website: National Inquiry into Children in Immigration Detention

Click here to return to the Submission Index

Submission to National Inquiry

into Children in Immigration Detention from

Mr Anais d'Arville


Is a child's right to a nationality

effectively upheld in the case of children born into mandatory detention

in Australia?

Introduction

The

right to a nationality

The

situation in Australia

The

situation in other countries

Does

Australia's legislation live up to its international obligations?

Does

Australia's practice live up to its international obligations?

In

addition to nationality rights - the right to birth registration

Conclusion


Introduction

This submission examines

a child's right to a nationality and Australia's protection of that right.

Of special interest is the position of children born in mandatory detention

to parents who are both unlawful non-citizens. [1] The

submission addresses the first term of reference for the inquiry, by exploring

Australia's obligations in this area and discussing whether such obligations

are implemented by legislation and the general practice in Australia.

The right to a nationality

1. The importance

of the right

Nationality, while

taken for granted by Australian citizens is an important aspect of an

individual's identity. Nationality is "the essential condition for

securing to the individual the protection of his rights [under international

law]" [2]. Without nationality, an individual is

without domestic rights [3], but is also without international

protection. [4]

2. Sources of

the right to a nationality

Article 15(1) of

the Universal Declaration of Human rights (UDHR) states that "everyone

has the right to a nationality". The International Covenant on

Civil and Political Rights (ICCPR) is more guarded, containing only

a guarantee that a child shall have the right to acquire a nationality.

[5] The right to acquire and to preserve one's

nationality are both in the Convention on the Rights of the Child

(CRoC). [6]

Australia is also

party to the Convention relating to the Status of Stateless Persons

(hereinafter: Status Convention) and the Convention on Reduction

of Statelessness (hereinafter: Reduction Convention). The former

is concerned with improving the status of stateless persons (by guaranteeing

the same treatment as according by that state to its nationals in certain

matters ). [7] This paper concerns the right to a nationality,

rather than the treatment of non-citizens. The Status Convention

is less useful in this respect. The Reduction Convention is concerned

with eliminating the sources of statelessness. To do this, it adopts

the jus soli principle - that a state shall grant its nationality

to a person born in its territory. [8]

The situation in Australia

Nationality in Australia

is governed by the Citizenship Act 1948 (Cwth). The Migration legislation

is also important, as it governs the status of the child's parents. It

therefore illustrates the practical circumstances of the child, as what

happens to the child's parents will be a large factor in the child's effective

nationality.

1. The Citizenship

Act 1948

Under section 10,

anyone born in Australia after the 20th of August 1986 [9],

shall only become an Australian citizen if one of their parents was an

Australian citizen or permanent resident, or after being 'ordinarily resident'

in Australia for 10 years.

Another avenue for

a child born in Australia to non-citizen parents is section 23D. Where

a person was born in Australia, has never been citizen of any country

and has never been entitled to acquire the citizenship of another country

the Minister must grant citizenship to that person. [10]

However this is limited by subsection 1A which deems a person who has

had "reasonable prospects … of acquiring citizenship" of

another country if he/she were to apply as being entitled to acquire that

citizenship (under (s23D(1)(c)). [11]

Lastly, subject to

conditions, [12] the minister has a discretion to grant

citizenship to a person under the age of 18 years. [13]

2. The Migration

Act 1958, the Migration (1993) Regulations

Under section 10,

a child born in Australia to unlawful non-citizens, is taken to have entered

Australia at birth. [14] The child is taken to be an

unlawful non-citizen from birth. [15] Under section

78, if one or both of the child's parents holds a visa, the child is taken

to have been granted the same kind and class of visa at birth. [16]

If the child stays

in Australia for 10 years, he/she will be an Australian citizen and may

apply to sponsor his/her parents under Australia's 'family stream' of

migration. [17] Although priority is given to other

family categories [18] (e.g. dependent children, spouses)

parents are eligible to be considered. Parent applications are processed

with highest priority to parents whose only child is in Australia, then

those with a majority of children and so on. [19]

Apart from staying

in Australia and satisfying the citizenship test, the child may apply

for a protection visa on the ground that Australia has protection obligations

under the Convention Relating to the Status of Refugees [20]

(hereinafter: Refugee Convention). Even if the parents are unsuccessful,

an application may be submitted in the child's name. It would often be

the case that if it were safe for the parents to return, it would also

be safe for the child. This is not always the case though, as in Chen

Shi Hai v Minister for Immigration and Multicultural Affairs. [21]

There a child born while his parents were in detention brought his own

claim for a protection visa. The reason for the child's persecution was

that he was a 'black child', born in contravention of China's one child

policy. If returned to China, the child would be subject to serious disadvantage

regarding education, food and health care. [22] The

court held that this could amount to persecution by reason of his status

as a 'black child'.[23] The child was entitled to refugee

status despite the fact that his parents had earlier been denied this

status. [24]

Even if this avenue

were successful, the child would be left in Australia alone once his/her

parents had been deported. While there is provision for a child to receive

his/her parents' visa, [25] there is no 'reverse' provision

granting the parents' the same visa if the child's application is successful.

The situation in other countries

1. The United

States of America

While the USA is

not a party to either of the statelessness conventions,[26]

it is party to the ICCPR and the CRoC.

According to section

1401(a), in title 8 of the US model code, [27] birth

in the USA gives an individual citizenship. However, like Australia, this

does not give that person's parents the same rights. Under section 1153,

Title 8 of the Code, visas are available under the 'family stream' for

children, [28] spouses [29] or siblings

[30] but not for parents. This means the child (who

is a US citizen) might stay in America while his/her parents are deported.

2. Canada

Canada is a party

to the Reduction Convention as well as the ICCPR and CRoC.

Canada grants citizenship

on the basis of birth.[31] There is then provision under

the Immigration legislation for the child (who is granted citizenship)

to sponsor his/her parent to allow the parents to stay in Canada,[32]

or for the parents to apply for a visa without sponsorship. [33]

3. The United

Kingdom

The UK is a party

to both statelessness conventions as well as the ICCPR and CRoC.

Citizenship is granted

by birth under section 2(1)(a) of the Immigration Act 1971 and

section 4 of the British Nationality Act 1948. Parents could then

become citizens after 7 years (through naturalisation ).

4. Germany

Germany is a party

to both statelessness conventions as well as the ICCPR and CRoC.

Children born in

Germany to foreign parents will become German citizens. [35]

The interesting aspect of Germany's nationality law is that it recognises

the practicalities of a refugee situation. While discouraging multiple

nationality, the law recognises that the process of being released from

the previous country's nationality may be unacceptable to the refugee.

[36] The recognition of the reality of the situation

of a refugee is an aspect that is not present in the relevant Australian

legislation.

Does Australia's legislation

live up to its international obligations?

The provisions of

the Citizenship Act appear to carry out the obligations of the

Reduction Convention, through the operation of section 23D granting

nationality to those individuals who genuinely are and have always been

stateless. However where a child's parents are refugees, fleeing from

their country because of a genuine fear of persecution, section 23D(1A)

might make the operation of the section unreasonable. Technically, the

country they are fleeing from might give the parents citizenship. For

most countries this would give the child at least a "reasonable prospect

of acquiring citizenship". [37] However the whole

point of the Refugee Convention and protection visas under the

Migration Act is that it would be unreasonable to return to the

country of persecution. The fact that the child might technically have

reasonable prospects of gaining citizenship in the country of persecution

offers little comfort. In practical terms, the child is left stateless.

Quite apart from

this unreasonableness, the restrictiveness of Australia's interpretation

of the right is evident when compared to other countries. All the countries

considered above adopt a more generous approach to the grant of citizenship

than Australia. More importantly, all the countries considered that are

party to the Reduction Convention grant citizenship on the basis

of birth without the restrictive conditions found in Australia's legislation.

Australia's approach illustrates the "notorious reluctance of states

to relinquish sovereignty over conditions of nationality." [38]

The situation of

effective statelessness might be addressed by a ministerial grant of citizenship

under section 13(9)(a) of the Citizenship Act. However an important

premise of 'rights' is that they should not be granted according to the

will of the government concerned. It is a right to nationality,

not a privilege at the behest of the Minister.

The same objections

apply to the right to acquire a nationality (contained in the ICCPR

and CRoC), however perhaps with less strength. It is a weaker right

since it only grants "a right to be considered eligible for the acquisition

of a nationality upon satisfaction of domestic law requirements".

[39] This gives states a greater margin of appreciation

in implementing the right, so that it is more difficult to argue that

Australia's legislation does not uphold the right to acquire a nationality.

Does Australia's practice

live up to its international obligations?

The Department of

Immigration phone service was accessed. All the recorded prompts were

followed in order to obtain information about citizenship, especially

with regards to children. The only relevant information available, was

that such children can be included on their parent's form for Australian

citizenship. There was no information about the child's own right to citizenship.

There was also no opportunity [40] to speak to somebody

from the department rather than a recording. The media liaison for the

department was also contacted, who stated that all the relevant information

is contained on the department's website.

The website of the

department of Immigration was consulted. Following the links regarding

Australian citizenship, the title "How do I know if I'm an Australian

citizen?" is reached. Under this title there is no mention of the

possibility of becoming an Australian citizen by birth, without an Australian

parent.

Australasian correctional

management (the company that runs the detention centres) was also contacted

by phone. The representative stated that she was not allowed to comment

on any questions about the running of Australia's detention centres.

Even though there

is some provision for citizenship by birth (upholding the Reduction

Convention obligation), for many the lack of information available

about this right makes it unknown and inaccessible.

In addition to nationality

rights - the right to birth registration

An important part

of the right to an identity is the right to be registered at birth and

to have a name. This right is found in Article 24(2) of the ICCPR as well

as article 7(1) of CRoC. This "may sound naïve to Australian

ears, but in some countries there is no such obligation." [41]

In Australia, the

registration of births is governed by states. In most states and territories,

births must be registered within 2 months. The exceptions are New South

Wales (1 month) and the Australian Capital Territory (28 days). [42]

This two month maximum appears to be a not unreasonable implementation

of the obligation that births be registered immediately after birth as

required by the ICCPR. [43]

According to the

department of Immigration website, "expectant mothers have access

to necessary ante-natal and post-natal services". [44]

Births are registered with the appropriate state. [45]

It appears that the right to be registered at birth and have a name is

upheld.

Conclusion

The legislation governing

nationality in Australia does appear to uphold the minimum obligations

relating to the right to a nationality. Although meeting the minimum obligations,

the legislation may still operate unreasonably. Comparing the legislation

of countries that are subject to the same obligations shows that Australia's

laws represent a restrictive interpretation of the right to a nationality.

There are also considerable concerns regarding the practical effect of

the legislation. The fact that even where the child does obtain Australian

citizenship, this has little effect on the parents' status, effectively

meaning the child will be deported along with the parents. Another concern

is the lack of information freely available about the right of a stateless

child born in Australia to acquire citizenship. Lastly, the related right

to be registered at birth and to have a name appears to be upheld.


1. To

adopt the language of the Migration Act 1958 (Cwth)

2. Oppenheim, International Law Volume 1 (8th edition),

1955, p69

3. Since he/she is ineligible for social security for

example

4. To which state could the international community direct

its attention if individual rights are violated?

5. International Covenant on Civil and Political Rights,

Article 24(3)

6. Convention on the Rights of the Child, Articles 7(1)

and 8(1) respectively

7. Such as Religion (Article 4) and Education (Article

22)

8. where that person would otherwise be stateless Convention

on the Reduction of Statelessness, Article 1(1)

9. The date of commencement of the Australian Citizenship

Amendment Act 1986

10. Australian Citizenship Act 1948, s23D(1)

11. Australian Citizenship Act 1948 s23D(1A)

12. Relating to the criminal record of the individual,

section 13(11)

13. Citizenship Act, Section 13(9)(a)

14. Migration Act 1958, s10

15. As a result of s14 and the definition of non-citizen

in s5, Migration Act 1958

16. Migration Act 1958 s78

17. See Department of Immigration fact sheet 37 - "Processing

Priorities" available at http://www.immi.gov.au/facts/37processing.htm

18. See Department of Immigration fact sheet 37 - "Processing

Priorities" available at http://www.immi.gov.au/facts/37processing.htm

19. This is the 'balance of family test'. See Migration

(1993) Regulations section 2.1

20. Under s36 of the Migration Act 1958

21. (2000) 201 CLR 293

22. Chen Shi Hai v Minister for Immigration and Multicultural

Affairs (2000) 201 CLR 293 at 303-304 (per Gleeson CJ, Gaudron, Gummow

and Hayne JJ) and at 317-318 per Kirby J

23. Chen Shi Hai v Minister for Immigration and Multicultural

Affairs (2000) 201 CLR 293 at 304 (per Gleeson CJ, Gaudron, Gummow and

Hayne JJ) and at 318 per Kirby J

24. Chen Shi Hai v Minister for Immigration and Multicultural

Affairs (2000) 201 CLR 293 at 306-307 (per Gleeson CJ, Gaudron, Gummow

and Hayne JJ) and at 319 per Kirby J

25. Migration Act 1958, s78

26. The Status of Stateless persons convention or the

Reduction of Statelessness Convention

27. Full citation is US model Code, Title 8 Chapter 12,

Subchapter III, Part I, §1401

28. USMC, Title 8 §1153(a)(1) (2) & (3)

29. USMC, Title 8 §1153(d)

30. USMC, Title 8 §1153(a)(4)

31. Citizenship Act R.S 1985 C.C.-29, section 3

32. Immigration Regulations 1978, section 2(1), section

5

33. Immigration Regulations 1978, section 2(1), section

6

34. British Nationality Act 1948, section 7

35. Subject to satisfaction of certain prerequisites

relating to the individual's criminal record. This is the result of amending

legislation that came into force in January of 2000. This information

is available at http://www.auswaertiges-amt.de/www/en/willkommen/staatsangehoerigkeitsr…

36. See http://www.auswaertiges-amt.de/www/en/willkommen/staatsangehoerigkeitsr…

37. And hence be ineligible for Australian Citizenship

under s23B(1A), Australian Citizenship Act 1948

38. Walter H Bennett Jnr, "A critique of the emerging

Convention on the Rights of the Child" (1987) 20 Cornell International

Law Journal 1 at 22 (n129)

39. Douglas Hodgson, "The Child's Right to a Legal

Identity" (1993) 2 Australian Journal of Family Law 121 at 125

40. Or at least no obvious opportunity

41. J Neville Turner "The rights of the child under

the UN Convention" (1992) 66 Law Institute Journal 38 at 42

42. Australia's Third report under the International

Covenant on Civil and Political Rights, published by the Attorney General's

department 1998

43. International Covenant on Civil and Political Rights,

Article 24(3),

44. Immigration Detention Standards - Principles underlying

care and security, available at http://www.immi.gov.au/detention/det_standards.htm

45. Immigration Detention Standards - Principles underlying

care and security, available at http://www.immi.gov.au/detention/det_standards.htm

Last

Updated 9 January 2003.