The law on multiple citizenship poses certain risks, but its adoption now allows a number of problems to be solved as quickly as possible, according to lawyers surveyed by the Interfax-Ukraine news agency.
“The adoption of the law on multiple citizenship is a strategic response to two existential challenges exacerbated by the full-scale invasion: the demographic crisis and the need to maintain ties with millions of Ukrainians who find themselves abroad. The law creates a complex but logical legal framework that radically changes the approach to the institution of citizenship,” said Kirill Iordanov, a lawyer at Barristers.
He noted that the central legal problem of the citizenship reform was a potential conflict with Article 4 of the Constitution, which proclaims that Ukraine has a single citizenship. Instead of initiating a complex procedure to amend the Constitution, the legislator chose the path of interpretation, essentially establishing that this norm was historically aimed at preventing separatism (making it impossible to have “citizenship of the Lviv region” or “citizenship of the Autonomous Republic of Crimea”), rather than prohibiting the possession of a passport of another sovereign state.
“At the same time, this approach creates a certain legal vulnerability, since the exclusive right to officially interpret the Constitution belongs to the Constitutional Court, and the entire reform is based on the assumption that the Constitutional Court, if asked, will support this liberal interpretation. This creates a potential long-term risk, which experts call a ‘constitutional time bomb’, but for now, the state has chosen this path to resolve the urgent problem as quickly as possible,” he said.
Iordanov noted that the operational model of the law provides, first, for the obligation of Ukrainian citizens to declare their foreign citizenship, which removes this phenomenon from the “gray zone,” and second, the possibility of multiple citizenship is extended only to citizens of countries included in a special list to be approved by the Cabinet of Ministers.
In addition, the law categorically prohibits citizenship of the aggressor state (the Russian Federation) and holding public office for persons with multiple citizenship.
“These mechanisms, although pragmatic, are controversial. For example, delegating the power to draw up a list of ”friendly countries” to the government creates a risk of politicization. What will happen if a person obtains citizenship of a country that is on the list, and a year later, due to political differences, that country is removed from the list? The law does not yet provide an answer, which underscores the importance of developing stable and transparent subordinate legislation,” he said.
Iordanov also noted that the introduction of multiple citizenship raises a number of practical questions regarding the financial and legal aspects of a person’s life. These include, in particular, taxation and pensions.
“It is important to understand that financial obligations are governed primarily by tax residency status and bilateral agreements, not by the number of passports. In terms of taxation, in order to avoid a situation where both countries require taxes to be paid on the same income, Ukraine has concluded double taxation agreements with more than 70 countries around the world. They clearly divide the rights to tax different types of income between the two states,” the lawyer said.
Iordanov pointed out that the right to social benefits and pensions is also regulated by bilateral social security agreements. These agreements are based on the proportional principle: a person does not receive two full pensions, each country pays a portion proportional to the insurance period acquired on its territory.
“Although this system is logical, it can create certain difficulties when a person may have sufficient total length of service but does not have the minimum required in either country separately,” he said.
As the lawyer emphasized, in matters of rights and obligations, the fundamental principle is that “if a citizen of Ukraine has acquired the citizenship of another state, then in legal relations with Ukraine, he is recognized only as a citizen of Ukraine.”
“This means that on the territory of Ukraine, such a person cannot evade their obligations by referring to their second passport,” he said, noting at the same time that restrictions on holding public office for persons with multiple citizenship “create a subject for discussion.”
Iordanov predicts that the law may currently cause difficulties in areas where the jurisdictions of different states overlap. In particular, having a second passport does not exempt a person from military service in Ukraine: as long as a person with multiple citizenship is on the territory of Ukraine, they are considered exclusively as a citizen of Ukraine and are subject to mobilization on the same basis as other citizens.
At the same time, a young person who is a citizen of Ukraine and, for example, Israel, may be called up for service in both countries. “This is a complex international problem, the solution of which will require active diplomatic work and the conclusion of relevant agreements, which is normal practice in international relations,” he said.
According to Iordanov, multiple citizenship does not create a legal vacuum in matters of marriage, inheritance, and criminal justice, which are already regulated by the Law on International Private Law. However, issues may arise in these areas, in particular with the determination of the “last permanent place of residence” for inheritance or division of property acquired in different jurisdictions in the event of divorce.
At the same time, the lawyer stressed that “one of the most risky provisions of the law is the rule on the loss of citizenship for ‘voluntary’ acquisition of a passport of the aggressor state.”
“The problem lies in the very concept of ‘voluntariness’ under occupation, which is a fiction. The literal application of this provision could lead to the mass deprivation of citizenship of victims of occupation. This provision requires immediate clarification and the development of clear criteria to distinguish an act of treason from a forced step taken under pressure from the occupying authorities,” he said.
For her part, Daria Lupichuk, coordinator for relations with government bodies at the Ukrainian Bar Association, recalled that previously, the basis for loss of citizenship was the voluntary acquisition of citizenship of another state by a citizen of Ukraine if, at the time of such acquisition, he or she had reached the age of majority, but the implementation of this provision was extremely difficult. However, Ukrainian citizens can now acquire citizenship of other countries. However, the list of countries where Ukrainians can have multiple citizenship has not yet been approved by the government.
“In particular, it is planned to give priority to EU, G7, and NATO countries. At the same time, such countries cannot be aggressor states or occupiers. This approach is intended to eliminate potential threats to national security,” she said.
Lupichuk noted that the adopted law does not abolish the principle of single citizenship, which excludes the possibility of citizenship of administrative-territorial units of Ukraine (internal dimension) and establishes that in legal relations with Ukraine, a citizen is recognized only as a citizen of Ukraine. Thus, if a foreigner has acquired Ukrainian citizenship, he or she is recognized as a citizen of Ukraine in legal relations with Ukraine.
“That is, in situations where a person has several passports, the Ukrainian passport will take precedence. Also, citizens with Ukrainian citizenship, regardless of others, are obliged to fulfill their duties to the state, including military service,” she said.
Lupichuk stressed that following the adoption of the law on multiple citizenship, changes must be made to eliminate existing shortcomings in the institution of multiple citizenship. Thus, with regard to military service for dual citizens, the European Convention on the Reduction of Cases of Multiple Nationality provides that persons who have the nationality of two or more participating states are required to perform their military service only in one of these countries, but Ukraine has not ratified this Convention.
“The abolition of the grounds for losing Ukrainian citizenship through the acquisition of foreign citizenship can be seen as a liberalization of legislation. However, for the state, such a person remains a citizen with all the corresponding rights and obligations. At the same time, issues such as the performance of military service by persons with multiple citizenships and double taxation need to be regulated,” she said.
For her part, Yana Trinyova, a lawyer at Ilyashev & Partners Law Firm, believes that the tax regime will depend, in particular, on which country a person considers themselves a resident of or can be recognized as a resident under the law, but “in any case, multiple citizenship in the context of taxation entails additional obligations for the person,” and the issue of social benefits will depend, in particular, on the person’s residence, the type of social benefit, and other factors, such as length of service (mandatory legal employment) in accordance with the requirements of the legislation of a particular country, etc.
Trinova also emphasized that “the legislation of a particular country of citizenship will apply to the entire territory of that country; in another country, this legislation will not apply.”
“For example, if a person is a citizen of Ukraine, where the free circulation of firearms (other than smooth-bore hunting weapons) is currently restricted, and a citizen of another country where the free circulation of firearms is permitted, they may purchase such weapons in the territory of the country where it is permitted and use them in the territory of that country. However, in Ukraine, carrying such weapons, for example, would be an offense punishable by criminal liability,” she said.
In addition, the principle of citizenship will also apply in a situation where a citizen of Ukraine, while in another country where the acquisition and use of narcotic substances is permitted, acquires and uses such substances, but upon returning to Ukraine (where this is prohibited), may be subject to criminal liability if discovered.
Trinova emphasized that “persons who have more than one citizenship are subject to the legislation of all countries of which they are citizens, regardless of their place of residence: within the territory of these countries or outside them.”
Source: https://interfax.com.ua/news/general/1082211.html
