Access to citizenship : a comparison of twenty five nationality laws




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Access to citizenship : A comparison of twenty five nationality laws
Patrick WEIL
Published in "Citizenship Today: Global Perspectives and Practices" in T. Alexander Aleinikoff and Douglas Klusmeyer (ed.), Carnegie Endowment for International Peace, Washington DC, 2001, p.17-35.
Nationality rests alongside territory at the heart of the definition of a nation-state. If territory determines the geographical limits of state sovereignty, nationality determines its population. Beyond these limits one will find foreign land, foreign sovereignty and foreigners. Drawing the boundary within which some human beings are included and others excluded as foreigners, permitting some of them to acquire citizenship with certain conditions and some citizens to lose citizenship all this is a state prerogative which requires legal tools. Nationality law is a made up of these tools. They can be compared to different “colors” which are subsequently mixed so as to achieve a desired effect. Two of these colors are always mentioned in nationality laws:

- birthplace – or jus soli: the fact of being born in a territory over which the state maintains, has maintained, or wishes to extend its sovereignty ; - bloodline – or jus sanguinis : citizenship is the result of the nationality of one parent or other more distant ancestors ;

Two other “colors” are often forgotten or neglected :

- marital status, as marriage to a citizen of another country can lead to the acquisition of the spouse’s citizenship ;

- past, present or future residence in the country’s past, future or intended borders (including colonial borders).

The mixture of these features determines the conditions under which nationality is granted in any country in the world. It also determines techniques through which citizenship is either attributed or acquired. Both these features and the techniques constitute the particular legislation of one country, its national “configuration”. Nationality law is not only a matter of public policy : it also legally constituted on the boundary between public and private law. For the former, determination of nationality is a element of a sovereign state, an inherent part of its power to decide how citizenship is attributed or acquired. As for private law, nationality determines the way national law regulates one’s life in such diverse matters as property rights, travel rights, equality of gender within marriage, right to inheritance etc Nationality law also stands on the boundary between domestic and international law. Since the attribution of nationality is inherently part of a state’s sovereignty, legal conflicts are likely to emerge as soon as citizens from one country develop a relationship with either the territory of another country or one of its citizens. Sometimes, these relations lead to an intermingling of laws as seen in the growing recognition of dual citizenship, and sometimes they lead to the disappearance of one’s legal link to a state, statelessness.

Consider the complexity of nationality law. Each state’s law is simultaneously based on juridical traditions, nation-state building, international influence and the role played by migration (emigration & immigration) or the presence of minorities.

Divergence between the nationality laws of different countries has been sometime presented as reflecting varying essential or dominant conceptions of the nation1, which they are not.

The most commonly adopted classification posits a divergence between regimes based predominantly on the principle of jus soli and those based on jus sanguinis. Regimes associated with the former principle are presumed to be more inclusive and less ascriptive than regimes based on the latter principle, which relies on blood-based descent as a fundamental criterion for nationality acquisition. This reliance has led many academic and popular observers to attribute a jus sanguinis regime to the ethnic character of its framer’s conception of nationhood and as a general expression of the state’s national self understanding. But such generic explanations prove highly problematic when tested against the historical record of twenty-five states : Australia, the Baltic States (Estonia, Latvia and Lithuania), Canada, the European Union (Austria, Belgium, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg, the Netherlands, Portugal, Spain, Sweden and the United Kingdom), Israel, Mexico, the Federation of Russia, South Africa and the United States.

.

To take two European examples, France is frequently portrayed as having a strong integrative national identity forged through its revolutionary experience ; but the principle of jus sanguinis (with no ethnic overtones) dominated its national legislation throughout most of the nineteenth century (1803-1889). By contrast, the modern German national self- understanding has often been depicted as almost paradigmatically ethnic in character -- but since 1998 the German government has been moving toward making its nationality law more inclusive in ways that combine a mixture of jus sanguinis and soli elements. In the aftermath of the 1870 Franco-Prussian war, French and German philosophers and politicians battled over two very different conceptions of nations while France and Germany kept nationality laws based both on jus sanguinis (Weil, 1996). On the other hand, under Nazism, both Germany and France implemented racist and anti-Semitic legislation, while keeping opposite criteria, (jus sanguinis and jus soli respectively), as the basis of their nationality laws. Differences in nationality laws cannot therefore be explained by difference in the philosophical conception of nations. But what can explain the convergence between nationality laws? This convergence is illustrated by the recent changes which have occurred in many of them, reflected by the following four charts drawn according to the mode of access to citizenship (see pp. 5-8) : nationality of origin, naturalization, marriage, specific provisions for second- and third-generation migrants.



To understand differences and similarities between different legislation, one must take into account two main factors: legal tradition and the disconnection between territory and constituted population (e.g. the phenomena of  emigration and immigration). In fact, we will show that starting with different legal traditions and different historical patterns of immigration, emigration and minorities, convergence occurs, they converge through different paths and national political agendas because, in the context of the stabilization of borders and of incorporation of democratic values, many of these countries faced problems of immigration. Thus jus soli states became slightly more restrictive and jus sanguinis ones moved towards jus soli.

Nationality of origin



Jus soli (date of inclusion)

Jus sanguinis (date of inclusion)

Australia

Yes(one parent citizen or permanent resident, or the child himself if permanent resident for 10 years from his birth)

Yes(one parent citizen and registration in a Consulate within 18 years after birth)

Austria

No

Yes (1811)

Belgium

No


Yes (1831)

Canada


Yes

Yes (loss of citizenship in 3rd generation unless residence or special connection with Canada before 28)

Denmark

No


Yes (1898)

Estonia

No

Yes

Finland

No

Yes (1941)

France

Yes (for the third generation, 1889)

Yes (1803)

Germany

Yes (with condition : dual citizenship : 1999)

Yes (Prussia : 1842)

Greece

No

Yes(1856)

Ireland


Yes (1935)

Yes (1935)

Israel

No

Yes (1950 Law of Return)

Italy

No

Yes (1865)

Latvia

No

Yes

Lithuania

Yes (with condition : dual citizenship)

Yes (1991)

Luxembourg

No


Yes(1804)

Mexico

Yes

Yes (not beyond second generation)

Netherlands

Yes (for the third generation)


Yes(1888)

Portugal

Yes (with condition of residence)

Yes, 1st rank(if alone, obligation for the applicant to declare his will)

Russia

Yes (under condition)


Yes (1864)

Spain

No

Yes(1837)

South Africa

Yes (both parents permanent residents)

Yes (notification of the birth to S.A authorities)

Sweden

No


Yes (1894)

United Kingdom

Yes (with condition of residence)

Yes (No transmission to 3rd generation unless residence established in the UK before the birth of the child)

United States

Yes (by Constitution, 1868)

Yes No transmission to 3rd generation unless residence established in the US before the birth of the child)

Naturalization




Residence

Knowledge of history

Knowledge of language

Loyalty oath

Sufficient income

Good character

Absence of conviction

Renunciation ofprior citizenship

Australia



Permanent No less 1 out of 2 years before appl. No less 2 out of 5 years before appl.

-

Yes


-

-

Yes

-

-


Austria

10 years

-

Yes

Yes

Yes

-

Yes

Yes

Belgium

5 years

-

-

-

-

-

-

-

Canada

Perm.3 years out of 4 before appl.

Yes

Yes

Yes

-

-

Yes

-

Denmark

7 years

-

Yes

-

Yes

-

Yes

-

Estonia

5 years

Yes

Yes

Yes

Yes

-

-

-

Finland

5 years

-

-

-

Yes

-

Yes

-

France

5 years

-

Yes

-

Yes

Yes

Yes

-

Germany

Permanent 8 years

-

Yes

-

Yes

-

-

Yes

Greece

5 years after appl.Or 10 out of 12 before

-

-

-

-

-

-

-

Ireland


1 year continuous resid. bef. Appl.and 4 out of 8 before appl.

-

-

Yes

-

Yes

-



-

Israel

Permanent ; 3 out of 5 y bef. appl.

-

Yes

-

-

-

-

Yes

Italy

10 years

-

-

-

-

-

-

-

Latvia

5 years before 1990

Yes

Yes

Yes

Yes

-

-

-

Lithuania

Permanent Previous 10 years

-

Yes (test)

Yes

Yes

-

-

Yes

Luxembourg

10 years Continuous resid. for past 5 years

-

Yes

-

Yes

-

Yes

Yes

Mexico

5 years

Yes

Yes

-

-

-

-

Yes

Netherlands

Perm. or habitual for 5 consecutive years before appl.

-

Yes

-

-

-

-

-

Portugal

10 years

-

Yes

-

Yes

Yes

-

-

Russia

5 years

-

-

-

-

-

-

-

Spain

10 years

-

-

-

-

-

-

-

South Africa



Perm. Continuous for 1 year before appl. Resident for 4 out of 8 y. bef. appl.

-

Yes

-

-

Yes

-

-

Sweden

5 years

-

-

-

-

-

Yes

-

UK

Main residence or Crown service5 yrs. Residence

-

Yes

-

-

Yes

-

-

USA

5 yrs. permanent settling

Yes

Yes

Yes

-

Yes

Possibly

Yes*

Marriage



Existence of a specific provision

Residence

Delay

Other requirements

Australia

No

-

-

-

Austria

Yes

1 + 4y of res.Or 2 +3 y of res.

1 year

-

Belgium

Yes

3 years

-

-

Canada

No

-

-

-

Denmark

No

-

-

-

Estonia

No

-




-

Finland

Yes

3 years

2 years

-

France

Yes

-

2 years

Facilitated naturalization (By declaration)

Germany

Yes

5 years

-

-

Greece

No

-

-

-

Ireland

Yes

-

3 years

-

Israel

Yes

-

-

Discretion of the Minister of Interior

Italy

Yes

6 months in Italy or 3 years together abroad

-

No commitment of certain crimes

Latvia

No




-

-

Lithuania

No

-

-

-

Luxembourg

Yes

3 years

-

Proof of life in common

Mexico

Yes

2 years

-

-

The Netherlands

Yes

3 years

-

-

Portugal

Yes

3 years

-

-

Russia

Yes

-

-

Facilitated naturalization

Spain

Yes

-

1 year

-

South Africa

Yes

-

2 years

-

Sweden

Yes

Permanent residence (3 years)

2 years

-

United Kingdom

Yes

3 years

-

-

United States

Yes

3 years

-

same as other aliens
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