Nepal: Whether an individual born in Nepal to Tibetan parents would be eligible for Nepali citizenship, including requirements and procedures; if citizenship by birth is not applicable to said individual, other options available to that person for acquiring citizenship (2012-August 2013)

1. Status of Tibetans in Nepal

Sources indicate that the number of Tibetan refugees living in Nepal is estimated at 15,000 (UN 2013; US 19 Apr. 2013, 15) or 20,000 (ibid.; UN 4 June 2013).

In correspondence with the Research Directorate, the board of directors of the Tibet Justice Center (TJC), "an independent committee of lawyers and other experts that advocates human rights and self-determination for the Tibetan people," stated that Tibetans with refugee identity certificates (RC), who arrived before 1989, can stay in Nepal with "certain limited rights" (15 Aug. 2013). The UN Integrated Regional Information Networks (IRIN) states that "[u]nder normal circumstances, most pre-1990 arrivals, qualifying as bona fide refugees, should have been documented and given refugee cards (RCs) by the government, allowing them the right to live and work in the country, as well as access to basic services" (UN 4 June 2013). An International Campaign for Tibet report states Tibetans were eligible for RCs at the age of 16 if they entered Nepal before 1990 (2011, 59). The International Campaign for Tibet also stated that

In 1994, the Nepal government stopped issuing and renewing RCs to eligible Tibetans. This did not signify a change in official policy towards Tibetans who could carry on living in Nepal, using their out-dated RCs as proof of their right to reside there, but it did considerably weaken their status. This was most apparent when the offspring of RC-holders reached eligibility after the 1989 cut-off date. In some cases, Tibetans were added onto their parents' RCs when they were born, but this was done at the whim of local authorities in their settlement area. (2011, 59)

Information on the year that the government stopped issuing RCs to Tibetans and their Nepal-born children varies among sources consulted. Sources list the year at 1994 (International Campaign for Tibet 2011, 59), 1995 (UN 4 June 2013), and 1998 (AFP 11 Mar. 2012; Global Times 7 Mar. 2013).

The International Campaign for Tibet indicates that Tibetans were allowed to legally live in Nepal and enjoy "many of the rights of citizens," until 1989 (2011, 57). The US Department of State's Country Reports on Human Rights Practices for 2012 states that the government of Nepal "does not recognize Tibetans who arrived in the country after 1989 as refugees" and added that in 2012, many Tibetans, especially those who arrived after 1990 and their Nepal-born children, "did not have legal resident status or documentation" (US 19 Apr. 2013, 15, 16). Country Reports 2012 adds that "[e]ven those with acknowledged refugee status had no legal rights beyond the ability to remain in the country, and the Nepal-born children of Tibetans with legal status often lacked documentation" (ibid., 16).

The TJC board of directors indicated that Tibetans in Nepal have "no defined legal status" (TJC 15 Aug. 2013), and the International Campaign for Tibet states that "thousands" of Tibetans do not have legal status (2011, 58). The TJC board of directors indicated that Tibetans in Nepal are "stateless" (15 Aug. 2013), while an International Campaign for Tibet report states that "large numbers of bona fide Tibetan refugees in Nepal, including all those born after 1978, are effectively stateless" (2011, 10).

2. Nepali Citizenship for Tibetans

The TJC board of directors stated that "[t]he majority of Tibetans living in Nepal do not have citizenship and have no ability to access citizenship" (TJC 15 Aug. 2013).

2.1 Citizenship Provisions of the Constitution of Nepal

The Interim Constitution of Nepal 2063 (2007) states that

(2) At the commencement of this Constitution, the following persons who have their domicile in Nepal shall be deemed to be citizens of Nepal by descent:

(a) a person who has acquired citizenship by descent before the commencement of this Constitution,

(b) any person whose father or mother is a citizen of Nepal at the birth of such person.

(3) Every child who is found within the territory of Nepal and the whereabouts of whose parents are not known shall, until the father or mother of the child is traced, be deemed to be a citizen of Nepal by descent.

(4) Whenever any territory is acquired by way of incorporation into Nepal, every person having his domicile within such territory shall become a citizen of Nepal, subject to the provisions of the laws in force.

(5) Any person born till the end of Chaitra, 2046 (mid April, 1990) and has been residing permanently in Nepal shall acquire the citizenship of Nepal by birth as per the laws in force. Provided, that application to that effect shall be submitted within the timeframe prescribed for onetime as per the provision of the laws in force.

(6) A woman of foreign nationality who has a matrimonial relationship with a Nepalese citizen may acquire naturalized citizenship, if she desires to do so, pursuant to the laws in force.

(7) Notwithstanding anything contained elsewhere in this Article in the case of a person born to the women citizen of Nepal married to a foreigner, if such a person is born in Nepal and has been residing permanently in Nepal who has not acquired citizenship of the foreign country by virtue of the citizenship of his/her father he/she may acquire the naturalized citizenship of Nepal pursuant to the laws in force. (Part 2, Sec. 8)

In correspondence with the Research Directorate, a representative of the Office of Tibet in New York, the Dalai Lama and the Tibetan Administration in Exile's official agency (Office of Tibet in New York n.d.), indicated that, according to the Office of Tibet in Nepal, "Tibetan refugees born in Nepal of Tibetan parents are not eligible to get citizenship of Nepal according to the constitution" (ibid. 13 Aug. 2013).

2.2 Tibetan Refugees Born in Nepal to Tibetan Parents Without Nepali Citizenship

On 14 May 2010, the Australian Government Refugee Review Tribunal (RRT) stated that

Under Nepal's interim constitution of 2007 and Nepal's citizenship act of 2006, a person born in Nepal to Tibetan parents would not gain citizenship of Nepal by birth, unless the person was born in Nepal before the end of mid April 1990 and had been living permanently in Nepal and made application for citizenship by birth in the two year period between 26 November 2006 and 26 November 2008. (Australia 14 May 2010)

The Australian Government RRT adds that,

An article dated 14 February 2010 by Dr. Hari Bansh Jha, the executive director of the Centre for Economic and Technical Studies in Nepal indicates that "[t]he Interim Constitution of Nepal 2007 mentioned, 'Any person born and living permanently in Nepal before the end of mid April, 1990 shall acquire the citizenship of Nepal by birth in accordance with the existing law.' But this revision was only half-hearted as it added a clause whereby application for citizenship by birth was made valid for two years only until 26 November 2008." (ibid.)

According to the TJC board of directors, "Tibetans born in Nepal to Tibetan parents without Nepali citizenship should technically qualify for citizenship through naturalization but in practice the Government of Nepal does not view this as a viable option for Tibetans" (15 Aug. 2013). Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

The TJC board of directors indicated that a number of amendments were made to the Nepal Citizenship Act 2006 and the Interim Constitution 2007, most notably that

a person born in Nepal before mid-1990, and who has lived in Nepal since then, can claim citizenship by birth. (TJC 15 Aug. 2013)

See Attachment 1 for the Nepal Citizenship Act 2006. The TJC board of directors added that, although the most recent legislation states that individuals can claim citizenship in Nepal based on descent, birth or naturalization, "Tibetans in practice can only gain access to Nepali citizenship through descent" (ibid.).

The Nepal Citizenship Act 2063 (2006) states that

(ii) A person attaining the age of 16 years desiring to acquire Nepalese Citizenship Certificate by virtue of birth pursuant to Clause 4 shall have to file an application in the prescribed form along with copies of the following documents to the designated authority.

(a) Recommendation from the concerned Village Development Committee or Municipality certifying the birth in Nepal and residing permanently in Nepal.

(b) An evidence showing Land Title Deed Ownership Certificate in the name of self or family or Certificate of Land Tilling Right or proof of house or listing of his name or the names of his father or mother in the Voters' list prepared by the Election Commission. (Nepal 2006, Sec. 8.2)

The International Campaign for Tibet states that Tibetan refugees do not have voting rights in Nepal and cannot own land (2011, 33, 38-39). The TJC board of directors stated that the required evidence showing land ownership or voter registration means that "Tibetans cannot claim citizenship by birth" (15 Aug. 2013).

2.3 Tibetan Refugees Born in Nepal to Tibetan Parents with Nepali Citizenship

The TJC board of directors indicated that in virtue of the amendments that were made to the Nepal Citizenship Act 2006 and the Interim Constitution 2007,

children born to a mother with citizenship after the Act was promulgated are eligible for citizenship (whereas previously children could only claim Nepali citizenship through their father) ... (TJC 15 Aug. 2013)

The TJC board of directors further states that

Tibetans born in Nepal to a Tibetan parent with Nepali citizenship are technically able to claim Nepali citizenship through descent when they reach 16 years of age. This only applies to the offspring of a relatively small number of Tibetans who were able to gain citizenship some decades ago ... and to the offspring of Tibetans who have been able to purchase, with a degree of risk, Nepali citizenship papers on the black market ... (ibid.)

They added that, although in 2006 the citizenship law changed to allow citizenship by descent through the maternal line, this is "more complicated" because of the additional requirements (ibid.). The Nepal Citizenship Act 2063 (2006) lists that the following documents must be provided with the application for citizenship:

Duplicate copy of the citizenship certificate of the mother,

Recommendation by concerned Municipality or Village Development Committee certifying the birth and permanent residency in Nepal,

Evidence to show that foreign citizenship has not been acquired based on the citizenship of the father. (Nepal 2006, Sec. 5.3)

The TJC board of directors said that these "additional provisions may make it harder for Tibetans to claim citizenship by descent through the female line" (15 Aug. 2013). Human Rights Watch states that, in practice, children born to non-Nepali fathers are left "stateless" (Jan. 2013, 4). Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

2.4 Particular Cases of Tibetans Who Acquired Citizenship

As reported by the representative of the Office of Tibet in New York, the Office of Tibet in Nepal indicated that in the mid-1970s, "a group of Tibetan guerrilla fighters and their families" were given citizenship through naturalization by Nepal's Home Ministry, and the descendants of these Tibetans are "eligible" for Nepali citizenship (13 Aug. 2013).

The International Campaign for Tibet similarly states that,

[a]lthough rare, there are some Tibetans living in Nepal who have one of two forms of Nepali citizenship known as nagrikta and angrikta. Angrikta is a form of citizenship that was handed out to the Tibetan guerilla fighters after they were forced to lay down their arms in Nepal in 1974. In a gesture after the conflict, King Mahendra decided to formalize the status of Tibetan guerilla fighters who settled in Nepal, and some 1,500 Tibetans were given citizenship. Thereafter, their offspring would be born as Nepali citizens. In the late 1970s, the Nepal government rolled out a program to give citizenship (Nepali: nagrikta) to hundreds of thousands of inhabitants of the Himalayan region - including Sherpas, Tamangs and Drolpas - who had been politically marginalized. The many Tibetans who had established homes in these areas outside of the Tibetan refugee settlements (and share a common ethnicity with these groups) were able to claim citizenship at their local government offices because they were not required to show any ID in order to do so. Most Tibetans did not take advantage of this opportunity because at the time few Tibetans viewed it as important as living circumstances were relatively comfortable. As the Tibetan settlements became more established and Tibetans wanted to start businesses, which would require citizenship, some were able to acquire a nagrikta through unofficial means. This has become more difficult but it is still possible, although the 400,000 Nepali rupee (US $4,500) price tag is beyond the reach of most Tibetan refugees. (2011, 60)

The Nepali Times reports that most of "Walungs" in Olangchungola, a village near the north eastern tip of Nepal, who were refugees from Tibet, have Nepali citizenship (2 May 2012). Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim for refugee protection. Please find below the list of sources consulted in researching this Information Request.

References

Agence France-Presse (AFP). 11 March 2012. Frankie Taggart. "Nepal Tibetans' 'Suffocated' by Chinese Influence." [Accessed 7 Aug. 2013]

Australia. 14 May 2010. Refugee Review Tribunal (RRT). "Country Advice Nepal - Nepal - NPL36609 - Tibetans - Citizenship - False documents - Passports - Chinese citizenship - Right of entry - Residence - India." [Accessed 19 Aug. 2013]

Global Times. 7 March 2013. Lin Meilian. "Nepal Entrapped." (Factiva)

Human Rights Watch. January 2013. "Nepal." World Report 2013. [Accessed 15 Aug. 2013]

International Campaign for Tibet. 2011. Dangerous Crossings: Conditions Impacting the Flight of Tibetan Refugees. [Accessed 15 Aug. 2013]

Nepal. 2007. Interim Constitution of Nepal 2063 (2007). (HeinOnline)

Nepal. 2006. Nepal Citizenship Act 2063 (2006). [Accessed 12 Aug. 2013]

Nepali Times. 2 May 2012. "The Corner People of Olangchungola." (Factiva)

Office of Tibet in New York. 13 August 2013. Correspondence from a representative to the Research Directorate.

_____. N.d. "Mission and Role." [Accessed 15 Aug. 2013]

Tibet Justice Center (TJC). 15 August 2013. Correspondence from the board of directors to the Research Directorate.

United Nations (UN). 4 June 2013. Integrated Regional Information Networks (IRIN). "Tibetan Refugees in Nepal Crying Out for Documentation." [Accessed 7 Aug. 2013]

_____. 2013. High Commissioner for Refugees. "2013 UNHCR Country Operations Profile - Nepal." [Accessed 15 Aug. 2013]

United States (US). 19 April 2013. Department of State. "Nepal." Country Reports on Human Rights Practices for 2012. [Accessed 15 Aug. 2013]

Additional Sources Consulted

Oral sources: Attempts to contact the following individuals and organizations were unsuccessful within the time constraints of this Response: Canada Tibet Committee; Central Tibetan Administration; Human Rights Organization of Nepal; International Campaign for Tibet; Nepal - Ministry of Home Affairs. The Embassy of Nepal in Ottawa was unable to provide information within the time constraints of this Response.

Internet sites, including: Al Jazeera; Amnesty International; Asian Human Rights Commission; Central Tibetan Administration; ecoi.net; Factiva; International Labour Organization (Natlex); Legislationline; Nepal - Embassy in Ottawa, Embassy in Washington, Government of Nepal website, Ministry of Home Affairs, National Planning Commission, Office of the Prime Minister; United Nations - Refworld; US Committee for Refugees and Immigrants.

Attachment

Nepal. 2006. Nepal Citizenship Act 2063 (2006). [Accessed 12 Aug. 2013]