Eroding the Right to Citizenship?: Legal Residency and the Jus Soli

For individuals born in Canada or the United States, the legal consequence of being born in one of these countries is that they are entitled to citizenship in the state where their birth took place.[1] This is referred to as the jus soli. This is in contrast to the jus sanguinis, where citizenship is conferred/conferrable on the basis of one (or both) parent's holding citizenship in a particular country which then grants citizenship to their offspring. In many cases, a person may be entitled to citizenship in country "A" on the basis of jus soli while simultaneously being entitled to citizenship in country "B", the place where their parents hold citizenship by virtue of the jus sanguinis. To illustrate, a Montreal couple moves to Boston and obtains permanent residence in the United States. They then have a child who is born at the Massachusetts General Hospital. By virtue of the jus soli, the child obtains United States citizenship. Also, because his/her parents are Canadian, the child is eligible for Canadian citizenship due to the jus sanguinis.  

Imagine for a moment however that someone is told that despite being born and having lived their whole life in country "A" that they are nevertheless not considered citizens of that country. A recent decision of the Dominican Constitutional Court determined that citizenship in the Dominican Republic (DR) was not merely conferred by virtue of birth in the country, but required that one of the individual's parents were legally resident in the country at the time of birth. As indicated in a National Public Radio article, this has placed many Haitian migrants resident in the DR in legal limbo leaving many seeking to normalize their status.[2] 

While the decision has received criticism from the United States[3] and others in the region,[4] the DR is not the only state that restricts the scope of the jus soli. According to a recent article in the Toronto Star, numerous other states have adopted similar limitations.[5] For example, since 2006, New Zealand (NZ) does not confer citizenship solely by virtue of one's birth on NZ soil. Under the Citizenship Act 1977, a child born in NZ will only receive citizenship if at least one of their parents is: (a) a NZ citizen; (b) entitled to be in NZ indefinitely by virtue of residency status or visa; (c) is entitled to reside indefinitely in the Cook Islands, Tokelau, or Niue; or (d) is an Australian citizen or permanent resident.[6] However the legislation also entitles citizenship by birth where the child would otherwise be stateless. 

According to the NZ Department of Internal Affairs' website, the stated reasons for these changes were to

recognise the value of New Zealand citizenship. The changes mean that a person cannot travel to New Zealand on a temporary permit solely to give birth and gain New Zealand citizenship for the child born in this country. By restricting citizenship by birth to the children of citizens and residents, the Act’s new provisions ensure that citizenship and its benefits are limited to people who have a genuine and ongoing link to New Zealand. 

Clearly what is being targeted here is "birth tourism". Yet, if the intended goal of the law is to halt this practice, the provisions seem overly broad as those also excluded by these provisions include individuals who are born to persons who intend to remain in NZ and have an ongoing socio-cultural link to the host society. The difference of course is that the parents may not be entitled to remain indefinitely and may be residing illegally (despite their genuine intent to remain despite their illegal status). However this nevertheless unfairly impacts on (and punishes) those born in NZ and have become culturally tied to that society (despite their parents' conduct) - they are individuals who have "a genuine and ongoing link" to NZ. 

Incidentally, those who are born in NZ and are residing there but otherwise ineligible to citizenship due to current law, may very well have a more tangible, substantial, ongoing and genuine link to NZ than those who were born outside of NZ but who have or are eligible for NZ citizenship by virtue of the jus sanguinis. The latter are nevertheless a class that continues to be protected even though they may have no genuine and ongoing link apart from their relationship to their parent(s) who hold NZ citizenship. The real danger and concern in all this is that NZ-born non-citizens may face deportation to a state to which they hold citizenship (or eligibility) via the jus sanguinis, yet one which they have little or no connection to.[7] Indeed, they may not have any meaningful knowledge of that country's official and/or spoken language(s). 

Given that children will be amongst those impacted by these laws, it is useful to recall some international norms governing the rights of children. Under article 3 of the United Nations' Convention on the Rights of the Child, the best interests of the child(ren) shall be the primary consideration in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies. Amongst other provisions in the CRC that may have relevance here, article 8 states that "States Parties undertake to respect the right of the child to preserve his or her own identity, including nationality, name and family relations as recognized by law without unlawful interference." To be sure, one's identity is intimately tied to their connection with the only country and culture that they have ever known and uprooting them to an otherwise foreign land would not appear to be in their best interests. 

Whether it is the Dominican Republic, New Zealand or any other state, limiting the jus soli can have tremendous ramifications on those born in a land that does not recognize them as citizens. It also imposes a fair amount of uncertainty and anxiety about their long term fate. Through no fault of their own, they are placed in a vulnerable position and told they do not have a sufficient nexus to their country of birth and essentially the only society that they have ever really known.[8] This is clearly distinct from the child born as a result of birth tourism who is then brought back to their parents' country of citizenship and raised there. 

Notes

[1] There are exceptions - for example when a child is born to embassy or consular staff. Such children will not acquire citizenship to a state where their parents are serving in a diplomatic capacity. See e.g. the Citizenship Act 1977, Public Act 1977 No 61 at s.6(2)(a); Citizenship Act, RSC 1985 c C-29 at s 3(2)(a)-(c). 

[2] Sarah Tilotta, "Who's A Citizen? The Question Diving the Island of Hispaniola" National Public Radio (16 August 2014), onine: NPR <http://www.npr.org/blogs/parallels/2014/08/16/340412191/whos-a-citizen-the-question-dividing-the-island-of-hispaniola>.

[3] The fourteenth amendment to the United States Constitution states: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside." 

[4] Tilotta, supra note 2. 

[5] Although as the Toronto Star article indicates, there are voices in Canada that are urging for similar restrictions. Nicholas Keung, "Ottawa Urged To Remove Citizenship By Birth on Canadian Soil" The Toronto Star (18 August 2014), online: The Toronto Star <http://www.thestar.com/news/immigration/2014/08/18/ottawa_urged_to_remove_citizenship_by_birth_on_canadian_soil.html>

[6] In my previous post, I spoke about families who have sought refugee status in NZ as a consequence of climate change in their countries of origin. In those cases however, children born in NZ were not considered citizens due to the Citizenship Act 1977 revisions discussed above. However in AD, the Immigration and Protection Tribunal (IPT) concluded that the children had a strong connection to NZ. The IPT stated: "Although not New Zealand citizens, both children were born in New Zealand and have never been to Tuvalu. Life in New Zealand as part of an extended family network is the only life they have known. The eldest of the children has commenced schooling in New Zealand, albeit at new-entrant level." AD (Tuvalu), [2014] NZIPT 501370 at para 24.

[7] Of course, a family might succeed in avoiding deportation on the basis of humanitarian grounds as was the case in AD noted above.

[8] Similar concerns apply to individuals who were brought illegally to another country at a young age and raised there. This has been the case for many undocumented persons residing in the United States. The United States has been the only real home for many undocumented persons who are, for all intents and purposes, culturally American or Americanized. The goal of the ill-fated federal Dream Act would have normalized the status of such persons and given them a pathway to citizenship.  

Climate Change Refugees and the Refugee Convention

Climate change is impacting human populations and environments around the world in numerous ways. One of these ways includes rising sea levels which, amongst other things, are endangering the very existence of various island-states. The rise in sea levels not only poses dangers of flooding with ensuing damage to agriculture and aquifers, there are also serious dangers of such islands completely being consumed by the ocean/sea. 

The dangers that these developments pose have led some to seek refuge in other countries on the basis of the 1951 Convention Relating to the Status of Refugees (as amended by the 1967 Protocol Relating to the Status of Refugees). Yet, as a recent decision of the New Zealand Court of Appeal illustrates, those seeking protection under the Refugee Convention likely have little chance of success. In Teitiota v The Chief Executive of the Ministry of Business, Innovation and Employment, [2014] NZCA 173, the asylum-seeker unsuccessfully argued that he qualified for refugee status. As I discuss below, the Court's conclusion was based on a sound interpretation of the Convention. However, what it also signals is the need for international attention to the plight of these islands and a considered response to the real dangers faced by their residents.  

The Case

Ioane Teitiota's country of nationality is the state of Kiribati situated in the Pacific Ocean between Australia and Hawaii. It consists of 32 atolls and one raised island. The situation for Kiribati has become increasingly dire. Rising tides and flooding in various parts have led to many of the 100,000-plus population to migrate to the Kiribatian island of Tarawam. This has led to overpopulation on Tarawam, scarcity of employment, in addition to the continued dangers of rising sea levels. 

Teitiota was a subsistence farmer and fisherman who became increasingly concerned with the rising sea levels and its impact on his family's survival. This was in addition to the overpopulation of the main island due to internal migration. Teitiota in turn decided to migrate to New Zealand. He lived there illegally for several years but was eventually intercepted by immigration officials. Teitiota sought refugee status to prevent being returned to Kiribati.

The Immigration and Protection Tribunal (IPT) concluded that Teitiota failed to demonstrate that he had a well-founded fear of persecution. By his own admission, Teitiota testified that his fear of persecution stemmed not from human agents but from "mother nature". He asserted that 
  

the refugees they run away from persecution and comparing that to myself and my family, especially my children, going back to the Island I won’t face persecution as such but I will face a lot of problems from the sea level rise and that problem includes flooding and us drowning.

The claim was also bound to fail because as the IPT concluded, amongst other reasons, "the effects of environmental degradation were faced by the population of Kiribati generally[...]." This was something that Teitiota concurred with in his testimony before the IPT. As a general rule, persecution requires that a refugee claimant have a well-founded fear that is in some way individualized and differentiated from the general population. 

The Court of Appeal affirmed the IPT's decision. The Court's judgment was reasonable given the text of the Convention (as incorporated into national legislation). Persecution is an intentional act. Climate change affects populations broadly and indiscriminately. Climate change resulting in mass flooding impacts populations regardless of race, nationality, religion, membership in a particular social group or political opinion.

Broadening the Scope of Protection

 

For the reasons mentioned, the Convention as it stands does not and was not designed to help applicants such as Teitiota. What a decision such as this suggests is that the discourse surrounding the protection of vulnerable peoples needs to shift away from paradigms constructed during the immediate post-World War Two era. 

Some guidance may be sought from regional treaties to understand that refugees (as legally defined) are not just those who have a well-founded fear of persecution. For instance, the African Union Convention Governing Specific Aspects of Refugee Problems in Africa includes (in addition to the Refugee Convention definition) the following definition. Article 2 states

The term "refugee" shall also apply to every person who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality. 

Individual  states have also sought to grant greater protections than those which the Convention and/or Protocol provide. For instance, section 10(2) of the Constitution of East Timor states that the government "shall grant political asylum, in accordance with the law, to foreigners persecuted as a result of their struggle for national and social liberation, defence of human rights, democracy and peace." Article 53-1 of the French Constitution of 1958 provides that the authorities: "shall remain empowered to grant asylum to any foreigner who is persecuted for his action in pursuit of freedom or who seeks the protection of France on other grounds."

Drawing from these examples, refugee status does not have to be limited to the terms of the Convention. The Convention provides a floor, it is not a ceiling. 

Humanitarian Grounds

A legal avenue which those fleeing the impacts of climate change may seek to exploit, however limited, is through appeals to humanitarian grounds. These are not subject to the limits imposed by the Refugee Convention. In a very recent decision reported in the news media, Sigeo Alesana, a claimant from Tuvalu along with his spouse and two children (the children were born in New Zealand and never lived in Tuvalu) were granted residency. Mr. Alesana and his wife left Tuvalu on account of climate change issues and rising sea water levels. After residing in New Zealand, Mrs. Alesana gave birth to their two children. 


Although the IPT concluded (in a separate decision) that they were ineligible for refugee status, it determined that the family had strong ties to New Zealand and there were “exceptional circumstances which would make it unjust and unduly harsh to deport the particular appellant from New Zealand" back to Tuvalu. The IPT posited that Mr. Alesana had six sisters residing in New Zealand as well as an elderly mother who needed assistance and relied heavily on him. In addition, both children were born and raised in New Zealand and part of an extensive family network. The IPT noted that "[l]ife in New Zealand as part of an extended family network is the only life they have known." The tribunal also observed that the children's young age "makes them inherently more vulnerable to natural disasters and the adverse impact of climate change." The decision is fact-specific and climate change matters formed only part of the analysis. Indeed emphasis was placed on other considerations, and to the extent that climate change played a role, it appeared to be in connection with the impact on the children. 

What this suggests is that humanitarian grounds as a a basis for legally remaining in the country for those fleeing their country of nationality on account of climate change will likely be limited and dependent on other compelling factors.

Conclusion

Through little, if any, fault of their own, a number of societies are facing drastic and imperiling changes to their living conditions due to climate change and rising sea waters. There is a serious need for the international community to address these issues in a more comprehensive and attentive way. If current protection regimes are unable to address these matters, new ones need to be contemplated and the sooner the better. Regional and national approaches to refugee protection may provide some guidance.

 
Sources

 

Judgments

AD (Tuvalu) [2014] NZIPT 501370 (4 June 2014), online: <http://www.nzlii.org/nz/cases/NZIPT/2014/501370.html>.

Teitiota v The Chief Executive of the Ministry of Business, Innovation and Employment, [2014] NZCA 173, online: <http://img.scoop.co.nz/media/pdfs/1405/Teitiota_v_MBIE_CA502014_judgment.pdf>. 

Articles

"NZ: Tuvalu ‘refugees’ given residency" Cook Island News (6 August 2014), online: <http://www.cookislandsnews.com/regional/item/47900-nz-tuvalu-refugees-given-residency/47900-nz-tuvalu-refugees-given-residency>.

Randy Astaiza, "11 Islands That Will Vanish When Sea Levels Rise" Business Insider (12 October 2012) online: Business Insider: <http://www.businessinsider.com/islands-threatened-by-climate-change-2012-10?op=1>.

Raveena Aulakh, "New Zealand decision created world’s first climate refugees" The Toronto Star (6 August 2014), online: The Toronto Star <http://www.thestar.com/news/world/2014/08/06/new_zealand_decision_created_worlds_first_climate_refugees.html>. 

Amy Maas, "Tuvalu climate change family win NZ residency appeal" The New Zealand Herald (3 August 2014), online: The New Zealand Herald <http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11303331>.

Rick Noack, "Has the era of the ‘climate change refugee’ begun?" The Washington Post (7 August 2014), online: The Washington Post <http://www.washingtonpost.com/blogs/worldviews/wp/2014/08/07/has-the-era-of-the-climate-change-refugee-begun/>.