Introduction

 

This paper discusses the issue of the attribution of nationality[1] to the offspring of transient, undocumented and otherwise non-permanent parents in the context of increasingly stringent immigration laws. For at least the past 25 years the vulnerability of jus soli provisions to abuse by expectant mothers engaged in “forum shopping” or, more exactly, fraude à la loi[2], has been of political concern.[3] Whether it is a genuine problem or a convenient object for political and journalistic attention is not obvious[4]. Available statistics are ambiguous and do not include data on the movement and residence patterns of those who gain adventitious birthright nationality. Nor is there a reasoned analysis of why, if such persons in fact remain in their country of birth, withholding nationality serves a useful end. While the Australian Citizenship Act 1948 as amended provides for the automatic vesting of nationality in the child of foreign parents born in Australia where “the person has, throughout the period of 10 years commencing on the day on which the person was born, been ordinarily resident in Australia”[5], other countries which have modified jus soli to depend upon residence of parent or child or status of parent require specific application for registration or facilitated naturalisation. Propensity to naturalise varies by place of origin, religion, country of destination and by certain imponderables.[6] It remains to be seen how generalised the take-up of citizenship will be. In the UK and Germany there may be particular windows of opportunity during which application or election must be made, failing which the opportunity is lost. Ignoring the complexity of the issue and the likely increase in dissonance between nationality, residence and domicile that will result, journalists and politicians have sought to attract attention and crystallise opposition to jus soli provisions. They have done this by presenting them in terms of unjust enrichment and attaching to their use by non-permanent foreigners pejorative titles: “maternity tourism”, “citizenship tourism”, “anchor babies”, “passport babies”.

 

Defining the issue: “birthright citizenship”

 

With respect to the intentional displacement for purposes of arranging birth within the jurisdiction, one might usefully distinguish between individually-motivated, occasional and incidental movement and organised traffic. A review of press reports suggests that to the extent that there is organised traffic to assure birthright citizenship it is directed towards the United States[7] and, to a lesser extent Canada[8]. Maternity traffic to Northern Ireland, the Irish Republic and France and the French Overseas Community is unorganised other than by word of mouth. Furthermore, however substantial it may be locally, it does not seem significant in the aggregate. Accidental nationality is a fact of border life.[9] Wherever economic and social conditions allow for arbitraging nationality, at least some maternity traffic seems to exist. Recent litigation by a Haitian family in the Dominican Republic seeking recognition for two children as Dominican nationals on the basis that the family’s presence was not transitory[10], illustrates the phenomenon.[11] It also underlines the fact that in a legal system without transparency and administrative probity, paper rights may be illusory.[12] The issue of status of Haitian emigrants and their locally-born offspring has been addressed by the Organization of American States and its Inter-American Court of Human Rights.[13]

Claiming the attributes of birthright citizenship is not always without obstacle. The lack of a paper trail through the childhood years can lead to suspicion and challenge.[14] Some American nationality cases have turned on the issue of proof of parental residence for the requisite period prior to the birth of a child abroad, sometimes many years afterwards. For citizens who return with their mothers abroad, and who are raised and educated in their other country of citizenship, proof of constitutive facts may be difficult. Indeed, Native American peoples, who have treaty[15] and statutory[16] border-crossing rights, have had similar problems with officialdom.[17]

It is inherent in the attribution of nationality by jus soli that some individuals through happenstance or parental contrivance will acquire a nationality different from (or additional to) that (or those) held by the parents. Nationality carries with it sometimes unwanted obligations (allegiance[18], perhaps military service[19], perhaps taxation[20]) Aeneas Macdonald, born in Great Britain of British parents, was educated in France and eventually granted a French military commission. Taken prisoner in England, he was condemned to death, a sentence subsequently commuted to banishment[21]. Today especially, nationality carries valuable economic and social rights: to live and work in a country or regional group of countries[22], and to pass on that nationality to a succeeding generation or generations. What appears to be lost in the discourse is the role of status and personal identity in the development and education of the child. French[23], German[24], Latvian[25] and other nationality laws acknowledge the relevance of linguistic and cultural education as criteria for naturalisation. Outside of a suggestion in the news reports on organised maternity tourism from Asia, little is said of the likelihood that the child, as citizen, may be associated with his or her country of felicitous nationality. There is, however, at least anecdotal evidence that such children are sometimes enrolled at British and American schools abroad and grow up conversant with and tangential to British or American culture.

Jus soli may function, in countries other than its Common-Law and Latin American traditional homelands, in tandem with or accessory to facts of ancestry, residence, domicile de nationalité (notably upon the ending of an imperial connection) for assignment of nationality. Within Europe, Germany, Switzerland, France, Spain, Portugal[26], Italy and Greece are cited as destination countries as well as Ireland and Britain; but attractiveness is relative: to many Moldovans access to Romanian nationality is a precious opportunity. Countries that at an earlier age excluded female citizens who married foreigners and who naturalised abroad, and their children, from the national polity have reversed course, sometimes welcoming back “lost” generations. This may be in response to recognition, sometimes retroactively, of gender equality.[27] The more cynical might suggest that such re-migration is also seen as a potential source of reinforcing a country’s ethnic and racial (if not its linguistic) tradition. It is, in fact, also a reversal of the 19th Century arguments respectively in relation to jus soli and jus sanguinis.[28] With nationality today viewed more as a source of rights than as a source of obligations, and dual nationality widely tolerated, it should not be surprising that some enterprising individuals avail themselves of opportunities. Nor should it be surprising that once significant numbers are believed to do so to the disadvantage of the state, of its nationals or to the self-image of either, demands are made to restrict access to nationality.

 

The Irish Nationality and Citizenship Act and Chen & Zhu v. Home Secretary

 

The Chen case[29] before the European Court of Justice and the 11 June 2004 Irish referendum on constitutional revision[30] have highlighted for Europe once again the fact of nationality as object of political expedience and pragmatism and the issue, never addressed in the Nottebohm case, of whether serendipitous possession of a nationality from birth can ever constitute fraude à la loi—whether a second country can deem that nationality not “effective” at least for certain purposes. In Chen, the issue was, more exactly, not whether baby Catherine Zhu validly possesses Irish nationality under article 7 of the Irish Nationality and Citizenship Acts 1956 and 1986 by dint of her birth in Northern Ireland, but whether her third-country-national mother can derive an incidental benefit from that fact. There was no question as to the validity and effectiveness of Catherine’s Irish nationality in her own regard, as it did not depend on her status under any other law, Irish or non-Irish. It has occasionally happened elsewhere that despite provision for attribution of nationality under the laws of the jurisdiction of birth to offspring of non-national parents by way of avoidance of statelessness[31], the authorities and courts of the place of birth attribute to the child a nationality (or facts grounding a claim to nationality) which the other country denies.[32] An international tribunal may deny recognition on policy grounds.[33] Alternatively, the parents may have failed to take an administrative step such as consular registration that might afford a nationality to the child.[34] The European Convention on Human[35] Rights is not of help to the claimant in such cases.[36] Moreover, the burden of proof remains on the proponent to show statelessness.

Like many notable nationality and allegiance cases, including the first and most famous, Calvin’s Case[37], the Chen case was likely contrived to make a political or social point. As Advocate General Tizzano notes,

 

Mrs Chen works with her husband, who is also a Chinese national, for a company whose registered office is in the People’s Republic of China. It is a very large company, which produces and exports chemicals to various parts of the world, in particular to the United Kingdom and other Member States of the European Union. … Mr Chen [sic, perhaps should read: Mr Zhu] is one of the directors of that company, in which he has a controlling shareholding.

 

Having taken legal advice, Mrs Chen arranged to be in Northern Ireland at the time of her confinement, and to give birth there.[38] She was thus able to claim Irish nationality for her child on the basis of article 7 of the Irish Nationality and Citizenship Acts, 1956 and 1986. Relying on Community law and the right to family life, and the absence of any right to Chinese nationality or right of abode on the part of her daughter, she argued for the right to reside in the United Kingdom (in Wales) and to raise her daughter there. She, and derivatively her dependent daughter, could undoubtedly have qualified for residence in the United Kingdom based on her corporate function or perhaps as sole representative or as a person of independent means, depending on facts. After four years she could have qualified for unlimited leave to remain and after five years she could have applied for British nationality. What impact naturalisation would have had on her Chinese nationality (which her daughter is said not to possess) is unclear. Prior to 1909[39] China had no nationality law, although this did not prevent either China nor foreign countries from treating Chinese persons as nationals of that country.[40] Today it does, although its interpretation and enforcement are sometimes found to be obscure.[41] Mrs Chen was not the first non-European to contrive a European nationality for her progeny, nor the first non-European to seek residence rights on the basis of her child’s. It also happens that her case arose amidst a political (or perhaps an identity) crisis in the Irish Republic caused by a perception, advanced by Irish Justice Minister Michael McDowell, that “dangerous” levels of illegal immigration and asylum-seeking by non-Europeans of childbearing age have resulted in the attribution of Irish nationality to unacceptably large numbers of inappropriate beneficiary babies.[42]

 

Jus soli issues elsewhere

 

While the clamour in Ireland is new to that island, it is not new to Britain, nor to other common-law countries that inherited and adapted the English concept of political attachment via “birth in the ligeance of the King”.[43] The British Nationality Act 1981 removed the grant of British nationality on the basis of jus soli except to persons of whom at least one parent is either a British national or “settled” in the United Kingdom (i.e., who has unlimited leave to remain). That includes Irish citizens from the moment of their arrival, if and only if they can “provide evidence that they were ordinarily resident here, and had established links with the United Kingdom.”[44] Since 2 October 2000, nationals of EU and EEA countries (other than Ireland) are no longer deemed “settled” in Britain unless they have retired from work or have sought and obtained a residence permit and, after four years’ residence, permission to remain indefinitely[45] and since that date their offspring born in Britain have no longer been accorded British nationality unless they meet the new criteria. The White Paper[46] published prior to the introduction of the British Nationality bill had stated that “the Government’s main uneasiness on this score is that allowing birth to confer citizenship on [ ] a child [of parents neither of whom is a British Citizen and neither of whom is free of conditions of stay] means also that after he returns with his parents to their country, his own children, born years later, will be British citizens by descent. The additional British Citizens so created, with the right of abode here, would form a pool of considerable size, and they would have little or no real connection with the United Kingdom.”[47]

The result was legislation that limited the grant of nationality based on birth in the United Kingdom to children of whom at least one parent is either a British national or settled, and limited the grant of nationality to persons born abroad to those of whom at least one parent was born (or registered or naturalised, or adopted[48]) in Britain. Provisions for registration exist for many or most situations in which the child does, in fact, turn out to develop a real connection with Britain. There will always be anomalies[49], and not only because the legislation does not provide directly for avoidance of statelessness. Nonstatutory concession (allowing unlimited leave to remain to persons resident in the United Kingdom for 10 or 14 years, depending on status) and discretionary provisions may resolve many of those. Furthermore, so long as the Irish Republic failed to follow suit in restricting the grant of its nationality to tourists and transients, the United Kingdom’s Ireland Act 1949[50] those with the means and the knowledge could acquire Irish, and hence British Isles, rights by giving birth in the North of Ireland.

Australia followed Britain’s lead. The Australian Citizenship Amendment Act 1986, amending Australian Citizenship Act 1948, limited the grant of nationality in cases of birth in Australia to noncitizen parents to cases where “a parent of the person was, at the time of the person’s birth, an Australian citizen or a permanent resident; or [ ] the person has, throughout the period of 10 years commencing on the day on which the person was born, been ordinarily resident in Australia.” Left unstated is the situation where the Australian nationality of a parent or parents is revoked for fraud or otherwise.[51]

Malta’s nationality law now provides:

 

5. (1) Every person born in Malta on or after the appointed day shall be deemed to have become or shall become, a citizen of Malta at the date of his birth: …

 

Provided further that in the case of a person born on or after the 1st August, 1989 such person shall not become a citizen of Malta by virtue of this sub-article unless at the time of his birth, his father or his mother was or is:

(a) a citizen of Malta; or

(b) a person referred to in paragraph (a or b) of subarticle (4) of article 44 of the Constitution [relating to certain former citizens, spouses and widow(er)s].[52]

 

New Zealand has published proposed security-related and technical legislative changes in the Identity (Citizenship and Travel Documents) Bill[53]. Amidst concern of abuse of the jus soli provisions of current legislation, Internal Affairs Minister George Hawkins said that “The issue of citizenship by birth, for instance of babies born in this country to mothers who are not New Zealand nationals, is an issue separate to matters covered in the Identity Bill,” and was still being worked on by a number of government agencies, with no decisions having yet been made.[54]

The perception in Canada seems to be that the attribution of nationality to children of noncitizen nonresidents is not a significant issue:

 

During the consultations carried out in 1994 by the Standing Committee on Citizenship and Immigration, of which I am a vice-chairman, I asked departmental officials to provide us with statistics on the number of children born to persons who were not Canadian citizens. They were unable to give us exact figures. All they could say was that approximately 400 children were in this situation. The problem therefore is really not of such a magnitude as to require a legislative amendment and changes to a basic principle[55]

 

More recently, press reports have outlined a network supporting an organised maternity traffic.[56] Increased scrutiny of visa applications by the United States authorities may be diverting some pregnant travellers to Canada. Whatever the perception elsewhere, the United States remains the destination of choice for most maternity tourists, and in particular those from the Far East and Latin America. It is in the United States that the discourse has been the most shrill, and there that the legal and constitutional hurdles are most formidable. The common-law notion of jus soli was incorporated in the 14th Amendment to the Constitution in 1868. The result is that notwithstanding the seeming clarity of the Supreme Court’s expression of the rule in Wong Kim Ark[57], the argument is sometimes made that “subject to the jurisdiction thereof” does not include transient parents.[58] Bills have been introduced in the Congress based on that argument[59]; a constitutional amendment is also sought.[60] For some Americans, the awareness that at least some persons born in the U.S. and raised and educated elsewhere, like Yaser Esam Hamdi[61] and several of the defendants in Ex Parte Quirin[62] bear ill will against the country, has led them to support urgent action, however unfocused.

In France, notwithstanding the 1998 revisions[63] to the Code de la nationalité française, the provisions of articles 19 through 19-4 afford at least potential or inchoate nationality rights to beneficiary children of maternity tourism. Furthermore, it remains possible for a child of at least one Algerian parent who was born in the French departments of Algeria before 3 July 1962 to be born in France and entitled to French nationality under art. 19-3 (second generation born in France). This is not a new issue .[64] For France, however, the greatest concern is in respect of its overseas communities. This has been nowhere more clearly articulated than with respect to French Guyana.[65]

Some of the cases, and much of the press argument, are devoted to the burden imposed upon the state and upon medical facilities in caring for maternity patients. It is not obvious that the issue of nationality of offspring is connected with the costs of providing maternity services, or that any favourable impact on either public health or on postnatal health expenses relating to the mother and the child can result from either denying the child the nationality of a state, or from refusing the mother prenatal and maternity care.[66] In addition, available statistics suggest that the problem is overstated[67]. Live births in the United States totalled 4,021,726 in 2002. The Federation for American Immigration Reform (FAIR), an anti-immigration lobbying group, claims that births to foreign-born (but not necessarily non-U.S.-citizen) mothers account for 17% of the total. The U.S. Citizenship and Immigration Services (USCIS) estimate the total population of undocumented aliens at 5 million as of 1996 and 7 million in 2000 and that it is growing at the rate of 5-1/2% per year. The National Center for Health Statistics offers a crude birth rate varying in 2001 from 13.7 per thousand for whites, to 16.3 for African-Americans, 13.7 for Native American, 16.4 for Asian and Pacific Islanders, 23.0 for Latinos, 17.8 for Puerto Ricans.[68] The Hispanic total was skewed by the rate for ethnic Mexican women of 24.8 (the general rate for Latinos was 23.0); the rate for all races was 14.1. FAIR claims a fecundity rate of 18 for “immigrants” in the United States[69]; this rate may, in fact, be low. USCIS offers a table of country of origin of undocumented immigrants[70]; Mexicans were estimated to constitute 68% of the 7 million total. Applying the FAIR fecundity rate to the USCIS estimate of undocumented aliens yields a total of American citizen births to out-of-status noncitizens of 126,000, or 3.1% of total live births of 4,058,814 in 2000. It is true that the lack of an obligation on the part of residents to register their presence with officialdom in their community creates a real opportunity for undocumented aliens to live and engage in commerce and enterprise with small chance of discovery: the numbers speak for themselves. It makes no more sense in such a case, however, to visit the sins of the parents upon the children and to deny them public health[71] and education[72] services. Denial of these will give rise to future social costs. Denial of status (nationality) can lead to their marginalisation.

The grievances on the part of the anti-immigration lobby with respect to granting citizenship to the locally-born offspring of undocumented or transient migrants appear to be that undocumented aliens and their progeny represent a net expense to society, that they dilute the traditional ethnicity, that they foster disrespect for law and provide an incentive to avoidance of normal immigration procedures. Especially in the United States these have expressed themselves, through legislation, in various ways, sometimes perverse, relating to education, health, driver licensing, census, welfare, taxation and employment. Citizens have rights irrespective of the status of their parents, and whether or not their parents have a derivative right of abode. Where there is an entitlement on the part of the child and none on the part of the parent, the outcome may depend on difficult analysis.[73]

 

Human rights and European Union law

 

In the countries discussed, domestic law, European Union law, European human rights law, asylum law and practice, and administrative discretion combine in varying ways to afford at least some parents the right of abode in the country of which their child is a newborn national. How and when that happens depends inevitably upon the specific facts of the case, the circumstances in the country or countries of origin and, often, especially where there is administrative discretion, upon domestic politics. Notwithstanding article 8 of the European Convention on Human rights, a child does not have the absolute right to grow up and be educated with one or both parents in any particular country, including his or her own.[74] Parents of citizen children have been deported, and given the option of taking the children abroad at the expense of the deporting state or leaving them behind with family or friends or in the care of the authorities.[75] There is a lack of symmetry with the treatment of international adoption and family unification and reunification generally.[76]

Member states of the European Union are largely free to attribute their respective nationalities in accordance with their own political objectives. By way of derogation to the Nottebohm[77] principle allowing denial of recognition to a nationality acquired by contrivance (which I would argue is inapplicable to a nationality acquired at birth, and in large part superseded by subsequent events and evolved law and practice), member states may not deny rights to a person recognised and documented as its national by another member state.[78] They may not attribute, or more precisely effectuate to a person’s disadvantage, their own nationality at a time other than birth or adoption except with the consent of the individual or a parent acting on his or her behalf.[79] Both the Council of Europe and the European Commission have influenced European states in the matter of nationality legislation, particularly with a view to gender equality. Thus there has been reduction, if not elimination, of perverse situations that might result in denial to offspring of the nationality of their parents while the parents are exercising right of establishment in another member state.[80] The Ramadanoglou conundrum (administrative revocation of the Greek nationality of an Greek citizen of Turkish ethnicity exercising his right of free movement and employed in Germany)[81] is rendered nugatory by the abrogation of former article 19 of the Greek nationality code. In any case Ramadanoglou seems to have regained his passport once litigation was threatened. Nearly all European states will accord their nationality to an expatriate worker employed abroad, perhaps subject to declaration or registration by the parents or, eventually, the individual, and the necessity of identity and travel documents make it improbable, in most situations, that necessary consular registration will be neglected. The United Kingdom, however, except in the case of Crown or European Union servants[82], will deny attribution of its nationality to the offspring born abroad to citizens also born abroad. They may be stateless or possibly obtain by default the nationality of the country of birth, or they may be registered as British citizens at the discretion of the Home Secretary under s. 3 of the British Nationality Act 1981 within the time (12 months or, exceptionally, 6 years) fixed in the Act.[83]

The relationship in European Union law between child and parent of different nationalities has rarely been tested. Many of the situations which have arisen in the past will not do so again: women no longer are attributed an involuntary nationality upon marriage in any European country; all European states attribute their nationality to the offspring of female nationals, whether or not married and whether or not the father is also a national of the country subject, perhaps, to an obligation of election at majority.[84] The European Court of Justice, in Deak[85], declined to find a Community right to a job-seeker grant on the part of the member state-citizen child of the citizen migrant worker, but had no difficulty in characterising that grant as a social benefit for the worker parent. In Garcia-Avello[86] the Court addressed the problem of inconsistent rules and customs regulating the assignment of names to newborns by parents by different countries of nationality of a child with more than one nationality and was deferential to the custom of the “other” member state of nationality. Martinez-Sala[87] addressed an issue that may be of interest here: the right of a European citizen who is not and perhaps cannot for the time being obtain a residence permit, to family and other social benefits following the birth of an infant.

Martinez-Sala in fact, suggests a corollary to Ramadanoglou and an issue that is bound to arise in the fullness of time: if member states (as I argue) are not free to revoke the nationality of one of their nationals for the sole reason that he or she is exercising a Union right in another member state, may a state use a technical breach of immigration or residence registration rules to deny attribution of nationality to an infant born to migrant EU citizens in that state? Indeed, one may ask whether Martinez Sala and the driver license cases[88], among others, support the proposition that neglect to meet a registration deadline can not be used to deprive an individual in those circumstances from a nationality right. This question is suggested by the 1999 German nationality law revision, specifically the terms of § 4 (3):

 

(3) Durch die Geburt im Inland erwirbt ein Kind ausländischer Eltern die deutsche Staatsangehörigkeit, wenn ein Elternteil

 

1. seit acht Jahren rechtmäßig seinen gewöhnlichen Aufenthalt im Inland hat und

 

2. eine Aufenthaltsberechtigung oder seit drei Jahren eine unbefristete Aufenthaltserlaubnis besitzt.

 

Thus children born in Germany to non-national parents from 1 January 2000 are attributed German nationality (subject to loss if any foreign nationality is not renounced between the ages of 18 and 23) if a parent has been lawfully habitually resident in Germany for eight years, or unrestricted right of residence in the three years prior to the birth.

It is also raised by the rules imposed in Britain as from 2 October 2000. Thus:

 

Before 2 October 2000, European Economic Area (EEA) nationals exercising Treaty rights under European Community law were regarded as having been settled here. However, from that date, EEA nationals are only regarded as settled if they have been granted indefinite leave to remain in the United Kingdom or have an unconditional right of residence under European Community law (for example, retired people or people unable to work because of incapacity).[89]

 

Notwithstanding registration is, under EU concepts, declaratory and not constitutive of rights, Britain measures eligibility for settlement (unlimited leave to remain) from the date that a residence permit is acquired. It appears that the justification for doing so is that the status granted with settlement goes beyond what the Treaties require. From the standpoint of the European Union, a relevant conflict should exist if, and perhaps only if, an assertion of a Community right leads to disenfranchisement or diminution of rights of a family member compared with the nationality and residence rights that family member would otherwise have enjoyed. That would include the right to retain and develop the culture and association of origin (at the expense of the family and not of the state of establishment) or to choose to avail of the culture and education of the country of establishment up to (but not necessarily including) membership in the local polity.

 

Conclusions

 

Although European states, taken together, have reduced, through gender equalisation and provisions for naturalisation or facilitated naturalisation of the second- (or perhaps third-[90]) generation, a question that threads its way through the studies in “propensity to naturalise”[91] needs addressing: are integration and assimilation assisted by a child growing up as a member of the polity, or do we so much regret pluralism[92] that nationality should be reserved for those with proven capacity and will to assimilate? Hamdi[93] has been cited in the United States for the proposition, heard before at the time of the German American Bund[94] and in the Japanese internment[95] cases that adventitious, unconditional grant of nationality to offspring of transients facilitates the establishment of a fifth column. What has happened, in fact, is that the source of the concept of jus soli—allegiance[96] (subjection) to the Crown based on fact of birth in the realm—has lost meaning in the same way as has the nationality proposition of Mazzini (and those who followed, including Mancini, Esperson, Fiore, Weiss, Laurent and Brocher) who saw in nation and nationality commonality of language, territory, ethnicity, culture, religion and history.[97] The pluralist state, and European citizenship, are antitheses of those.

 

 

 

LL.B. (Columbia), Docteur en droit (Louvain)

Member, New York Bar

London

 

Last change/correction/addition to citations and links in footnotes to references: 9 April 2015. Links are checked periodically. Except for occasional updates to footnotes the text of the article remains unchanged from that published at the conference. Use link at title for version as originally published.

---