Montenegro

Montenegro’s record on accession to relevant human rights instruments is good, although it has not acceded to the Convention on the Rights of Migrant Workers and retains a reservation to the European Convention on Nationality. State agencies record some data on stateless people, but this is not digitalised nor publicly available and data on the population at risk of statelessness is limited. Montenegro introduced a statelessness determination procedure (SDP) in 2018, but this does not lead to a dedicated statelessness status. The SDP is not implemented consistently across the country and evidentiary requirements are not yet set in law. Applicants to the SDP have access to some rights while they await a decision, and some procedural safeguards are in place. Recognition of statelessness does not automatically lead to rights such as residence and the right to work.

There are gaps in safeguards to prevent the arbitrary detention of stateless people. Detainees do not have access to the SDP and are not granted rights upon release to prevent re-detention. There are some safeguards in law to prevent childhood statelessness, including in the case of foundlings, adopted children, children born abroad to Montenegrin parents, and children born on the territory to stateless parents or those of unknown nationality. Birth registration is automatic by law, but minoritized groups including Roma and Egyptians are disproportionately impacted by practical barriers to birth registration. Deprivation of nationality is permitted in law and practice, but there are safeguards to prevent statelessness.

Last updated: 
Feb 2022
Next scheduled update: 
Mar 2023
Country expert(s): 

Phiren Amenca – Walk with Us

Additional resources

ASSESSMENT KEY

++POSITIVE
+ SOMEWHAT POSITIVE
+-POSITIVE and NEGATIVE
- SOMEWHAT NEGATIVE
--NEGATIVE

ADDITIONAL INFO

-NORMS & GOOD PRACTICE

 

International and Regional Instruments

Assesses whether countries are State Party to the relevant international and regional instruments, including whether reservations have an impact on statelessness, and whether instruments are incorporated into domestic law. The four core statelessness treaties (1954 Convention relating to the Status of Stateless Persons; 1961 Convention on the Reduction of Statelessness; European Convention on Nationality; Council of Europe Convention on the Avoidance of Statelessness in Relation to State Succession) carry more weight than other relevant human rights instruments in the assessment.

Montenegro is State Party to both the 1954 and 1961 statelessness conventions. It is also Party to the European Convention on Nationality but maintains a reservation precluding dual nationality. Montenegro is Party to all other relevant international instruments except for the Convention on the Rights of Migrant Workers and their Families, which it has signed but not acceded to.  Despite not being a member of the European Union, Montenegro has incorporated the standards established by the EU Return Directive into national law.

  • Montenegro is State Party to the 1954 Convention with no reservations and the Convention has direct effect.
  • Montenegro is State Party to the 1961 Convention with no reservations and the Convention has direct effect.
  • Montenegro is State Party to the European Convention on Nationality, but it maintains a reservation to Article 16, which precludes dual nationality.
  • Montenegro is State Party to the Council of Europe Convention on the Avoidance of Statelessness in Relation to State Succession and to all other relevant international instruments without reservations, except for the Convention on the Rights of Migrant Workers, which it has signed but not acceded to.
  • Although Montenegro is not an EU Member State, it has incorporated the standards established by the EU Return Directive in its legislation.

Statelessness Population Data

Examines the availability and sources of disaggregated population data on statelessness. Provides recent figures and assesses reliability of measures countries have in place to count stateless persons, including in the census, population registries, and migration databases. Notes whether statelessness has been mapped in the country and whether there are sufficient measures in place to count stateless persons in detention.

Disaggregated data on the statelessness determination procedure in Montenegro is recorded by the Ministry of Interior, but these records are not maintained digitally nor made publicly available. The census, last carried out in 2011, contains a category ‘no nationality’ which is disaggregated by place of birth. There is only limited data available on the population at risk of statelessness in Montenegro. In 2020, UNHCR and the Government carried out a mapping of refugees from the Former Yugoslavia in Montenegro, which confirmed widespread lack of documentation, especially among Roma and Egyptian communities. Data is collected, but not published, on individuals held in immigration detention but statelessness is not recorded.

  • The Ministry of the Interior records the number of travel documents issued to people determined to be stateless, disaggregated by gender, age, place of residence, and other data. However, the data is only recorded in a written file and not electronically.
  • As of February 2022, nine people had been recognised as stateless in Montenegro, and 13 applications were pending.  No official records are available for people at risk of statelessness.
  • The last population census in 2011 included a category 'no nationality'. According to the census, 4,312 people declared they did not have any nationality, and 3,471 of those claimed to have been born in Montenegro.
  • The law does not define other potentially overlapping data categories, but, in practice, the terms “unknown nationality” and “unknown citizenship” are used by officials and in the Central Population Register.
  • UNHCR reported a total of 472 people under its statelessness mandate in Montenegro at the end of 2020.
  • In November 2017, the Government and UNHCR jointly carried out an exercise to map refugees from the Former Yugoslavia in Montenegro, which covered 2,318 people. The mapping confirmed that lack of documentation remains widespread, especially among Roma and Egyptian communities, and identified at least 450 people at risk of statelessness.
  • Since a refugee status determination procedure was established in Montenegro, less than 10 people have applied for asylum in the country. According to EUROSTAT, since 2017 only one asylum applicant was recorded as ‘stateless’.
  • The Montenegrin Police keep electronic records on people held in immigration detention, but this data is not published, and it does not include data on stateless people held in immigration detention.
  • The competent authorities do not record and publish figures on people released from immigration detention.
  • There is anecdotal evidence that some stateless people have been detained in Montenegro and released shortly after, with the obligation to periodically report to the Police.

Statelessness Determination and Status

Identifies whether countries have a definition of a stateless person in national law that aligns with the 1954 Convention, and whether they have a dedicated statelessness determination procedure (SDP) leading to a dedicated stateless status. If an SDP is not place, it assesses whether there are other procedures in which statelessness can be identified or other routes through which stateless people could regularise their stay or access their rights. Countries are subdivided in three groups to enable comparison between those with an SDP leading to protection, those with other procedures, and those with a stateless status but no clear mechanism to access protection. The existing procedures and rights granted to stateless persons are examined and assessed against international norms and good practice.

The definition of a stateless person in Montenegrin law is narrower than in the 1954 Convention but the Convention has direct effect. Montenegro introduced a statelessness determination procedure (SDP) in 2018, but this does not lead to a dedicated statelessness status. The SDP is not implemented consistently across the country, limiting access. The standard of proof in the SDP is shared between the applicant and the authorities and is similar to that in the asylum procedure; however, evidentiary requirements are not yet set in law. Decisions on statelessness applications are given in writing, within 6 months, but other procedural safeguards are lacking. Applicants are entitled to reside in Montenegro while awaiting the decision, but they are not entitled to work nor other socio-economic rights. Negative decisions can be appealed. Positive decisions do not automatically result in a right to residence nor other 1954 Convention rights.

  • Montenegrin law defines a stateless person as “a person who is not considered as a national by any State in accordance with its legislation”, which is narrower than the 1954 Convention definition.
  • The 1954 Convention exclusion clauses have not been transposed into national law.
  • However, as international treaties take primacy over national legislation in Montenegro, the Convention may be directly implemented.
  • Ad hoc training is organised by the Ministry of Interior and UNHCR for public officials who are in direct contact with stateless persons, and for decision-makers responsible for assessing applications under the statelessness determination procedure (SDP).
  • The Government has committed to providing further training on the SDP, prevention of statelessness, and birth registration procedures.
  • There is currently no formal training for judges or lawyers on statelessness.
  • Montenegro established a dedicated SDP in the 2018 Law on Foreign Nationals.
  • The procedure is further detailed and operationalised through the Rulebook on the Procedure Initiated upon Request for Statelessness Determination ('the Rulebook').
  • A person recognised as stateless under the SDP may be issued a temporary residence permit but only if they meet the conditions established for acquiring a residence permit, which are stringent. A recognised stateless person will be issued a travel document on request, which provides some rights and protections but does not constitute a dedicated statelessness status in law.
  • The procedure is accessed via regional units of the Ministry of Interior in the applicant’s place of residence. In practice, the procedure is implemented inconsistently by the different regional units and there is a lack of harmonisation on how registration, issuing of certificates, and scheduling interviews take place.
  • There is no information for potential applicants in an accessible language or format to explain how to make a claim of statelessness, but there are some procedural rules in the Rulebook.
  • Applications must be submitted in person, in writing on the prescribed form, and in one of the official languages. The form is completed with the assistance of the official in charge of receiving the application, and an interpreter is provided on request. However, in practice, in most municipalities the competent authority will not assess an application unless or until the applicant submits at least a birth certificate.
  • A person who has applied for international protection or has been granted refugee status or subsidiary protection in Montenegro cannot apply for determination of statelessness.
  • There are no lawful stay requirements and no time limits to submit an application.
  • It is not possible to initiate the SDP ex officio.
  • There is an obligation in law on the authorities to consider the application within the time limit prescribed by the law.
  • The application is subject to an administrative fee of 2 EUR, and a fee of 25 EUR must be paid to issue a travel document to a recognised stateless person.
  • There is no cooperation between agencies that may have contact with stateless people.
  • The burden of proof is shared between the applicant and the competent authority and is transferred to the decision-maker if the individual can prove that they are not a national of any country on the basis of reasonably available evidence.
  • The standard of proof is similar to the refugee status determination procedure and takes into account the difficulties of proving statelessness.
  • The procedure takes into account the interests of minors (including unaccompanied minors), and any form of discrimination is prohibited in law.
  • However, evidentiary requirements are not established in law and there is no clear guidance for decisionmakers on how to determine statelessness. The Ministry of Interior has committed to working in cooperation with UNHCR to develop guidance for caseworkers in 2022.
  • There is no information available about errors in decision-making, and no cases have been overturned by the courts to date.
  • Applicants do not have access to State-funded free legal aid during the procedure. However, free legal assistance is provided by civil society organisations.
  • According to the Rulebook, an interview should be provided no later than 15 days after the submission of the application, but in practice this is not always provided. An interpreter is provided on request.
  • There are no quality assurance audits of decision-making in the procedure. The Ministry of Interior shares information on applicants and people granted statelessness status with UNHCR on request, but it is unclear whether and how UNHCR may participate in the procedure.  The law provides that the Ministry can obtain documents or other evidence from UNHCR to assist with deciding an application, but this provision has not been used to date.
  • Decisions are given in writing with reasons, and the application should be decided within six months, but there are often delays in processing applications due to their complexity.
  • According to law, an application may not be submitted by someone who has applied for international protection or has been granted refugee status or subsidiary protection in Montenegro. If a person is denied asylum, they may have their statelessness determined, but there is no referral mechanism in practice.
  • Applicants for statelessness determination have the right to stay in Montenegro while their application is pending and are protected from expulsion and detention.
  • However, applicants do not have the right to work nor access to any other rights or assistance to meet their basic needs.
  • First instance decisions made by the regional Ministry of Interior offices may be appealed to the central office of the Ministry in Podgorica. A further appeal can be made to the Administrative Court.
  • Free legal aid is only available for judicial procedures (i.e., third instance at the Administrative Court). Free legal assistance may be provided by civil society organisations during the first and second instance procedures.
  • Recognition of statelessness does not result in automatic permission to stay and renewable residence rights in Montenegro.
  • The Ministry of Interior will issue a travel document to a person recognised as stateless upon their request, which grants permission to stay and is valid for up to one year (renewable). However, there have been cases of recognised stateless people waiting more than a year for a travel document.
  • A temporary residence permit is only accessible to stateless people if they can meet the general conditions, which include an income, accommodation, health insurance, identity documents, and no entry ban or criminal convictions carrying more than a six-month prison sentence. The person must also present evidence that they have resided in Montenegro for at least three years prior to the SDP application and that they intend to continue their stay in Montenegro.
  • People recognised as stateless do not have the right to family reunification per se. However, if a stateless person holds a temporary residence permit, immediate family members will be granted a similar permit.
  • Stateless people who hold a temporary residence permit can work if they also hold a work permit or work registration certificate. The right to work for those who only hold a travel document is unclear.
  • Children until the age of 15 can access education but they will not be granted a school certificate if they do not hold a birth certificate. Stateless people with a residence permit have access to higher education, social security, health insurance, and emergency healthcare, although they may encounter bureaucratic difficulties and be required to pay for some medical care.
  • Stateless people do not have the right to vote in Montenegro.
  • A temporary residence permit may be revoked on certain grounds, including if the person stays outside Montenegro for more than 30 days. This decision can be appealed to the central office of the Ministry of Interior.

Detention

Analyses law, policy and practice relating to immigration detention generally, but focusing on protections in place to prevent the arbitrary detention of stateless people during removal and deportation procedures. Subthemes examine areas such as the identification of statelessness and assessment of whether there is a reasonable prospect of removal, procedural safeguards such as time limits, judicial oversight, and effective remedies, as well as the rights granted to stateless people upon release from detention and protection against re-detention.

There are gaps in Montenegrin law to prevent the arbitrary detention of stateless people. Although a proposed country of removal must be identified prior to detention, statelessness is not juridically relevant in decisions to detain, and there is no procedure for identifying statelessness in detention decisions nor referral system from detention to the SDP. There are some procedural safeguards in law such as a time limit on immigration detention, detainees must be provided with information on their rights and have access to legal aid to challenge detention. There are no protections on release from detention, which means that stateless people are at risk of re-detention. Although statelessness is referenced in return and readmission agreements Montenegro has entered into with the EU, it is unclear how these are applied in practice.

  • Powers and grounds to deprive a person of their liberty, restrict their freedom of movement, enforce return, as well as decision-making, conditions, and rights in the ‘reception centre for foreign nationals’ are provided for in the Law on Foreign Nationals.
  • Alternatives to detention are established in law, including depositing travel documents, financial bonds, requiring stay at a particular address, and reporting to the police. However, it is unclear whether detention is always a last resort and if alternatives are always exhausted prior to detention being ordered in each case.
  • A proposed country of removal must be identified in the return decision. A foreign national may be forcibly removed to their country of origin, the country from which they came to Montenegro, or to another country if they consent and will be accepted.
  • Authorities are required to release a person when there is no reasonable prospect of removal.
  • There is a lack of reliable data on the use of immigration detention powers, and particularly on the detention of stateless persons for the purposes of removal.
  • Statelessness is not juridically relevant in decisions to detain. There is no procedure for identifying statelessness in detention decisions, and it is not possible to refer a person to the SDP from detention.
  • The law sets out that particular attention should be paid to certain vulnerable groups in the context of return. However, statelessness is not mentioned as a specific factor increasing vulnerability and vulnerability assessments are not carried out before a decision to detain.
  • Detention in a reception centre is limited to six months, or a maximum of 12 months in case of delays or refusal to cooperate and may only last as long as required to enforce removal.
  • There is a right of appeal to the Administrative Court against the decision to deprive someone of their liberty, to apply alternatives to detention, to detain someone in a reception centre, or to extend the period of detention beyond six months. Detainees may also address the Ombudsperson in some situations. People have access to legal aid to exercise their right of appeal.
  • There are no periodic reviews of detention.
  • Detainees are provided with information about their rights, as well as about their stay in a reception centre, but no information about access to the SDP is provided as it is not possible to access the SDP from detention.
  • There are no guidelines in place governing the process of re-documentation or ascertaining entitlement to nationality for the purpose of removal.
  • People released from detention are not issued with any identification documents and have no access to any protection status or rights. As such, they may be at risk of re-detention.
  • All readmission agreements concluded between Montenegro and the EU and other countries reference stateless persons, in addition to nationals of the contracting parties and third country nationals.
  • The agreement between Montenegro and the EU explicitly permits readmission of stateless persons, and the definition of a stateless person in the agreement is not in line with the 1954 Convention.
  • There is no information about how these agreements are implemented in practice in relation to stateless people.

Prevention and Reduction

Assesses the adequacy of safeguards in nationality laws to prevent and reduce statelessness, including facilitated routes to naturalisation for stateless people, and protections for otherwise stateless children born on the territory or to nationals abroad, foundlings and adopted children. Examines law, policy, and practice on birth registration, including access to late birth registration, and reduction measures taken by States to prevent and reduce in situ statelessness. Analyses provisions on deprivation of nationality and whether there are safeguards related to renunciation and deprivation of nationality to prevent statelessness from occurring.

Stateless people do not benefit from expedited naturalisation procedures, but they are exempt from requirements related to accommodation, income, and language proficiency. Montenegrin law provides that an otherwise stateless child born or found in Montenegro acquires nationality automatically. There are safeguards in law to prevent statelessness arising during adoption procedures, as well as for children born to Montenegrin parents abroad. Birth registration is assured in law and nationality should be recorded on the birth certificate; however, there are issues in practice. Parents must initiate the recording of nationality in the national registry and there are cases of nationality being wrongly attributed. Minoritized communities, in particular Roma and Egyptian populations, disproportionately face barriers to birth registration. Deprivation of nationality is permitted by law, and used in practice, but safeguards to prevent statelessness are in place.

  • An adult stateless person may apply to acquire Montenegrin nationality after 10 years of 'lawful and uninterrupted residence' prior to the application. This is the same timeframe as for others with a foreign nationality. However, bylaws do not consider residence based on statelessness as 'lawful and uninterrupted residence', therefore stateless people must have had a permanent residence permit for 10 years before applying for naturalisation. 
  • To naturalise, the person must not have been sentenced in Montenegro or elsewhere to a prison term of more than one year and there should be no legal obstacles relating to public order or national security.
  • Stateless persons are exempt from two of the conditions required for naturalisation: guaranteed accommodation and income, and Montenegrin language requirements.
  • There is a fee of 100 EUR to apply for naturalisation. If family members apply together (spouse and unemployed children), only one fee is paid. There is a fee exemption for unemployed persons, persons with disabilities, and persons in receipt of social security, but not for stateless persons.
  • A child born or found on the territory of Montenegro will acquire Montenegrin nationality if they have unknown parentage, their parents have unknown nationality or are stateless, or if the child would otherwise remain stateless.
  • According to law, the safeguard is automatic. However, it is not known whether this provision has been used in practice and if any child has acquired nationality based on the provision.
  • Parents are not provided with any information about their child’s nationality rights and relevant procedures.
  • Evidence must be provided that the child does not have and cannot acquire the nationality of the parents and/or of other countries in which the parents may have lived. The Ministry of Foreign Affairs may also request this information ex officio.
  • There are no conditions relating to the parents' or the child's residence status.
  • There are no special provisions to protect the right to a nationality of children born to refugees in Montenegro.
  • Foundlings are granted Montenegrin nationality automatically at birth.
  • The law explicitly states that nationality cannot later be withdrawn if this would lead to statelessness.
  • Nationality acquired by foundlings may only be lost if it is detected prior to the child reaching the age of 18 that both parents are foreign nationals or that the child has acquired the nationality of a foreign State on any ground.
  • Adopted children can only renounce Montenegrin nationality if this would not render them stateless and if both adoptive parents consent and are nationals of a foreign State. Children over 14 must give their consent before losing Montenegrin nationality.
  • If a person who renounced Montenegrin nationality does not acquire a foreign nationality within one year, the renunciation can be cancelled upon request (within three months).
  • Children will acquire Montenegrin nationality in the case of full adoption, if one of the adoptive parents is a Montenegrin national and the child does not have the nationality of the other adoptive parent.
  • Children born abroad to only one Montenegrin parent will acquire Montenegrin nationality if the other parent is unknown, of unknown nationality, or stateless, if the child would otherwise be stateless, or if before turning 23 they request registration as a Montenegrin national and do not hold their other parent’s nationality.
  • There are no discriminatory conditions in the provisions on acquisition of nationality by descent, and no information about discrimination in practice.
  • Births must be registered within three days. Children born in hospital are registered immediately after birth. Late birth registration is possible in law and practice through a procedure conducted by the Ministry of Interior subject to a fee and provision of documentation, including identity documents and proof of birth from the hospital. In the case of a child born outside a health institution, a non-contentious court procedure may be initiated to determine the relevant facts about the time and place of birth, parents, and other relevant data. The court must hear at least two adult witnesses in the procedure and a medical examination to determine age may be requested.
  • In practice, there are bureaucratic barriers to registering a child’s birth if the parents are undocumented, particularly if they are not receiving support or advice from an NGO. Some families have reportedly not registered the births of their children because they thought they needed documentation or evidence that they did not have.
  • All children are issued with birth certificates. The certificate contains a field for the child’s nationality, but, in practice, parents must initiate registration of the child's nationality in the nationality registry. Sometimes the child is recorded as having the nationality of another State if the parents believe the child to have acquired their nationality, or if civil registry officials attribute another nationality to the child based on a parent's nationality.
  • There is no guidance on how to determine the child's nationality later or information about this in practice.
  • Credible reports by civil society, international organisations, and UN bodies have highlighted barriers to birth registration disproportionately affecting Roma and Egyptian children.
  • There is no firewall to prohibit sharing of information between government agencies, and information on birth registration is exchanged between health authorities and the Ministry of Interior.
  • There is no comprehensive government programme to promote civil registration. There have been occasional campaigns led by specific State bodies or institutions in the past.
  • The risk of statelessness primarily affects Roma and Egyptian communities in Montenegro, especially those who came to Montenegro from Kosovo during the conflict in the 1990s and their descendants.
  • In recent years, Montenegro has initiated legislative changes to address statelessness through improved access to civil registration. It has also improved cooperation with neighbouring countries (primarily Serbia and Kosovo) to facilitate civil registration.
  • As follow-up from the 2019 Poznan Declaration, Montenegro joined other Western Balkan countries in committing to ensuring universal civil registration and ending Roma statelessness.
  • In 2017, in collaboration with UNHCR, the Government conducted a field verification exercise to map persons at risk of statelessness, understand their needs and problems and work to address these. A new field verification is planned for autumn 2022.
  • In 2019, Montenegro made several pledges under UNHCR’s global #IBelong Campaign to eliminate statelessness by 2024.
  • There is a safeguard to prevent statelessness in all cases of deprivation, loss, or renunciation of Montenegrin nationality.
  • The Ministry of Interior is the competent authority and is required to notify and allow the individual concerned to make a declaration on the facts, but a decree may be made without a declaration if this is not submitted within the specified timeframe.
  • There are time limits in the law, legal aid is available, and the individual has a right to initiate proceedings before the Administrative Court.
  • To renounce Montenegrin nationality, the individual must hold a foreign nationality or have proof they will be granted this. If proof is not presented within two years, the procedure for renunciation is suspended. If a person who renounced Montenegrin nationality does not acquire the foreign nationality within a year, they can ask the Ministry of Interior to invalidate the decree.
  • There are provisions permitting deprivation of Montenegrin nationality on national security grounds, which are applied in practice.
  • Provisions on deprivation of nationality apply only to dual nationals, so are considered discriminatory.
  • In all cases, there is a safeguard to prevent derivative loss of nationality.

Project funded by:Rosa-Luxemburg-Stiftung