This article is written by Ms. Reet Balmiki from NALSAR University of Law. This is an exhaustive article which deals with birthright citizenship around the world.
Table of Contents
Introduction
Citizenship is the relationship between an individual and a particular state. It is the most privileged form of nationality and vests certain rights, duties, and privileges on the individual. Out of the several forms of acquiring citizenship, the concept of birthright citizenship holds an important part and continues to be practised in several countries around the globe.
Over the years, the concept has been a part of numerous legal debates which has resulted in the abolition of this right in many countries. There also emerge certain geographical patterns in the provisions of birthright citizenship around the world.
Before analysing the status of the right around the world and understanding the reasons for abolition in several countries, it is essential to understand the meaning of the legal right.
The birthright citizenship – an insight of a few notable countries
Understanding the meaning
There are multiple ways through which an individual can attain the right of citizenship. For understanding, these can be classified under two heads-
- Citizenship by birth; and
- Naturalisation.
Naturalisation is the act of vesting upon an individual the status of a citizen upon the fulfilment of certain conditions, which vary from nation to nation. This could be a result of a voluntary application, marriage to a citizen, residence in the country, and others.
The two main principles used to determine citizenship by birth are jus soli and jus sanguinis. The principle of jus sanguinis, which translates to the right of blood, grants citizenship to a person only if at the time of birth one or both the parents hold citizenship. On the other hand, the principle of jus soli, which translates to the right of soil, grants citizenship based on the individual’s birth in the territory of that country.
This principle of jus soli, also known as birthright citizenship, stands in complete contrast with the principle of jus sanguinis and grants unconditional citizenship to all individuals born within the geographical boundaries of the country. Since the privilege of citizenship also grants several rights and protections, many countries are opposed to the policy of granting citizenship merely based on birth due to the several threats that it poses.
Discussions surrounding the right
The debates around the policy of birthright citizenship have been going on for a long time. Many have claimed the right to be an essential ingredient for the functioning of democracy. The reasoning is that certain groups of people around the world are ill-treated and discriminated against. It would be impossible to ensure equality and eradicate these differences in the absence of this right. In such situations, citizenship will also remain to be a privilege to a few inhabitants.
Granting citizenship based on birth will also enable several illegal immigrants who live in these countries to access welfare benefits if their children are born in that country. Such benefits are available to the citizens and provide illegal immigrants with a way to access them.
On the other hand, many countries have pointed out several downsides to granting this right. The right has resulted in an unknown phenomenon called “birth tourism”, according to which foreign nationals travel to countries that grant citizenship based on birth and thus obtain the benefits of citizenship for the child. This practice has caused an influx of illegal immigrants in many nations around the world.
As per the modern view of citizenship, this right also guarantees all rights and privileges including full protection to all rights guaranteed under the Constitution, to any child who is born to parents who were only briefly visiting the country.
In addition to unconditional citizenship to the child, birth tourism also grants the parents the right to immigration once the child attains majority. This can thus initiate a chain migration to the country, which is a threat to the country if done in large numbers.
The global trend
As per the background provided by the Center for Immigration Studies, over 30 out of all 194 countries grant automatic citizenship to children born within its territory. All countries in the world can be categorized mainly under three groups – those that provide unconditional birthright citizenship, those that provide birthright citizenship with certain conditions, and those that previously allowed birthright citizenship and have abandoned the practice now.
The principle of birthright citizenship emerges from the British common law. Thus, the exclusion of this right from the common law practice led to abandonment by several other countries as well. In addition, due to the several problems caused due to the attraction of large flows of immigrants, several other countries have abandoned this right.
Though unconditional birthright citizenship is provided by only around 30 countries, around 55 countries provide citizenship as a birthright on the fulfilment of certain conditions. 24 countries that previously granted this right have abolished it, the most recent being in 2006 by New Zealand.
In 1993, France did away with birthright citizenship. Ireland became the last European Union country to abolish birthright citizenship in 2005. This right has also been challenged several times in major countries like Canada and the United States due to the problems attached to it.
Liberia and Mali are two countries that grant birthright citizenship based on caste. Several countries which used to grant unconditional citizenship have now added certain conditions to be met in order to be eligible for such citizenship.
By observing the map provided by the Law Library of Congress, most of the countries providing unrestricted birthright citizenship are located in the western hemisphere. In addition, we can also see that a large number of countries around the world grant birthright citizenship based on several conditions like the legal status of the parents, length of residency in the country, and so on.
It is thus clear that most countries in Europe, Asia, Africa, and Oceania predominantly follow the jus sanguinis principle to grant citizenship. In contrast, the principle of jus soli is popularly practised among American countries. On a global scale, the practice of jus sanguinis dominates and the recent trend has been the end of jus soli.
Citizenship laws and provisions around the World
United States
In addition to the naturalization process, the United States also follows the jus soli system to grant citizenship. This has been granted by Section 1 of the 14th Amendment to the US Constitution, also known as the citizenship clause, which grants citizenship to all those who are born in the US and subject to its jurisdiction. This clause, however, excludes the children born to diplomats and other recognized government officials from foreign countries as they are not subject to its jurisdiction.
The concept of birthright citizenship has been subject to many constitutional debates in the US including the recent debate during the 2020 elections. These debates have brought into light the controversy surrounding the second condition of the citizenship clause i.e., “subject to the jurisdiction thereof”. Those who advocate granting citizenship at birth have interpreted this clause merely as being subject to the power of the police and the laws of the land. They argue that the drafters of the clause intended to ensure that freed slaves are also provided with citizenship, this right must also be granted to the children of illegal aliens born on the land.
Those arguing in favour of the abolition of the jus soli system point out the decision of Dred Scott v. Sandford (1856), where it was held that the slaves and freed slaves born in the US are not entitled to citizenship. They interpreted the phrase “subject to the jurisdiction thereof” meant not owing allegiance to any other country and cannot mean partial or temporary jurisdiction. Based on this interpretation, citizenship should be granted to only those who owe complete allegiance to the United States and thus exclude several people such as illegal immigrants, temporary visitors, and others; this system no longer grants unconditional birthright citizenship.
India
India abandoned the jus soli policy in the year 2004, before which, a person born in India was granted citizenship regardless of the citizenship of their parents. After the commencement of the Citizenship Act of 2003, only a person born in India on or after January 26, 1950, and before July 1, 1987, is a citizen by birth “irrespective of the nationality of his/her parents.” This Act led to the shift to a jus sanguinis system where citizenship is acquired through descent which is stated under Section 3(1)(b) of the amendment.
Every person born in India after 1st July 1987 but before 2nd December 2004 is a citizen of the country provided that either of the parents is a citizen at the time of the birth. In addition, every person born in the country on or after 3rd December 2004 is a citizen of the country provided both the parents are citizens or at least one parent is a citizen and the other is not an illegal migrant at the time of the birth.
Therefore, after abandoning the jus soli system, India has adopted a system where birthright citizenship is given only if the conditions mentioned are fulfilled. The conditions required to be fulfilled are mainly regarding the citizenship status of the parents, which indicates that the country has shifted to a jus sanguinis system that grants citizenship mainly on the basis of descent. The country has also taken a strict stand against providing the privileged status of a citizen to children of illegal migrants.
United Kingdom
The system of jus soli existed in the United Kingdom since the ancient common law period and was effective till it was abolished in 1983 under the British Nationality Act of 1981. This law ended the system of unconditional jus soli citizenship and granted citizenship status only if the child is born in the UK and one parent is a British citizen, legally settled there, or a member of the UK armed forces. The country also grants citizenship status to children born in the UK to non-citizens and non-residents if they live in the country for the first ten years of their lives with limited leave outside the country.
Australia
Australia, which followed before 1986 the jus soli system to grant citizenship, shifted to a system where citizenship is automatically provided at birth only if the child is born at least to one Australian citizen or a permanent legal resident. The country, thus, makes automatic birthright citizenship conditional and excludes children born to illegal immigrants. This has been stated under the Australian Citizenship Act of 2007.
However, the country also grants citizenship to children born to illegal immigrants at the age of 10, if the child was born after 1986 and has lived in Australia for the entire 10 years. The country has enacted such a policy as it is highly unlikely that illegal migrants remain in the country entirely for such a long duration. This provision thus enables them to filter the illegal migrants living in the country for such long durations with temporary residents or fleeing immigrants.
Conclusion
Citizenship is a privilege that when granted comes with its set of rights and duties. This status is granted to define the relationship that an individual has with a nation-state. Therefore, an unconditional grant of this status to all members merely on the basis of place of birth has been seen to be problematic by many.
Birthright citizenship, though previously popularly followed around the world, has been witnessing a recent decline due to the several threats it carries. While over 30 countries grant unconditional citizenship at birth even today, the global trend has seen an abandonment of this practice in exchange for naturalization or conditional citizenship automatically provided at birth.
The controversy around the principle of jus soli has been a part of legal debates in several nations and has brought into light the purpose and intent of granting the right along with the threats associated with it. Though the right might positively benefit certain groups, the possible threats upon granting the right cannot be ignored while deciding upon this issue.
As a result, several countries have chosen to take a middle approach and have tried to avoid such threats while granting birthright citizenship on the fulfilment of certain conditions that vary from nation to nation.
References
- https://cis.org/Report/Birthright-Citizenship-United-States#71
- https://www.theatlantic.com/international/archive/2018/10/birthright-citizenship-other-countries-trump/574453/
- https://www.businessinsider.in/politics/more-than-30-other-countries-recognize-birthright-citizenship-heres-the-full-list/articleshow/66437819.cms
- https://www.researchgate.net/publication/329367793_Global_Birthright_Citizenship_Laws_How_Inclusive
- https://www.news18.com/news/india/as-donald-trump-is-seriously-looking-to-revoke-birthright-citizenship-in-us-here-are-the-facts-about-indian-citizenship-2280133.html
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