Essentials of Migration Management for Policy Makers and Practitioners

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Essentials of Migration Management for Policy Makersand Practitioners

Section 3.7Migration and Citizenship

Essentials of Migration Management

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Section 3.7 Migration and Citizenship

Learning Objectives

• identify major issues to be addressed in the area of citizenship

• understand the importance of citizenship issues for a comprehensive migration management policy

• understand how to assess the implications of a citizenship option in migration policy development


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Topic Titles

Topic One: Citizenship

Topic Two: Citizenship Laws

Topic Three: Citizenship and Migrants

Topic Four: Loss of Citizenship


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Terms and Concepts

CitizenshipCitizenship has meanings that vary from country to country and between academic disciplines. It has two primary meanings: 1. A legal status of membership in a nation State. 2. Membership in a community that is not necessarily defined as a nation State. For example, European citizenship, universal citizenship, or “post-national citizenship.“

Customary international lawInternational laws that derive their authority from the constant and consistent practice of States, rather than from formal expression in a treaty or legal text. Customary international law changes as a result of contributions made by individual States. When a State acts from what it determines are its legal obligations in the international community, its practice can contribute to the formation of customary international law. This occurs when other States adopt and consistently follow the contributing State’s example.

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Terms and Concepts

De facto In reality or fact; actually De jure According to law; by right Ex lege As a result of law

ExpatriationTo give up residence in one’s homeland; to renounce allegiance to one’s homeland; to lose one’s citizenship as a result of State action

Jus soliAcquisition of citizenship by birthplace, sometimes in connection with additional conditions; for example, at least one parent having the right to permanent residence, or the birth of one parent in the territory of the host State

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Terms and Concepts

Jus sanguinisAcquisition of citizenship by descent from one parent, resulting in dual citizenship if parents are of different citizenship

NationalityStatus of membership in a nation State. Nationality law determines the conditions under which this legal status is granted. Nationality also is frequently used in the context of an ethnic group forming a part of one or more political nations.

Public international lawA framework of principles agreed to by States that governs the international relations between States, international organizations, and other subjects of public international law

Statelessness Lacking the legal status of membership in any State

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Migration and Citizenship

Topic One

Citizenship


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Topic OneCitizenship

Citizenship

• Under customary international law, States are generally free to determine who their citizens are.

• citizenship at birth or jus soli• citizenship through descent or jus sanguinis, where citizenship is acquired primarily through

birth from parents having a specific citizenship.

• Citizenship implies the right of an individual to have a citizenship and also a right to be protected against its arbitrary withdrawal.

• Under Article 15 of the UN Universal Declaration of Human Rights of 1948, nationality implies a person’s right to change his or her nationality.

• Human rights considerations and the principle of non-intervention in the internal affairs of another State provide the basis for limits imposed by international law on the sovereign right of States to determine their own rules for the acquisition and loss of citizenship.

• State law generally regulates the acquisition and loss of citizenship.


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Topic OneCitizenship

Multiple citizenship

• An increasing number of persons hold multiple citizenship.

• No general principle against or in favour of multiple citizenship can be derived from international law.

• The “genuine and effective connection” test has gained acceptance in the context of multiple citizenship.

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Topic Two

Citizenship Laws


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Topic TwoCitizenship Laws

Important Points

1. There is little State practice providing clear limits on State discretion to grant citizenship.

2. Under customary international law, there is no right to a specific nationality nor is there a right to change nationality or to acquire an additional nationality.

3. The rights and obligations attached to citizenship are determined by internal law.

4. Customary international law requires States to admit their own citizens for entry and residence, particularly if they are expelled from other States.

5. There are as yet no indications of a “post-national” or “transnational” citizenship.


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International agreements

• Increasing numbers of people with multiple citizenship may give rise to more international disputes resulting from conflicting rights and obligations.

• Conflicts arising from different rules on the acquisition and loss of citizenship, and the rights and duties of dual citizens, have resulted in a number of international agreements that regulate:

• avoidance of statelessness• conflicting duties• diplomatic protection.

• The right of everyone to a nationality is already enshrined in Article 15 of the Universal Declaration of Human Rights.

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• The duty to avoid statelessness is laid down in various international instruments, in particular, in the 1961 Convention on the Reduction of Statelessness.

• Some of the rules of Article 6 of the European Convention on Nationality relating to acquisition of nationality to avoid statelessness may be considered as a codification of customary international law because they are uniformly being accepted.


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The misuse of citizenship law

• Citizenship law cannot be used to renounce a citizenship in order to escape deportation by acquiring a status of statelessness.

• Establishing statelessness for the main purpose of restricting a State’s sovereign right to decide on the admission and residence of foreign citizens means acting against the community of nations.

• Marriages of convenience have been used to qualify for automatic entitlement to citizenship or facilitated access to naturalization.

• In some States, a person claiming to be the father can recognize a child by a simple declaration, thereby establishing the parenthood relationship and transmitting citizenship to a child.

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Topic Three

Citizenship and Migrants


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Topic ThreeCitizenship and Migrants

Important Points

1. The “Generational Approach” to citizenship proposes using generations as a determining factor for citizenship.

2. For refugees, Article 34 of the Convention Relating to the Status of Refugees provides a duty of States to facilitate—as far as possible—their naturalization.

3. There has, as yet, been no similar treaty provision providing a duty of States to facilitate—as far as possible—the naturalization of migrant workers and their families.

4. The European Convention on Nationality provides that internal law shall contain rules that make it possible for foreigners lawfully and habitually resident in the territory of a State party to be naturalized.

5. Facilitation of acquisition of citizenship by migrants is sometimes tempered with measures that ensure that citizenship by way of traditional criteria (for example, by descent) is not transmitted indefinitely without a genuine and effective connection to the State concerned.


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Topic ThreeCitizenship and Migrants

Multiple citizenship and migrants

• There is a clear tendency for greater toleration of multiple citizenship.

• Reasons for multiple citizenship may be a genuine sense of belonging to more than one place or community, ease of travel, or convenience of business investment.

• Some States provide for multiple citizenship in cases where children have different citizenships acquired automatically at birth, and in the case of automatic acquisition of another citizenship due to marriage.

• Even those countries that maintain the principle of avoidance of dual citizenship have largely facilitated the maintenance of a previous citizenship if renunciation of it meets serious obstacles or must be considered as unreasonable.

• An increasing number of States are reaching out to their diaspora to exercise their civic duty (for example, to vote), although some theorists contend that political rights and responsibilities should be attached only to the State of permanent residence.

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Topic Four

Loss of Citizenship


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Topic FourLoss of Citizenship

Important Points

1. In most citizenship policies, provisions with respect to loss of citizenship apply only to citizens by registration or naturalization. Exceptions often used to permit deprivation of citizenship include:

• voluntary acquisition of another citizenship• acquisition of citizenship by means of fraudulent conduct, false information, or

concealment of any relevant fact attributable to the applicant• voluntary service in a foreign military force• conduct seriously prejudicial to the vital interests of the State• extended absence in a foreign country without notification.

2. With the exception of the special case of State succession, there is very little international guidance on the limits of a particular State to deprive people with multiple citizenship of their citizenship in that State.


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Topic FourLoss of Citizenship

State succession and citizenship

• There are as yet no generally recognized rules on citizenship in case of State succession.

• Article 18 of the European Convention on Nationality obliges States, in deciding on the granting or the retention of nationality, to take into account:

• the genuine and effective link of the person with the State• the habitual residence of the person concerned• the will of the person concerned, and the territorial origin of the person

concerned.

• Article 19 of the Convention provides for a duty to endeavour to regulate matters by agreement.

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Last Slide

Section 3.7Migration and Citizenship

Documents

Essentials of Migration Management for Policy Makers and Practitioners