By Ida Keir
The United States is an outlier in the developed world in granting pure birthright citizenship or jus soli, per the U.S. Constitution;i citizenship attaches to anyone born in the U.S. regardless of the legal status of his or her parents. About 20% of countries worldwide follow jus soli and grant citizenship to persons born in their territory, albeit with considerable variations in details. The remainder follow the second principal way of acquiring citizenship, jus sanguinis, based on descent from a citizen of the country.ii
This article seeks to provide a brief survey of federal law in the U.S., and of laws of citizenship in individual countries of Europe, with special focus on jus soli, to assist in understanding the wider context of this contentious issue. There have been repeated political attempts to limit jus soli to prevent U.S.-born babies of undocumented immigrants from gaining automatic citizenship. In the European Union, citizens of each individual country automatically acquire European citizenship, per the Lisbon Treaty of 2009, which bestows important rights including the right to move and reside freely within the EU. Although each country determines its own citizenship provisions, the impact of those rules is felt in all other EU countries, and citizenship laws are politically contentious in Europe also.
Citizenship indicates a genuine link between a state and a person. Citizenship laws “tend to consist of a patchwork of historical accretions influenced by different legal traditions, colonial experience, local social and political circumstances, levels of immigration pressure, and international convention.iii Many countries have a mixture of provisions, as well as naturalization and dual citizenship laws; multiple citizenship has become increasingly accepted due to globalization. Birthright citizenship ensures that all persons are a citizen of at least one state, to prevent statelessness.iv Pure jus soli, as in the United States, is immediate and non-discretionary, whereas jus soli conditional requires a period of prior parental residence in the country. Double jus soli grants automatic citizenship at birth to children of parents who were themselves born in the territory.
In the United States, the Fourteenth Amendment citizenship clause provides: “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.” This formulation was based on centuries-old English common law, going back to Calvin’s Case in 1608.v In United States v. Wong Kim Ark, 169 U.S. 649 (1898), the Supreme Court interpreted “subject to the jurisdiction” to be narrowly construed; children of enemies and of diplomats are excluded. Although some historical constitutional scholarship argues that Wong Kim Ark was wrongly decided, there is general agreement that the case has been on the books so long that it would need a constitutional amendment to change the ruling. The United States also has jus sanguinis provisions that allow citizenship for certain descendent children born abroad.
The European countries have a myriad of citizenship provisions. No European country has had pure jus soli since 2004, when Ireland amended its constitution to limit birthright citizenship. Similarly, the United Kingdom ended its 375-year tradition of territorial birthright citizenship and added a parentage component in the British Nationality Act of 1981.vii
Of 33 European countries, including all 27 members of the EU and six neighbors, fourteen countries - with widely varying demographics and characteristics - have no jus soli provisions at all: Cyprus, Denmark, Estonia, Iceland, Latvia, Lithuania, Moldova, Malta, Norway, Poland, Slovakia, Switzerland, Sweden and Turkey. Of the remaining nineteen, none has a pure jus soli law like the U.S. Six countries base birthright citizenship on parental residence: Belgium, Germany, Greece, Ireland, Portugal, and the UK. Seven have double jus soli, based on parental birth in the country: Belgium, France, Greece, Luxembourg, Netherlands, Portugal, and Spain. Sixteen of the countries award citizenship by jus soli after birth, automatically by declaration or option – a child born in the country and who remains there can choose to become a citizen during childhood or at majority - or by facilitated naturalization, which requires an application and thus some discretion, but is advantageous because the requirements are less stringent than for those born outside the country.viii
The above summary should indicate the complexity of citizenship laws. United States law grew out of European traditions, especially English, law, but is now distinct from all European countries in allowing pure birthright citizenship.
Ida Keir acquired United States citizenship by jus soli when born to her Dutch immigrant mother. She is a UK Solicitor, a July 2011 Massachusetts bar examinee, and an LLM candidate at Suffolk. She welcomes research, writing, and project opportunities in immigration and international law.
i Canada is the only other developed country to grant birthright citizenship.
ii Other jus soli countries include Mexico, many Latin American countries, Bangladesh and Pakistan.
iii Iseult Honahan (2010), The Theory and Politics of Jus Soli, EUDO Citizenship Observatory, http://eudo-citizenship.eu/docs/IusSoli.pdf
iv Article 15(1) of the Universal Declaration on Human Rights states that everyone has the right to at least one citizenship, and Article 6(2) of the European Convention on Nationality and Article 1 of the 1961 Convention on the Reduction of Statelessness contain rules to avoid statelessness.
v Calvin v. Smith, 77 Eng. Rep. 377 (K.B.1608).
vi http://eudo-citizenship.eu/ is the website of the EUDO Citizenship Observatory, which has a wealth of resources that were extremely helpful in researching this article.
vii Michael Robert W. Houston, Birthright Citizenship in the United Kingdom and the United States: A Comparative Analysis of the Common Law Basis for Granting Citizenship to Children Born of Illegal Immigrants, 33 Vand. J. Transnat’l L. 695 (2000).
viii Honahan, supra.