Law

1. Citizenship Law

a. Jus Sanguinis and/or Jus Soli Provisions

The citizenship laws of six out of eight States (Afghanistan, Bhutan, India, the Maldives, Nepal and Sri Lanka) operate through jus sanguinis structures. While the laws of all of these States are underpinned by the same principle of citizenship by descent, there is great variance in the structure of their laws, with many containing complex limitations on the granting of citizenship. The laws of two States (Afghanistan and Bhutan) provide an automatic grant of citizenship where a child is born within or outside of the State to two citizen parents. While the citizenship law of Afghanistan also provides avenues of acquisition for children born in the country to one citizen parent and for those born outside the country to one citizen parent with mutual consent from the parents, the law of Bhutan does not have any such provisions. The citizenship laws of two States (India and Sri Lanka) provide some differential treatment between children born within or outside of the country. Indian citizenship also operates through a jus sanguinis structure, with children born in India only considered citizens by birth if both parents are citizens of India or if one parent is a citizen of India and the other is not an illegal migrant. Children born outside of India to at least one Indian parent are considered citizens by descent so long as their birth is registered, and they are not also considered citizens of another country. Sri Lankan citizenship is provided through jus sanguinis provisions providing for automatic citizenship for children born in Sri Lanka to a Sri Lankan citizen parent. For children born outside of Sri Lanka to a citizen parent, their birth must be registered for their citizenship to be recognised.

Two States (Maldives and Nepal) with jus sanguinis structures also have discriminatory provisions in their laws that restrict the ability of conferral of nationality onto children. Nepal’s citizenship laws contain gender discrimination, while the laws of India and the Maldives discriminate on the grounds of religion. The laws of the Maldives also contain some potentially gender discriminatory provisions. Citizenship law of the Maldives operates through jus sanguinis provisions that provide automatic citizenship to a child born to a citizen of the Maldives regardless of their place of birth.

The Maldives’ citizenship legislation also discriminates on religious grounds, barring non-Muslims from being recognized as citizens of the Maldives. Conversely, India’s Citizenship Amendment Act (2019) provided a pathway to citizenship for undocumented migrants which explicitly does not apply to Muslims. The citizenship law of Nepal operates through jus sanguinis provisions, which contain gender discriminatory elements. The Nepal Citizenship (First Amendment) Bill (2079) removed some, but not all, of the previous gender discriminatory provisions. Previously, a child born to a single Nepali citizen mother would only gain citizenship by descent when the father is not identified through court order. The changes provided that children born to single mothers and citizens by birth may obtain Nepali citizenship; however, extra conditions remain for single mothers to confer citizenship to their children that are discriminatory and undignified.

Two States (Bangladesh and Pakistan) have combined jus soli and jus sanguinis structures to their citizenship laws. The laws of Bangladesh provide for both jus soli and jus sanguinis citizenship; however, in practice, citizenship by birth appears to only be provided when a child is born in Bangladesh to two Bangladeshi citizen parents. The jus sanguinis provision of the Bangladeshi citizenship law, like the Maldives, provides that a child born either within or outside of Bangladesh to a Bangladeshi citizen by birth automatically acquires citizenship by descent. The citizenship law of Pakistan operates through both jus sanguinis and jus soli provisions. Pakistan’s jus soli provisions has previously been interpreted to provide citizenship to all children born on the territory of Pakistan, except those whose fathers have diplomatic immunity, or are enemies or aliens. However, a Supreme Court decision in 2023 and a High Court ruling in 2022 both ruled that all children born in Pakistan are entitled to Pakistani citizenship by birth. Jus sanguinis provisions provide that a child born outside of Pakistan to a Pakistani citizen by birth automatically acquire Pakistani citizenship, while those born to a citizen by descent must register the birth.

The laws of three States (Bangladesh, Nepal, and Pakistan) contain gender discriminatory provisions that limit the ability of married women to transfer their nationality to foreign spouses on the same basis as men.

None of the countries in South Asia provide a definition of a stateless person in their citizenship legislation. The 1954 Convention defines a stateless person as someone “who is not considered as a national by any State under operation of its law”, which notably does not place the burden of proof on the stateless person.

b. Naturalized citizenship

Stateless persons may be eligible for the standard naturalization process in Afghanistan. Bangladesh, Bhutan, Pakistan, and the Maldives. Bhutan’s requirements for the period of residence prior to application for naturalization are notably strict in comparison to other countries in the sub-region, requiring a residence period of 20 years prior to applying. Stateless persons have no access to naturalization in Nepal as the procedure is only open to foreign citizens, or in India due to barring individuals categorized as an ‘illegal immigrant’. In Sri Lanka, stateless persons have limited access as only stateless persons who are a descendant of a citizen, have married a citizen, or have provided distinguished service to the country are eligible for naturalization.

Bangladesh is the only country in South Asia which has gender discriminatory provisions relating to naturalization. While a foreign woman married to a Bangladeshi man may apply for citizenship through naturalization, no such provision exists which allows foreign men married to a Bangladeshi woman to gain citizenship through naturalization. India also contains discriminatory naturalization provisions on the basis of religion as only non-Muslim applicants are eligible for the expedited procedure.

None of the countries in South Asia provide a simplified or expedited procedure of naturalization for stateless persons or refugees. Article 32 of the 1954 Convention relating to the Status of Stateless Persons stipulates that such a process should be expedited for stateless persons to “reduce as far as possible the charges and costs of such proceedings.”

c. Dual citizenship

Only two States in South Asia, the Maldives and Sri Lanka, allow dual citizenship. In Sri Lanka, Sri Lankan citizens are required to make a declaration to the Minister in order to retain their Sri Lankan citizenship upon acquiring another citizenship. While generally not permitted in Bangladesh or Pakistan, both countries offer a list of countries with which citizens may have dual citizenship. Dual citizenship is not recognized in Afghanistan, Bhutan, India, or Nepal. In both Bhutan and Nepal, foreign citizens applying for naturalization in either country must first renounce their prior citizenship, which may place them at risk of statelessness. Article 7(1)(a) of the 1961 Convention on the Reduction of Statelessness states that State parties which allow renunciation of citizenship must ensure that “such renunciation shall not result in loss of nationality unless the person concerned possesses or acquires another nationality.”

2. Treaty ratification status

No country in South Asia has ratified either Stateless Convention. Only one State (Afghanistan) is a party to the Refugee Convention and its Protocol. However, there is a high rate of ratification of the key human rights treaties, with all eight States in the region party to the CRC and CEDAW and seven States (excluding Bhutan) to the ICCPR, ICESCR, and ICERD. Bhutan has signed, but not ratified the ICERD. The Maldives notably made reservations to Article 18 of the ICCPR, which ensures the right to freedom of thought, conscience and religion, and Article 14 of the CRC, which protects the same rights for children.

The gender discriminatory legislation of Bangladesh, Nepal, and Pakistan contravenes the ICCPR and CEDAW, which protect gender equality in nationality laws. All three of these States are a party to the ICCPR and CEDAW. Further, India and the Maldives, due to their discriminatory provisions on grounds of religion, are not in full compliance with their obligations to the ICCPR, ICERD, or CRC as all three treaties protect the right to a nationality.

Status of Accession of International Human Rights Treaties in South Asia

Country	Stateless 1	Stateless 2	Refugee	ICCPR	ICESCR	ICERD	CRC	CEDAW
Afghanistan
Bangladesh
Bhutan
India
Maldives
Nepal
Pakistan
Srilanka
Total	0	0	1	7	7	7	8	8

Signifies that the country is a party to the convention

Stateless 1 – 1954 Convention relating to the Status of Stateless Persons

Signifies that the country is not a party to the convention

Stateless 2 – 1961 Convention on the Reduction of Statelessness

Population

1. Reported Stateless Persons

In 2022, States in South Asia reported 974,443 stateless persons to UNHCR representing an increase of over 30,000 persons in the last year. Bangladesh is the largest hosting country both within South Asia and the Asia-Pacific broadly with a population of 952,309 stateless persons. Afghanistan, Bhutan, and the Maldives did not report stateless populations in the past five years of reporting to UNHCR. All other States (Bangladesh, India, Nepal, Pakistan, and Sri Lanka) only provided statistics covering forcibly displaced (refugee) stateless populations, with no States providing figures on in situ stateless populations. UNHCR has noted that, regarding Afghanistan, Bhutan, Nepal, Pakistan, and Sri Lanka, ‘UNHCR has information about stateless persons but no reliable data’. Known stateless populations not included in the UNHCR reporting figures include the Lhostshampa of Bhutan, ethnic Bengalis, and long-term Afghan refugees in Pakistan.

2. Persons at Risk of Statelessness

Millions of Afghans have fled Afghanistan due to wars and persecution in the country, with over 6.4 million Afghan refugees, persons in refugee-like situations, or asylum-seekers globally at the end of 2022. Due to loss or denial of identity documents, the children of many Afghan refugees and asylum seekers are at risk of statelessness. Further, a lack of access to identity documentation has rendered potentially millions of women in Afghanistan at risk of statelessness. A 2016 study found that 52% of women in general held no identity documentation, with this rate increasing to 75% among female IDPs.

There are a number of different population groups in India at risk of statelessness, including Tibetan and Sri Lankan refugees, ethnic minority groups living in border regions (including the Chakma, Hjong, and Kutchi communities), and former Kashmiri militants. Ethnic minority groups, including Dalit and Madheshi communities in Nepal, face issues accessing citizenship and identity documents and are at risk of statelessness. The Hazara ethnic minority community in Pakistan has previously faced discrimination in receiving passports. The Gypsy (Roma) community may also be at risk of statelessness in Pakistan due to lack of identity documentation and access to services.

Reported stateless population in South Asia

Country	2019(year start)	2020(year end)	2021(year end)	2022(year end)
Afghanistan	–	–	–	–
Bangladesh	854,704	866,457	918,841	952,309
Bhutan	–	–	–	–
India	17,730	18,174	20,154	21,591
Maldives	–	–	–	–
Nepal	–	–	465	452
Pakistan	–	–	47	55
Srilanka	–	–	35	36
TOTALS	872,434	884,631	939,542	974,443

3. Stateless Refugee

The entire reported stateless population in South Asia consists of stateless refugees. The UNHCR has noted that the reported populations in India (21,591) and Nepal (452) are stateless Rohingya refugees, although this is not explicitly stated for the other countries in the region. There has been an extensive focus on Rohingya in Bangladesh by UN bodies, academics, and NGOs, specifically since their mass displacement in 2017. Most of the 950,000 Rohingya refugees in Bangladesh reside within refugee camps in Cox’s Bazar, facing limited access to health and social services, education, and living in conditions that have been condemned by residents, international organizations, and NGOs.

The true scale of the Rohingya refugee population in South Asia is estimated to be thousands higher than reported figures. Human Rights Watch has estimated that Rohingya registered with UNHCR in India in 2021 (20,154) represented only half of the total population of 40,000 Rohingya refugees in India.

The Pakistani Foreign Office suggested that as many as 400,000 Rohingya refugees may be in Pakistan (compared to the reported 47). Both Rohingya and Afghan refugees in Pakistan have been excluded from efforts to provide Pakistani citizenship to stateless persons.

Estimate of the stateless Rohingya population versus those reported by Human Rights Watch

Source: ‘India: Rohingya Deported to Myanmar Face Danger’, Human Rights Watch (31 March 2022)

Other groups of refugees affected by statelessness include as many as 73,404 Tibetan refugees and more than 92,000 Sri Lanka refugees in India. There are also 6,365 Bhutanese Lhostshampa refugees in Nepal, many of whom are stateless.

4. Undetermined Nationalities

In 2019, India’s National Register of Citizens in Assam excluded over 1.9 million Assamese, leaving them labeled as foreigners or ‘D voters’ and the validation of their citizenship at the hands of the foreigners’ tribunals. In a recent court proceeding, the Central Government informed the Supreme Court of India that between 2017 to 2022, 14,346 individuals have been deported from India with 32,381 individuals being declared as foreigners. Another 123,829 cases remain pending before the tribunals.

UNHCR has noted that ‘various studies estimate that a large number of individuals lack citizenship certificates in Nepal. While these individuals may not all necessarily be stateless, UNHCR has been working closely with the Government of Nepal and partners to address this situation.’ In 2016, the Forum for Women, Law and Development projected that by 2021, as many as 6.7 million people would be without citizenship. In Pakistan, Bengali-speaking and Bihari communities also hold an uncertain status with limited information available on their citizenship status. The community largely consists of persons repatriated to Pakistan following Bangladeshi independence (and their descendants), some of whom hold passports and documentation, yet continue to face discrimination and exclusion. In the process of digitization of civil registration in Pakistan, Bengali-speaking and Bihari individuals were registered as aliens. While registered as ‘aliens’, they are often denied citizenship under the previous interpretation of Pakistan’s jus soli provision.

5. Other Populations of Note

It is important to note two population groups within South Asia who have had their stateless status ‘solved’ in recent decades yet continue to face discrimination and social exclusion. In Bangladesh, the Urdu-speaking (Bihari) community who have resided in Bangladesh since independence, yet were only recognized as citizens from the early 2000s. However, the Urdu-speaking community, with a population size estimated to be 300,000, continues to face discrimination and marginalization including through the denial of passports, physical isolation in refugee-like camps, and denial of services. The granting of citizenship to the ‘Hill Country’ (or ‘Up-Country’) Tamil population in Sri Lanka in 2003, who had been deprived of citizenship since 1948, has both been held up as a success story of ‘solving’ statelessness and analyzed for the continuing discrimination faced by the population group despite their citizenship status being resolved.

Causes of Statelessness

1. Discriminatory Nationality Laws

As noted above, two States within South Asia have discriminatory provisions in their laws which restrict the ability to confer nationality onto children. The laws of the Maldives containing religious discrimination (and potentially some gender discriminatory provisions) and the laws of Nepal gender discrimination. Statelessness among Muslim and ethnic minority populations in India, including persons excluded by the National Register of Citizens in Assam and Rohingya refugees, is further protracted by their discriminatory exclusion from the Citizenship Amendment Act (2019). The Citizenship Amendment Act provides a pathway to Indian citizenship for ‘illegal migrants’ in India who belong to Hindu, Christian, Buddhist, Jain, Parsi and Christian faiths from Afghanistan, Bangladesh and Pakistan. Notably, Muslims are excluded from the amendment, an act labelled by numerous commentators as being discriminatory or on religious grounds.

Despite the 2023 amendment which removed some gender discriminatory aspects of Nepal’s citizenship legislation, several groups still face barriers in accessing citizenship. Previously, a child born to a single Nepali citizen mother would only gain citizenship by descent when the father is not identified. The changes provided that children born to single mothers and citizens by birth may obtain Nepali citizenship, however, extra conditions remain for single mothers to confer citizenship to their children, denying women equal right to confer nationality to their children. Further, in instances where a child is born to a citizen mother and a foreign father, citizenship can only be acquired through naturalization, even though children born to citizen fathers gain citizenship by descent. As many as 400-500,000 persons are estimated to have been rendered stateless due to these discriminatory provisions.

The laws of three States (Bangladesh, Nepal and Pakistan) also contain discriminatory provisions that inhibit the ability of married women to confer nationality onto foreign spouses.

As previously mentioned, the entire reported stateless population within South Asia comprises stateless refugees, largely Rohingya from Myanmar. As outlined in the Myanmar and Southeast Asia chapters, the statelessness of the Rohingya community is largely caused by ethnic discrimination embedded in the citizenship laws of Myanmar.

Other ethnic minority groups have been impacted by discriminatory nationality laws which either indirectly excluded population groups or ignored them entirely. Urdu-speaking ‘Bihari’ communities were excluded from accession to Bangladeshi citizenship until court intervention in 2008 due to discriminatory interpretations of the citizenship law. Ethnic minority groups including the Mosuli and Jogi (or ‘Magat’) communities who have lived semi-nomadic existences in Afghanistan from generations have been largely excluded from the operation of citizenship laws due to ethnic discrimination based on their historic connections to neighboring countries. Pakistan’s jus soli provisions on paper provide citizenship to all children born on the territory of Pakistan, except those whose fathers have diplomatic immunity, or are enemy aliens. However, as a result of the interpretation of ‘enemy alien’ to be anyone labeled as ‘alien’, minority groups labeled as alien have largely been denied citizenship.

2. Lack of Legal Safeguards Against Childhood Statelessness

The citizenship laws of three countries (Afghanistan, Nepal and Sri Lanka) provide limited protection for foundling children, with no countries providing broad protection for foundling children. In Afghan citizenship law a child found in Afghanistan will be considered a citizen of Afghanistan if documentation of their parent’s citizenship is not available. Similarly, the citizenship laws of Sri Lanka provide that a foundling child of unknown and unascertained parentage will be considered a citizen of Sri Lanka until the contrary can be proven. The citizenship law of Nepal provides that foundling children are considered citizens by descent until their father or mother is identified.

The jus soli provision that exists in the citizenship laws of two countries (Bangladesh and Pakistan) may provide foundling children access to citizenship, however in-practice, the application of these laws are less generous. Pakistan’s jus soli provisions on paper provide citizenship to all children born on the territory of Pakistan, except those whose fathers have diplomatic immunity, or are enemy aliens. However, the children of Afghan refugees who have resided in Pakistan for decades have explicitly been excluded from the operation of these jus soli provisions with the High Court of Pakistan explicitly labelling Afghan refugees as foreigner and aliens.

The citizenship laws of three countries (Bhutan, India and the Maldives) do not address access to citizenship for foundlings.

None of the countries in South Asia provide explicit protection for children born to stateless parents. The jus soli provisions of two States (Bangladesh and Pakistan) would appear to provide access to citizenship for stateless children, however their application in practice is far less certain. While there is no specific provision providing for access of citizenship for stateless children at birth in Afghanistan, however under the citizenship laws of the country stateless persons may obtain citizenship at the age of 18. Bhutanese, Indian, Maldivian, Nepali, and Sri Lankan citizenship laws do not address access to citizenship for children of stateless parents. Article 1 of the 1961 Convention on the Reduction of Statelessness states that State parties “shall grant nationality to a person born in its territory who would otherwise be stateless” either “by birth, by operation of law, or upon and application”.

3. Citizenship Stripping

In the late 1980’s, members of ethnic Nepali communities known as ‘Lhotshampas’ living in the south of Bhutan were labelled as non-citizens through a census count, stripping them of their Bhutanese citizenship. In the early 1990’s the Bhutanese government began expelling persons from their land and the country with as many as 100,000 refugees arriving in Nepal during the decade.

The history of the National Register of Citizens in Assam is politically complex and driven by ethnic and religious tension spanning back to the period of partition between India and Pakistan. In 2019, the final National Register of citizenship excluded 1.9 million residents from the list, essentially stripping them of their citizenship. Persons excluded from the National Register of Citizens must in turn apply to the government or Foreigners Tribunal to have their citizenship status verified, with those unable to verify their status as citizens rendered stateless.

Historic statelessness among Hill Country Tamils was largely based on the discriminatory implementation of citizenship laws at the time of Sri Lankan independence in 1948 which indirectly excluded Hill Country Tamils from citizenship.

4. Administrative Barriers

Administrative and practical barriers, including security concerns, restrictions imposed by male family members and lack of financial means have fundamentally limited the ability of women in Afghanistan to gain identity documentation and to confirm their status as citizens. Similarly in Nepal, administrative and policy barriers affect the ability of marginalised groups including LGBTQIA+ communities and women from accessing citizenship certificates. Children born to citizen mothers in Nepal continue to face a number of administrative barriers in gaining birth registration and citizenship certificates. The arbitrary levels of discretion applied by authorities, who consist mostly of men, in issuing documentation has often denied women and their children documentation due to discriminatory patriarchal beliefs. Further, the same discriminatory discretion is seen in distribution of birth certificates, causing a lack of birth certificates among marginalized groups which presents another barrier in accessing citizenship.

Administrative and policy practice have led to the citizenship laws of Bangladesh shifting in application from jus soli to jus sanguinis in their application. This ‘paradigmatic policy shift’ has compounded intergenerational statelessness among children born in the country, especially among Rohingya refugees. In 2020, it was estimated that more than 75,000 Rohingya children have been born in Cox’s Bazar since 2017. In April 2022, it was reported that an official count found that on average 95 children were born per day to Rohingya parents in refugee camps, accounting for this, an additional 70,000 stateless Rohingya children may have been born in Bangladesh in the past two years.

In India, barriers to birth registration among Sri Lankan refugee populations and ethnic minority groups including the Kutchi community residing in border regions of the country places these populations at risk of statelessness.1991 Discriminatory administrative barriers are largely the cause of statelessness among ethnic Bengali communities in Pakistan. Despite their right to citizenship existing under the written law, it is estimated that 70–80% of the Bengali population in Pakistan do not have identity documents. The position of ethnic Bengalis was worsened

through the introduction of digitized ID cards, with the government discriminating and, in some cases, stripping persons of citizenship by labelling Bengali community members as ‘aliens’.

In the Maldives, children born to non-Muslim parents, to parents of unrecognized inter-religious marriages, to one foreign parent and those born as a result of unrecognized child marriages often remain unregistered.2003 As a result, they experience denial of education as they are unable to provide identity documentation in order to enroll in school or access government services.

Birth registration rates of the countries in South Asia

Source: “Birth and Death Registration Completeness” (UN Statistics Division, April 2023); “Data Warehouse,” UNICEF DATA; “CRVS Case Studies: Bhutan” (UNICEF, September 2023).

5. Requirement of Birth Registration for Citizenship Acquisition

Birth registration is especially linked to citizenship acquisition in Bangladesh, Bhutan, the Maldives, while India explicitly provides that a birth certificate is proof of citizenship. In India, there have been multiple conflicting court decisions regarding whether an Indian passport may also prove Indian citizenship. However, India’s Citizenship Rules indicate that a birth certificate is a supporting document for many kinds of citizenship, indicating that having a birth certificate would be necessary for obtaining citizenship in most situations. Bhutan’s citizenship identification document is issued immediately after birth registration in the country. While a birth certificate is not explicitly listed as a document that proves citizenship in the Maldives, it is directly linked to citizenship acquisition as a child’s unique Maldivian identity number is issued upon birth registration. A birth certificate can also serve as evidence of citizenship in Pakistan with Computerized National Identity Cards also serving as de-facto proof. In Afghanistan, the Tazkera, the principal Afghan identity document, proves Afghan citizenship. A citizenship certificate serves as evidence of citizenship in Nepal and Sri Lanka.

6. Statelessness and Climate Change

With the highest elevation point of the Maldives being 2.4 metres above sea-level, the impacts of climate-induced sea-level rise and in turn the potential risks of statelessness caused by ‘disappearing States’ has been discussed in detail.

South Asia

Overview

Law