Access to citizenship : a comparison of twenty five nationality laws




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Second generation immigrants*



Entitlement to citizenship



Existence of a specific provision


Residence


Age



Other information

Australia

Yes

Automatic

None

-

-

Austria

No

Yes

6 or 4 years instead of 10

-

Naturalization

Belgium

Yes

Yes

Parents residents for ten years

Before 12, Between 18 and 30

Registration

Canada

Yes

Automatic

None

-

-

Denmark

Yes

Yes

10 years (continuous residence

21-23

Declaration

Estonia

Yes (Dec. 1998)

Yes

Birth ?

Before 15

Application by parents

Finland

Yes

Yes

10 years

21-23

Declaration

France

Yes

Yes

5 years( non- continuous)

After 13

With parents’ consent at 13 ; by request at 16 ; automatic at 18

Germany

Born in Germany

Yes

Yes

Parents permanent residents

At birth

At 23 : Dual citizenship




Non Born in Germany

Yes

Yes

8 years, incl. 6 in primary education and 4 in secondary

16-23

Dual citizenship Registration and absence of criminal conviction

Greece

No

No

-

-

-

Ireland

Yes

Automatic

None

-

-

Israel

No

No

-

-

-

Italy

Yes

Yes

Continuous since birth

Majority -

-

Latvia

Yes (June 1998)

Yes

-

-


Birth after 1990

And application by the parents



Lithuania

Yes

Yes

None

-

-

Luxembourg

No

No




-

-

Mexico

Yes

Automatic

None

-

-

The Netherlands

Yes

Yes

Continuous since birth

18-25

Declaration

Portugal

Yes

Yes


None

Anytime

Parents residents 10 years or 6 if from Port.-speaking country)

Russia

No

No

-

-

-

Spain

Yes

Yes

1 year

18-20

Declaration

South Africa

Yes

Yes







Parents permanent residents

Sweden

Yes

Yes

10 years

21-23

Declaration

United Kingdom

Yes

Yes

None (1981)

-

Parents permanent residents

United States

Yes

Automatic

None

-

-

The different legal traditions

Were a population and territory to exactly match, attributing citizenship on the basis of jus sanguinis or jus soli would not make any difference. It would concern the same people and would have the same juridical effects. In eighteenth-century Europe, jus soli was the dominant criterion of nationality law in the two most powerful kingdoms : France and United Kingdom. It was the transfer of a feudal tradition to the a state level : human beings were linked to the lord who held the land where they were born. The French Revolution broke from this feudal tradition. Because jus soli connoted feudal allegiance, it was decided, against Napoléon Bonaparte’s wish, that the new Civil Code of 1804 would grant French nationality at birth only to a child born to a French father, either in France or abroad1. It was not ethnically motivated; it only meant that family links transmitted by the pater familias had become more important than subjecthood (Weil, 2002, chap.1). This marked the reintroduction of Roman Law into modern nationality law. This French innovation, through codification and imitation, progressively became the law of continental Europe (Weil, 2002, chap.7). The following countries adopted jus sanguinis in their civil code : Austria (1811), Belgium (1831), Spain (1837), Prussia (1842), Italy (1865), Russia (1864), Netherlands (1888), Norway (1892) and Sweden (1894) 2.

On the contrary, the British tradition of jus soli was transplanted unbroken to its colonies in North America (the US and Canada), Europe (Ireland), Africa (South Africa), and Australia. 3 It also influenced Portugal and Denmark, until the Nordic countries decided to adopt a common nationality regime in the 1920’s.

The disconnection between territory and constituted population

When disconnection occurs between territory and constituted population, one can distinguish between countries of immigrants, of immigration, of emigrants and of emigration.



1. “Countries of immigrants” are the ones constituted by immigrants, the majority of citizens thereof are immigrants or descendants of immigrants. The United States, Canada, Australia and, until recently, South Africa can be included on this list.

2. “Countries of immigration” are the ones where a foreign population has settled as permanent residents. In these countries, there is nevertheless a dominant sense that a core, majority population has existed since time immemorial and is not descended of immigrants and that an immigrant population has joined in addition to this core population. In Western Europe, France has been in that situation since the middle of the nineteenth century. Since World War II, all Western Europe countries have turned from being countries of emigration to countries of immigration. South Africa is also a country of immigration, a situation that developed since the abolition of apartheid. In a different manner but with the same consequences, the Baltic states are countries where a strong Russian minority resides.

3. "countries of emigrants" are ones where part of the core population is located outside the boundary of the state, living in another state territory; they are perceived to retain a link with their country of origin. Germany between 1913 and 1933 and between 1949 and 1989, Russia since 1989 and Israel, as we will see later, can be categorized as such.

4. Finally, there are “countries of emigration” where parts of the population emigrated so as to built a new life in another country. This applies to the majority of European countries until World War II (with the exception of France) and Mexico since the 1930’s.

When a legal tradition is perceived to fulfil state interest in terms of migration, or at least does not oppose to it, the core of the national legislation is maintained. In countries of immigrants such as United States, Canada or Australia, jus soli allows immigrants’ children to automatically acquire American, Canadian and Australian citizenship. For continental European countries that were countries of emigration, jus sanguinis allowed the maintenance of links with citizens abroad until their descendants lost touch. Great Britain and Ireland were countries of emigration; in order to keep links with their nationals abroad, both added jus sanguinis provisions to their jus soli ones. Jus soli could remain in effect as long as they were not becoming countries of large-scale immigration.

But since World War II, nationality laws have converged.

First, countries with nationality laws predicated upon jus soli attracted a number of immigrants that greatly exceeded public policy choices into their territories, which forced them to become more restrictive.

For instance, United Kingdom had an imperial and expansive conception of territory so that jus soli involuntarily encouraged immigration to Great Britain. Before the Second World War, all subjects of the British Empire were equal in the allegiance to the monarch and all persons born on the territory of the Empire could access British citizenship simply by residing in the territory of the United Kingdom proper. Following the Canadian example, the 1948 legislation on nationality created six separate forms of citizenship. The sum of these constituted the concept of British nationality. After this extensive approach to jus soli led to the arrival of an unexpected number of colonial immigrants to United Kingdom who soon became citizens, British legislation on nationality underwent a swift and silent revolution away from extended and pure jus soli. From the mid-fifties on, Great Britain modified its legislation to restrict further immigration from Commonwealth countries. The passing of the Commonwealth Immigrants Act of 1962 and of the Immigration Act of 1971 put limits to their freedom of entry into the UK and created an intermediate, distinct category between nationals and aliens : patrials, or those benefiting from a right of abode. This right was attributed to citizens of the United Kingdom or to those of the colonies provided that they were born, adopted or registered in the territory of the UK, or that they had been residents in the UK for at least five years. The 1981 legislation created British citizenship. It automatically attributed jus soli to children born in the UK of a British citizen or of a non-British permanent resident born in the UK. Otherwise, a minor could acquire British citizenship if resident in the UK for ten continuous years prior to applying. In addition, British citizenship is automatically attributed through jus sanguinis to the first generation born abroad. At the next generation, the descendant of the British citizen has to settle in the UK ; otherwise he loses his British citizenship .

The evolution of UK might soon be on the agenda of the Irish Parliament as Ireland has recently become a country of immigration. Ireland, which was in the last decade the only remaining country of emigration in Western Europe, has recently received more and more immigrants. The migratory balance has shifted in favor of immigration since 1995 (in 1998 45 000 vs. 20 000) and the number of asylum seekers have risen (from 39 in 1992 to 4626 in 1998).

In the United States, jus soli opens access to citizenship to the children of illegal aliens4. But it would not be easy to restrict American citizenship, as the adoption of the XIVth amendment the jus soli provision became part of the US Constitution. It attributes US citizenship to all persons born in the jurisdiction of the federal state 5. Schuck and Smith have argued that the XIVth amendment was never intended to apply so broadly .

On the same restrictive ground, one other move has to be mentioned : each of the twenty-five countries which had a provision for the automatic acquisition of citizenship through marriage in its legislation has repealed it within the last forty years. Such was the case in Sweden in 1950, Denmark in 1951, Portugal in 1959, Italy in 1983, Belgium in 1984, Greece in 1984, and Israel in 1996. Moreover, the delays required before a foreign spouse can apply for citizenship have frequently been lengthened. In all cases, the repeal of the automatic nature and timely consideration of citizenship found their origin in the will to insure equality of treatment between men and women and the desacralization of marriage, but in many cases, they were also justified worries about fraudulent marriages with illegal aliens.

On the other hand, a disconnection between the legal tradition and immigration occurred in the continental European states : after following a legal tradition of jus sanguinis, they changed as they became countries of permanent immigration.

France, at the end of the nineteenth century, was the first country to face a contradiction between legal tradition and migration. France, frequently thought to have a open conception of nation based on integration of immigrants, had its nationality legislation dominated by some jus sanguinis with no ethnic signification for the largest part of the nineteenth century (1804-1889). In the years after the adoption of the 1804 civil code with its jus sanguinis provisions, unanticipated and undesired social consequences appeared. The majority of individuals born on French territory to foreign parents, even though they belonged to families who had lived on French territory for an extended period of time, were in no hurry to claim their French citizenship. In fact, they were escaping the military draft that accompanied citizenship. Therefore, on February 7, 1851, a law introduced optional double jus soli : an individual born in France to an alien father born in France was a French citizen at birth. He or she could renounce his or her French citizenship at the age of majority. This option was withdrawn with the 1889 law: to fulfil the principle of equality of public charges and duties, third-generation ‘immigrants’ were automatically granted French citizenship and drafted. Since then, double jus soli has been at the heart of French nationality law. It is both a mechanism for granting French nationality automatically to third generation ‘immigrants’ born in France and the simplest means by which French citizens prove their nationality6. In addition to double jus soli, a child born in France to foreign parents born abroad, becomes French not at birth but at the age of majority, unless he or she expresses the wish to remain a foreigner (Weil, 2001).

Meanwhile, until World War II, the other continental European states remained countries of emigration and maintained jus sanguinis as the prevalent criterion of attribution of citizenship at birth. With large-scale post-war immigration however, increasingly large parts of the population born in their territory, namely second- and third-generation immigrants, were unable to easily access citizenship.

Large-scale, permanent, immigration created a pressure in favor of provisions that guarantee permanent residence to long-term immigrants and open the way for their right to accede to citizenship. In the 1970s, the French and German Supreme Courts recognized the right of permanent residence for foreigners living in their territory. In one of its decisions, the French Administrative Supreme Court contested the attempt by the French government to forcibly repatriate the majority of legal North-African immigrants in 1978-1980. The government was forced to back down due to public and judiciary pressure. In June 1984, a law was even passed guaranteeing permanent residence to 95% of the foreign workers and their families. The same process had been under way in Germany. In 1972, the German Constitutional Court confirmed that a foreign worker's stay in Germany of more than five years was sufficient grounds "to deny further residency (authorization) as each extended residency (authorization) would tend towards settlement..."7. This right of integration was then extended by the right to have access to citizenship (through jus soli or facilitated naturalization) for the second- and third-generation immigrants.

To secure access to citizenship of the third generation ‘immigrants,’ double jus soli has been formally included in the nationality laws of Belgium (art. 10) since 19928, France since 1889, Spain (art 17) since 1990, and in the Netherlands since 19539. There is a de facto access in Ireland in all cases and almost all cases in the United Kingdom and Portugal. Access to citizenship at the second generation occurs automatically at birth in Ireland, and under conditions of legal residence in the UK or Portugal10. In the majority of European countries however, access to citizenship occurs not automatically at birth, but also under conditions of residence and/or its voluntary acquisition which are presumed to entail socialization (Weil & Hansen, 1999). In Belgium, Denmark, Finland, Netherlands, Italy and Sweden, a person born in the country to foreign parents can acquire citizenship at the age of majority after fulfilling certain residency requirements. In Belgium, it is acquired between the ages of 18 and 3011 ; in Denmark, Finland and Sweden, between 21 and 2312 ; in the Netherlands between 18 and 2513, and in Italy, in the year following the age of majority14. In Spain, naturalization can be requested by the parents one year after the child’s birth. Finally, throughout the European Union, with the exception of Greece15, Austria and Luxembourg, access to second or third generation is facilitated, often as a result of recent reforms. In the Austrian case, the last amendment adopted in June 1998 identifies two further ‘privileged’ groups of foreign citizens who may be naturalized after at least four or six years of residence: applicants who can prove ‘durable personal and occupational integration’ in Austria and applicants who have been born there. The latter category is significant because, for the first time, birth in Austria has been introduced as a relevant factor in the acquisition of citizenship. However, foreign citizens born in Austria still do not have individual entitlement to naturalization.

There remains the case of Germany. When the 1842 Prussian legislation adopted jus sanguinis, it was adopting the dominant principle in French nationality law. The Prussian law was not, moreover, ethnic : it included Polish and Jewish Prussians, and it excluded Germans from other German states16. Jus sanguinis was reinforced in 1913 in a context in which Germany had become a country of emigration and of emigrants. Yet, German Empire was perceived in France as built in an ethnic logic because of the annexation of Alsace-Lorraine in 1871. This perception was created in the US by 1913 law and in all the allied countries during the 1sr world war. But jus sanguinis only became ethnic and racist under the Nazi regime. It was maintained after 1949, as the way of maintaining legal ties with East Germans. As in France at the end of the nineteenth century, the shift to jus soli could only occur with the coexistence of three factors : stable borders including the majority of nationals ; immigrants who had acquired the right of permanent settlement, and the consolidation of democratic values. Since the beginning of the 1970’s, Germany has become a country of permanent immigration and since 1990 the majority of German are reunited within the same borders and form a democratic citizenry. Conditions are therefore fulfilled for a European convergence of nationality laws.

This convergent guarantee of residence for foreign residents, linked with the idea of territorial nationality, belongs to that new paradigm of international law identified by Diane Orentlicher 17. Western European states have converged through internal debate and along a parallel path 18. Convergence has occurred in the Baltic States through another means, i.e. through the pressure of international organizations that emphasize the right of foreign residents.

The cases of Estonia and Latvia are most relevant in this respect. But the study of these cases requires first an examination of the situation of citizenship legislation of the three Baltic States at the time of their independence. When the latter occurred in 1991, it seemed that the three Baltic states would follow different paths. Whereas Lithuania and Estonia passed new citizenship laws in the next two years - 1991 in Lithuania and 1992 in Estonia, Latvia did not, only restoring Latvian citizenship to those who had it prior to the Soviet period (and their descendants). As officials stated that such a law had to wait until the election of a new Parliament, the Latvian citizenship law was only adopted on June 21, 1994. The three Baltic States laws can be classified along an inclusive-exclusive line: Lithuania, combining jus soli and jus sanguinis provisions, is the most inclusive, and Latvia, the most exclusive. Latvia, with no jus soli and the establishment of the window-system providing each year for the examination of applications from certain categories of persons : in 1996, those born in Latvia who were 16 to 20 years old; in 1997, those who were up to 25 years old etc. under the original law, those born outside Latvia must wait until 2001-2003 to even apply 19.

The Latvian and Estonian post-independence nationality laws were criticized by intergovernmental organizations on the grounds of human rights, for they excluded from nationality entire portions of the population, especially long-term residents of Russian origin. Both Latvia and Estonia were potential applicants for entry into the Council of Europe and the European Union, and there was an explicit linkage between a serious and hopeful application and the applicant countries’ respect for the policies supported by these intergovernmental organizations. In that respect, specific provisions regarding nationality and human rights in general were part of these conditions, and conform almost exactly to the recent developements in international law of a territorial nationality. In Europe, not only the European Union and the Council of Europe pushed these countries towards inclusiveness but also the Organization for Security and Cooperation in Europe (OSCE), which has undoubtedly been a significant actor in the recent changes in the nationality laws of both Estonia and Latvia. In the latter case, the OSCE High Commissioner on National Minorities had recommended the inclusion of several provisions: among them, the right of citizenship for non-citizens, the acceleration of the naturalization process, the abolition of the windows-system, the granting of citizenship to stateless children born in Latvia, the limitation of the residence requirement to no more than 5 years, the reduction of the fee for naturalization, the simplification of the tests on the history and Constitution of Latvia. Through several amendments to the law on June 22, 1998, the Latvian Parliament fulfilled these recommendations, as stated the day after by the High Commissioner 20.

Moving from an approach mostly based on jus sanguinis and the restriction of naturalizations towards a more inclusive one, the Baltic examples show that the process of convergence is not over yet. In December 1998, Estonia modified its legislative provisions on the attribution of citizenship to second-generation immigrants, but they will only be effective by July 12, 1999. Nationality law is always a work in progress.

This process of convergence goes far beyond Europe. It concerns almost all advanced industrial democracies insofar as they share the characteristics of European states: democratic values; stable borders; and self perception as countries of immigration rather than emigrants or emigration 21. Given these three conditions are achieved, two distinct lines of convergence appear. In the first place, access to nationality has been restricted when the law was perceived as permitting easy access to residence without passing through immigration laws. In the second place, all provisions that did not provide for the facilitated integration of second- and third-generation immigrants were progressively overturned: access to citizenship has been opened to long-term residents and their children.

The convergence has been illustrated in the numerous changes which have occurred in many nationality laws. The techniques vary but usually come as amendments to existing laws concerning the grant of nationality of origin, the status of second- and third-generation migrants, or the status of married people.

Those cases not following this pattern of convergence are the countries which fail to fulfil one of the three conditions mentioned above; in fact, the number of determining factors is reduced to only two as all case countries are democratic or in the process of democratization. Self perception and stable borders are what differ.

The first missing condition can be related to the migration situation: even if all countries in the study have a foreign residence population and citizens living abroad, the presence of immigrants in a territory is not sufficient in itself to cause convergence. When the interests and the attention of the state are focused on maintaining links with potential nationals residing abroad; when there is a dominant feeling that a large part of the population lives abroad; and when they are granting them more importance than foreign residents living in their territory, legislative convergence will not appear. Such is the case of Israel. Despite the common perception of Israel as a country of immigrants, the famous Law of Return is a law which permits a returning person (oléh) descendant of a émigré to reintegrate into his country of origin. In other words, from the viewpoint of nationality law, Israel is very much like a country of emigration and not a country of immigration.

Such is the case of Russia which feels that many of its citizens are outside its borders, in the territories of former soviet republics. The provisions on Russian citizenship are contained in the Citizenship Act of November 28, 1991 (in effect from February 6, 1992) amended on June 17, 1993 and February 6, 1995. They provide that the child born to parents possessing Russian citizenship is a Russian citizen wherever he was born (art.14). Thus, jus sanguinis is the main mode of admittance to Russian citizenship.

The second main factor in divergence is unstable boundaries. Territorial disputes or diasporas tend to make the passage to more inclusiveness impossible, and even unthinkable. Unstable borders favor jus sanguinis, which provides a more secure way to keep control of the citizenry than jus soli. In much such cases, citizens are residing across the borders or large and irredential minorities are residing within. The most obvious case of the importance of this issue is the German example. Only after the Reunification was it possible for Germany to examine the issue of integration of children of immigrants, an issue that had remained untouched for a long time on the political agenda. The Israeli case is also significant in that respect. The interests of the State of Israel is in large part determined by the instability of its frontiers and by political conflicts linked to the Palestinian presence. These circumstances may explain why access to Israeli citizenship is not given to children born to non-Israeli parents.

Finally, the comparison of countries with very different geographical and historical situations demonstrates the weight of legal tradition in the establishment of rules for citizenship. Substantive convergence remains within legal frames, and substantive convergence only take place when states are subjected to important contradictions. Historical traditions in the matter of citizenship were in fact modified when disjunctures appeared between the consequences of traditional law and either the interest of the state itself, or that of individuals who could legitimately claim a right to become citizens. All stable, democratic nation-states with immigrant populations have moved in the same legislative direction. Despite much academic writing, there is no causal link between national identity and nationality laws.

Bibliography

Aleinikoff, T. Alexander. 1998. Between Principles and Politics: the direction of U.S. Citizenship Policy. Washington International Migration policy Program. Carnegie Endowment for International Peace.

Barrington, Lowell W. 1999. “The Making of Citizenship Policy in the Baltic States.” revised version of a paper presented at a meeting of the Carnegie Comparative Citizenship Project, Virginia, USA, June 1998.

Brubaker, Rogers. 1992, Citizenship and Nationhood in France and Germany. Cambridge : Harvard University Press.

Hansen, Randall, 1998. “ A European citizenship or a Europe of citizens ? Third country nationals in the EU ” in Journal of Ethnic and Migration Studies, Vol.24 N 4 : 751-768. October 1998.

Hansen, Randall. 2000. “From Subjects to Citizens : Immigration and Nationality Law in the United Kingdom” in Randall Hansen & Patrick Weil. Nationality Law in Europe. London: Macmillan.

Klaaren, Jonathan. 1999. “Post-Apartheid Citizenship in South Africa.” revised version of a paper presented at a meeting of the Carnegie Comparative Citizenship Project, Virginia, USA, June 1998.

Nascimbene, Bruno. ed. 1996. Nationality Laws in the European Union. Milan : Giuffrè Editore.

Orentlicher, Diane F. 1998. "Citizenship and National Identity" in International Law and Ethnic Conflict, David Wippman ed., Ithaca and London: Cornell University Press, pp. 296-325.

Schuck, P.H, and Smith, R.M., 1985. Citizenship without consent: The Illegal Alien in American Polity. New Haven : Yale University Press.

Watson, Alan. 1974. Legal Transplants. Edinburgh : Scottish Academic Press ; Charlottesville : University Press of Virginia.

Weil, Patrick. 1996. "Nationalities and Citizenships : The lessons of the French Experience for Germany and Europe", in Citizenship, Nationality & Migration in Europe, D. Cesarani & M. Fulbrook, Mary ed., Routledge, London, p. 74-87.

Weil, Patrick. 1998. The State Matters. Immigration Control in Developed Countries. New York : United Nations

Weil, Patrick. 2001. “ The history of French Nationality - A Lesson for Europe ”, in Hansen, Weil. Towards a European Nationality. Citizenship, Immigration and Nationality Law in the EU, Houndmills : Macmillan.

Weil, Patrick. 2002. Qu’est ce qu’un français ? Histoire de la nationalité française depuis la Révolution, Paris: Grasset.

Weiss, André, 1907. Traité Théorique et pratique de droit international privé, Tome premier : la nationalité. Paris : Larose et Tenin.



1- Brubaker, 1992.

2- Weiss, 1907.

3- Watson, 1974.

4- Schuck & Smith, 1985.

5- Aleinikoff, 1998.

6 For that purpose they just need to produce their own certificate of birth and the one of one of their parents.

7- Quoted in Weil, 1998, p. 7.

8- Under the conditions of five years of residence of the parent in the ten years preceding the birth.

9- Exclusively through maternal descent in Netherlands.

10- If the parents have resided in Portugal 6 or 10 years before the birth.

11- Under art.12bis and art. 13 et 14, nationality can be claimed by the parents before the age of 12, if they have ten years’ residence in Belgium and if the child lived in Belgium since its birth (art.11 bis,1991).

12- Under conditions of continuous residence since 16 or residence of 5 years before 16.

13- Under condition of residence since the birth art.6 of the law ; established in 1984.

14- Under condition of residence since the birth (art.4 of the law).

15- In Greece, it is taken into account in the naturalization process.

16- Andreas K. Fahrmeir, "Nineteenth-Century German Citizenships: A Reconsideration", Historical Journal, 3, (1997).

17- Orentlicher, 1998.

18- Hansen & Weil, forthcoming. 2000.

19- Barrington, 1999, p. 17-18.

20- Statement of the High Commissioner on National Minorities, 23 June 1998, document provided by the Latvian Embassy in France.

21- As countries of immigration have also some of their citizens living abroad, all laws have some provisions permitting the transmission of citizenship to children born abroad. That kind of jus sanguinis being often restricted at the third generation unless a special connection is established by the application with his/her country of origin (United States, 1978 ; United Kingdom, 1981 ; Canada, 1999)

1. Jus soli was partially maintained, mainly as a result of a constitutional constraint : a child born in France to foreign parents could claim French nationality at the age of majority if he was resident in French territory.

- Hansen, forthcoming. 1999.


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