Geneva, 24th April 2018
The President of the United Arab Emirates has issued a Federal Law No. 16 of 2017 amending some provisions of Federal Law No. 17 of 1972 on Nationality and Passports. They amended and replaced Articles 3, 9, 13, 16, 19, 20, 24, 35, 44 and 45 and added new articles including article 1 bis, 10 bis, 12 bis, 14 bis, 15 bis and 44 bis.
This review will mainly focus on the amended and new articles of the Federal Law and examine whether there is a real change with regards to nationality and passports. It will also examine whether the amendments are in compliance with international standards or in violation of the Right to Nationality , established by the International Convention on the Protection of the Child on the nationality of the child, the International Convention on the Nationality of Married Women and the Convention relating to the Status of Stateless Persons, on the reduction of statelessness 1961.
Article 1, which transferred the powers of the Ministry of the Interior on citizenship and passports to the Federal Authority for Identity and Citizenship.
The Article confirmed that citizenship is no longer a security topic, but rather an administrative one. This is so because the Federal Authority for Identity and Citizenship is a legal governmental body that has an independent budget and is managed by an administrative board headed by a chairman, a deputy and members.
However, the investigation on the composition of the Directors’ Board of the Federal Authority for Identity and Citizenship reaffirms once again that nationality, passports, entry and residence of foreigners remain a security issue. In fact, since 2017, Mr. Ali Mohammed Bin Hammad Al Shamsi has been the Chairman of the Board of Directors,who previously served as the Deputy Secretary General of the Supreme National Security Council. His deputy, Major General Talal Hamid Al-Bahl, was previously the Director General of the State Security Service in Dubai. Furthermore, the representation of the members of the board of directors is dominated by people coming from the security sector. It is composed by a representative of the Ministry of Interior, a representative of the General Authority for the Security of Borders and a representative of the State Security Service.
New Article 3 and the extension of the period of granting citizenship to a woman married to an Emirati citizen
This article amended the old law whereby a non-Emirati woman married to an Emirati citizen will be able to obtain Emirati nationality by dependency. The new article 3 extended the period after which the wife can acquire Emirati nationality. She has to wait seven years if she has a child and more than ten years if not. The period shall be calculated starting from the date of submitting the application to the Authority, provided that the marital relationship continues.
The International Centre for Justice and Human Rights examined that the new federal law in article 3 violated the provisions of the International Convention on the Nationality of Married Women of 1957, which stipulates in article 3 that the “alien wife shall acquire the nationality of her husband through specially privileged naturalization procedures in shorter periods of time.”
Article 9 (1): The President of the United Arab Emirates shall control the establishment of and grant of nationality by naturalization without any restrictions.
The President of the UAE shall, pursuant to Article 9 (1), control the establishment or grant of nationality by naturalization to any person without limitation on the terms of the residence periods and the conditions stipulated in this decree.
What is new is that the president can grant citizenship to those who provide great services to the state without specifying the quality or standard of these services.
In fact, we consider the non-restriction of the president’s authority to any conditions or supervision is an exaggeration of the president’s powers. Furthermore, we fear that Emirati nationality will be dealt with as a reward given for bribery to anyone who praises the authorities and covers human rights violations within the country, especially since the UAE is known for violating basic rights and freedoms and has been classified by the Democracy Index as an authoritarian regime
Article 13: Violation of the right of naturalized persons to vote and run for election
Article 13 of the amendment prohibits naturalized Emiratis from their right to vote or to run for office in a parliamentary or popular body, thus limiting these rights to the holders of citizenship by law.
What is new is that Qataris, Omanis and Bahrainis no longer have the right to vote after seven years of residence, unlike the previous law. In fact, this may be considered as a way of politicizing the law and employing the Gulf crisis in drafting the amendments.
The question now remains on what will happen to the new cases or children born in the UAE who have Qatari, Omani or Bahraini origins. In fact, the deprivation of naturalized persons regardless of their original nationality is a discriminatory act that violates the fundamental right to vote and to run for elections.
The International Centre for Justice and Human Rights and Justice (ICJHR) deplores the failure of the UAE authorities to accede to the International Covenant on Civil and Political Rights, despite numerous international demands calling for it.
The UAE authorities also insist on non-adherence to international conventions guaranteeing the protection of the right to nationality as a fundamental human right, including the International Covenant on Civil and Political Rights, the Convention on the Status of Stateless Persons, 1954 and the International Convention on the Reduction of Statelessness, 1961.
Besides, the UAE has not acceded to the Convention on the Nationality of Married Women of 1957 and has not complied with the provisions of the International Convention on the Rights of the Child in which Article 8 affirms that “States Parties undertake to respect the right of the child to preserve his or her identity, including nationality…”
New Article 20 codifying the inadmissibility to appeal decrees withdrawing and revoking nationality
Federal Law No. 17 of 1972 did not expressly prohibit appeal against the decrees of deprivation of nationality, but the UAE authorities effectively prohibit it by preventing proceedings and threatening as well as intimidating those concerned.
The new federal law introduced a new article 20 to explicitly enshrine the non-applicability to appeal the decrees withdrawing nationality and thus exempts such decisions from judicial control; therefore, making them under the full and exclusive power of the executive authority, more precisely under the control of the President of the UAE.
The amendments have caused nationality to be treated as a privilege, denying the right to appeal to those who were stripped of their nationality through the second paragraph of Article 20, which allowed the return of nationality only with a federal decree and not through judicial appeal.
We noted that the new article 20 is in violation of the UN Secretary-General’s report on human rights and arbitrary deprivation of nationality of 19 December 2013 under A / HRC / 25/28. The report states that the decisions on nationality shall be subject to effective judicial review and in case of loss or deprivation of nationality, the person shall be deemed to be a national of the State concerned during the full period of the appeal proceedings.
States shall guarantee the right to judicial appeal for any person who was stripped out of his nationality as affirmed in article 2 of the International Covenant on Civil and Political Rights. This article stipulates that States shall ensure that any person whose rights or freedoms as herein recognized are violated, shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity and ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy.
Article 19 of the Cairo Declaration on Human Rights in Islam also affirms that States can have recourse to justice and that denying any citizen from the right to judicial appeal for the violation of his most important human rights including the deprivation of nationality, is incompatible with his right to recourse to justice.
There is also no guarantee against statelessness, since the burden of proof of statelessness is on States and not on individuals in accordance with UNHCR guidelines.
The International Centre for Justice and Human Rights noticed the authorities of the United Arab Emirates had no interest in assessing the consequences of deprivation of nationality before making such decision. Indeed, the authorities did not consider the possibility of imposing alternative measures instead. In fact, according to international law, the deprivation of nationality that does not serve a legitimate purpose or does not meet the requirement of proportionality is arbitrary and must be prohibited.
Continuous violation of the right of the wife and children to nationality through the withdrawal of nationality by dependency
In article 16, State security crimes have disappeared from the list of criteria for the revocation of nationality. However, the article still mentions that “Nationality shall be withdrawn from a person who has acquired by naturalization in the following cases:
If he has been punished repeatedly for crimes of dishonor.
If the data upon which the nationality has been granted were proven to be forged, fraud or containing deception.
If he exercises his citizenship in another country
If he resides outside the country without reasons for a period exceeding 2 years
In light of this amended article, it would be obvious that the new wording of Article 16 prohibits the withdrawal of nationality of human rights defenders who are convicted for threatening the internal and external security of the UAE.
The International Centre for Justice and Human Rights will follow up on the UAE authorities’ treatment of human rights defenders, their children and wives regarding the revoking of their nationality in order to assess whether they will refrain from doing so under the amendment of Article 16 of the Nationality and Passports Law.
However, paragraph 4 states again that if a nationality is withdrawn from a person, it shall be withdrawn from his wife and under-aged children, which is prohibited by article 8 of the International Convention on the Rights of the Child, ratified by the United Arab Emirates.
The revocation of the wife’s nationality by dependency has further violated the provisions of article 2 of the International Convention on the Nationality of Married Women, which states that “Each Contracting State agrees that neither the voluntary acquisition of the nationality of another State nor the renunciation of its nationality by one of its nationals shall prevent the retention of its nationality by the wife of such national.”
Besides, Emirati officials have also violated the provisions of Article 9 of the Convention on the Elimination of All Forms of Discrimination against Women which asserts that “State Parties shall ensure in particular that neither marriage to an alien nor change of nationality by the husband during marriage shall automatically change the nationality of the wife, render her stateless or force upon her the nationality of the husband”.
New Article 14 bis and Article 15 bis and the judicial withdrawal of nationality as a subordinate penalty without an independent judiciary or fair trial guarantees
The amendments introduced a new Article 14 bis under Federal Law No. 16 of 2017 on Nationality and Passports which made the withdrawal of nationality an additional penalty imposed by the UAE judiciary after the conviction for a crime of terrorism or a crime concerning the external security of the State.
Article 15 bis of the same amendment made the withdrawal of nationality optional for judges in case of convictions for a crime that threatens internal security.
Through this amendment, the UAE government took the same measure for Emiratis by law and naturalized persons.
Federal Law No. 16 of 2017 made the Federal Court of Appeal of Abu Dhabi consider these crimes and that the judgment will be subject to appeal before the Federal Supreme Court.It also gave the Minister of Justice who is the representative of the executive branch, the power to form specialized judicial services of the Abu Dhabi Federal Court of Appeal to decide on these crimes.
The International Centre for Justice and Human Rights is concerned that the authorities of the UAE, who deliberately added Article 14 bis and 15 bis to the Nationality and Passports Act, are seeking to deprive those who were stripped of their nationality from the guarantees ensured by international standards regarding the withdrawal of nationality, including legislative precision in the drafting of laws, the legitimacy of crimes as well as the supremacy of law and urge Emirati officials that an independent and impartial judiciary shall provide these fair trial guarantees.
Arbitrary use of the Terrorism Act and State Security Crimes to prosecute political activists, jurists and bloggers.
The authorities of the UAE have made the withdrawal of nationality automatic when convicting a person for a terrorist offense and optional in case of an offense against the external state security. However, all these laws are madevague and ambiguousin order to condemn and imprison political activists, human rights defenders and bloggers and facilitate the violation of rights, freedoms and privacy.
Besides, Emirati officials have used the terms “undermining the public order”, “endangering the State’s security”, “terrorism”, “harming national unity” and “social peace” as a pretext to restrict the freedom of opinion and expression, to prevent the formation of associations, to prohibit the freedom of peaceful assembly and to conduct regular gatherings such as public protest, sit-ins, strikes and marches.They also tightened the penalties to life imprisonment and execution in addition to the fact that the Anti-Terrorism Act sentences to death penalty whoever constitutes a threat to “national unity or social peace” even if it is peaceful.
The authorities of the United Arab Emirates have kept bloggers in Munasaha centers under the pretext of war against terrorism, including blogger and activist Osama al-Najjar, who is being kept in the counseling center of Al-Razeen prison for an indefinite period of time after the expedition of his sentence claiming that he constitutes a terrorist danger and preventing him from the right to judicial and administrative appeal.
The UAE judiciary does not guarantee the right to a fair trial.
The Federal Law No. 16 of 2017 affirms pursuant to Article 14 bis paragraph 4, that the Emirati judiciary and the Federal Court of Appeal of Abu Dhabi is controlled by the executive power, in particular, the Minister of Justice. In fact, Article 14 bis authorized the Minister of Justice to form Specialized Courts of the Federal Court of Appeal of Abu Dhabi; which was examined by the UN Special Rapporteur on the independence of the judiciary and law Ms. Gabriela Knoll during her visit to the UAE on January 27, 2014. She affirmed that the UAE judiciary is not independent and the verdicts issued, therefore, do not ensure a fair trial .In addition, she stated that the prosecution of political activists, jurists and bloggers is not compliant with international fair trial standards, and some of them have been arbitrarily stripped out of their nationality.
The decisions of the arbitrary deprivation of Emirati nationality included a number of convicts among the well-known case of the “UAE 94”, which was described by several human rights organizations, UN Special Rapporteurs and the Working Group on Arbitrary Detention of Trial, to be lacking international standards for fair trial in addition to the fact that numerous international demands called for the release of the convicted persons.
When reviewing the federal laws regulating the UAE judiciary, we notice that they depend on the executive authority in the naming, promotion, gradation, transfer and isolation of judges. In fact, The International Centre for Justice and Human Rights (ICJHR) examined the predominant presence of the executive authority within the structure of the UAE Supreme Council of the Judiciary. The ICJHR has also monitored in its reports the negligence of the UAE judiciary towards the detainees’ testimonials’ of torture and enforced disappearances and their prevention from access to lawyers.
Article 265 of the Penal Code sentences human rights organizations, bloggers and political opponents, who monitor and publish violations of fair trial guarantees by UAE courts in their statement, to one year in prison and a fine of 10,000 dirhams.
Continuous revocation of nationality by the UAE authorities through decrees that are not published in the Official Gazette
Despite Article 114 of the UAE Constitution affirming the obligation to publicly publish decrees, the UAE authorities deliberately fail to publish decrees withdrawing nationalities in the official gazette. It is important to note that no decree of deprivation of nationality has been issued inthe official Gazette for the last five years. Furthermore, the UAE authorities have deprived those who were stripped of their nationality from the right to have a copy of the presidential decree. They only notified them verbally stating that there is a decree withdrawing their nationality and citizenship without being informed.
Asma al-Siddiq, daughter of the political prisoner Mohammed Abdul Razzaq Mohammed al-Siddiq, who was stripped out of her Emirati nationality and all her official documents, states that she had asked an employee at the Department of Citizenship in Sharjah to give her of a copy of the decree and he said that he is not allowed to do so since he is only a servant of the state.
She also reported the circumvention of the employee of the nationality department against her and her brother and sister, Omar and Du’aa al-Siddiq, by taking their documents under the pretext of updating their data, tolater strip them out of all their official documents including their nationality and citizenship, thus turning them into stateless persons.
It is worth noting that al-Siddiq’s siblings were stripped of their nationality because of their activities on social media in support of their father, a political activist detained within the known case of the “UAE 94”.