Vietnam: Citizens' right to freedom of residence and some recommendations to improve the effectiveness of state management of residence

1. Overview of Residence and Freedom of Residence Rights in Vietnam

Residence and freedom of residence (FOR) are two of the most important issues for individuals and society as a whole, as every individual needs a certain space, a certain place to live.

According to the Hán-Việt Dictionary, "cư" means to reside; it is a verb that indicates a state of stopping or stabilizing in a position; "trú" means to reside, but with the meaning of having determined a place to live, a place to reside and eat stably.

According to the Vietnamese Pronoun Dictionary, the term "cư trú" is understood as "living, residing in a certain place". According to the Legal Terminology Dictionary, the concept of residence is "regularly living in a certain place"....

Residence activities have a history closely tied to the state's management activities (such as household registration and residence permits) with forms of permanent residence, temporary residence, and temporary absence, and are associated with the freedom of movement of individuals.

The Law on Residence 2020 states: "Residence is the act of citizens living in a location belonging to a commune-level administrative unit or a district-level administrative unit in areas where there are no commune-level administrative units (hereinafter referred to as commune-level administrative units)".

Therefore, residence can be understood as the act of individuals living, working regularly in a certain place, under a certain form.

To ensure that individuals can freely choose their place of residence in accordance with certain conditions, procedures, and forms, both national and international laws have regulations on the FOR rights of citizens. In national law, the FOR rights of individuals are always linked to the rights of citizens and are regulated in the Constitution and the system of legal documents issued by competent state agencies. In international law, FOR rights are defined as human rights stipulated in international legal documents that are approved and committed to be implemented by member countries.

Therefore, the FOR rights can be defined as the right of every individual to freely choose their place of residence according to the prescribed conditions, procedures, and legal provisions.

2. Freedom of Residence Rights of Citizens in International Law that Vietnam is a Member of in Vietnam

With a long history, the right to freedom of movement and residence has been regulated in many international legal documents and conventions. In these documents, the FOR rights are linked to the freedom of movement of citizens, Individuals have the legal FOR rights and the right to choose their residence on the territory of the country they are citizens of as well as on foreign territory; they have the right to freely move within the territory of the country they reside in, to freely leave any country, including their own country, and to freely return to their own country. However, in reality, the FOR rights are always linked to the right to movement of each individual in a country (the rights of citizens) as well as in the region or the world. That means citizens (or individuals) have the right to freely move and reside within the country, have the right to leave the country and return to the country.

In the international legal documents that Vietnam is a member of, such as the Universal Declaration of Human Rights in 1948; the International Covenant on Civil and Political Rights in 1966; the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families in 1990; the ASEAN Human Rights Declaration in 2012; Vietnam's commitments on FOR rights in establishing the ASEAN Community... all affirm the FOR rights of citizens and provide a basis for domestication in Vietnamese law.

Article 13 of the Universal Declaration of Human Rights 1948 states: "Everyone has the right to freedom of movement and residence within the borders of each state. Everyone has the right to leave any country, including their own, and to return to their country".

This spirit is reaffirmed and further recognized in Articles 12 and 13 of the International Covenant on Civil and Political Rights 1966. this right is not only applicable to citizens but also to foreigners who are residing or legally present in another country. Allowing entry and the legal status of a foreigner on the territory of a country depends on the laws of that country and compliance with the international obligations of that country.

At the same time, Chapter III of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families in 1990 (adopted by Resolution A/RES/45/158 on December 18, 1990, by the United Nations General Assembly) provides many rights related to migrant workers. According to Article 8, it clearly states: "Migrant workers and their family members have the right to freely leave any country, including their country of origin. This right shall not be subject to any restrictions except those provided by law and necessary to protect national security, public order, public health, and morals, as well as the rights and freedoms of others. Consistent with the other rights recognized in this part of the Convention; migrant workers and their family members shall not be subjected to arbitrary arrest or detention for the mere fact of their unauthorized entry or stay in a State Party".

3. Freedom of residence of citizens under Vietnamese law

In Vietnam, laws on residence have been established since early times. Before 1945, the feudal state had strict regulations on individual residence in various forms. During the Tran Dynasty (1226 – 1400), starting from the year Mau Ty, King Tran Thai Tong (1228) implemented a population management system based on households and the periodic registration system (household registration book with a three-year or six-year cycle) during the Ho, Le, and Nguyen Dynasties.

3.1. Freedom of residence of citizens in the Constitutions

After the success of the August Revolution, the right to freedom of residence of citizens was recognized in the first Constitution of 1946: "Vietnamese citizens have the right to freedom of residence, domestic travel, and foreign travel" (Article 10). This provision laid an important legal foundation for ensuring the right to freedom of residence for citizens and was further affirmed in the 1959 Constitution: "Citizens of democratic and republican Vietnam have the right to freedom of movement and residence.".

Based on the provisions of the Constitution, the first legal document of the State specifically regulating the registration and management of household registration was Decree 104/CP issued by the Government on June 27, 1964, consisting of 21 articles. These regulations were further improved in Decree 32/CP of the Government on February 29, 1968, which aimed to unify the registration of household registration, citizenship, and population statistics to improve the effectiveness of state management in these areas, meeting the requirements of the country during that period.

Building on this spirit, the 1980 Constitution stipulated: "The right to freedom of travel and residence of citizens is respected according to the provisions of the law". This spirit was renewed and strengthened in the 1992 Constitution: "Citizens have the right to freedom of travel and residence within the country, the right to travel abroad, and the right to return to the country in accordance with the provisions of the law" (Article 68).

These provisions served as an important legal basis for the National Assembly to issue the 2006 Residence Law and for authorized agencies to issue many subordinate legal documents to regulate and provide guidance on the unified application of the Residence Law, creating favorable conditions for citizens to exercise their right to freedom of residence according to their legitimate and justifiable needs and desires.

In particular, to further enhance the fundamental rights of individuals, including the right to freedom of residence, the 2013 Constitution stipulated: "Citizens have the right to freedom of travel and residence within the country, the right to travel abroad, and the right to return to the country. The exercise of these rights is regulated by the law" (Article 23) and "human rights, citizens' rights can only be limited according to the provisions of the law in cases necessary for national defense, national security, public order, social safety, community ethics, and public health" (Clause 2, Article 14).

This shows that the right to freedom of residence of citizens is consistently and gradually improved in the legal system, respected by the State, and implemented through legal mechanisms to allow citizens to exercise their right to freedom of residence. Particularly, the 2013 Constitution demonstrates legal perfection by limiting these rights only when necessary and based on the provisions of the law (compared to previous regulations).

3.2. Freedom of residence of citizens in the Civil Code

Based on the provisions of the Constitution, the Civil Code of 1995, 2005, and 2015 all have provisions regarding the place of residence of individuals as a legal basis to protect the right to freedom of residence of citizens. Specifically, in the 2015 Civil Code, the provision on residence (Article 40) clearly defines the place of residence of an individual as the place where the person regularly resides. In cases where the place of residence of an individual cannot be determined according to the provisions in Clause 1 of Article 40, the place of residence is where the person is currently living. Furthermore, from Article 42 to Article 45, detailed regulations are provided on the residence of minors, the residence of individuals under guardianship, the residence of spouses, the residence of military personnel, the residence of mobile workers, etc. These regulations serve as a basis for determining the residence of individuals, protecting the right to freedom of residence of citizens, and implementing effective state management measures regarding residence.

3.3. The right to freedom of residence of citizens in the Residence Law in Vietnam

The 2006 Residence Law (amended and supplemented in 2013) is the first specialized law that directly regulates issues related to the right to residence of citizens, including provisions on the right to freedom of residence of citizens in the territory of the Socialist Republic of Vietnam; procedures for registration and management of residence; and the rights and responsibilities of citizens, households, agencies, and organizations regarding registration and management of residence.

The 2006 Residence Law stipulates that citizens have the right to freedom of residence according to the provisions of the Residence Law and other relevant laws. Citizens who meet the requirements for permanent or temporary residence registration have the right to request competent state agencies to register their permanent or temporary residence. The right to freedom of residence of citizens is only restricted according to the decisions of competent state agencies and according to the procedures stipulated by law.

It can be affirmed that the 2006 Residence Law was timely in concretizing the provisions of the 1992 Constitution (amended in 2001) regarding the right to residence of citizens in the legal system of Vietnam. With progressive provisions in the Residence Law and accompanying implementation guidelines, the law has met the legitimate needs and aspirations of citizens regarding residence and travel, as well as the requirements of residence management in the context of the country's renovation, openness, and integration.

However, the 2006 Residence Law still has certain limitations, such as not fully incorporating the provisions of the 2013 Constitution regarding the right to residence of citizens; there are still some inconsistent provisions with other legal documents and create difficulties in the application of the Residence Law in practice.

For these reasons, to meet the requirements of building a socialist rule of law state and international integration that is increasingly deep and wide-ranging in various areas of social life, on November 13, 2020, the Residence Law 2020 was passed by the 14th National Assembly with many new points aimed at more effectively protecting the right to residence of citizens and creating a foundation for more effective residence management.

The Residence Law 2020 stipulates the implementation of the right to residence of Vietnamese citizens in the territory of the Socialist Republic of Vietnam; registration and management of residence; rights, obligations, and responsibilities of citizens, agencies, and organizations regarding registration and management of residence.

4. Some recommendations to enhance the effectiveness of state management of residence in Vietnam

Firstly, it is necessary to continue improving the laws on residence to better guarantee the right to residence for citizens.

One of the new provisions of the Residence Law 2020 is the detailed regulations on cases that restrict the exercise of the right to residence of citizens in Article 4 and require the exercise of the right to residence of citizens to be restricted only as prescribed by law. Compared to the 2006 Residence Law, these provisions help individuals have mechanisms to understand their rights as well as cases where their rights are restricted; at the same time, these provisions institutionalize the spirit of the 2013 Constitution, which states that citizens' rights can only be restricted by laws—legal documents approved by the highest representative body, the National Assembly. Therefore, the requirement for legislative work is to continuously review the provisions of the Residence Law, the Civil Code, the Land Law, the Housing Law, and other related legal documents, timely discover existing issues and limitations, address them, improve them, and issue guiding documents to ensure the provisions regarding the right to residence of citizens are unified, scientific, and effective in practice.

Secondly, it is necessary to improve the conditions for people to carry out transactions when household registration books, temporary residence books, and residence confirmation papers can be replaced by electronic data in the national database on population.

Currently, household registration books and temporary residence books are means to demonstrate and prove information about the residence of each citizen and are related to administrative procedures in many fields, such as employment, education, real estate transactions, etc. According to the provisions of the Residence Law 2020, these documents can only be used until December 31, 2022. At the same time, according to the regulations in paragraph 3 of Article 38, Chapter VII of the Residence Law 2020, when carrying out procedures for residence registration resulting in changes in information in household registration books and temporary residence books, the registration agency is responsible for recovering the issued household registration books and temporary residence books, adjusting and updating information in the national database on population, and not issuing new or re-issuing household registration books and temporary residence books.

Therefore, starting January 1, 2023, household registration books and temporary residence books in paper format will no longer be valid. Instead, people will be managed through electronic data in the national database on population.

The implementation roadmap for updating and using electronic data to replace existing documents requires the Ministry of Public Security and relevant state agencies to complete the conditions for the national database in a timely manner, as well as issue necessary procedures and regulations to resolve any issues that may arise when "eliminating" household registration books and temporary residence books.

Thirdly, it is necessary to promptly complete the connection of population data with the national database and effectively implement the project "Development of population data, identification, and electronic authentication applications to serve the national digital transformation phase 2022–2025, vision to 2030" (referred to as Project 06).

Implementing Project 06 is a breakthrough in the infrastructure strategy identified by the 13th Party Congress; contributing to digital transformation, building a digital government, a digital society, a digital economy, and digital citizens. Ministries, sectors, and People's Committees of provinces and cities need to urgently connect and synchronize population data with the national database according to the Project 06 roadmap. When this project is completed, it will provide conditions for citizens to exercise their rights and obligations more conveniently and effectively.

According to the roadmap, the Ministry of Public Security will share access to personal information on the national population database with relevant agencies to support citizens in performing administrative procedures, reducing the burden of procedures and personal documents related to permanent residence, temporary residence, etc., especially from 2023, when citizens will not use household registration books, temporary residence books, and other residency documents but will use integrated information on their chip-embedded citizen identity cards for all transactions.

However, currently, this sharing is still in the process of seeking opinions, making it difficult for related agencies to proactively access information in the database. Therefore, when citizens have changes related to residency information and need to perform transactions related to credit, real estate, such as savings books, registration of collateral transactions, certificates of land use rights, certificates of home ownership, etc., they have to go through procedures to update at the management agency, with many procedures and long waiting times, affecting legal transactions.

Therefore, in the coming time, it is necessary to continue to accelerate the completion of the national population database and share information, delegate access rights, and coordinate information exploitation between the Ministry of Public Security and relevant state agencies in a suitable manner to eliminate or reduce unnecessary or outdated documents, papers, and procedures that are no longer appropriate for current scientific and technological management methods. Thereby, ensuring transparency, speed, simplicity, efficiency, and timeliness will enhance the effectiveness of state management in residency.

Fourthly, effectively implement the updating of information on the residence database to ensure citizens' rights and obligations.

The Residence Law 2020 regulates the updating of information on the residence database, requiring citizens to go through procedures to adjust residency information when there are changes in household heads; changes in household registration information compared to the information stored in the residence database; changes in residence addresses due to adjustments in administrative boundaries, administrative unit names, street names, alleys, villages, hamlets, towns, communes, wards, and numbering houses. Article 32 of this Law also regulates the state management responsibility for residency of the Government; Ministry of Public Security; ministries, agencies under the ministries, and People's Committees at all levels.

Therefore, it is necessary to effectively organize programs for disseminating, popularizing, and educating legal knowledge about residency so that citizens can proactively submit updated information when there are changes. At the same time, it is necessary to ensure human resources, equipment, infrastructure, working tools, specific regulations on the application of information technology, improvement of the national population database, and improvement to ensure that the national population database must be "living" data, collected and updated regularly, serving practical, effective management work, supporting the search and verification of relatives, population dynamics, and management of crime-related individuals, effectively contributing to ensuring security, order, and crime prevention and combat.

By MSc VAN THI HONG NHUNG (Faculty of Law - People's Security University)

Source: "Tạp chí Tòa án nhân dân điện tử"(Electronic People's Court Magazine)