Russian nationality law
Encyclopedia
Post-Soviet Union
Until 1990, the Russian Soviet Federated Socialist Republic (RSFSR) was a subject of the Soviet federation. In 1990, state sovereignty of the RSFSR was declared, though the USSR was not abolished until the end of 1991. Article 11 of the declaration of state sovereignty introduced RSFSR citizenship. The text of the citizenship act was ready in the summer of 1991, but was not adopted by the Supreme CouncilSupreme Soviet of Russia
The Supreme Soviet of the Russian SFSR , later Supreme Soviet of the Russian Federation was the supreme government institution of the Russian SFSR in 1938–1990; in 1990–1993 it was a permanent parliament, elected by the Congress of People's Deputies of the Russian Federation.The Supreme Soviet of...
(the legislative body of the RSFSR) until November 28, 1991. On January 23, 1992 some changes with respect to the dissolution of the USSR were applied to the text; the result was signed by the President and finally came into force after publication on February 6, 1992.
her 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
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
The rules of citizenship by birth generally follow the principle of jus sanguinis
Jus sanguinis
Ius sanguinis is a social policy by which citizenship is not determined by place of birth, but by having a parent who are citizens of the nation...
, though a child can be recognized as a Russian citizen in several special cases:
- neither parent, both of whom are permanent residents of Russia, is a Russian citizen, but the child is born in Russia and does not acquire any other citizenship
- the child is found abandoned on Russian territory and the parents remain unknown for more than six months
Naturalization is usually granted if the applicant meets the following requirements:
- has been a permanent resident of Russia for not less than five years
- promises lawful behaviour
- has a legal source of income
- has 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 (three years in this case). Although not in compliance with law, executive agencies (such as the 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 citizenship restoration requirements, even if they satisfy requirements for facilitated naturalization.
A special provision of law made it possible for former citizens of the USSR to apply for Russian citizenship before 2009. The only requirements were 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 meeting the naturalization requirements of p. 2 and p. 4.
Citizenship of children (persons under 18 years of age) generally follows the citizenship of their parents. If one or both parents obtain Russian citizenship, their children become Russian citizens as well. If one or both parents lose Russian citizenship, their children lose it too. A child can acquire or relinquish Russian citizenship by the application of his parents, but at least one parent must be a Russian citizen in this case.
Case of Smirnov (1996)
Smirnov was born on RSFSR territory in 1950. In 1979, he married and moved his permanent residence to the Lithuanian SSRLithuanian SSR
The Lithuanian Soviet Socialist Republic , also known as the Lithuanian SSR, was one of the republics that made up the former Soviet Union...
. He divorced in 1992 and returned to the RSFSR on December 8, 1992. He then applied for a notice of Russian citizenship in his passport, but this was rejected by executive officers. His claim was also rejected by common jurisdiction courts, including the Supreme Court of the Russian Federation.
The position of the executive officers and the courts was that Smirnov, in accordance with Article 13 of the Citizenship Act, was a former citizen of the Russian Federation, but not a citizen of the Russian Federation since February 6, 1992. He did have the option to apply for Russian citizenship through registration.
However, the Constitutional Court ruled that Article 18 of the Citizenship Act was not in conformance with the Constitution, as the registration procedure of Article 18 could be applied to Russian citizens by birth; that is, those persons who:
- were born in the territory of the RSFSR
- were citizens of the USSR
- did not renounce Russian citizenship
- relocated to another Soviet republic
- were not citizens of another Soviet republic
- eventually returned to Russia
There is an opinion that this ruling determines that every former citizen of the USSR who was born in the territory of the RSFSR and never renounced Russian citizenship is a Russian citizen by birth, even if he also has foreign citizenship. This opinion is based on the Court's interpretation of Article 6 of the Constitution given in the text of the decision: "such persons... cannot lose Russian citizenship unless they explicitly expressed their will to give it up". A notable 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) incorrect interpretation of Article 13 of the Citizenship Act of 1991The interpretation of Article 13 of the Act given by the Constitutional Court does not conform to Article 12 of the Act, which states that citizenship before this Act came in force is determined by previous legislation. It is also not clear what legal consequences might be implied by declaring millions of people as Russian citizens for tens of years before the Act came in force, and even before the sovereignty of the RSFSR was declared.
A different interpretation of Article 13 could be that "citizenship by birth in the past" defines a term which is used by Article 18, p. "e" and art. 19, p. 3, pp. "e" (since amended in 1993).
2) incorrect interpretation of constitutional articles
Nothing in the Act states that "citizenship by birth in the past" confers Russian citizenship on the moment that the Act came into force. The Constitutional Court stated that "due to Article 6 of the Constitution of the Russian Federation, they remain Russian citizens until they relinquish it of their own will" (p. 3 of the reasoning). However, the Constitution came into force in December 1993, and it evidently has no retroactive effect. Deprivation of citizenship in the 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, Articles 13 and 18 of the Act conflict. The Constitutional Court should have stated why it applied Article 13 in this case. In general, considering conflicting legal norms, a court should choose one of them (using principles of lex posterior or lex specialis
Lex specialis
Lex specialis, in legal theory and practice, is a doctrine relating to the interpretation of laws, and can apply in both domestic and international law contexts. The doctrine states that a law governing a specific subject matter overrides a law which only governs general matters...
, or a conflict norm). If one of these is chosen, it is not necessary to decide if the other is constitutional or not. The Constitutional Court has no jurisdiction to declare a norm of law unconstitutional just because it does not conform to another norm of law.
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.The federal act regarding 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 had never registered permanent residence.
She challenged the requirement of permanent residence registration at the 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 obliged to grant citizenship, except as provided by its laws, and Fatullaeva still would be able to obtain Russian citizenship after every requirement of law is satisfied
The Act on the Legal Status of Foreigners in the USSR (1981) was in force until 2002. According to this act, permanent residents of the USSR were persons who received permanent residence permits. Other foreigners were those with temporary residences in the 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. Therefore, registration of permanent residence was equivalent to obtaining residence permits in Russia.
Eurasian Economic Community treaties
The Russian Federation has a treaty with KazakhstanKazakhstan
Kazakhstan , officially the Republic of Kazakhstan, is a transcontinental country in Central Asia and Eastern Europe. Ranked as the ninth largest country in the world, it is also the world's largest landlocked country; its territory of is greater than Western Europe...
and a treaty with Kyrgyzstan
Kyrgyzstan
Kyrgyzstan , officially the Kyrgyz Republic is one of the world's six independent Turkic states . Located in Central Asia, landlocked and mountainous, Kyrgyzstan is bordered by Kazakhstan to the north, Uzbekistan to the west, Tajikistan to the southwest and China to the east...
. There is also a multilateral treaty among the Russian Federation, Kazakhstan
Kazakhstan
Kazakhstan , officially the Republic of Kazakhstan, is a transcontinental country in Central Asia and Eastern Europe. Ranked as the ninth largest country in the world, it is also the world's largest landlocked country; its territory of is greater than Western Europe...
, Kyrgyzstan
Kyrgyzstan
Kyrgyzstan , officially the Kyrgyz Republic is one of the world's six independent Turkic states . Located in Central Asia, landlocked and mountainous, Kyrgyzstan is bordered by Kazakhstan to the north, Uzbekistan to the west, Tajikistan to the southwest and China to the east...
and the Republic of Belarus.
Citizens of the respective states that come to Russia for permanent residence have the right to obtain Russian citizenship if they:
- were citizens of the RSFSR, or
- were born in the territory of the RSFSR, or
- were living in the territory of the RSFSR before December 21, 1991, or
- have relatives who are citizens or permanent residents of the Russian Federation
Until the end of 2003, those treaties were ignored by Russian executive authorities. Presidential Decree N 1545 provided some means for implementation of the treaties. However, the decree requires that the applicant provide evidence that the state of his citizenship allows him to reside in Russia (such as a special stamp in a passport or a exit document). This does not conform to the treaties and makes obtaining citizenship significantly more difficult or even impossible in some cases. The Supreme Court of the Russian Federation stated in its decision that one must prove, in accordance with the treaties, that he came to Russia for permanent and not temporary residence. This can be proved in accordance with Russian law. In accordance with the Act on the Status of Foreign Citizens in the Russian Federation, obtaining temporary or permanent residence permission in Russia does not require any permission from foreign states, so technically every person who lawfully resides in Russia is able to apply for a temporary residence permit and then for a permanent residence permit. Although the interpretation of the Federal Act given by the 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 the Russian Federation and the Republic of Tajikistan (1995)
- Treaty between the Russian Federation and the Republic of Turkmenistan (1993), the current status of which is in dispute
The Treaty of Friendship, Cooperation, and Mutual Security between the Russian Federation and the Republic of Armenia, signed December 29, 1991, grants the right to acquire citizenship of both Russia and Armenia to the citizens of Russia and Armenia.
As the Russian Federation is the successor state to the Soviet Union, some Soviet treaties on dual citizenship are still in force. For this reason, the Convention on the Nationality of Married Women
Convention on the Nationality of Married Women
-Purpose:The Convention was concluded in the light of the conflicts of law on nationality derived from provisions concerning the loss or acquisition of nationality by women as a result of marriage, divorce, or of the change of nationality by the husband during marriage.The Convention seeks to...
is in force.
European Convention on Nationality
The European Convention on NationalityEuropean Convention on Nationality
The European Convention on Nationality is a comprehensive convention of the Council of Europe dealing with the law of nationality....
has been signed but not ratified by the Russian Federation. It is binding to the extent of the provisions of the Vienna Convention on International Treaties. Domestic citizenship legislation is usually considered to conform to the convention.