Naturalisation in Hungary: Exclusion by ethnic preference

Academic Article

Abstract: Hungary has long used a naturalisation regime that separates applicants without preferences (“normal” applicants) from those considered to be ethnic Hungarians, who enjoy benefits in citizenship law. In 2010, this trend of separating the two tracks got new life with the amendment that, among other things, abolished the residency requirement for persons of Hungarian ethnicity. This article assesses the permissibility and the possible limits of such preferential regimes under the non-discrimination rules in human rights and EU law. Due to the statistical evidence and exclusionary impacts of ethnic preference it concludes that two factors could challenge Hungary’s current policy in this area. First, the possible political reactions of the EU, as in the case of Romanian citizenship offered to Moldavians without a residency requirement. Second, the entry into force of the Protocol No. 12 to the European Convention for the Protection of Human Rights and Fundamental Freedoms of the Council of Europe (which entered into force on 1 April 2005, but has not yet been ratified by Hungary) could, if taken seriously, put limits on the wide scope of ethnic preference in nationality law.

Introduction

EU citizenship and the status of EU citizens’ family members is derived from Member State nationality. Acquisition of EU citizenship is thus directly linked to Member States’ legislation; accordingly, national legislation is a central point of the entire EU citizenship regime. The dividing line between discrimination and legitimate ethnic preferences in the case of naturalisation has not been clarified in legal practice or in the literature. The only way to assess this difference is to analyse the available case law of the European Court of Human Rights (ECHR) and of the European Court of Justice (ECJ), because this can, indirectly, provide guidelines for this differentiation.

In this context the national regulation has to take into account EU law as well as inclusive and exclusive effects of nationality law implementing the ethnic preference in naturalisation. The recent modification of the Act on Hungarian Nationality[1] provides preferential and accelerated naturalisation for ethnic Hungarians, fully tolerating the dual nationality of all applicants. Thus it provides an apt ground for assessing the dividing line between unfair discrimination and legitimate differentiation. The principle of ethnic preference and respected multiple nationality in citizenship law has been unbroken for decades. However, the fact that there is no longer a requirement that applicants reside in Hungary marks a new epoch[2] with exclusionary effects and (indirect) discrimination against other applicants – settled migrants – among them European citizens.

Prohibition of discrimination in human rights and EU law

The following list summarizes the most relevant provisions concerning discrimination and citizenship law in the European Union.

• The Council of Europe’s Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) requires respect for determined individual rights without discrimination (Art. 14).[3]
• Article 1 of Protocol No. 12 to the ECHR introduces a general rule of non-discrimination by public authorities, regardless of what law guarantees a certain right.[4] Signed by Hungary on 4 November 2000, but not yet ratified.
• Article 5 of the European Convention on Nationality (1997) prohibits distinctions or discriminative practice in nationality law or between (naturalised) nationals, including on grounds of national or ethnic origin.[5] (Ratified by Hungary on 21 November 2001.)
• The Lisbon Treaty confirms the non-discrimination rules of the Union inside the TEU, TFEU supporting the solidarity and cohesion of Member States and combating exclusion and discrimination on grounds of gender, racial or ethnic origin, religion or conviction, disability, age or sexual orientation.[6] Furthermore, Article 21 of the Charter of Fundamental Rights prohibits discrimination based on additional criteria, including membership in an ethnic minority group and language, in the application of the Treaties.[7] The Council Directive 2000/43/EC determines how Member States have to prevent and prohibit racial discrimination.
• The Venice Commission outlines how the kin-state is entitled to enhance transborder minorities’ ethnic, national identity through cultural allowances and supports to people-to-people contact (European Commission for the Democracy Through Law 2001). Further benefits shall be based on a minority right agreement between the kin-state and territorial state of the kin-minority (Tóth 2002: 57-69). 

The notion of discrimination

Although Article 14 of ECHR prohibits all forms of discrimination, it is applied only with regard to the rights listed in the Convention itself. This limits the Court’s powers regarding naturalisation. Relevant cases are presented and discussed as an interference with the right to family life (Art. 8) where there is a threat of removal from the state territory, or with the right to property (Art. 1 of Protocol No. 1 to the ECHR), or else in cases of further discrimination based on alien status, as in the case of Andrejeva v. Latvia.[8]

There is ‘no right of an alien to enter or to reside in a particular country, nor a right not to be expelled from a particular country’ under the Convention. However, ‘the exclusion of a person from a country in which his close relatives live could involve a violation’ of Article 8, the right to family life.[9] It was Protocol No. 4 to the ECHR that later introduced a right not to be expelled in the case of nationals (Article 4).

While sex-based discrimination in the naturalisation process has been discredited since the end of World War II, and socioeconomic criteria are widely accepted, the case with ethnic (or ‘cultural affinity–based’) preference remains unclear. This can be shown best by reviewing the relevant case law.

In the case of Kurić and Others v. Slovenia, the applicants[10] claimed that they were subject to discrimination as part of the ‘erasure’ (removal from the state registry of permanent residents), losing entitlements linked with permanent residence and facing a risk of expulsion. Among other third-party organisations, the Open Society Justice Initiative maintained that the ‘erasure’ amounted to ethnic/national discrimination: ‘It treated citizens of the other former Yugoslavian (SFRY) republics living in Slovenia less favourably than aliens who were legal residents in Slovenia prior to independence, thus discriminating on the basis of national origin. The erasure also disproportionately affected non-ethnic Slovenes, ex-SFRY minorities, and Roma, therefore discriminating among residents also on ethnic grounds.’[11] The Court did not assess the question of what amounts to discrimination in the case of naturalisation for several reasons. First, the legislation in question was passed in 1992, well before the ECHR entered into force with regard to Slovenia. Furthermore, the legislation did open a window of six months for those with permanent resident status.[12] Thus this claim was dismissed ratione temporis. Second, the Court found a violation based on Article 8 in the case, and thus did not find it necessary to assess the alleged violation of Article 14 (taken in conjunction with Article 8). Third, the Court did not address the fundamental question of de facto discrimination, a state policy that, while seemingly neutral, put an unreasonable burden on mostly ethnic non-Slovenians.[13] However the Court made an important statement on the limits of state discretion in the case of naturalisation procedures in Karassev v. Finland: ‘No right to acquire or retain a particular nationality is as such included among the rights and freedoms guaranteed by the Convention or its Protocols. Nevertheless, the Court does not exclude the possibility that an arbitrary denial of citizenship might in certain circumstances raise an issue under Article 8 of the Convention because of the impact of such a denial on the private life of the individual.’[14] This also means that a violation in conjunction with Article 14 would also be possible.

The European Commission of Human Rights has stated that, ‘It is only the alleged violation of one of the rights and freedoms set forth in the Convention that can be the subject of an application presented by a person, non-governmental organisation or group of individuals. In particular, no right to citizenship is as such included among the rights and freedoms guaranteed by the Convention.’[15] Also, the Court restated the principle that the denial to grant citizenship per se does not fall under the scope of the Convention, although it might have consequences that violate Article 8 (and, consequently, Article 14).

East African Asians v. United Kingdom[16] shows that discriminatory regulations that are largely based on citizenship (refusal of the right of entry) can also amount to violation of Article 3 of the ECHR. The Report of the Commission states it clearly that the singling out certain groups based on origin (‘race’, ‘colour’) can easily amount to unfair differential treatment for the ECHR. Some of the applicants were ‘British protected persons’, a special category of ‘quasi citizenship’ under British law, while the majority of them were ‘citizens of the United Kingdom and Colonies’. According to the Commission there was no violation of Article 3 regarding the applicants who were ‘protected persons’, but the violation of the same Article was established in the case of the other 25 applicants. The Commission found that the Bill passed in 1968 was directed against a racial group, namely the Asians in East Africa. The British government argued unsuccessfully that the bill was based on geography, although with traces to promote ‘racial harmony’. The British immigration regime made a distinction based on the lack or existence of ‘qualifying connections’ with the United Kingdom or its colonies or with a protectorate or protected state, a requirement ‘white settlers’ were likely to fulfil, but not others. The requirement that one grandparent of the applicant be born in the United Kingdom and Islands further showed that there was a clear preference towards ‘white people’. In the case of separated husbands and wives, the Commission also found the violation of Articles 8 and 14. This demonstrates that Member States have less discretion in naturalisation matters in the case of distinction based on race and within the body of citizens.

In Abdulaziz, Cabales and Balkandali v. the United Kingdom,[17] the Court noted that ‘a difference of treatment is discriminatory if it has no objective and reasonable justification’, that is, if it does not pursue a ‘legitimate aim’ or if there is no ‘reasonable relationship of proportionality between the means employed and the aim sought to be realised’. The United Kingdom ancestry rule allowed ‘a Commonwealth citizen having a grandparent born in the British Islands and wishing to take or seek employment in the United Kingdom’ to ‘obtain indefinite leave to enter even without a work permit’. This distinction, based on descent and ‘said to favour persons of a particular ethnic origin’, was found to be in line with Article 14, as they can be considered as ‘being exceptions designed for the benefit of persons having close links with the United Kingdom, which do not affect the general tenor of the rules’. Accordingly, the Court did not find discrimination on the grounds of race (although a violation of Article 14, taken together with Article 8, found discrimination based on sex).

Summing up, the ethnic distinction between non-nationals is acceptable if it is justified by an objective and reasonable aim, such as the right to family or private life (e.g., the refused authorisation means a separation of a couple or a minor from a parent).

The application of Protocol No. 12 to the ECHR will bring about a major shift in policy, as it provides a possible reinforcement of guarantees in the field of equity and non-discrimination. Naturalisation rules will be subjected to the non-discrimination clause per se, regardless of whether there is a threat to intrusion into private life (Article 8) or other rights set forth in the ECHR or its Protocols ratified by the respondent state[18]. This could mean either rights granted under the national law or decisions based on discretionary powers or others actions or omissions.[19]

The Explanatory Report of the Protocol refers to the ‘objective and reasonable justification’ principle from the case law of the ECHR that makes it clear that not every distinction or difference of treatment amounts to discrimination: ‘a difference of treatment is discriminatory if it “has no objective and reasonable justification”, that is, if it does not pursue a “legitimate aim” or if there is not a “reasonable relationship of proportionality between the means employed and the aim sought to be realised”.’ A certain margin of appreciation is allowed to national authorities in assessing whether and to what extent differences in otherwise similar situations justify a different treatment in law. The scope of the margin of appreciation will vary according to the circumstances, the subject matter and its background, e.g. framing and implementation of policies in the area of taxation. In particular, the additional scope of protection under Article 1 concerns cases where a person is discriminated against, such as by a public authority in the exercise of discretionary power (in naturalisation) or in enjoyment of any right set forth by law (child’s rights, family rights).

The principle of equality requires that equal situations be treated equally and unequal situations differently. Failure to do so would amount to discrimination unless an objective and reasonable justification exists. On the other hand, measures taken in order to promote full and effective equality, such as affirmative actions for minorities in disadvantaged position, should not be prohibited by the principle of non-discrimination. However, this Protocol does not impose any obligation to adopt such measures.

The European Convention on Nationality (Council of Europe, adopted in Strasbourg, 6 November 1997, entered into force on 1 March 2000) takes into account the existing preferences in naturalisation. For instance, the preferences on the ground of family relations in mixed marriage are supported by the Parliamentary Assembly of the Council of Europe.[20] Furthermore, the tolerated multiple nationality – and preferences in acquisition for migrants – is based on migrants’ integration. The Explanatory Report underlines that the issue of allowing persons who voluntarily acquire another nationality to retain their previous nationality will depend upon the individual situation in states. In some states, especially when a large proportion of persons wish to acquire or have acquired the nationality of residence, the retention of another nationality could be seen to hinder their full integration into the new society. However, other states may prefer to facilitate the acquisition of their nationality by allowing persons to retain their nationality of origin and thus further their integration in the receiving state (e.g., to enable such persons to retain the nationality of other members of the family or to facilitate their return to their country of origin if they so wish). Naturally, the question of habitual residence has consequences in international private law and the Convention uses this notion to eliminate problems that may arise concerning persons with dual nationality.

While the European Framework Convention for the Protection of National Minorities (1995) aims to specify the legal principles respected by the party states in order to ensure the protection of national minorities,[21] the Convention on Nationality is based on the neutral term of citizenship. Nationality is defined in Article 2 of the Convention as ‘the legal bond between a person and a State and does not indicate the person’s ethnic origin’. This means a legal separation of ethnicity and nationality, cultural links with the majority culture and effective links (see the 1955 Nottebohm case of the International Court of Justice). In a number of states, including Hungary, we see a trend that counters this.

What is the legal frame for the preferential treatment in the field of nationality inside the Convention? Common examples of justified grounds for differentiation or preferential treatment are the requirement of knowledge of the national language in order to be naturalised and the facilitated acquisition of nationality due to descent or place of birth. The Convention itself provides for the facilitation of the acquisition of nationality in certain cases on family connection lines and immigration under Article 6(4).[22] The Explanatory Report adds that party states can give more favourable treatment to nationals of certain other states. For example, a Member State of the European Union can require a shorter period of habitual residence for naturalisation of nationals of other Member States than is required as a general rule. This would constitute preferential treatment on the basis of nationality and not discrimination on the ground of national origin.

The party states are entitled to issue declarations relating also to preferences in acquisition preventing the critics for discrimination. Germany declares that the procedure for the admission of late expatriates (Spätaussiedler – persons of German ethnic origin who reside in former Eastern Bloc countries) and of their spouses or descendants is not aimed at acquiring German nationality and that it is not part of any procedures relating to nationality. A German within the meaning of Article 116 (1) of the Basic Law who does not possess German nationality shall acquire German nationality ex lege upon the issue of the certificate (on his/her status as a late expatriate) as provided under Section 15 (1) or (2) of the Federal Act on Expellees’ and Refugees’ Affairs (BVFG). This provision also applies to descendants. On account of the fixing of quotas for persons to be admitted under the BVFG, the respective admission procedure may involve waiting periods of several years. Against this background, it must be stressed that the admission procedure is legally independent of the acquisition of German nationality. Romania has announced its own act with rehabilitation rules. Accordingly, the former Romanian citizens who lost Romanian citizenship before 22 December 1989 through no fault of their own, or following the abusive withdrawal of said citizenship without their consent, as well as their descendants of up to second-level kinship (i.e., grandchildren) may re-acquire, or acquire, Romanian citizenship. Applicants may then retain foreign citizenship and either establish residence in Romania or maintain it abroad as long as they meet the general requirements.

The Convention contains many provisions designed to prevent an arbitrary exercise of powers which may result in discrimination. These guarantees include: the right to a fair procedure that provides decisions in writing, within a reasonable period of time, with reasoning and legal remedy. However, ‘Hungary declares to retain the right not to apply, in accordance with the Hungarian law in force, the rule that decisions relating to the acquisition of nationality contain reasons in writing, the rule that decisions relating to the acquisition of nationality be open to an administrative or judicial review.’[23]

The EU Race Directive (Council Directive 2000/43/EC of 29 June 2000) prohibits direct and indirect discrimination[24] on grounds of racial or ethnic origin, religion or belief, disability, age and sexual orientation and contains precise definitions of direct and indirect discrimination. However, it allows certain exceptions to the principle of equal opportunities, which are defined as legitimate in a limited range of circumstances. The Race Directive implements the principle of equal treatment between persons irrespective of racial or ethnic origin, in the areas of employment (and related matters), social protection, social advantage, education and access to and supply of goods and services which are available to the public, including housing. Consequently, it does not cover differential treatment based on nationality and legal status (see the provisions and conditions relating to the entry into and residence of third-country nationals, stateless persons, refugees). The European Court of Justice is entitled to interpret the Community/EU law including the priority of provisions on Union citizenship. The ECJ has faced the consequences of nationality law of Member States in the cases of Micheletti and Rottman.

The ECJ interpreted the exclusive competence over nationality matters by Member States in Micheletti.[25] In this case, an individual with dual Argentinean and Italian nationality arrived in Spain wanting to exercise his right to freedom of establishment and to practice as an orthodontist. He was refused a residence permit by the Spanish authorities, because in such instances Spanish legislation refers to the last or effective residence, which in this case was Argentina. The ECJ ruled that nationality of one of the Member States was sufficient and that a citizen does not have to choose between the two nationalities. In fact, this judgment has strongly influenced nationality law at the EU and national levels. The ECJ highlighted that this competence must be exercised in conformity with EC law. It also emphasized that another member of the Union that imposes additional conditions on the recognition of such a nationality in order to exercise the fundamental rights provided by the EC Treaty may not restrict the effects of nationality being attributed by one Member State.

Dual nationality was also evaluated in Rottman.[26] J. Rottmann was born in Graz as a national of Austria. In 1995 he took up residence in Munich after an investigation about suspected serious fraud had been initiated against him in Graz. In February 1997 the Landesgericht für Strafsachen Graz issued a national warrant for his arrest. Rottmann applied for German nationality in February 1998 and was naturalised a year later. During the naturalisation procedure, he failed to mention the proceedings against him in Austria. His naturalisation in Germany had the effect, in accordance with Austrian law, of causing him to lose his Austrian nationality. In August 1999 the city of Munich was informed by the muncipal authorities in Graz that a warrant for Rottmann’s arrest had been issued in Graz. After hearing the applicant, the state of Bavaria withdrew the German naturalisation with retroactive effect, on the grounds that the applicant had obtained German nationality by deception. ‘It is not contrary to European Union law, in particular to Article 17 EC, for a Member State to withdraw from a citizen of the Union the nationality of that State acquired by naturalisation when that nationality was obtained by deception, on condition that the decision to withdraw observes the principle of proportionality.’[27]

However, an analysis of the ECJ cases on EU citizenship proves that nationality is a pure legal connection between a state and an individual whose ethnic origin is secondary or irrelevant in legality of this tie. In this context accession of or deprival from the nationality of a Member State must be based on legally determined, clear conditions, and direct or indirect discrimination is no longer a relevant concept – sometimes in absence of statistical data or in possession of expert evidence. Moreover, the comparability of situation is the only required criterion approaching the cases in a wider sense (Tobler 2005: 415).

Although distinctions based on nationality would be discriminatory,[28] they do not rule out the naturalisation rules, but only conditions based on nationality. (For the cases where nationality is the basis for selection, the ECHR framework provides certain guidelines, see e.g. Andrejeva v. Latvia above.) However, the whole field of nationality belongs to the sovereignty of the Member States even in a close cooperation like the EU, where the very notion of EU citizenship is derived from these nationalities: ‘wherever in the Treaty … reference is made to nationals of the Member States, the question whether an individual possesses the nationality of a Member State shall be settled solely by reference to the national law of the Member State concerned.’[29]

The exclusionary effects of Hungarian law

Due to the amendment of the Act on Hungarian Nationality, the Council of Europe was informed in brief on the legal changes as follows: ‘The main aim of the amendments is simplifying and reducing the time-frame of the procedure for the acquisition of Hungarian citizenship through naturalization or re-naturalization’ (Council of Europe 2011). This hardly captures the nature of the amendment. The accelerated naturalisation and modified re-naturalisation has followed a procedure that keeps more and more distance between the general and beneficial conditions of naturalisation.

Table 1: Categories of nationality acquisition under Hungarian law

Conditions of naturalisation	Non-preferential (normal)	Family-based preferences	International law preferences	Ethnic preferences
				prior to 2011	changes
Legal status at the time of application	Long-term residence permit (open-ended); EU citizens: registration document		Recognised refugee: Stateless	Long-term residence permit (open-ended); EU citizens: registration document	[??]
Waiting period in possession of legal status	8 continuous years before submission	3 years in marriage; no requirement for minor adopted by national	3-5 years continuous years before submission	1 continuous year before submission	2005: —-
Self-subsistence in Hungary	Housing and financial requirements met and documented (for the whole family)				2011: —–
Absence of public security risk	Clean criminal and national security record including no ongoing criminal procedures in Hungary
Constitutional exam in Hungarian	Successful exam taken in Hungarian for applicants from 18 to 65; exceptions – for health conditions or – documented qualification on the ground of curricula in Hungarian language (in practice: ethnic Hungarians attending public schools in minority language)				2011: –
Costs	Exam costs 100 €, it was reduced to 15 € 2011: upgraded to 150 €			—-	—-
Other requirements [?]				1993-2010: Applicant descendant of Hungarian citizen and declares him/herself ethnic Hungarian	2011: Applicant descendant of Hungarian citizen or able to substantiate being of Hungarian origin and proves Hungarian language ability

The European enlargement benefits EU citizens residing in the country, who are no longer considered third-country nationals. But in comparison to preferences, it has a cumulative role in the case of ethnic Hungarians from Romania, Slovakia and from the Western European diaspora or non-EU applicants married to EU citizens. In other words, the costly long-term residence authorisation that can take years could be avoided by ethnic Hungarian applicants.

The rightmost column in Table 1 demonstrates how re-naturalisation also departs from residence criteria if replaced by the language (cultural proximity) condition. While the language ability for applicants who have never held Hungarian citizenship would be a test of the integration process, its role is unclear for re-naturalisation. Both criteria serve to weaken civic nationalism – a political identity independent of ethnicity – and screen out non-ethnic applicants. We have to add that language ability is not assessed in a standardised way, but based on the discretion of the nationality authority (Tóth 2010). According to the executive rules, Hungarian language ability shall be confirmed or denied by the proceeding authority taking into account the oral communication during submission, there is no detailed testing method or assessment.

The available statistical data proves that ethnically based cases largely outnumber other naturalisation applications (the former making up over 70 percent of applicants). The non-preferential cases since the entry of the Act in 1993 have fallen below 8 percent of all applications, thus these are in fact exceptional. Furthermore, preferences based on family heritage or international law (about one-fifth of naturalisations) were also used for a hidden ethnic benefit (e.g., reception and naturalisation of refugees from Romania, Serbia and Croatia in the last two decades) (Kovács et al. 2009).

Table 2: Naturalisations in Hungary

Reasons of naturalisation (persons)	2002	2003	2004	2005	2006
	2002	2003	2004	2005	2006
Married to national	437	671	662	1239	722
Minor of national	260	416	374	802	459
Adopted by national	36	21	26	33	18
Recognised refugee/stateless	60	91	75	80	47
Sub-total	793	1199	1137	2154	1246
Ethnic preference	1948	3197	3427	6615	3717
Non-preferential (normal)	238	301	314	155	440
Total naturalisations	??

Source: Central Statistical Office’s yearbook of Population www.ksh.hu

As a result of the amendment of 2010 the gap widened drastically, making non-preferential cases even more exceptional. While the number of authorised acquisition of all foreigners is below 10,000 persons per year, the modified act attracts (ethnic) applicants: during the first six weeks of 2011 the total number of applications was over 30,000. This is desired and projected – assuming about 400,000 applicants in 2011 – so the Office for Immigration and Naturalisation (OIN) was restructured, recruiting an additional 200 civil servants to the existing 70 employees in the citizenship section of the OIN, and given additional funding. The cost of processing applications is calculated as €1.4 million within two budget years. This financial injection provides setting up a network of free counselling for ethnic applicants in the neighbouring states (Háromszék 2011).

The most important element of the 2011 amendment is the abolition of the residency requirement for ethnic Hungarians. Assessing all of the effects of this change would go beyond the scope of the present article. However, as a former Hungarian government official and current MEP expressed in the debates following the adoption of the 2001 Status Law: ‘The Hungarian Foreign Minister […] rejected any idea related to granting dual citizenship to ethnic Hungarians living abroad – this would be almost impossible also because of the accession negotiations with the EU’ (Gál 2002). Things have changed since this statement was made in 2002, although the same prime minister and foreign minister remain in office. However, the concerns in the statement remain the same. As Hans Ulrich Jessurun D’Oliveira argued, granting external citizenship in large numbers can violate the solidarity principle of the EU (Ulrich et al. 1999: 406-407).

Consequences

The whole history and practice of the Act on Hungarian Nationality means a continuation of nation-building and ethnic citizenship that implicitly tells non-Hungarian migrants to remain at home. Naturalisation is separated at least in part from the migrants’ integration, and citizenship is considered as part of social and political integration only for non-ethnic migrants. This separation means also that linkage to the state of nationality is required only from non-ethnic applicants. How could this fit the common European migration policy?

The exclusionary effect of naturalisation in general has remained because the procedure of acquisition of nationality or authorisation has not been transparent. State sovereignty trumps the right to fair procedure (rendering decisions within a reasonable time, giving the reasons and assuring the right to appeal). In case of applications en masse, the emphasis is given to the costless procedure and accelerated ethnic naturalisation (within three to six months).

The differentiating consequences include that some home states of the ethnic applicants refuse to recognise dual nationality (Ukraine, Slovakia, Austria) while the others tolerate the intentional acquisition. However, the loss of original nationality would provide uneven situation (see the Rottmann case) including deprivation of public offices and labour in public sector. For instance, this can result in the loss of office for a public servant who was granted Hungarian citizenship.

The preferential naturalisation that eliminated the residence requirement for ethnic Hungarians would attract third-country nationals using ethnic and national origin as well as descendant ties. By obtaining EU citizenship, they immediately can use the rights of free movement, employment and all other aspects of equal treatment. This is especially problematic for Romanian citizens under the temporary measures and limitation (2007–2014) in free movement of workers. This allows for a possible abuse of EU law for dual Romanian-Hungarian nationals.

Without listing all the rules of the EU that are based on the population of a Member State (such as seats in the EP, GDP per capita to the cohesion funds), the explosion of the number of nationals, without prior consent of partners or in absence of clarification during the accession procedure, would be a formal violation of EU law. On the other hand, the number of nationals (persons who acquired citizenship residing in Hungary, non-residents, new citizens without identity cards, migrating nationals inside the EU) is registered only in part. The population registry has to be modernised and its provisions would be amended if it were possible to set up rules on accounting dual/multiple nationality holders. However, a bill has been submitted to the Hungarian Parliament modifying the Act on Population Registry (Ministry of Public Administration and Justice 2011). Accordingly, it will cover new nationals regardless of their Hungarian residence, dual/multiple nationality, postponed oath (required to take as a newly re/naturalised person), while the birth registration of nationals born abroad (about 12,000 to 15,000 babies per year, 10 percent of the annual birth rate) is not synchronised with the population database (on the address and personal data of residents). However, the population registry is the basis of the list of voters at general elections. New nationals will appear on the population registry, administratively increasing the population that just fell below 10 million.

Finally, we raise the question of how the rule of single voting requirement towards EU citizens at municipal and European Parliament elections will be respected in Hungary. As is obvious, the modification of the Act on Nationality is partly targeted to the enlargement of the voting base or to maximise the efficiency of Hungary’s nation-building policy (Tóth 2009). Amendments to nationality law are an unusual tool for extending the voting base, as opposed to, for example, the Austrian amendment reducing the voting age to 16.

As the president of a Hungarian cultural alliance in Ukraine noted recently, those ethnic Hungarians who had been trying to get Hungarian citizenship for years and were ‘stuck between the Chinese and the Vietnamese, standing the humiliating treatment by Hungarian officials’, now will immediately be granted this citizenship (Bumm.sk 2011). This minority leader is (together with the applicants he referred to) most likely right to criticize the degrading attitude of state officials. However, paradoxically enough, the move of the Hungarian government that further distanced the preferential procedure from the standard one made it even less probable that the humanisation of general naturalisation rules, applied in the case of non-ethnic Hungarians that actually reside in the country, will ever make it to the national political agenda.

References

Act on Nationality (2010), Act LV of 1993 amended by the Act XLIV of 2010, entered into force on 1 January 2011.

Amendment (2011), Ministry of Public Administration and Justice, February 2011, No. T/1229.

Bumm.sk (2011), ‘Valószínűtlen az ukrán állampolgársági törvény szigorítása’, Bumm.sk, 21 February 2011. <http://www.bumm.sk/52235/valoszinutlen-az-ukran-allampolgarsagi-torveny-szigoritasa.html>, accessed 16 March 2011.

Council of Europe (2011), ‘Communication contained in a letter from the Permanent Representative of Hungary, dated 13 December 2010’, in List of declarations made with respect to treaty No. 166 registered at the Secretariat General on 14 December 2010. <http://conventions.coe.int/Treaty/
Commun/ListeDeclarations.asp?NT=166&CM=8&DF=23/02/2011&CL=ENG&VL=1>, accessed 26 April 2011.

D’Oliveira, Hans Ulrich Jessurun (1999), ‘Nationality and the European Union after Amsterdam’, in Legal issues of the Amsterdam Treaty, ed. David O’Keeffe and Patrick M. Tworney, Hart Publishing.

EUDO Citizenship News on Dual Citizenship (2010), Dual citizenship for transborder minorities? How to respond to the Hungarian-Slovak tit-for-ta, Forum debate about dual citizenship for trans-border minorities. <http://eudo-citizenship.eu/citizenship-forum/322-dual-citizenship-for-transborder-minorities-how-to-respond-to-the-hungarian-slovak-tit-for-tat>, accessed 16 March 2011.

European Commission for the Democracy Through Law (2001), ‘Report on the preferential treatment of national minorities by their kin-state’ adopted by its 48^th Plenary Meeting, Strasbourg, 22 October 2001 (CDL-INF (2001) 19, Venice, 19/20 October 2001.

Gál, Kinga (2002), The Hungarian Legislation on Hungarians Living in Neighbouring Countries, Venice Commission: European Commission for Democracy through Law. <http://www.venice.coe.int/docs/2002/CDL-STD(2002)032-bil.asp#_Toc182392411>, accessed 16 March 2011.

Háromszék (2011), Tudósítás, <www.3szek.ro/print2.php?id=36711>, accessed 16 March 2011.

Kovács, M. Mária and Tóth, Judit (2009), ‘Kin-state responsibility and ethnic citizenship: The Hungarian case’, in: Citizenship Policies in the New Europe. Expanded and Updated Edition. Ed. by Rainer Bauböck, Bernhard Perchinig and Wiebke Sievers, Amsterdam University Press, pp. 151–176.

Ministry of Public Administration and Justice (2011), No. T/1229.

Tobler, Christa (2005), Indirect Discrimination. A Case Study into the Development on the Concept of Indirect Discrimination under the EC Law, Insertia, Oxford, Social Europe Series No.10.

Tóth, Judit (2010), Ethnic Citizenship – Can it be Obtained and Tested?, in: A Re-definition of Belonging?, ed. by Van Oers, Ersbøll and Kostakopoulou, Koninklijke Brill NV., The Netherlands, pp. 211–240.

Tóth, Judit (2009), ‘The Impacts of EU Enlargement on National Building and Citizenship Law’, in: Illiberal Liberal States – Immigration, Citizenship and Integration in the EU, ed. by Elspeth Guild, Kees Groonendijk and Sergio Carrera. Ashgate, England, pp. 101–112.

Tóth, Judit (2002), ‘A státustörvényről – A Velencei Bizottság véleménye és a magyar jog tükrében’, in: A státustörvény – Előzmények és következmények, ed. by Zoltán Kántor. Teleki László Intézet, Budapest, p. 57-69.

Venice Commission (2001), European Commission for the Democracy Through Law, Strasbourg, 22 October 2001 (CDL-INF (2001) 19 Report on the preferential treatment of national minorities by their kin-state adopted by its 48^th Plenary Meeting (Venice, 19/20 October 2001).

Case law

Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May [1985], Series A, No. 94.

Andrejeva v. Latvia, No. 55707/00, [18 February 2009].

6. H. v. Czech Republic. The Grand Chamber judgment: D.H. and Others v. Czech Republic, No. 57325/00 Grand Chamber Judgment of [13 November 2007]. (The first judgment with the opposite conclusion: D.H. and Others v. Czech Republic, No. 57325/00, Judgment of 7 February 2006.)

East African Asians v. United Kingdom, No.’s 4403/70-4419/70, 4422/70, 4423/70, 4434/70, 4443/70, 4476/70-4478/70, 4486/70, 4501/70 and 4526/70-4530/70 (joined), [Dec. 14 December 1973], D.R. 78-A.

Family W. and K. v. Netherlands, No. 11278/84, Dec. [1 July 1985], D.R. 43.

Grunkin and Paul v. Standesamt Niebüll Case C-353/06, [2008] ECR I-07639

Janko Rottmann v. Freistaat of Bayern Case C-135/08,[2010] ECR I-0000 on 2 March 2010.

Karassev v. Finland , dec., No. 31414/96, ECHR 1999-II.

Kurić and Others v. Slovenia, Application No. 26828/06, Third Section, judgment of [13 July 2010].

3. v. Austria, No. 5212/71, Commission decision of [5 October 1972], DR 43.

[1]     Act LV of 1993 was amended by the Act XLIV of 2010 and entered into force 1st January 2011.

[2]     EUDO CITIZENSHIP has a forum dedicated to the debate on the amendment and dual citizenship for transborder minorities: http://eudo-citizenship.eu/citizenship-forum/322-dual-citizenship-for-transborder-minorities-how-to-respond-to-the-hungarian-slovak-tit-for-tat

[3]     It is based on ‘any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status’ (CITE).

[4]     (1) The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. (2) No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph (1).

[5]     (1)The rules of State Party on nationality shall not contain distinctions or include any practice which amount to discrimination on the grounds of sex, religion, race, colour or national or ethnic origin. (2) Each State Party shall be guided by the principle of non-discrimination between nationals, whether they are nationals by birth or have acquired its nationality subsequently.

[6]     TEU Art 3(3), Art 6(3), TFEU Art 10, Art 19.

[7]     (1) Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited. (2) Within the scope of application of the Treaties and without prejudice to any of their specific provisions, any discrimination on grounds of nationality shall be prohibited.

[8]     Andrejeva v. Latvia, No. 55707/00, 18 February 2009.

[9]     Family W. and K. v. Netherlands, No. 11278/84, Dec. 1 July 1985, D.R. 43, p. 216 – 221.

[10]    Application No. 26828/06, Third Section, judgment of 13 July 2010.

[11]    Kurić and Others v. Slovenia (No. 26828/06, Third Section, judgment of 13 July 2010), p. 395.

[12]    More precisely those who ‘had acquired permanent resident status in Slovenia by 23 December 1990, the date of the plebiscite), were in fact residing in Slovenia, and applied for citizenship within six months after the Citizenship Act entered into force. [… This] deadline expired on 25 December 1991.’ Kurić and Others v. Slovenia, p. 35.

[13]    A track that the Court did follow in the case of D. H. v. Czech Republic. The Grand Chamber judgment: D.H. and Others v. Czech Republic, No. 57325/00 Grand Chamber Judgment of 13 November 2007. (The first judgment with the opposite conclusion: D.H. and Others v. Czech Republic, No. 57325/00, Judgment of 7 February 2006.)

[14]    Karassev v. Finland , dec., No. 31414/96, ECHR 1999-II.

[15]    X. v. Austria, No. 5212/71, Commission decision of 5^th October 1972, DR 43, p. 69.

[16]    No.’s 4403/70-4419/70, 4422/70, 4423/70, 4434/70, 4443/70, 4476/70-4478/70, 4486/70, 4501/70 and 4526/70-4530/70 (joined), Dec. 14 December 1973, D.R. 78-A.

[17]    28 May 1985, Series A, No. 94.

[18]    So far the Protocol has been ratified by 18 countries and signed but not ratified in 19 additional states. Hungary belongs to the latter group.

[19]    See paragraph 22 of the Explanatory Report.

[20]             Recommendation 1081 (1988) on problems of nationality in mixed marriages desires that spouses in a mixed marriage have the right to acquire the nationality of the other without losing their nationality of origin. Furthermore, children born from mixed marriages should also be entitled to acquire and keep the nationality of both of their parents.

[21]             Its Article 4 (1) prohibits discrimination on the ground of belonging to a national minority.

[22]             It covers spouses of its nationals; children of one of its nationals, children one of whose parents acquires or has acquired its nationality; children adopted by one of its nationals; stateless persons and recognised refugees lawfully and habitually resident on its territory; persons who were born on its territory and reside there lawfully and habitually; persons who are lawfully and habitually resident on its territory for a period of time beginning before the age of 18, that period to be determined by the internal law of the State Party concerned.

[23]    Reservation contained in the instrument of ratification, deposited on 21 November 2001.

[24]    Indirect discrimination allows challenges to apparently neutral provisions, criteria or practices which would disadvantage persons of a particular race or ethnic origin unless there is objective justification involving a legitimate aim and the means use to achieve that aim are appropriate and necessary (the proportionality test).

[25]    Case C-369/90, 7 July 1992

[26]             Janko Rottmann v. Freistaat Bayern Case C-135/08, 2 March 2010.

[27]    Janko Rottmann v. Freistaat Bayern Case C-135/08, 2 March 2010.

[28]    ECJ Case C-353/06, Grunkin and Paul.

[29]    Annexed declaration to the 1992 EU Maastricht Treaty, 7 February 1992, O.J. C 224/1.

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