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.
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.
