Human Rights and Citizenship:
The Challenge of Migrations
ISPI – Milan, November 13, 2006
Trends in Nationality Laws
and the Italian Case
Giovanna Zincone
1
HARMONISATION FROM ABOVE
NEEDED AND IMPOSSIBLE
• The Amsterdam Treaty transferred part of matters related to immigration
from the third pillar to the first one. Acquisition and loss of nationality were
excluded from the transfer.
• EC
concerns about the paradox of a single EU State enjoying
other EU States' citizenship rights and single State-based access to
European citizenship.
• Nationality laws extremely diversified & too rooted in single country
political culture to be the subject of Community decisions in the near future
and still extremely diversified.
• Procedures that lead to naturalization also differ: by declaration, by
entitlement, by option or discretionary. This presentation will not deal with
procedures.
• Main empirical source: R. Bauböck, E. Ersbøll, K. Groenendijk, H.
Waldrauch (eds), Acquisition and Loss of Nationality (2 vols.), Amsterdam
University Press, 2006. A comparative analysis in the old 15 Member
States updated to May 2005.
2
HARMONISATION FROM BELOW
SOME COMMON FEATURES & TRENDS
• Favour minors born and/or educated in the country.
• Avoid casual attribution by ius soli.
• Avoid opportunistic acquisition by birth and by
marriage.
• Link nationality to real bonds with the country, with
integration indicators and/or measures.
• Favour foreigners of national origins i.e. less strict
requirements of residence, of belonging and
integration. Very few reforms correcting this situation.
Problem:discrepancy State v. civil society.
3
PRESENT ITALIAN LAW
(no. 91/1992)
AND THE AMATO BILL
FROM A COMPARATIVE
PERSPECTIVE
4
DUAL NATIONALITY / I
•
•
•
•
•
Dual nationality may cause problems. It often implies conflicts of loyalties, rights
and duties.
However in some cases is inevitable:
- Extension of gender equality principle to nationality matters, supported by
international conventions (see Convention on the Nationality of Married Women,
29 January 1957 and the Council of Europe resolution (77) 12 on the nationality of
spouses of different nationalities, 27 May 1977), allowing spouses to transfer
nationality to each other and both nationalities can be transferred to their children.
- Application of quasi-compulsory ius soli in some immigration countries combined
with the conservation of parents’ nationality by ius sanguinis.
In other cases, the countries of origin legislation can act as a deterrent from
acquiring a new (second) nationality. Certain emigration States forbid the
renunciation of nationality and/or link important rights such as property or
inheritance rights to the legal status of citizen.
International law initially stated the principle that multiple nationality was
undesirable (see Convention of Strasbourg, 6 May 1963), but the principle was
already abandoned with the European Convention on Nationality of 1977. There is
a clear trend towards a more liberal tolerance of multiple nationality or even
towards a formal acceptance of it.
Legal solutions have been found in bilateral agreements, for instance in making the
nationality of the country in which the person does not reside ‘dormant’ especially
as far as electoral rights or draft duties are concerned (see Spanish-Argentinean
Agreement, 14 April 1969, and Italian-Argentinean Treaty, 29 October 1971).
5
DUAL NATIONALITY / II
• Differences look greater than they actually are.
• Belgium, Finland, France, Greece, Ireland, Italy, Portugal, Sweden, UK, do
not require that previous nationality be renounced. But Portugal accepts
dual nationality on condition that the position of the country of origin on
dual nationality is not an obstacle to naturalization. Greece asks only
Macedonians to renounce previous nationality.
• Austria, Denmark, Germany, Luxembourg, The Netherlands and Spain
require renunciation of previous nationality. This requirement can affect
nationals of other countries where renunciation fees are particularly high,
or where inheritance and property rights are linked to nationality.
• These countries adopt some exemptions:
- refugees (all countries)
- to applicants whose nationality law does not allow renunciation or
imposes unacceptable conditions (Austria, Denmark, Germany, The
Netherlands)
- to children of bi-national parents (Austria, Denmark).
• In general, administrations prove quite flexible in approaching and
managing situations of multiple nationality.
• Italy 1992 allowed dual citizenship (before it was accepted de facto).
Amato’s Bill does not touch this aspect.
6
INTRODUCTION OF IUS SOLI AT BIRTH &
INTRODUCTION OF STRICTER REQUIREMENTS
(WHEN ALREADY IN FORCE)
• Denmark (2004 reform): by declaration only to Nordic Area parents.
• Germany (2000 reform and 2005 amendments): ius soli principle
introduced, at least one parent with habitual legal residence in
Germany for 8 years and unlimited residence permit for 3 years. No
dual nationality: compulsory option when reaching majority.
• Ireland (2004 reform): only if one parent is entitled to reside without
any restriction.
• Portugal (2006 reform): residence of at least one parent reduced and
unified from 6 (Portuguese origins ) or 10 (others) to 5 years.
• UK (1983 reform): only if one of the parents is “settled” and holds
Indefinite Leave to Remain (ILR).
• Italy 1992: no ius soli at birth. Amato’s Bill introduces the ius soli at
birth (art. 1). At least one parent 5 years of residence and income
requirement to apply for long-term resident status. Nationality can
be renounced by the child when coming of age. Self determination.
7
IUS SOLI BEFORE COMING OF AGE
• Austria (1999): discretionary naturalization to minors born in
Austria after 4 years of residence. 2006 reform raised the
requirement to 6 years.
• Belgium (since 1991; 2000 reform no longer automatic): both
parents within 12 years after birth and main residence in
Belgium during 10 years preceding declaration.
• France (1993; amendments in 1998): children’s nationality by
declaration between 16 and 18, if minimum residence of 5
years since the age of 11. Parents can obtain nationality for
their children between the age of 13 and 16, if minimum
residence of 5 years after the age of 8. 6 months before the age
of 18, and during the following year, they can renounce
French nationality.
• UK (1983): children over 10 years who have spent 10 years in
the country with no more than 90 days of absence in each year.
• Italy 1992: no ius soli before 18. Amato’s Bill (art. 2) also
includes minors not born in the country (see 1.5 generation).
8
IUS SOLI WHEN COMING OF AGE / I
•
•
•
Belgium (Laws 1991, 1998, 2000): by declaration by a
person of 18 or older, born in Belgium and his/her main
residence in Belgium since birth and by a person between
the age of 18 and 22 years, born in Belgium and resided
there from the age of 14 until 18 or for at least 9 years and
still resided in Belgium 12 months before the declaration.
France (before 1994 and after 1998): automatically
granted to foreign children born in France when they
come of age. 5 years’ residence without interruption since
the age of 11. They can renounce French nationality in the
6 months before turning 18, and during the following
year.
Luxembourg (1986 and 2001): by option (renouncing
previous nationality) after the age of 18, 5-year residence,
proof of sufficient degree of integration and knowledge of
one of the 3 official languages.
9
IUS SOLI WHEN COMING OF AGE / II
•
•
•
The Netherlands (1985 and 2003): habitual
residence since birth.
Spain (1982): by option within 2 years after
coming of age, if birth in Spain is certified by
Spanish authorities.
Italy 1992: by declaration within one year after
coming of age, if they can prove uninterrupted
and legal residence in Italy. Amato’s Bill (art. 2)
also includes minors not born in the country and
provides for nationality acquisition even before
their coming of age (see 1.5 generation).
10
DOUBLE IUS SOLI
• Nationality at birth to foreign children born in the country
when at least one parent was also born in the country.
Conceived in France then exported to Belgium, Ireland,
Portugal (after 2006 reform), Spain, UK. Some countries
added further requirements:
• The Netherlands (2003): one parent’s main residence in the
country and one grandparent’s residence in the country when this
parent was born.
• Ireland (2005): foreign parents must have 3 years of residence.
• Italy 1992: no double ius soli. Amato’s Bill introduces it with no
further requirements. Nationality can be declined when the child
comes of age.
11
1.5 GENERATION
• Special favourable provisions for minors, even not born in the
country. Requirements concern potential factors of integration,
such as education and/or residence in formative age in the
country.
• Adopted in Belgium, Denmark, Finland, France, Germany,
Luxembourg, The Netherlands, Sweden.
• Acquisition after majority (as in Belgium, Denmark, Finland,
Luxembourg, The Netherlands), before majority (France), or in
a range of years immediately preceding and following majority
(Germany, Sweden).
• Italy 1992: no provisions for the case in point. Amato’s Bill
(art. 2): minors acquire nationality on parents’ request after 5
years of residence (of at least one parent and the minor) and if
they have attended an educational cycle or a professional
school or have worked for at least 1 year. Application and
renunciation possible within one year after majority.
12
IUS DOMICILII
• The residence requirement ranges from 3 years in
Belgium, 4 in Ireland, 5 in France, Luxembourg, The
Netherlands, Sweden, UK, 6 in Portugal, to 8 in
Germany, 9 in Denmark, and 10 in Austria, Greece
and Spain. The median value is 5.
• Prevailing trend towards reduction. Belgium (2000)
from 5 to 3, Germany (2000) from 15 to 8, Portugal
(2006) from 10 to 6.
• Italy 1992: 10 years for non-EU nationals. Amato’s
reform project (art. 4) reduces this to 5 years.
13
INTEGRATION AND LANGUAGE
REQUIREMENTS
• Language knowledge not required only in: Belgium,
Ireland, Sweden and Italy.
• Introduction or hardening of integration requirements
(language, culture and public values tests and/or course
attendance). Especially after the terrorist attacks, clear
European trend: Austria, Denmark, France, Germany,
Luxembourg, The Netherlands, UK.
• Italy 1992 (#formal Law) does not provide for any kind of
language or integration requirement. Amato’s Bill (art. 5)
makes naturalization dependent on linguistic and social
integration. Possible indicator: to accept a list of shared
public values. Soft assimilationism.
14
IUS CONUBII / I
• All old 15 EU Member States facilitate
acquisition of nationality by marriage,
although with large differences.
• Duration of marriage required ranges from 1
year in Spain, 2 in Germany, 3 in Ireland,
Luxembourg, and Portugal, to 5 in Austria.
• Some countries also require a period of
residence: 1 year in Spain and Ireland, 3 years
in Germany, Luxembourg, and UK.
15
IUS CONUBII / II
• Since the early 1990s, a common trend is emerging: to fight
“marriages of convenience”.
• By raising the period of marriage in the country or abroad: France
(2006) from 2 to 4 years (already raised from 1 to 2 in 2003).
• By introducing or raising residence requirements: Belgium (1993) 3
years, Denmark (2002) from 4 to 6 or from 6 to 8 (depending on the
duration of marriage), France (2003) 1 year.
• By extending integration requirements to ius conubii: knowledge of
or bond with the country (Greece, Portugal) or knowledge of
vehicular language/s (Austria, France, Luxembourg) or both
(Denmark, The Netherlands, UK).
• Italy 1992: duration of marriage required only 6 months for couples
living in Italy, 3 years for those living abroad. No residence
requirements. Amato’s Bill (art. 3): 2 years of marriage for couples
residing in Italy, 3 years abroad.
16
IUS SANGUINIS: DESCENDANTS OF EXPATRIATES
OR PEOPLE LIVING IN FORMER NATIONAL
TERRITORIES / I
• All old 15 EU Member States provide for the transmission by ius sanguinis
abroad. Some countries only at certain conditions:
• Belgium: registration within 5 years and no dual nationality even before the
age of 18.
• Denmark: residence in the country before the age of 22. Loss can be
avoided by stating willingness to maintain nationality in front of public
authorities.
• Spain: limits transmission abroad to the third generation for dual
nationality.
• UK: third generation: parent residence in UK for at least 3 years,
registration within 12 months from birth.
• Other countries whose only condition is to register birth at the consulate:
Austria, Germany, Greece, Portugal.
• No trend towards restriction. Portugal (2006) even reinforced provisions in
favour of offspring abroad. Partial exception: Germany (2000) excluded
children born abroad from German parents born abroad after 31.12.1999
and permanently resident there.
17
IUS SANGUINIS: DESCENDANTS OF EXPATRIATES
OR PEOPLE LIVING IN FORMER NATIONAL
TERRITORIES / II
• Italy 1992: transmission of nationality to offspring abroad
with no limit of generation. Already 1912 Nationality law:
almost impossible to lose nationality even for a descendant
of expatriates, unless by voluntary act.
• Large numbers of people holding this kind of “spare
nationality” applied (and are still applying) for an Italian
passport. According to our survey based on data of the
Italian Ministry of Foreign Affairs, between 1998 and 2004
about 538,000 people obtained an Italian passport at a
consulate abroad. Most of the new passports were issued in
Argentina and Brazil.
• Source: G. Gallo and G. Tintori, in G. Zincone (ed.),
Familismo legale. Come (non) diventare italiani, Laterza,
2006.
18
DESCENDANTS OF EXPATRIATES
REACQUISITION BY SIMPLIFIED REQUIREMENTS OR
SPECIAL PROGRAMMES / I
• Many EU countries provide for simplified access to nationality
for aliens of national origins or belonging to areas or groups
considered culturally similar.
• Only few allow reacquisition to co-ethnic aliens residing
abroad and holding another nationality.
• Germany: Art. 116 of the Basic Law, Germans displaced as a
result of post-war measures or redefinition of the borders
entitled to acquisition of German nationality, even if residence
abroad is maintained.
• Portugal: former Portuguese or who have Portuguese ancestry
have easier access to naturalization; not required to prove
residence in Portugal, knowledge of the language and effective
connection to the community.
• Spain: children of emigrants who may have lost Spanish
nationality are entitled to naturalization without residence
19
requirements.
DESCENDANTS OF EXPATRIATES
REACQUISITION BY SIMPLIFIED REQUIREMENTS OR
SPECIAL PROGRAMMES / II
• Recent years: no clear trend towards a restriction for these provisions.
• Exception: Germany. 1993: annual quota of 225,000 for so-called
Aussiedler. 1996: late Aussiedler have to accept the place of residence
assigned to them if they wish to receive integration aid and social benefits.
2000: quota reduced to 100,000 persons. Prior to entry, a language test.
• Italy 1992: dual nationality clearly stated reduces residence requirement for
aliens of national origins to 3 years, instead of 10 for the other aliens,
further reduction to 2 years for minors. (A reduction to 4 is also provided
for EU citizens; only Austria provides for reduction for other EU citizens,)
• Reacquisition programmes for former nationals. 1992: very easy
reacquisition window open until 1994, then extended to 1995, and 1997
(163,756 reacquisitions). 2000: same measure open for a 5-year period to
aliens of Italian descent belonging to territories included within former
Yugoslavia borders after WWII. 2006: extended the provision with no time
limit; the 2006 provision introduces for the first time a language test to
prove they belong to “Italian culture”.
• Amato’s Bill: no change.
• Source: G. Zincone (ed.), Familismo legale. Come (non) diventare italiani,
20
Laterza, 2006.
CRUCIAL POLITICAL ROLE OF EXPATRIATES
AND THEIR DESCENDANTS
• Since 2001 (Constitutional Law no. 1 1/ 17/ 2000, and n. 1
of January 23 2001, and Law n. 459 12/ 27/ 2001), Italian
residents abroad can vote for their own representatives: 6
senators and 12 deputies. By contrast, extremely difficult to
vote for those temporarily residing or travelling abroad.
They must register at the consulate by the end of the year
preceding the elections.
• General elections (2006): 4 senators were elected in the
centre-left cartel, one in the centre-right, and one as an
independent. 7 deputies were elected in the centre-left
cartel, 4 in the centre-right, and one as an independent.
Their vote is now pivotal for the centre-left’s narrow
majority in the Senate.
21
CONCLUSIONS I
• In contrast with general opinion, new trends in nationality
laws are not only restrictive but also include more liberal
measures (reduction of time of residence for ius domicilii;
introduction of ius soli and preferences for 1.5
generation).
• Restrictions introduced tend to counter opportunistic
behaviour and lack of integration.
• Countering of opportunistic behaviour and lack of
integration does not apply (with few exceptions) to
expatriates and their descendants and to aliens of national
origins.
• Amato’s bill appears embedded in the EU frame, which
does not imply high chances that it will pass without
changes.
22
CONCLUSIONS II
• We are facing a “sliding borders” phenomenon. Physical
borders are moved into neighbour countries, in countries of
origin and of transit (asylum & third safe countries; detention
camps in transit countries; indicted terrorists’ deportation &
interrogation in original or in third countries). Substitution of
frontier borders with rights borders. Reduction or denial of
immigrants’ rights aimed at discouraging immigration.
Repositioning of integration. Supposed to take place and to be
fostered mainly after entry and before naturalization, it has
been moved to the upper step of the acquisition of nationality
and to the lower step of entry (Judgment of the Court (Grand
Chamber) of 27 June 2006 in Case C 540/03) on family
reunification.
• Which integration requirements and measures? At which step?
• Can comparison act as factor of convergence from below?
23
Human Rights and Citizenship:
The Challenge of Migrations
ISPI – Milan, November 13, 2006
Trends in Nationality Laws
and the Italian Case
Giovanna Zincone
24