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Official Gazette

Tuesday, June 15, 2021

Tackling the issue of dual citizenship

Updated: 10:11’ - 01/07/2009

Nguyen Van Toan, LL.M
Deputy Director
Department of Administration and Justice
Ministry of Justice

The 1998 Law on Citizenship comprehensively governed the social relationship of citizenship, including individuals’ right to citizenship, the principle of sole citizenship, relationships between the state and citizens, avoidance of statelessness, protection of overseas Vietnamese, citizenship of spouses, grounds for determining persons possessing Vietnamese citizenship and those losing Vietnamese citizenship, change of citizenship of minors and adopted children, and competence and procedures for dealing with citizenship matters.

Over the past 10 years, the Law on Citizenship has served as a legal basis for establishing and certifying the bond between individuals and the Socialist Republic of Vietnam, ensuring the exercise of rights and fulfillment of responsibilities of Vietnamese citizens, asserting the State’s duties towards citizens, and enhancing the attachment between the Socialist Republic of Vietnam and its citizens, both at home and abroad. Nevertheless, the law has revealed a number of limitations.

These have been addressed in the 2008 Law on Citizenship passed by the National Assembly on November 13, 2008. The new law takes effect on July 1, 2009.

Under Article 3 of the 1998 Law, Vietnam recognized that Vietnamese citizens possess a sole nationality, namely Vietnamese nationality. Clause 3, Article 30 of the Law stipulated: “Foreign citizens will no longer retain their foreign citizenship upon acquisition of Vietnamese citizenship, except in special cases as decided by the President.” The Law did not provide whether Vietnamese citizens who acquire foreign citizenship would automatically lose Vietnamese citizenship. Therefore, rigid application of the sole citizenship principle resulted in a number of Vietnamese citizens residing in other countries which do not apply this principle, such as France, the USA and Australia, acquiring foreign citizenship without having to renounce their Vietnamese citizenship. These Vietnamese citizens bear dual citizenship. As regards children’s citizenship, there are also disparities between Vietnamese law and foreign law concerning the application of citizenship principles based on bloodline and place of birth. The 1998 Law did not prescribe resolution of conflicts related to dual citizenship, giving rise to disputes over the protection of citizens between Vietnam and other countries, especially in the application of civil, criminal or administrative law to Vietnamese citizens who simultaneously possess another citizenship and violate Vietnamese law. Vietnamese authorities often felt confused when dealing with administrative, civil and commercial affairs related to persons of dual citizenship. As such, the application of the sole citizenship principle under the 1998 Law without any accompanying mechanisms for retention or automatic loss of Vietnamese citizenship has resulted in Vietnamese citizens residing overseas continuing to bear multiple nationalities.

The sole citizenship principle has also caused problems in the acquisition of Vietnamese citizenship by foreigners who settle in Vietnam. Under this principle, those who wish to acquire Vietnamese citizenship must renounce their foreign citizenship. In fact, foreigners who have long resided in Vietnam (refugees and free immigrants) found it very difficult to apply for certificates of renunciation of foreign citizenship and, in most cases, could not obtain such a certificate for various reasons.

Keeping track of everyone

The listing and administration of overseas Vietnamese is difficult and problematic. At present, the number of overseas Vietnamese is estimated at 3-4 million but no statistics are available on how many of them possess foreign citizenship, how many have been able to acquire foreign citizenship after they are permitted by the President to renounce Vietnamese citizenship and how many have become stateless. One reason is that we do not have effective mechanisms for registration of overseas Vietnamese or registration of retention of Vietnamese citizenship at overseas Vietnamese representative missions. We cannot even compile a complete and detailed list of those who have acquired foreign citizenship and are living overseas but have not yet renounced Vietnamese citizenship, such as Vietnamese brides in Taiwan and South Korea. The Vietnamese representative missions in these countries only have the figures supplied by foreign authorities but do not have complete lists and specific addresses of these persons. Due to lack of statistics and poor administration, functional agencies have so far met with numerous difficulties in handling criminal and administrative cases, including abuses by some to enjoy domestic incentives (in home ownership, investment, etc.).

It is provided by law that the Vietnamese State protects overseas Vietnamese citizens, but there are no effective mechanisms for such protection and such protection has been granted in very few cases.

There is no unified database on citizenship. Under Clause 1, Article 34 of the 1998 Law, the Ministry of Justice was assigned to assist the Government in performing duties specified in Article 33, including collecting official statistics on Vietnamese citizenship. However, under this Law, provincial-level People’s Committees and overseas Vietnamese representative missions were also competent to consider and grant certificates of Vietnamese citizenship and certificates of loss of Vietnamese citizenship. In the absence of a mechanism for coordinating these agencies, the Ministry of Justice was unable to build a unified database on citizenship. For this reason, the consideration and grant of certificates has met with difficulties and relied on unreliable data. In the past, many overseas Vietnamese have requested that overseas Vietnamese representative missions grant certificates of Vietnamese citizenship and passports. These missions had to rely on domestic justice agencies and police offices to verify these requests but such verification was also difficult because many of these persons left the country many years ago, even two or three generations back, and their origins were hard to trace.

There remain many stateless persons in Vietnam. Article 8 of the 1998 Law stated: “The Socialist Republic of Vietnam creates conditions for children born in the territory of Vietnam to acquire citizenship and stateless persons permanently residing in Vietnam to acquire Vietnamese citizenship.” Article 20 of this Law stipulated that procedures for stateless persons to acquire Vietnamese citizenship were similar to those applicable to foreigners naturalized in Vietnam, without any exemption from or reduction of conditions and procedures. The numbers of stateless persons and those with unknown citizenship residing in Vietnam are high, mostly in mountainous and border areas. It is very difficult for these persons to complete procedures for acquiring Vietnamese citizenship.

The citizenship of a portion of inhabitants in border areas following border demarcation under boundary delimitation agreements with neighboring countries is an issue to be addressed. Recent years saw an adjustment of the borders between Vietnam and neighboring countries under which a number of citizens of neighboring countries found themselves residing within Vietnamese territory after the demarcation. These agreements do not stipulate whether these persons would automatically have Vietnamese citizenship, so if they want to acquire it (most are poor ethnic people ignorant of civil status and citizenship issues), they must carry out necessary procedures. This issue has been settled at a snail’s pace because they must meet all required conditions, such as having a certificate of Vietnamese language, a certificate of renunciation of original citizenship, and payment of a high fee relative to their income level.

Point d, Clause 1, Article 8 of Decree No. 104/1998/ND-CP states that foreigners who want to acquire Vietnamese citizenship must possess a certificate of Vietnamese language skills (except in cases eligible for exemption). In practice, most of those wishing to be naturalized in Vietnam have lived in Vietnam for a long time and know Vietnamese sufficiently to integrate into Vietnamese society (as per Point c, Clause 1, Article 20 of the 1998 Law). The requirement that these persons must obtain a certificate of Vietnamese language skills granted by the School of Social Sciences and Humanities of the National University (according to Joint Circular No. 09/1998/TTLT-BGD&DT-BTP) is troublesome and infeasible because the School must hold exams and these foreigners, most of whom are poor, mainly living in mountainous and border areas adjoining Lao and Cambodia, cannot afford to sit for these exams. To solve this problem, the Ministry of Justice has reached agreement with concerned ministries on exempting these persons from this certificate. When receiving applications, provincial-level Justice Services should hold interviews to test applicants’ Vietnamese language skills. On the other hand, as Vietnam is a multinational state and its nationalities have the right to use their own spoken and written languages (Article 5 of the 1992 Constitution), the Vietnamese language condition under the citizenship law should be understood to include ethnic minority languages used in areas in which applicants reside.

In the practical settlement of applications for acquisition of Vietnamese citizenship lodged by Cambodian refugees and immigrants who have lived for many years in Vietnam, it is impossible for them to obtain certificates of renunciation of Cambodian citizenship. Many declared themselves to be Cambodian but did not have any papers proving their Cambodian origin so Cambodian authorities refused to grant certificates. On the other hand, if we strictly apply the sole citizenship principle, these persons could never acquire Vietnamese citizenship. In addition, there are also large numbers of Lao people living in 10 provinces bordering on Laos who aspire to acquire Vietnamese citizenship but are unable to obtain certificates of renunciation of Lao citizenship.

Under Chapter II of Decree No. 104/1998/ND-CP, procedures and order for settling citizenship matters remain cumbersome and repetitive, involving many intermediary steps. In many cases, it has taken as long as 12 months for processing citizenship dossiers lodged abroad.  In addition, these dossiers need to be verified by police offices, which could take up to six months. Therefore, the actual time for processing citizenship dossiers has often been prolonged compared to the time limits set by law. In the past, the number of applications for renunciation of Vietnamese citizenship was rather high but most of them could not be settled within the prescribed time limit. The number of foreign nationals and stateless persons permitted to acquire Vietnamese citizenship was very small compared to the numbers of lodged applications because the procedures involved were complicated, posing difficulties to both citizens and authorities.

Greater flexibility

Since the promulgation of the 1998 Law, Vietnam has seen significant changes in socio-economic development and its international status has been enhanced. Issues relating to citizenship should be reformed accordingly. The 2008 Law offers fundamental solutions to overcoming the limitations in the 1998 Law.

The 2008 Law continues to uphold the sole citizenship principle but in a more flexible way. Exceptional cases of dual citizenship are specified in the Law, including cases permitted by the President upon acquisition of Vietnamese citizenship (Clause 3 of Article 19) and application for restoration of Vietnamese citizenship (Clause 5 of Article 23); citizenship of adopted children (Article 37) and cases in which overseas Vietnamese who have acquired foreign citizenship but still aspire to retain their Vietnamese citizenship (Clause 2 of Article 13).

The 2008 Law clearly stipulates that overseas Vietnamese who have not yet lost Vietnamese citizenship under Vietnamese law before the effective date of the new Law still possess Vietnamese citizenship and, within five years from the effective date of the Law, must register with Vietnamese representative missions in the countries in which they reside in order to retain Vietnamese citizenship (Clause 2 of Article 13).

Registration to retain Vietnamese citizenship is a specific measure to enable the Vietnamese state to know how many of over three million overseas Vietnamese wish to retain their Vietnamese citizenship status in order to properly perform administration of nationality issues and protect its citizens while implementing other policies regarding overseas Vietnamese.

The 2008 Law adds that non-registration to retain Vietnamese citizenship is a ground for determining loss of Vietnamese citizenship (as per Clause 3 of Article 26).

The 2008 Law stipulates that stateless persons who possess insufficient identity papers but have stably resided in Vietnamese territory for 20 years or more by the effective date of the Law and abide by the Constitution and laws of Vietnam are permitted to acquire Vietnamese citizenship according to procedures prescribed by the Government (Article 22).

This provision enables the Government to take the initiative in settling the naturalization of these persons according to simple procedures while still ensuring the President’s competence to permit acquisition of Vietnamese citizenship.

Papers evidencing citizenship were specified in Article 11 of the 1998 Law. However, the 2008 Law contains more detailed provisions, dropping some papers and requiring some others, including decisions recognizing child adoption (for foreign children) and decisions permitting foreigners to adopt Vietnamese children.

Article 12 of the 2008 Law stipulates that issues arising from the status of Vietnamese citizens who simultaneously possess foreign citizenship will be settled under treaties to which the Socialist Republic of Vietnam is a party. Where such treaties are unavailable, these issues will be settled according to international custom and practice.

Under Clause 2, Article 17 of the 1998 Law, a child either of whose parents is a Vietnamese citizen will acquire Vietnamese citizenship if it is so agreed in writing by his/her parents at the time of birth registration. In practice, there emerged a question of which citizenship a child would acquire if, at the time of birth, his/her parents could not reach agreement on the citizenship of the child. To address this, the 2008 Law adds a provision that for a child born in Vietnamese territory whose parents cannot reach agreement on his/her citizenship will have Vietnamese citizenship. This provision aims to protect the interests of children, preventing the problem that children born within Vietnamese territory are stateless.

Compared to the conditions for restoration of Vietnamese citizenship defined in Article 21 of the 1998 Law, the 2008 Law provides additional cases in which restoration of Vietnamese citizenship is permitted, including those who make investment in Vietnam and who have renounced Vietnamese citizenship but are not permitted to acquire foreign citizenship. This aims to create favorable conditions for persons of Vietnamese origin making investment in their homeland to enjoy investment incentives like Vietnamese nationals. It also deals with the existing problem that many persons who have been permitted to renounce Vietnamese citizenship cannot acquire foreign citizenship.

The 2008 Law also adds conditions for restoration of Vietnamese citizenship for persons who have been deprived of Vietnamese citizenship, provisions on Vietnamese names of those who want to restore their Vietnamese citizenship, and other specifies cases in which persons may be permitted by the President to retain foreign citizenship.

The 1998 Law contained provisions on the grant of certificates of citizenship or loss of citizenship. The past has showed that the need for these certificates was scant. To ascertain a person having or losing Vietnamese citizenship, a decision of the President is enough. In addition, Vietnamese nationals can use passports to prove their nationality. Therefore, in order to simplify procedures and paperwork, the 2008 Law removes provisions on the grant of these certificates.

Compared to the 1998 Law, the 2008 Law makes additional provisions on the process and procedures for settling citizenship matters, such as those for processing applications for acquisition and restoration of Vietnamese citizenship; for deprivation of Vietnamese citizenship and cancellation of decisions permitting acquisition of Vietnamese citizenship. For every matter, the Law specifies documentation to be submitted (Articles 20, 24 and 28) and the process of handling applications at provincial and central levels. Accordingly, those who wish to restore or renounce Vietnamese citizenship should lodge applications at provincial-level Justice Services in the localities where they reside. Those who are staying abroad may filed their dossiers with overseas Vietnamese representative missions. Provincial-level Justice Services will then send written requests to provincial-level Police Departments to verify the personal details of the applicants. After receiving the police verification, provincial-level Justice Services will complete the dossiers and submit them to provincial-level People’s Committee presidents for consideration and further submission to the Ministry of Justice. For applications submitted to overseas Vietnamese representative missions, these missions will be responsible for conducting verification and sending the application dossiers to the Ministry of Foreign Affairs for forwarding to the Ministry of Justice. After receiving application dossiers from provincial-level People’s Committee presidents or overseas Vietnamese representative missions, the Ministry of Justice will examine the dossiers, carry out necessary procedures and report the cases to the Prime Minister for submission to the President for consideration and decision.

The 1998 Law did not touch upon procedures for dealing with citizenship matters, which were later stipulated in Government Decree No. 104/ND-CP of December 31, 1998. The 2008 Law clearly defines these procedures, specifying the process, procedures and time limits for processing dossiers at each responsible agency.

The 2008 Law also specifies time limits for each agency responsible for processing dossiers. Accordingly, the maximum time for dealing with the adoption of Vietnamese citizenship at provincial and central levels is 115 days (excluding the time for supplementation of dossiers by applicants); for the restoration of Vietnamese citizenship, 85 days, for dossiers lodged in the country, or 70 days, for dossiers lodged overseas; for the renunciation of Vietnamese citizenship, 80 days, for dossier filed with provincial-level Justice Services, or 65 days, for dossiers lodged overseas. These time limits do not include the time of sending dossiers.

In sum, the 2008 Law on Citizenship directly addresses the relationships between individuals and the state, giving rise to the rights and obligations of Vietnamese citizens toward the Vietnamese State and the rights and duties of the Vietnamese State toward its nationals. It provides important legal bases for settling citizenship matters and appropriate mechanisms for dealing with the citizenship of stateless persons who have stably resided within Vietnamese territory and Vietnamese citizens who simultaneously possess foreign citizenship, and implementing the policy to protect Vietnamese citizens abroad, making important contributions to materializing the policy of great national unity of the Party and State of Vietnam.-

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