Woes of the stateless : viz-a-viz marriage & citizenship

Woes of the stateless : viz-a-viz marriage & citizenship

Citizenship is widely understood to be the position or status of being a citizen of a particular country; it entitles and bounds an individual to all the rights and duties a legal member of a given polity enjoys. The most common systems of acquiring citizenship of a given nation are ‘jus soli’ and ‘jus sanguinis’ i.e., right of soil and right of blood respectively.
However there may arise situations in legal systems where citizenship is not easily granted or is rescinded / cancelled or is not endowed by the state in the first place; alternatively due to difference in application and renunciation procedures of two countries individual might be left stateless .

Going by the literal meaning a stateless person is “a person who does not belong or bear allegiance to any particular state”; whereas the international legal definition of a stateless person is “a person who is not considered as a national by any State under the operation of its law”. In simple terms, this means that a stateless person does not have a nationality of any country. Some people are born stateless, but others become stateless.
Statelessness can occur for several reasons, including discrimination against particular ethnic or religious groups, or on the basis of gender; the emergence of new States and transfers of territory between existing States; and gaps in nationality laws. Whatever the cause, statelessness has serious consequences for people in almost every country and in all regions of the world.

As most civil rights are granted to citizens these individuals don’t have the protection of them nor do they possess any ability to contact a consulate or embassy, legislation regarding stateless persons is minimal worsening their woes. Questions arise regarding the veracity of their identity especially owing to the general lack of documentation among this class of people. The only document authorizing their international travel and authenticating their identity is an ‘Identity certificate’ issued to these individuals. The criteria of which almost excludes the majority of stateless class.

In such a Scenario determining the citizenship status of stateless persons becomes crucial. This is where the role of marriage acquires great significance. The Indian Citizenship Act, 1955 u/s 5 provide for citizenship by virtue of registration, among its multifarious clauses , clause ( c ) provide for citizenship for a person who is married to a citizen of and is ordinarily resident in India for seven years before making an application for registration. However, a cursory look through the section will make it clear that the same provision is available under clause (a) without the condition for marriage which begs the question, what is the necessity of clause (c) and thus marriage to be mentioned explicitly and separately?
Before answering the question, let us take a look at the American law on citizenship and marriage.

In general, one may qualify for naturalization under Section 319(a) of the Immigration and Nationality Act (INA) if they,

A. Have been a permanent resident (Green Card holder) for at least 3 years

B. Have been living in marital union with the same U.S. citizen spouse during such time.

Whereas under the general rule without the consideration of marriage to U.S citizen the period of Continuous residence is a minimum of 5 years.
The answer to our original question is that a considerably shorter period means, that being married to a citizen gives one a considerable advantage over the other applicants, and alludes to a preference of such individuals by the issuing authority. The ground reality today is that the probability of an application being rejected is considerably high for foreign nationals. That being the case, it becomes next to impossible for Stateless persons to secure citizenship given the complete absence of credibility due to lack of documentation and earlier citizenship status which raises security concerns. Under such circumstances, a person already married a citizen thus holds more credibility and trust in the eyes of law than a singular stateless person.

Woes of the stateless : viz-a-viz marriage & citizenship

That being said as with all social interest legislation, the said preference gives rise to a disturbing trend of solemnization of marriages for the sole purpose of defrauding the state and acquiring citizenship, the marriages are made for monetary considerations and are dissolved as soon as the spouse is granted citizenship, the need for acquiring citizenship is felt by stateless persons the most and so is the tendency for indulgence in such fraudulent behavior.

Recently a total of 50 people are now in custody following the return of a 206-count indictment alleging varying roles in a large-scale marriage fraud scheme in the United States.

Even in India though the crisis is not as severe the problem still persists undetected. However , these stateless individuals are not the only ones at fault here, they have to resort to such means for the sole reason of lack of proper channels addressing their concern other than a few passing references in obscure pieces of delegated legislation. There is no definitive statute governing them.

According to Neeraja Gopal Jayal, author of “Citizenship and its Discontents: An Indian history” there are 10 million Stateless in the world out of which 4.5 million will be in India if the 4 million in Assam are finally rendered Stateless because India wants them out and Bangladesh won’t take them.

However the citizenship (Amendment) Bill 2016 bringing in the prospect of legitimizing hoards of illegal immigrants further aggravated the problem as it further provided impetus to them to move to India , and given that the bill lapsed these new immigrants who thronged India further joined the category of the stateless class.

The 1954 and convention of 1961 on the human rights of stateless persons established an international framework to ensure the right of every person to a nationality. It requires that states establish safeguards in their nationality laws to prevent statelessness at birth and later in life. Perhaps the most important provision of the convention establishes that children are to acquire the nationality of the country in which they are born if they do not acquire any other nationality.

However, India is not a signatory to the these conventions; It is therefore, necessary for India to consider alternative protection systems for Stateless persons under the human rights covenants signed by it, such as the International Convention for the Protection of Civil and Political Rights (ICCPR) otherwise this class of members albeit non- citizens will continue to live out their lives in uncertainty and resort to unlawful and fraudulent means of acquiring citizenship.