Serbia

Serbia is party to relevant human rights instruments, including the 1954 and 1961 Conventions, although it has not acceded to the two Council of Europe statelessness conventions. Data on statelessness is not comprehensive in Serbia and there is no dedicated statelessness determination procedure, although there are ad hoc procedures for identifying statelessness. In 2018, a new Law on Foreigners was adopted, which for the first time provides a definition of a stateless person in national law, though this is narrower than the 1954 Convention definition. There is also a ‘stateless’ protection status providing for a right to work, education, social security and a travel document, as well as protection against discrimination. Alternatives to detention are set in law and must be considered prior to detention. If removal has been delayed, a temporary ID card may be issued on release and the option to register for temporary stay on humanitarian grounds provided after a year. There are some further protections against arbitrary detention including a time limit in law, and a policy of setting a country of removal prior to detention.

Efforts to prevent and reduce statelessness in Serbia are inhibited by gaps in the implementation of legal safeguards. The law prevents statelessness for most children born on the territory or to Serbian nationals abroad, foundlings, and adopted children, providing for an automatic right to acquire Serbian nationality. However, the safeguard for children born in Serbia is implemented in such a way as to apply only to minors, and a request must be submitted to the competent authority for a decision to be made on the acquisition of nationality. Bylaws on birth registration require parents to present birth certificates and identity documents, increasing the risk that births remain unregistered. Withdrawal of nationality is established in law and there are protections against statelessness, but cases of ‘quasi-loss’ of citizenship have been reported in practice leading to a risk of statelessness.

Last updated:

Mar 2019

Next scheduled update:

Mar 2020

Country expert(s):

Milan Radojev, Praxis

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.

Serbia is party to the two UN statelessness conventions, but not to the European Convention on Nationality nor the Convention on the Avoidance of Statelessness in Relation to State Succession. Serbia is one of few countries in Europe to have signed the Convention on the Rights of All Migrant Workers and Members of their Families, but it is yet to accede to the treaty. Positively, Serbia has ratified all other relevant international and regional conventions with no reservations, and these have direct effect.

The 1954 Convention

Serbia is state party to the 1954 Convention with no reservations and it has direct effect.

The 1961 Convention

Serbia is state party to the 1961 Convention with no reservations and it has direct effect.

Other Conventions

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Serbia is not state party to the European Convention on Nationality nor to the Convention on the Avoidance of Statelessness in Relation to State Succession.
Serbia is not a member state of the European Union so is not bound by EU Directives.
Serbia is party to all other relevant international and regional conventions with no reservations and these have direct effect.
Serbia has signed but not ratified the International Convention on the Rights of All Migrant Workers and Members of their Families.

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 effective measures in place to count stateless people in detention.

Data on statelessness in Serbia is not comprehensive. Some data on the risk of statelessness in specific parts of the country is available, for example, studies examining rates of birth registration or possession of identity documents among Roma households in specific communities. The census has a category, ‘without citizenship’ though some counted in this number may be at risk of statelessness facing administrative hurdles to recognition of their citizenship rather than stateless. No mapping study of statelessness at country level has been carried out, and data on stateless people held in detention is not published.

Availability and sources

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The census contains a category, 'without citizenship', but some counted in this number are likely to be at risk of statelessness facing administrative hurdles to recognition of their citizenship, rather than stateless.
According to the last census (2011) 99% of the population are Serbian citizens; 0.62% are foreign citizens; and 0.08% are without citizenship. A total of 5,951 declared themselves without citizenship; of these 5,764 were born in other states of the Former Yugoslavia.
Multi-Indicator Cluster Survey (MICS) data from surveys conducted by UNICEF provide some information on birth registration in specific populations where there is a risk of statelessness, for example, Roma communities, which have the lowest birth registration rate (94%). A 2014 UNHCR survey (needs assessment of internally displaced Roma in Serbia) found that 9% of Roma IDP households and 5% of domiciled Roma households in Serbia have at least one member who cannot obtain a citizenship certificate.
UNHCR carried out two surveys in 2010 and 2015 on statelessness among Roma, Ashkali and Egyptians. According to the 2015 study, which surveyed 1,987 households with a total of 8,765 members living in informal settlements, the share of people without basic identity documents among this population has dropped from 6.8% in 2010 to 3.9% in 2015. In 2015, 700 (1%) of those living in the settlements were not registered in the birth registries and 2,700 people (5.2%) had no identity cards.
No comprehensive mapping of statelessness in the country has been undertaken.
The authorities only collect data on the countries of origin of refugees and asylum seekers in Serbia. There is no data about stateless asylum seekers or their number is unrealistically low.

Stateless in detention data

Data on stateless people in detention is not published, although correspondence with the Ministry of Interior suggests that it is collected internally.
In response to a freedom of information request, the Ministry stated that no stateless people or people with unknown or undetermined nationality were detained in 2016-2017. However, they also stated that in 2016, 205 people were released from detention due to being ‘unremoveable’, including people with their nationality recorded as ‘Western Sahara’ and ‘Palestine’.

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 (SDP) procedure; or, if not, whether there are other procedures or mechanisms by which statelessness can be identified and legal status determined. Countries are subdivided in four groups to enable comparison between those with an SDP in place, those with other administrative procedures, those with a status but no clear mechanism, and those without any status or mechanism. Where a procedure and status exist, these are assessed against norms and good practice, and the rights granted to recognised stateless persons are examined.

Serbia does not have a dedicated statelessness determination procedure nor any other mechanism to identify and determine statelessness, although an ad hoc procedure was implemented in 2011 to recognise 155 people from Albania as stateless. Since 2018, the Law on Foreigners provides for a definition of a stateless person in national law, but it is narrower than the 1954 Convention definition. Rights granted to stateless people include a travel document, right to work, social security, education, and protection against discrimination. The law also prescribes that the 1954 Convention should be applied to stateless individuals, if this is more favourable for them. There is no simplified or accelerated route to naturalisation for stateless people.

Definition of a stateless person

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There is a definition of a stateless person in the Law on Foreigners (2018). However, it is narrower than the 1954 Convention definition in that it translates as a person is stateless if they are not considered a national by any state ‘under its national legislation’ rather than ‘under the operation of its law’.

Existence of a dedicated SDP

There is no dedicated statelessness determination procedure (SDP) or other formal mechanism to identify statelessness in Serbia.
A small number of people (for example, 155 people from Albania in 2011) have been recognised as stateless in the past through an ad hoc procedure implemented by the Ministry of Interior. There are no recent cases and the procedure that was used is unclear.

Content of stateless status

There is a stateless status in Serbia, but no formal procedure to identify stateless people.
There has been no recent determination of statelessness and the procedure for determination is unclear. 155 people from Albania were determined to be stateless in an ad hoc procedure implemented by the Ministry of Interior and reported on in 2011. Of these, 146 were granted permanent residence, and nine were granted temporary residence permits. They were also granted travel documents.
Stateless people are provided certain rights in law, including a two-year travel document based on permanent or temporary residence; right to work; social security; primary and secondary education; and protection against discrimination.
The Law on Foreigners prescribes that 1954 Convention rights should be applicable if these are more favourable to a stateless person than rights enshrined in national law, but without an SDP, the risk is that these rights cannot be obtained in practice.
There is no simplified or accelerated route to naturalisation for stateless people.

Detention

Analyses law, policy and practice relating to immigration detention generally, focusing in on protections in place to prevent the arbitrary detention of stateless people during removal and deportation procedures. Subthemes examine areas such as detention decision-making, whether alternatives to detention are legislated for and implemented, procedural safeguards such as time limits, judicial oversight and effective remedies, as well as protections on release and whether statelessness is considered juridically relevant in bilateral return and readmission agreements.

Powers to detain are provided for in law, but some safeguards against arbitrary detention are found only in policy, for example, that a country of removal is set before detaining. Alternatives to detention are established in law and include a provision that compulsory stay must be considered prior to detention, but statelessness is not considered juridically relevant. There is a maximum time limit in law and free legal aid is provided by NGOs, but there is no periodic review of detention. A new Law on Free Legal Aid, adopted in November 2018, will come into force on 1 October 2019 but it is yet to be seen how it will be implemented. If removal has been delayed, a temporary ID card may be issued on release and the option to register for temporary stay on humanitarian grounds provided after a year. However, the lack of documentation and inability to prove one’s identity can be a reason for prolonging detention.

Detention screening

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Immigration detention powers are provided for in law and restricted to the purposes allowed under Article 5(1)(f) ECHR. However, in practice, cases have been reported of people being detained arbitrarily for the purposes of securing testimony in criminal proceedings related to people smuggling and human trafficking.
The law requires that alternatives to detention, such as mandatory stay in a particular place, must be considered and are restricted to one year, but alternatives are not subject to periodic review.
The requirement for a country of removal to be identified before a person is detained is not set in law, but the authorities state that this is in policy and required in practice. Cases have been identified of people being issued with a removal order without the country of origin specified, though they were not detained. However, statelessness is not considered a juridically relevant fact in decisions to detain.
Removal can be delayed, and the person released if their identity has not been established, but at the same time, a lack of documentation or failure to prove one’s identity can be a reason to prolong detention.
There is no clear evidence that stateless people are being detained in practice; however, data released under a freedom of information request suggests that detainees released due to un-removability in 2016 may have been stateless (nationalities recorded as ‘Palestine’ or ‘Western Sahara’).
Individual vulnerability assessments are not carried out prior to detention but there is a requirement for authorities to consider vulnerabilities during all procedures. Statelessness is not identified as giving rise to vulnerability.

Alternatives to detention

Alternatives to detention are established in law and implemented in practice according to the authorities. They include compulsory stay in a designated place, temporary withdrawal of travel documents, and/or confiscation of material possessions.
The law states that compulsory stay must be considered prior to detention. There is a time limit of one year, but it is not subject to periodic review.
There is no evidence that immigration detention is used prior to alternatives being considered, and the authorities state that alternatives are systematically considered prior to any decision to detain.

Procedural safeguards

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A maximum time limit for detention is set in law (90 days extendable to 180 days exceptionally).
The law states that individuals must be provided with written reasons for detention as soon as possible in a language they understand.
Factsheets with information on rights are given to all detainees, but these do not contain information about access to a statelessness determination procedure, as none exists.
There is currently no free state legal aid system in Serbia, although free legal aid is provided by NGOs. A new Law on Free Legal Aid was adopted in November 2018 and will come into force on 1 October 2019, but it is yet to be seen how the Law will be implemented.
Periodic reviews of detention are not provided for in law, but detainees will be released on expiry of the maximum time limit and removal may be delayed and the person released if circumstances have changed.
It is not possible to appeal against the detention decision or extension, but an administrative dispute may be initiated.
There is an internal procedure for redocumentation and ascertaining nationality for the purpose of removal, but this is not published nor set in law.

Protection on release

The law provides that a temporary ID may be issued on release if removal is delayed, which gives access to urgent healthcare and primary education. If removal is delayed by a year, a person can register for temporary stay on humanitarian grounds, which gives access to the same rights and services as other foreigners in the country.
Cumulative time spent in detention is not taken into account and people may be re-detained.

Return and readmission agreements

Statelessness is juridically relevant in readmission agreements with the EU, though it is explicitly allowed to return stateless people to Serbia and in at least one case this has happened even when no legal avenue for protection may exist in Serbia to provide a stateless person with protection and rights.

Prevention and Reduction

Assesses the adequacy of safeguards in nationality laws to prevent and reduce statelessness, including 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, reduction measures taken by states to prevent statelessness among groups at high risk, and provisions regarding withdrawal of nationality.

Legal safeguards are in place in Serbian nationality law to prevent statelessness in the case of children born on the territory or to Serbian nationals abroad, foundlings and adopted children. However, there are implementation gaps. The authorities interpret the safeguard for stateless children born in Serbia as applying only to minors, and in practice, a request must be submitted to the competent authority for a decision to be made on the acquisition of nationality. A foreign child adopted in Serbia acquires Serbian citizenship automatically and there is no risk of statelessness during the adoption process. Late birth registration is possible, but there is still a significant barrier in that births cannot be registered if parents are undocumented (unless they go through a lengthy procedure), on which Serbia has received Universal Periodic Review recommendations. Withdrawal of nationality is established in law and provisions protect against statelessness. However, there are cases in practice of 'quasi-loss' of citizenship, which increase the risk of statelessness.

Stateless born on territory

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The law states that otherwise stateless children born in Serbia shall acquire Serbian nationality automatically, but in practice, a request must be submitted to the competent authority and a decision is made as to whether the child (and/or parents) is stateless.
There is no requirement in law for the parents to also be stateless, if the child would otherwise be stateless; and there is no residence requirement for the child or parents, but in practice, it is necessary to provide documentary evidence of the child and/or parents’ statelessness.
The competent authority interprets the legislation to mean that only a minor (under 18 years-old) can acquire citizenship by birth if otherwise stateless, which is a lower standard than provided for in the 1961 Convention and constitutes a gap for young people if no-one has initiated a procedure to confirm their nationality as a minor.

Foundlings

Foundlings acquire nationality automatically by law and the definition encompasses all children up to the age of 18.
Although not explicitly set out in the provision, the loss of Serbian citizenship is conditional upon possession or acquisition of another citizenship according to law.

Adoption

Statelessness is explicitly prevented in the case of a child adopted by foreign parents, as loss of Serbian citizenship is conditional upon possession or acquisition of another citizenship.
There is provision in law for a child adopted by a Serbian citizen to acquire citizenship automatically and be registered in the citizenship register on request of the adopted parents (if under 18) or on their request (if 18-23 years-old). There is no risk of statelessness during the process.

Ius sanguinis and discrimination

A child born abroad to a Serbian citizen can acquire citizenship automatically if the other parent is unknown, of unknown citizenship or stateless. If the other parent is a foreign citizen, the child can acquire Serbian citizenship if the Serbian parent registers the child with the competent authorities before the age of 18, or if the person registers with the competent authorities themselves between 18-23 years-old.

Access to birth registration

The Serbian Constitution guarantees every child born on the territory the right to a name and the right to be registered in the birth registries, but bylaws stipulate that parents need to possess birth certificates and ID cards or passports to register a birth.
If parents are undocumented they need to go through a further procedure that can take months or even years, so in practice immediate birth registration is not guaranteed for all children born in Serbia.
Serbia has received Universal Periodic Review recommendations on ensuring universal access to birth registration for all children regardless of the status of their parents, and without discrimination.
Children can be registered if parents are not legally residing in the country but not if they are undocumented (without going through the additional procedure).
There are credible reports suggesting that children are prevented from registering in practice because of parents' lack of documentation.
There are no mandatory requirements for authorities to report undocumented individuals to authorities.

Late Birth registration

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The prescribed deadline for registration of a child’s birth is 15 days from the day of birth. Late registration is possible, but where a child’s birth has not been registered within 30 days, it can only take place following a decision of the competent administrative body so a procedure for subsequent registration of the fact of birth must be initiated.
There are no fees for late birth registration, but the procedure can take several months.

Reduction

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A technical group was established to raise awareness among Roma communities about the right to birth registration and provision of free legal assistance in the procedures for subsequent registration in 2012-16, but this has now ended.
A provision introduced through an amendment to the Law on Citizenship in 2018 allows for facilitated acquisition of citizenship for people who were born in the former-Yugoslavia and are long-term residents of Serbia.

Withdrawal of nationality

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Withdrawal of nationality is established in the law and provides for release, renunciation, and withdrawal under international treaties. In the case of release and loss, there are protections against statelessness in the law. The state may also cancel a decision on acquisition of citizenship in the case of fraud, but not if this would lead to statelessness.
The competent authority in withdrawal cases is the Ministry of Interior and administrative procedural guarantees apply, such as a time limit, written decision, and right of appeal. The procedure is considered 'urgent' but in practice, no data is available on whether procedural guarantees are applied.
Several cases of ‘quasi-loss’ of citizenship have been reported, in which a person is said never to have had Serbian nationality, even though it was assumed they did, and competent bodies issued citizenship certificates for years based on this assumption. Unlike in cases of loss of citizenship, there is no due process whereby the competent body may examine if withdrawal of the assumption of citizenship would lead to stateless. Praxis is aware of at least 30 such cases.