By EUDO CITIZENSHIP expert Andrea Baršová

In line with its statement of 4 August 2010, the Czech government established after the 2010 parliamentary elections to the Chamber of Deputies proceeds with the work on the new citizenship law.[1] The new draft law, which builds on the previous 2009 version,[2] was circulated by the Ministry of the Interior[3] for comments in September 2011.[4] The main aim of the new draft is to consolidate citizenship legislation into a single law. The new law should also terminate specific citizenship provisions related to the break-up of Czechoslovakia and the creation of the independent Czech Republic on 1 January 1993.

The draft law brings some important systemic changes. For instance, it broadens chances of former Czech (Czechoslovak) citizens and their descendants to reacquire Czech citizenship by simple declaration, introduces a substitute “ius soli” for the generation 1.5[5], easing thus the access to citizenship for children of migrant origin, and allows for unrestricted dual (or multiple) citizenship on the exit side (i.e. in outgoing naturalisation of Czech citizens abroad). The dual (multiple) citizenship on the entry side (i.e. in incoming naturalisations for foreign nationals acquiring Czech citizenship) still remains an open issue. Further, the draft proposes some new, more detailed regulations for applicants for naturalisation, who will newly have to pass the civic knowledge tests.

After completing the comments procedure by the Ministry of the Interior, the draft needs to be approved by the Cabinet and, subsequently, adopted by the Parliament. The new law should enter into force on 1 January 2013. The legislative process started already in 2005, when the government decided to replace the current legislation by a new, single citizenship law.

Below is a summary of the new draft.

Dual (multiple) citizenship on the exit side proposed, dual (multiple) citizenship on the entry side still remains an open issue

The draft law proposes to terminate the rule of the automatic loss (lapse) of Czech citizenship in case of voluntary acquisition of a foreign citizenship.[6] The rule of automatic loss was introduced in 1993 with the adoption of the new citizenship legislation in relation to the break-up of Czechoslovakia. Along with the renunciation of citizenship, the lapse of citizenship is currently one of the two existing modes of loss of citizenship in Czech law. So far, the introduction of this principle was not a topic for discussions and it seems to enjoy broad support.

Unlike dual (multiple) citizenship on the exit side, dual (multiple) citizenship on the entry side still remains an open issue. The draft law includes two alternatives, which should be further discussed and eventually decided upon by the Cabinet. Under variant I, the renunciation of prior citizenship is not a condition for naturalisation, under variant II, the renunciation of prior citizenship remains, with some exceptions, one of the conditions for naturalisation. An automatic exception from this rule is foreseen for persons granted asylum in the Czech Republic and for spouses or registered partners of Czech citizens and spouses and partners of EU, Swiss and EEA citizens. In addition, the Ministry, at its own discretion, can waive the demand in certain other situations, involving persons at risk of persecution, unreasonable fees or other conditions not acceptable in a democratic country or in situations when renunciation is not possible. The draft proposes to shorten the period of stay in the territory, which also makes the applicant eligible for a discretionary waiver from the demand to renounce his/her prior citizenship. At present, the period is 20 years; the draft proposes 8 years.[7] Consequently, even the variant II would bring a further shift towards toleration of dual (multiple) nationality on the entry side.

The explanatory memorandum does not involve detailed reasoning or impact analysis of the two variants.

Stricter conditions for acquisition of citizenship through ius soli for children otherwise stateless, foundlings, through paternity determination and adoption

With the aim of preventing the abuse of law, the draft proposes some tough and controversial conditions for the acquisition of citizenship through ius soli for children otherwise stateless, foundlings and through paternity determination or adoption.[8] For instance, a child born to a foreign mother and a Czech father (whose fatherhood has been determined) acquires Czech citizenship ex lege through the paternity determination only if the mother is a citizen of an EU member state, Switzerland or EEA state. If the mother is a third country national, the “consent” of the Ministry of the Interior is necessary.[9] The Ministry will also check whether a baby, born in the territory of the Czech Republic, is not stateless only because of intentional neglect by parents (e.g. because the parents did not register their child at the diplomatic office of their home country). In such a case, Czech citizenship should not be acquired. It is also proposed that only foundlings under three years of age will acquire Czech citizenship automatically. In case of older foundlings, the consent of the Ministry is necessary for the acquisition of the Czech citizenship.

Stricter conditions for naturalisation

The draft law involves strict and detailed conditions for naturalisation (described in Section 17 of the draft law), which broadly follow current law and administrative practice. They involve permanent residence status, stay in the territory for specified period of time, clean criminal record and compliance with some other laws and norms (rules on immigration, taxes, social security, health insurance, etc.) in a two years prior to lodging the application.[10] New conditions added by the draft law include that the applicant has to prove also that he/she is not an unjustifiable burden for the welfare system. In addition to stricter language tests, the applicant will also have to pass a civic knowledge test, involving knowledge about the constitutional system and state symbols of the Czech Republic as well as basic knowledge of the cultural, societal, geographical and historical situation of the Czech Republic (see below for further details).

In addition to the concrete conditions for naturalisation described above, the Ministry also proposes the introduction of an open-ended integration clause: “In assessing the application for naturalisation, the Ministry in addition to the fulfilment of the conditions as stipulated in Section 17 determines whether there is a close, permanent and factual relationship between the applicant and the Czech Republic and whether the applicant is integrated into the society in the Czech Republic, in particular as regards integration from family, work and social perspectives.” This controversial provision, which should give legal backing to broad use of discretion by the Ministry in naturalisation procedures criticised in the past by the Supreme Administrative Court and the Ombudsman, is copied from the 2009 draft. The difference is, however, that it will not be the duty of the applicant to prove the above facts, but the responsibility of the Ministry to establish them.

The draft leaves open the requirement of renunciation of prior citizenship as a condition for naturalisation (see also above point on dual and multiple citizenships).

Language and civic knowledge tests

Language tests, which exist also under the current legislation, should be carried out more professionally. Such tests, as well as the newly introduced civic knowledge tests, will be provided for by certified schools, school facilities and universities. The level and content of both the language and civic knowledge tests will be determined by a decree of the Ministry of Education, Youth and Sports.

Achiement-based acquisition of nationality

A new provision will regulate the achievement-based acquisition of nationality. Compared to the legislation in force, foreigners applying for naturalisation on ground of their specific achievements in science, societal life, culture or sports are to be exempted from a broad spectrum of standard naturalisation conditions, but they still have to be permanent residents and prove a clean criminal record. According the law currently in force, only a demand for the renunciation of prior citizenship can be waived at the discretion of the Ministry in achievement-base naturalisation cases.

Acquisition of citizenship for former citizens and their descendants by declaration

The draft law proposes a more liberal regime for the reacquisition of Czech citizenship. Former Czech (or Czechoslovak) citizens who lost their citizenship before the entry into force of the new law (i.e. 1 January 2013) are entitled to reacquire Czech citizenship by declaration. Slovak citizens and those who fall within the scope of the 1945 Beneš decree and the post-war treaty with the USSR concerning the Transcarpathian Ukraine (“Zakarpatská Ukrajina” or “Podkarpatská Rus”)[11] are excluded from reacquisition. The same rule applies to the descendents of former Czech (Czechoslovak) citizens: their children and grandchildren.

These provisions build on the previous specific legislation for the reacquisition on Czech (Czechoslovak citizenship) adopted after 1989, which dealt with the communist past,[12] but are significantly broader. They are also linked to the new approach to dual (multiple) citizenship on the exit side. Since Czech citizens will no longer lose automatically Czech citizenship if they acquire a foreign citizenship, there is a need to allow for the reacquisition of Czech citizenship for those emigrants who lost it after 1993.[13] Further potential beneficiaries of the new rules are, according to the explanatory memorandum, persons who lost Czech (Czechoslovak) citizenship due to some bilateral treaties, such as the 1928 Treaty between the United States and Czechoslovakia on naturalisation and treaties on prevention of dual (multiple) nationality concluded between some former socialist countries.[14] These treaties are no longer in force and thus it may seem unjust to insist on their consequences, i.e. the loss of Czech (Czechoslovak) citizenship.

For this mode of acquisition of Czech citizenship, neither permanent residence status nor renunciation of prior citizenship is required. The reacquisition of citizenship is not subject to any further requirements such as knowledge of the Czech language.

Substitute ius soli for generation 1.5 and second-generation migrants

The law introduces a substitute for “ius soli”, a right to citizenship based on residence before the age of majority, for the generation 1.5 and second generation of migrant origins.

At present, facilitated naturalisation is available for persons born in the Czech Republic. Under the newly proposed rules, foreign children could also acquire Czech citizenship on the basis of a period of prior residence in the territory. A foreign child living in the territory since at least the age of six could obtain citizenship by declaration at majority. However, he/she has to meet further restrictive conditions, which involve permanent residence status, qualified residence in the territory (2/3 of the period between the entry in the territory and the date of submitting the declaration) and a clean criminal record. Those who fulfil these conditions have a right to obtain Czech citizenship automatically by mere declaration, without need to pass a language or civic knowledge test. Dual (multiple) citizenship is allowed in these cases. Neither the place of birth of the person nor his or her parents’ residence and status are relevant.

This regime would exist parallel to facilitated naturalisation provisons for persons born in the territory. The important difference between the two regimes is that under the new provision Czech citizenship is acquired as a legal right, whereas granting of citizenship through naturalisation is discretionary. Equally important, the substitute ius soli allows for dual (multiple) citizenship, whereas for facilitated naturalisation dual (multiple) citizenship is still disputed.

According to the explanatory memorandum, the newly proposed mode of acquisition transposes the obligations under the European Convention on Nationality.[15]

Reopening of procedure in matters of citizenship acquisition (new fraud provision)

The draft law proposes to introduce a new possibility to reopen the procedure that lead to the acquisition of Czech citizenship (naturalisation procedure or declaration) within three years if the applicant concealed important information.[16] In such cases, the loss will not be automatic; it will depend on the nature of the concealed information whether the person can still be naturalized. Further, a judicial review is possible. At present, an explicit fraud provision is missing in the Czech legislation. Withdrawal of citizenship acquired by fraud is considered compatible with the constitutional ban on the deprivation of citizenship against one’s own will, as in these cases citizenship was acquired improperly. Consequently, the provisions on the reopening of procedure are included in Chapter 2 which deals with the acquisition of citizenship.

Loss of citizenship

Legally speaking, the only mode of loss of citizenship under the new draft is voluntary renunciation of Czech citizenship (declaration on the relinquishment of citizenship). A citizen can only relinquish his/her Czech citizenship through declaration, if he/she lives permanently abroad, he/she is not registered as a permanent resident in the Czech Republic and he/she is a citizen of another state or he/she applies for the citizenship of another state and makes this declaration in relation to this application.

Termination of the specific regime relating to the break-up of Czechoslovakia

The draft also aims to terminate the specific citizenship provisions related to the break up of Czechoslovakia (Czech and Slovak Federal Republic) and the creation of the independent Czech Republic. This regime involved a set of complex provisions regulating the acquisition of Czech citizenship by former Czechoslovak citizens, which are still frequently invoked.[17] For instance, in 2009, 431 former Czechoslovak citizens acquired Czech citizenship on ground of these provisions by declaration.

In 2009, 1621 person acquired the Czech citizenship under the Law 40/1993 Coll., thereof 1128 persons acquired the Czech citizenship through naturalisation and the above mentioned 431 persons through declaration. In addition, under Law no. 193/1999 Coll. 173 former Czechoslovak citizens reacquired citizenship by declaration.[18]

The special rules related to the break-up of Czechoslovakia included also an exception from the automatic loss of citizenship for Czech citizens (former Czechoslovak nationals as of 31 December 1992) who acquired Slovak citizenship and also an exemption from Czech language tests for Slovak nationals.[19]

EU citizens, EU law

At present, the Czech citizenship legislation in force does not distinguish between EU citizens and the third country nationals. The draft law proposes to establish a more favourable regime of access to citizenship for the citizens of the EU, Switzerland and the EEA. The citizens of these states will qualify for naturalisation after 3 years of permanent residence, whereas the citizens of other countries need 5 years. However, this regime for EU citizens is not elaborated systematically. For instance, there is no preferential treatment for EU citizens in relation to acquisition of citizenship by declaration at majority.

The explanatory report also makes reference to the EU law, namely Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents. In relation to naturalisation conditions the draft refers “by analogy” to the Directive (e. g. requirement of stable resources sufficient to live without recourse to the social assistance system, sickness insurance). However, foreign residents who seek naturalisation in the Czech Republic are by definition of law permanent residents and their citizenship status has no impact on their access to welfare.

Procedures and Judicial Review

The core procedures and the institutional setup remain substantially unaltered. The Ministry of the Interior decides on naturalisations, whereas processing the acquisition of citizenship by declaration remains a competence of regional authorities (krajské úřady) and city districts authorities (úřad městské části) in Prague, which act as organs of the state (transferred competence).[20] The responsibilities of magistrates of the cities of Brno, and Ostrava and Plzeň (which seem not to be systemic) will be replaced by the competence of corresponding regional authorities (krajské úřady).

The regional authorities, the city district authorities in Prague and the embassies abroad are competent for dealing with the renunciation of citizenship.

The naturalisation process will take longer time. Under current legislation, the Ministry decides within 90 days after the application was transferred to the Ministry by the responsible authority,[21] this period will be extended to 180 days.

The draft law proposes to introduce an exception from judicial review in naturalisation cases rejected on grounds of state security. The exploratory memorandum states that in the period 2005-2010 the number of naturalisation applications rejected on this ground was around 5 per cent of all rejected applications.

Overview

	Legislation in force	Draft law
Legal basis	Law no. 40/1993 Coll. on Acquisition and Loss of Citizenship of the Czech Republic Law no. 193/1999 Coll. on Reacquisition of Citizenship	single law on citizenship
Modes of acquisition of citizenship	Descent or birth in the territory Paternity determination Adoption Through being found on the territory (foundlings) Naturalisation Declaration under Law no. 40/1993 Coll. – former Czechoslovak citizens in relation to the split-up of Czechoslovakia as of 1 January 1993, in particular those who had been living continuously on the territory of the Czech Republic since 31 December 1992; Declaration under Law no. 88/1999 Coll. former Czechoslovak citizens who lost Czechoslovak citizenship in the period from 1 October 1949 till 31 December 1990	Descent or birth in the territory Paternity determination Adoption Through being found on the territory (foundlings) Naturalisation Declaration (former Czech / Czechoslovak citizens and their children and grandchildren who lost Czech /Czechoslovak citizenship prior the entry of the law into force (1 January 2013); substitute ius soli for 1.5 and second generation migrants
Modes of loss of citizenship	Voluntary renunciation of citizenship Automatic loss of Czech citizenship upon acquisition of foreign citizenship at one’s own request	Voluntary renunciation of citizenship Reopening of procedure in matters of citizenship acquisition within three years* (see above)