V3-3-Migration and Citizenship - International Organization for

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Essentials of Migration Management
for Policy Makers
and Practitioners
Section 3.7
Migration and Citizenship
1
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
2
Essentials of Migration Management
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
3
Essentials of Migration Management
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 State’s example.
(Continued)
4
Essentials of Migration Management
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 one’s homeland; to renounce allegiance to one’s homeland; to lose one’s
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)
5
Essentials of Migration Management
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
6
Essentials of Migration Management
Migration and Citizenship
Topic One
Citizenship
7
Topic One
Citizenship
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.
Essentials of Migration Management
8
Topic One
Citizenship
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.
9
Essentials of Migration Management
Migration and Citizenship
Topic Two
Citizenship Laws
10
Topic Two
Citizenship 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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Essentials of Migration Management
Topic Two
Citizenship 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)
12
Essentials of Migration Management
Topic Two
Citizenship 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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Essentials of Migration Management
Topic Two
Citizenship 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 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.
14
Essentials of Migration Management
Migration and Citizenship
Topic Three
Citizenship and Migrants
15
Topic Three
Citizenship 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.
16
Essentials of Migration Management
Topic Three
Citizenship 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.
•
17
Essentials of Migration Management
Migration and Citizenship
Topic Four
Loss of Citizenship
18
Topic Four
Loss 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.
19
Essentials of Migration Management
Topic Four
Loss 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.
20
Essentials of Migration Management
Last Slide
Section 3.7
Migration and Citizenship
21
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