Nationality law of Russia: Wikis

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The Russian nationality law consists of the Constitution of Russian Federation (of 1993), the Federal act on citizenship of Russian Federation (of 2002, with the amendments of 2003, 2004, 2006) and the international treaties that cover citizenship questions to which Russian Federation is a party. In accordance with the supremacy clause of the Constitution international treaties of Russian Federation have precedence over domestic law.

Contents

Independence

Until 1990 RSFSR was a subject of the Soviet federation. In 1990 there was declared state sovereignty of RSFSR, though the USSR had not been abolished until the end of 1991. Declaration of state sovereignty introduced RSFSR citizenship in its art. 11. The citizenship act text became ready in summer of 1991, but was adopted by Supreme Council (the legislative body of RSFSR) only on November 28, 1991. On January 23, 1992 some changes with respect to USSR dissolution were applied to the text, the resulting text was signed by the President and finally came in force after publication on February 6, 1992.

Citizenship act of 1991

In accordance with art. 13 former USSR citizens among permanent residents (on the date of February 6, 1992) of RSFSR were recognized as RSFSR citizens. Those who expressed their will not to become RSFSR citizens until February 6, 1993 were not recognized as RSFSR citizens. The decree of Supreme Council N 5206/1-1 recognized

  • those who left RSFSR before February 6, 1992 for studying, work, treatment or personal reasons and returned after February 6, 1992
  • military personnel of RSFSR abroad

as Russian citizens.

Former USSR citizens who were born on December 30, 1922 or later on Russian territory or to a USSR citizen who was a permanent resident of RSFSR on the moment of his child's birth were recognized as if they had been RSFSR citizens by birth (see Case of Smirnov).

Russian citizenship could be acquired:

  • by birth
  • by registration
  • by naturalization
  • by restoration of citizenship
  • by opt
  • by following parents' citizenship

Compatriots act of 1999

In 1999 in spite of the veto of the President Federal Assembly adopted the Act on the state policy on abroad compatriots.[1] Article 11 stated that all of former soviet citizens and their descendants should be recognized as Russian citizens unless they had declared intentions to be citizens of foreign states. However, this article was revoked in 2002 and the persons under this article are not generally recognized by executive or court authorities of Russia as citizens of Russian Federation unless they received any documents of Russian citizen before the article's revocation. No official comments have been given as to how this article should be interpreted. Oleg Kutafin, the chairman of Presidential Committee on citizenship, criticized this Act in his book named "Russian citizenship" (ISBN 5-7975-0624-6), but the legal sequences of this Act were not analyzed there.

Citizenship act of 2002

In 2002 a new citizenship act (supported by President Putin) replaced the act of 1991.

Russian citizenship could be acquired:

  • by birth
  • by naturalization
  • by restoration of citizenship
  • by following parents' citizenship

Citizenship by birth rules generally follow jus sanguinis principle, though a child can be recognized as a Russian citizen in several special cases as well:

  • neither of his parents, who are permanent residents of Russia, is a Russian citizen, but the child is born in Russia and does not obtain any other citizenship
  • the child is found on the territory of Russia and his parents are unknown for more than 6 months

Naturalization is usually granted if the following requirements are met:

  • the person has been a permanent resident of Russia for not less than 5 years
  • promises lawful behaviour
  • has a legal source of income
  • applied for termination of another citizenship (though the actual loss of foreign citizenship is not required)
  • speaks Russian

In certain cases some or even all of the above requirements can be waived.

Restoration of citizenship is granted under the same rules as naturalization, the only exception is the residence term requirement (3 years in this case). Although not conformant with law, executive agencies (Federal migration service and Russian diplomatic and consular departments abroad) usually do not grant Russian citizenship to former Russian citizens if they do not satisfy to citizenship restoration requirements even if they satisfy requirements for facilitated naturalization.

A special provision of law makes it possible for former citizens of USSR to apply for Russian citizenship before 2009. The only requirements are holding a temporary residence permit or a permanent residence permit or being registered as a permanent resident of Russia as of July 1, 2002 and p. 2 and p. 4 of naturalization requirements.

Citizenship of children (persons below 18 years old age) generally follows citizenship of their parents. If both parents (or the only parent) obtain Russian citizenship their children become Russian citizens as well. If both parents (or the only parent) loses Russian citizenship their children lose it too. A child can acquire (at least one of his parents must be a Russian citizen in this case) or relinquish Russian citizenship by application of his parents.

Constitutional Court cases

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Case of Smirnov (1996)

Smirnov was born on RSFSR territory in 1950. In 1979 he got married and moved his permanent residence to Lithuanian SSR. He divorced in 1992 and returned to RSFSR on December 8, 1992. Afterwards he applied for Russian citizenship mark in his passport, but this was rejected by executive officers. His claim was also rejected by common jurisdiction courts including the Supreme Court of Russian Federation.

The position of the executive officers and the courts was that Smirnov, in accordance with art. 13 of the Citizenship Act, was a former citizen of Russian Federation, but not a citizen of Russian Federation since February 6, 1992, he could apply for Russian citizenship through registration.

However, Constitutional Court ruled that art. 18 of Citizenship Act was not in conformance with the Constitution as the registration procedure of art. 18 could be applied to Russian citizens by birth, the persons who:

  • were born on the territory of RSFSR
  • were citizens of USSR
  • did not renounce Russian citizenship
  • relocated to another soviet republic
  • were not citizens of other soviet republics
  • finally came back to Russia

There has been an opinion that this ruling determines that every former citizen of USSR who was born on the territory of RSFSR and never renounced Russian citizenship is a Russian citizen by birth even if he has a foreign citizenship as well. This opinion is based on the Court's interpretation of art. 6 of the Constitution given in the text of the decision: "such persons... can not lose Russian citizenship unless they explicitly expressed their will to give it up". A noticeable advocate of this position is Anatoly Mostovoy, who published the book "Get your citizenship back!" (ISBN 5-93165-077-6).

Criticism of the decision:

1) wrong interpretation of art. 13 of the Citizenship Act of 1991

The interpretation of art. 13 of the Act given by Constitutional Court does not conform to art. 12 of the Act which states that citizenship before this Act came in force is determined by the previous legislation. It is also not clear what legal sequences could be implied by declaring millions of people as Russian citizens for tens of years before the Act came in force and even before sovereignty of RSFSR was declared.

A different interpretation of art. 13 could be that "citizenship by birth in the past" defines a term which is used by art. 18, p. "e" and art. 19, p. 3, pp. "e" (since amendments of 1993).

2) wrong interpretation of constitutional articles

Nothing in the Act states that "citizenship by birth in the past" are considered as Russian citizens on the moment that Act came in force. Constitutional Court stated that "due to art. 6 of the Constitution of Russian Federation they remain Russian citizens until they relinquish it on their own will" (p. 3 of the reasoning). However, the Constitution came in force on December, 1993 and it evidently has no retroactive effect. Deprivation of citizenship in USSR was legal and happened from time to time. No provisions of law restricted constructions like "a citizen only on his/her moment of birth".

3) there were no constitutional issues in this case

Following the logic of Constitutional Court art. 13 and art. 18 of the Act collide with each other. Constitutional Court should have reasoned why it applied art. 13 in this case. In general, considering colliding legal norms, a court should choose one of them (using either lex posterior, lex specialis principles or a collision norm). If one of them is chosen then it is not necessary to decide if the other is constitutional or not. Constitutional Court has no jurisdiction to declare a norm of law nonconstitutional just because it does not conform to another norm of law.

Case of Daminova (2005)

Case of Fatullaeva (2007)

Until 2001-2002 former Soviet citizens could register their permanent residence on the territory of Russia in the same way as Russian citizens.

Federal act on Russian citizenship (2002) was amended several times to allow former Soviet citizens who had had their permanent residence registered on July 1, 2002 to apply for Russian citizenship.

Fatullaeva had been living in Russia up to this date but never registered permanent residence.

She challenged the requirement of permanent residence registration at Constitutional Court. The Court rejected her claim for the following reasons:

  • such a requirement does not violate her constitutional rights and freedoms
  • the state is not oblidged to give its citizenship except as provided by its laws and Fatullaeva still would be able to obtain Russian citizenship after every requirement of law is satisfied

"On the legal status of foreigners in USSR" Act (1981) was in force until 2002. According to this act permanent residents of USSR were the persons who received permanent residence permit. Other foreigners were foreigners with a temporary residence in USSR. However, former Soviet citizens did not apply for residence permits, they registered their permanent residence in the same manner as Russian citizens in accordance with the Decree of Government N 290 of March 12, 1997. So, registration of permanent residence in fact was equivalent to obtaining residence permit in Russia.

International treaties on citizenship

Eurasian Economic Community treaties

Russian Federation has a treaty with Kazakhstan[2] and a treaty with Kyrgyzstan.[3] Also there's a multilateral treaty between Russian Federation, Kazakhstan, Kyrgyzstan and Republic of Belarus.[4]

Citizens of the respective states that come to Russia for permanent residence have the right to obtain citizenship of Russia if they:

  • were citizens or RSFSR or
  • were born on the territory of RSFSR or
  • were living on the territory of RSFSR before December 21, 1991 or
  • have relatives who are citizens and permanent residents of Russian Federation

Until the end of 2003 those treaties had been ignored by Russian executive authorities.[5] Presidential Decree N 1545[6] provided some means for implementation of the treaties. However, the decree requires that applicant provide some evidence that the state of his citizenship allows him to reside in Russia (a special stamp in a passport or a leaving card). This does not conform to the treaties and makes obtaining of citizenship significantly harder (even impossible in some cases). Supreme Court of Russian Federation stated in its decision[7] that one must prove in accordance with the treaties that he came to Russia for permanent residence, not for temporary residence, this can be proved in accordance with the Russian law. In accordance with the "Act on the status of foreign citizens in Russian Federation" obtaining of temporary or permanent residence permission in Russia does not require any permissions from foreign states, so technically every person who lawfully resides in Russia is admitted to apply for temporary residence permit and then for permanent residence permit. Although the interpretation of the Federal Act given by Supreme Court is incompatible with the Presidential Decree, the article was not declared void.

Dual citizenship treaties

The following international treaties contain rules related to dual citizenship:

  • Treaty between Russian Federation and Republic of Tajikistan (1995)
  • Treaty between Russian Federation and Republic of Turkmenistan (1993), current status of which is disputable

Treaty on friendship, cooperation and mutual security between Russian Federation and Republic of Armenia[8](signed December 29, 1991) grant right to acquire citizenship of both Russia and Armenia to the citizens of Russia and citizens of Armenia.

As Russian Federation is a successor of Soviet Union some soviet treaties on dual citizenship are still in force. For this reason Convention on the Nationality of Married Women is in force.

European convention on nationality

European Convention on Nationality is signed but not ratified by Russian Federation. It has a binding power to the extent of provisions of Vienna Convention on International Treaties. Domestic citizenship legislation is usually considered as conforming to European Convention.

References

External links


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