Published: 15 February 2023 Authors: Stefan Talmon and Tobias Weiß, GPIL
On 1 July 2022, Viet Nam began issuing new non-biometric passports with a dark blue cover and a serial number beginning with ‘P’. Unlike the previous green passports, the new document no longer included the place of birth of the holder. Instead, the place of birth was hidden in a twelve-digit personal numeric code that had to be deciphered using a seven-page list of tables. Contrary to international practice, Viet Nam had not informed the German Government in advance about the new passports. On 27 July 2022, Germany became the first country to stop recognising the new passports.
The German embassy in Hanoi posted a notice on its website saying:
As of now, the new blue Vietnamese passports (serial number beginning with ‘P’) cannot be visaed due to the lack of information on the place of birth. This means for you: if you have such a passport, you cannot apply for a visa.
The embassy expressed regret for any inconvenience caused. It also sent a note to the Consular Department of the Ministry of Foreign Affairs of Viet Nam explaining the reasons for not recognising the new passports as follows:
It is difficult to identify the passport holder, especially when many holders have the same surname. The German side is only able to determine the holder’s place of birth by looking up their 12-digit identification number on a seven-page list. It is impossible to find the place of birth using the passport number.
Holders of the new passport could not get a visa either for entry into or transit through Germany. The other countries of the Schengen area – the European countries that had harmonised their entry and visa requirements and formed a free travel area – were required to add a note to their Schengen visas, saying ‘Does not apply to Germany’. For Vietnamese citizens living in Germany, the non-recognition of the new passports also had other consequences: they could no longer marry or register a new residential address, and the German immigration authorities no longer stamped the residence permit in the new passports. Other Schengen countries, including Spain, the Czech Republic and Finland, followed the German example.
While the Vietnamese Ministry of Public Security insisted that the new passports fully met the international standards established by the International Civil Aviation Organisation (ICAO) and therefore would be kept, the Vietnamese Embassy in Berlin announced on 29 July 2022 that it was ready to issue a confirmation in German on the place of birth for holders of the new passport should they need to present it to the German authorities.
The issue was quickly resolved. The Vietnamese Ministry of Public Security agreed that the place of birth could be added to the new passports if citizens so wished in order to make it more convenient for them to seek visas to the Schengen countries. It also announced that in the long term the passport design would be revised, and the place of birth be added to the personal details of the holder. In a note verbale, dated 15 August 2022, the Federal Foreign Office informed the Vietnamese embassy that due to intensive exchanges and consultations between the two sides, Germany would temporarily recognise new passports that had the place of birth of the holder added by the responsible Vietnamese authorities. Germany also welcomed the fact that Viet Nam had taken timely action on this matter. The Vietnamese embassy in Berlin, in turn, announced that it would record the place of birth in passports free of charge if holders submitted an application and proof of the place of birth such as a birth certificate or previous passport.
On 19 August 2022, the German embassy in Hanoi announced the temporary recognition of the new passports, stating:
The recognition is effective immediately for a transitional period in the expectation that the Government of the Socialist Republic of Vietnam is taking the necessary action to reinstate the place of birth as a written feature on the passport data page of all Vietnamese passports. This decision was made in the interests of the ease and safety of travel between Vietnam and the Federal Republic of Germany.
Provided that the place of birth has been added by the responsible Vietnamese authorities according to the Vietnamese model, new passports can be accepted again for the purpose of applying for a visa with immediate effect. The issuance of multi-year type C visas has been suspended until further notice.
The Government of the Federal Republic of Germany emphasizes that this is only a temporary solution. It will continue to be in close contact with the Government of the Socialist Republic of Vietnam and the Schengen partners.
The Vietnamese Ministry of Public Security reinstated birthplace information in new passports issued from 1 January 2023.
States are generally free in setting requirements for the entry of aliens to their territory, including any passport requirements. The right to decide on the access of aliens to the State’s territory is inherent in the State’s territorial sovereignty. Section 3(1) of the Act on the Residence, Economic Activity and Integration of Foreigners in the Federal Territory provides that ‘[f]oreigners may enter or stay in the federal territory only if they possess a recognised and valid passport or passport substitute’. According to section 71(6) of the Act, the ‘Federal Ministry of the Interior or the body appointed by it decides in consultation with the Federal Foreign Office on the recognition of passports and passport substitutes (section 3(1)); the decisions take the form of general orders and may be announced in the Federal Gazette.’ On 6 April 2016, the Federal Ministry of the Interior issued a General Order on the Recognition of a Foreign Passport or Passport Substitute. The General Order listed all recognised passports at the time and provided for the provisional recognition of new passport designs that replaced existing recognised passports. After a thorough technical examination, the Federal Ministry of the Interior decided that the new Vietnamese passports were ‘provisionally not recognisable’, which led to the Federal Foreign Office to decline issuing visas on the new passports. The General Order also set out the general requirements for the recognition of passports. Number 6(b) provided:
In accordance with the requirements of ICAO document 9303, the [passport] document contains information on the surname and first name, day or year and place or country of birth, the nationality of the holder, a photograph of the holder – except for children who have not yet reached the age of ten – , the designation of the issuing authority, an indication of the period of validity, designation of the document type, document number, gender and the signature of the owner.
The General Order referred to ICAO document 9303 concerning Machine Readable Travel Documents (MRTDs). In that document, ICAO developed standard specifications for passports and other travel documents. While these specifications are not intended to be a standard for national identity documents, a State whose identity documents are to be recognised by other States as valid travel documents shall design its identity documents such that they conform to these specifications. The specifications common to all MRTDs provide with regard to the representation of the place of birth:
Inclusion of the place of birth is optional. If the place of birth is included it may be represented by the town, the city, the suburb and/or the State.
Viet Nam’s Minister of Public Security argued that the new passport was in full compliance with ICAO standards which provided for birthplace information to be optional. The fact that information about the place of birth was not mandatory under the ICAO standard specifications for MRTDs, however, did not mean that Germany could not require such information as an entry requirement. ICAO document 9303 provided:
The Visual Inspection Zone of an MRTD comprises the mandatory and optional data elements designed for visual inspection. The optional data elements, together with the mandatory data elements, accommodate the diverse requirements of issuing States and organizations while maintaining sufficient uniformity to ensure global interoperability for all MRTDs.
The standard specifications are to secure uniformity and global interoperability for all MRTDs but not to prescribe what information a State may request as entry requirements. The place of birth is an important distinguishing feature and is regularly used to determine the identity of a person, especially in case of countries with few surnames and common first names.
The non-recognition of passports is usually a sign of a deteriorating relationship between two countries. In the case of the new Vietnamese passports both sides stressed their willingness to find a solution to this rather technical problem, which, in the end, they did.
Category: Territorial sovereignty
- Stefan TalmonStefan Talmon is Professor of Public Law, Public International Law and European Union Law, and Director at the Institute of Public International Law at the University of Bonn. He is also a Supernumerary Fellow of St. Anne’s College, Oxford, and practices as a Barrister from Twenty Essex, London. He is the editor of GPIL.