Essentials of Migration Management for Policy Makers and Practitioners

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Essentials of Migration Management for Policy
Makersand Practitioners
Section 3.7 Migration and Citizenship
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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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Section 3.7 Migration and Citizenship

• Topic Titles
• Topic One Citizenship
• Topic Two Citizenship Laws
• Topic Three Citizenship and Migrants
• Topic Four Loss of Citizenship

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Section 3.7 Migration and Citizenship

• Terms and Concepts
• Citizenship
• Citizenship 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 law
• International 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
  States example.
• (Continued)

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Section 3.7 Migration and Citizenship

• Terms and Concepts
• De facto In reality or fact actually
•  
• De jure According to law by right
•  
• Ex lege As a result of law
• Expatriation
• To give up residence in ones homeland to
  renounce allegiance to ones homeland to lose
  ones citizenship as a result of State action
• Jus soli
• Acquisition 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
• (Continued)

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Section 3.7 Migration and Citizenship

• Terms and Concepts
• Jus sanguinis
• Acquisition of citizenship by descent from one
  parent, resulting in dual citizenship if parents
  are of different citizenship
• Nationality
• Status 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 law
• A 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
  persons 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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Migration and Citizenship

• Topic Two
• Citizenship Laws

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Topic TwoCitizenship Laws

• Important Points
• There is little State practice providing clear
  limits on State discretion to grant citizenship.
• 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.
• The rights and obligations attached to
  citizenship are determined by internal law.
• Customary international law requires States to
  admit their own citizens for entry and residence,
  particularly if they are expelled from other
  States.
• There are as yet no indications of a
  post-national or transnational citizenship.

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Topic TwoCitizenship Laws

• 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.
• (Continued)

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Topic TwoCitizenship Laws

• 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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Topic TwoCitizenship Laws

• 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 States 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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Migration and Citizenship

• Topic Three
• Citizenship and Migrants

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Topic ThreeCitizenship and Migrants

• Important Points
• The Generational Approach to citizenship
  proposes using generations as a determining
  factor for citizenship.
• For refugees, Article 34 of the Convention
  Relating to the Status of Refugees provides a
  duty of States to facilitateas far as
  possibletheir naturalization.
• There has, as yet, been no similar treaty
  provision providing a duty of States to
  facilitateas far as possiblethe naturalization
  of migrant workers and their families.
• 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.
• 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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Migration and Citizenship

• Topic Four
• Loss of Citizenship

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Topic FourLoss of Citizenship

• Important Points
• 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.
• 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 3.7 Migration and Citizenship