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| Legal status ofpersons |
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Nationality law is thelaw of asovereign state, and of each of itsjurisdictions, that defines the legal manner in which a national identity is acquired and how it may be lost. In international law, the legal means to acquirenationality and formal membership in a nation are separated from the relationship between a national and the nation, known ascitizenship.[1]: 66–67 [2]: 338 [3]: 73 Some nations domestically use the terms interchangeably,[4]: 61, Part II [5]: 1–2 though by the 20th century, nationality had commonly come to mean the status of belonging to a particular nation with no regard to the type of governance which established a relationship between the nation and its people.[6]: 1707–1708 In law, nationality describes the relationship of a national to the state under international law and citizenship describes the relationship of a citizen within the state under domestic statutes. Different regulatory agencies monitor legal compliance for nationality and citizenship.[7]: 4 A person in a country of which he or she is not a national is generally regarded by that country as a foreigner oralien. When the sovereignty over a territory is transferred from one state to another, individuals may be given theright of option of nationality. A person who has no recognised nationality to any jurisdiction is regarded asstateless.
Nationality law can be broadly categorized into three principles:
Laws may be based on any one of these principles, but they commonly reflect a combination of all three principles. Generally speaking,countries in the Americas have a strongjus soli heritage.
Jus soli is the principle, whereby birth on a country's territorial jurisdiction—e.g., land, or in some cases, vessel registered as being registered as under the jurisdiction of that country (aeroplanes, ships)—confers nationality of the country of birth to the child. In most countries, this originated from theEnglish common law tradition that all persons born on the King's land owed an allegiance to the King. This law was inherited by thecolonies and subsequently codified into their own domestic laws, such as in the United States, Canada, Australia, etc.
Jus soli laws are not always absolute: sometimes countries withjus soli laws require lawful residence in the country before the authorities will observe this right, such as in Cambodia or Thailand. Sometimesjus soli laws only operate generationally, such as in some Middle-Eastern countries, where a child born in the territory will only acquire nationality if the child's father (regardless of parental nationality) was born in the same territory. Sometimesjus soli will be restricted by age.
There is also an intersection between the principles, wherein only persons of a certain race or blood will acquire nationality at birth. For instance, in Liberia, African-born persons will acquire nationality while those of non-African origin will not be entitled to this privilege.
Jus sanguinis is the principle whereby the nationality of a person is dictated by their blood (i.e., parentage or ancestry). For instance, in Italy, nationality may be transmitted perpetually if one can find an Italian ancestor up until the founding of the Italian state in their lineage. By contrast, other states may restrict theirjus sanguinis transmission of nationality up to the registration of the second generation down the family line.
Some states automatically confer nationality on the basis of marriage. A prominent example of a country withjus matrimonii laws isCape Verde.
The common practice within and among states at the beginning of the 20th century was that a woman should have the nationality of her husband; i.e., upon marrying a foreigner, the wife would automatically acquire the nationality of her husband and lose her previous nationality, often with the reciprocal recognition by the other country. Legal provisions existed that automaticallynaturalised married women, and sometimes married men as well. This led to a number of problems, such as: loss of the spouses' original nationality; spouses losing the right toconsular assistance, as such cannot be provided to nationals under the jurisdiction of a foreign state of which they are also nationals; and men becoming subject to military service obligations.
There has been a shift towards a principle that neither marriage nor dissolution of marriage automatically affecting the nationality of either spouse, nor of a change of nationality by one spouse during marriage automatically affecting the nationality of their spouse. However, in many jurisdictions spouses can still obtain special and fast processing of applications for naturalisation.
Uniquely, citizenship of theVatican City isjus officii, namely on the grounds of appointment to work in a certain capacity in the service of the Holy See. It usually ceases upon cessation of the appointment. Citizenship is also extended to the spouse and children of a citizen, provided they are living together in the city.[8] Anyone who loses Vatican citizenship and does not possess other citizenship automatically becomes anItalian citizen as provided in theLateran Treaty.
Most states today allow for aliens to acquire a nationality via a process known as naturalization on the basis of long-term residence and other conditions. This process and the conditions it entails are detailed in the states' nationality laws. Some nationality laws have special provisions to make it easier fordiaspora populations to become nationals.
Byinternational custom, eachsovereign state generally has the right to freely determine who it will recognise as its nationals and citizens.[9] Such determinations may be made by custom,statutory law,case law (precedent), or a combination of either. In some cases, the determination may be governed bypublic international law—e.g., bytreaties and theEuropean Convention on Nationality.
Nevertheless, states' rights to determine who their nationals are is not absolute, and states must comply with their human rights obligations concerning the granting and loss of nationality. In particular, nationals must not be arbitrarily deprived of their nationality.[10] The right to a nationality and the prohibition against depriving one's nationality is codified in article 15 of the "Universal Declaration of Human Rights".
Article 1 of the "Convention on Certain Questions Relating to the Conflict of Nationality Laws" states:[11]
The "Inter-American Court of Human Rights" went further in limiting state's right to determine nationality:[12]
The nationality laws of several countries have special provisions in them to simplifynaturalization of favored ethnic groups. The laws in these countries appear to reflect a desire by governments to guarantee a safe haven todiaspora populations, particularly those assumed to be living under precarious conditions. A non-exhaustive list of such countries laws follows.
Article 14 of theConstitution of Armenia (1995) provides that "individuals of Armenian origin shall acquire nationality of the Republic of Armenia through a simplified procedure."[13] This provision is consistent with theDeclaration on Independence of Armenia, issued by theSupreme Soviet of Armenia in 1989, which declared, in article 4, that "Armenians living abroad are entitled to the citizenship of the Republic of Armenia."
According to theConstitution of Bulgaria, Article 25(2): "A person ofBulgarian origin shall acquire Bulgarian nationality through a facilitated procedure."[14]
Chapter Two of theBulgarian Citizenship Act is entitled "Acquisition of Bulgarian Citizenship", the first section of which is entitled "Acquisition of Bulgarian Citizenship by Origin", and provides at article 9 that "[a]ny person...whose descent from a Bulgarian citizen has been established by way of a court ruling shall be a Bulgarian citizen by origin." Separately, article 15 of theAct provides that "[a]ny person who is not a Bulgarian citizen may acquire Bulgarian citizenship...if he/she...is of a Bulgarian origin."
The immigration law of China gives priority to returningOverseas Chinese (i.e.,ethnic Chinese who were living abroad), and as such, practically all immigrants to China are ethnic Chinese, including many whose families lived outside of China for generations. The Chinese government encourages the return of Overseas Chinese with various incentives not available to others, such as "tax breaks, high salaries and exemptions from theone-child policy if they had two children while living abroad."[15] The "rights and interests of returned overseas Chinese" are afforded special protection according to Articles 50 and 89(12) of theChinese Constitution.[16]
In April 2015, the Hong Kong Government announced a pilot scheme named "Admission Scheme for the Second Generation of Chinese Hong Kong Permanent Residents" (ASSG).[17]
The immigration law ofTaiwan (officially the Republic of China) gives priority to returning Taiwanese andoverseas Chinese who are not nationals of the People's Republic of China, Chinese who were living abroad, and encourages their return. However, althoughRepublic of China have not ceded the claim on mainland China, the government does not consider the people in mainland China, Hong Kong and Macau as Republic of China nationals.[18]
Overseas ethnic Chinese can register as Republic of China national and apply for aRepublic of China passport, however, they do not automatically have a right of return to Taiwan area if they don't have a household registration there.
Not all Republic of China nationals have a right of return to Taiwan area even if they hold aRepublic of China passport—specifically,those without a household registration in Taiwan area do not automatically have the right of return, may be refused entry, removed or deported from Taiwan area, and an entry permit is needed before 2011.
TheCzech Republic grants nationality—and thus the right of residence—to anyone whose parents are or were Czech nationals, unless the individual is also a national of a country that has a treaty with the Czech Republic barring dual nationality of the Czech Republic and that country.[19] Moreover, people of Czech origin might be granted the right to permanent residence (Czech origin is a reason worth of consideration).[20]
In 1995, the Czech Republic amended itsNationality Law to provide the Interior Ministry with the discretion to waive the usual five-year residency requirement for foreigners that had been resettled in the Czech Republic by 31 December 1994. This amendment was aimed particularly at several hundred ethnicCzechs which had been brought by the Czech government from theUkrainian region ofVolhynia, and was of a limited duration.[21] The amendment was consistent with what the Czech Ministry of Labor and Social Affairs has identified as "the Czech government's policy principles regarding the resettlement of foreigners of Czech origin living abroad."[22] A private fund, thePeople In NeedCzech Television Foundation, worked with government authorities between 1995 and 2001 to effect this resettlement in the specific instance of Russian and Kazakh nationals of Czech origin, and had resettled approximately 750 such persons as of 2000.[23]
TheFinnish Aliens Act provides for persons who are of Finnish origin to receive permanent residence. It is usuallyIngrian Finns from the former Soviet Union who exercise this right, though American, Canadian, and Swedish nationals with Finnish ancestry are eligible.
TheFinnish Immigration Service states that, under certain conditions, persons with "Finnish roots" or an otherwise "close connection to Finland" may receive a residence permit in Finland without the requirement of any further grounds (e.g., work or studies). Receiving a residence permit depends on the directness and closeness of Finnish ancestry. If the ancestry dates back several generations, a residence permit cannot be granted on this basis.[24]
According to the Immigration Service, people who may be granted a residence permit based on these conditions can be divided into the following three groups:
Various phenomena throughout Greek history (e.g., the extensive colonization by classical Greek city states; the vast expansion of Greek culture in Hellenistic times; the large dominions at times held by the Greek-speaking Byzantine Empire; and the energetic trading activity by Greeks under the Ottomans) all tended to create Greek communities far beyond the boundaries of modern Greece.
Recognizing this situation, Greece grants nationality to broad categories of people of ethnic Greek ancestry who are members of theGreek diaspora, including individuals and families whose ancestors have been resident in diaspora communities outside the modern state of Greece for centuries or millennia.[25]
"Foreign persons of Greek origin," who neither live in Greece, hold Greek nationality, or were necessarily born there may become Greek nationals by enlisting in Greece's military forces, under article 4 of theCode of Greek Citizenship, as amended by theAcquisition of Greek Nationality by Aliens of Greek Origin Law (Law 2130/1993). Anyone wishing to do so must present a number of documents, including "[a]vailable written records...proving the Greek origin of the interested person and his ancestors."
APerson of Indian Origin (PIO) is a person living outside of India and without Indian nationality, but of Indian origin up to four generations removed. It is available to persons of Indian origin anywhere in the world as long as they have never been nationals of Pakistan or of Bangladesh (a reservation excluding Muslims who joined Pakistan during or after the 1947 partition). This unusual type ofnationality by descent is an intermediate form of nationality in that it does not grant the full portfolio of rights enjoyed by Indian citizens.
TheCitizenship (Amendment) Act 2003[26] andCitizenship (Amendment) Ordinance 2005[27] make provision for an even newer form of Indian nationality, the holders of which are to be known asOverseas Citizens of India (OCI). Overseas nationality is not substantially different from PIO rights. Holding either PIO or OCI status does, however, facilitate access to full Indian citizenship. An OCI who has been registered for five years, for instance, need be resident for only one year in India before becoming a full national.
Irish nationality law provides for acquisition on the basis of at least one Irish grandparent. Note that, for the purposes of Irish nationality law, a person born anywhere on theisland of Ireland is considered "Irish." (The island includesNorthern Ireland, which is part of theUnited Kingdom, whereBritish nationality law applies; thus, people born in Northern Ireland are entitled to both British and Irish nationality.)
The entitlement to nationality of all people born on Ireland and its islands was stipulated by the 1922Constitution of the Irish Free State and the 1937Constitution of Ireland, and reinforced by the 1998Belfast Agreement. A person born outside of Ireland with entitlement to Irish nationality through a grandparent born in Ireland may pass that right on to her or his own children. To do so, however, that person must register her or his birth in Ireland's Foreign Births Register prior to the children's births. Irish law also automatically grants nationality at birth to any individual born abroad to a parent who was born in Ireland, without the need to register with the DFA prior to the granting of citizen's rights like holding an Irish passport.
Separately from this right, theIrish minister responsible for immigration may dispense with conditions of naturalisation to grant nationality to an applicant who "is of Irish descent or Irish associations," under section 15 of theIrish Nationality and Citizenship Act, 1986. With rare exceptions the applicant must be resident in the island of Ireland before applying for naturalisation.
TheLaw of Return is legislation enacted byIsrael in 1950, that gives allJews, persons of Jewish ancestry up to at least one Jewish grandparent, and spouses of Jews the right toimmigrate to and settle in Israel and obtain nationality, and obliges the Israeli government to facilitate their immigration. Originally, the law applied to Jews only, until a 1970 amendment stated that the rights "are also vested in a child and a grandchild of a Jew, the spouse of a Jew, the spouse of a child of a Jew and the spouse of a grandchild of a Jew." This resulted in several hundreds of thousands of persons qualifying for immigration to Israel (mainly from theformer Soviet Union) but not being recognized as Jews by the Israeli religious authorities, which on the basis ofhalakha recognize only the child of a Jewish mother as being Jewish. People who would be otherwise eligible for this law can be excluded if they can reasonably be considered to constitute a danger to the welfare of the state, have a criminal past, or are wanted fugitives in their countries with the exception of persecution victims. Jews who convert to another religion also lose the right of return. Since 1950 2,734,245 Jews have immigrated to Israel.[28]
A special visa category exists exclusively for foreign descendants of Japanese emigrates (nikkeijin) up to the third generation, which provides for long-term residence, unrestricted by occupation, but mostnikkeijin cannot automatically acquire Japanese nationality, and must instead go through the process ofnaturalization. However, the Minister of Justice can waive the age and residence requirements if an applicant for naturalization has a special relationship to Japan, such as a Japanese parent.
TheKola Norwegians wereNorwegians who settled along the coastline of theRussianKola Peninsula from approximately 1850 to the closure of the border in the 1920s. It is estimated that around 1000 Norwegians lived on the Kola peninsula in 1917. The Kola Norwegians were deported to or put in camps in other parts of Russia during the course ofWorld War II.
It was only after 1990 that many of the Kola Norwegians again dared to emphasize their background. Only a few had been able to maintain a rusty knowledge of Norwegian. Some of them have migrated back to Norway. There are special provisions in the Norwegian rules of immigration and nationality which eases this process for many Kola Norwegians. These provisions are in general stricter than in some other countries giving "Right of return." In order to obtain a permit to immigrate and work in Norway a Kola Norwegian will have to prove an adequate connection to Norway such as having at least two grandparents from Norway.[29] Citizenship will then be awarded according to regular rules.[30] As of 2004 approximately 200 Kola Norwegians had moved back to Norway.[31]
Republic Act No. 9225, approved 29 August 2003, provided that all Philippine nationals who become nationals of another country shall be deemed not to have lost their Philippine nationality. It further states that natural-born Filipinos who have lost their Philippine nationality in this manner may repatriate by taking an oath of allegiance to the Republic, and that their children whether legitimate, illegitimate or adopted, below 18 years of age, shall be deemed nationals of the Philippines.[32]
Russia offers citizenship to individuals descended from Russian ancestors who can demonstrate an affinity for Russian culture and, preferably, speak Russian. Concern about Russia's shrinking population prompted the program. This has had a positive effect because this has not only reversed Russia's population decline but has also increased the birth rate. Officials estimate that 25 million members of theRussian diaspora are eligible for nationality. The Foreign Ministry has sent emissaries to countries around the world to urge the descendants of Russian emigrants to return home.[33] The majority of these emigrants have returned from Ukraine, many of them young men looking for better education and job opportunities.
There are three categories of Spanish nationality:
De origen is (almost exclusively) acquired at the moment of birth, mainly to a Spanish parent, and can never be lost.Por residencia is acquired through a predetermined period of legal residency in Spain. This distinction is important because Spanish nationality laws primarily followiure sanguinis, including those relating to the right of return.
The third category,por opción ('by choice'), is given to some people of Spanish origins that, though not complying with the requisites to attain nationality through origin, are able to prove close ties to Spain; this option is given mainly to the children of people that have attained or recovered Spanish nationality after their birth, but it has age limits and one must exercise this choice prior turning 20 (in some countries, like Argentina, prior turning 23, as majority of age is attained at 21 there). Most of thepor opción clauses do not confer original status (except those included in the Historical Memory Law), thus it can be lost, and, in case one possesses nationality other than those described below as historically related to Spain (e.g., United States), renounce their current nationality in front of Spanish consular officials.
In practice this renunciation has little practical effect, and in some cases no effect, as only renunciations made to one's own country's officials has an effect on the linked nationality. TheHistorical Memory Law (Spanish:Ley de Memoria Histórica) which took effect in December 2008, introduced temporary two-year changes to current Spanish nationality laws. Those whose father or mother were born original Spaniards (regardless of their place of birth, whether they are still living, or whether they currently hold Spanish nationality) and those whose grandparents emigrated due to political or economic reasons will have the right tode origen Spanish nationality. Until and while the Law of Historic Memory takes effect, the following laws will also apply:
In November 2012, the Spanish government announced that it would eliminate the residency period for Sephardic Jews, and permit them to maintain dual nationality, on the condition that such naturalization applicants presented a certificate of their Sephardic status from theFederation of Jewish Communities of Spain.[35]
Spanish diplomacy exercised protection over Sephardis of theOttoman Empire and the independent Balkanic states succeeding it. The government ofMiguel Primo de Rivera decreed in 1924 that every Sephardi could claim Spanish nationality. This right was used by some refugees during the Second World War, including theHungarian Jews saved byÁngel Sanz Briz andGiorgio Perlasca. This decree was again put to use to receive some Jews fromSarajevo during theBosnian War.
In October 2006, theAndalusianParliament asked the three parliamentary groups that form the majority to support an amendment that would ease the way forMorisco descendants to gain Spanish nationality. The proposal was originally made by IULV-CA, the Andalusian branch of theUnited Left.[36] Such a measure might have benefited an indeterminate number of people, particularly inMorocco.[37] However, the call went unheeded by the central Spanish authorities.
According toUkrainian law, anyone who was a citizen of theUkrainian Soviet Socialist Republic who was residing in Ukraine at the time of its declaration of independence and any stateless person living on the territory of Ukraine at the moment of its declaration of independence was granted nationality. Anyone born abroad to at least one parent with Ukrainian nationality, including permanent residents of Ukraine, is entitled to Ukrainian nationality. Children born within the territory of Ukraine to at least one Ukrainian parent, stateless persons with at least one Ukrainian grandparent, and children adopted by Ukrainian citizens are also eligible to become nationals.
TheBritish Nationality Act 1948 conferred full and equal nationality and settlement rights in Britain on all 800 million subjects of the worldwide British Empire.[38] TheCommonwealth Immigrants Act 1968, amending legislation passed in 1962, removed the right of entry from 200,000 south Asians long resident in British East Africa who had become the victims of the Africanization drive in newly independentKenya and wished to move to Britain.[39] The act required "substantial connection" to Britain, defined as:
Further provisions extended rights to stepchildren. The wording of this legislation refers to 'Citizenship', 'Naturalisation' and 'Residence', and at no point refers to any specific ethnicity or ethnic group.[39][40] Announcing his support for right of return legislation in Britain, Member of ParliamentQuintin Hogg stated that, "All the great nations of the earth have what the Jews call a Diaspora," and affirmed that nations "special and residual obligation(s) toward them," which include recognizing their right to nationality.[41]
TheImmigration Act 1971 affirmed the principles of the 1968 legislation, giving the right of immigration to the grandchildren of British nationals and nationals born in the Commonwealth nations.[41] It was in effect long enough to enable the descendants of ethnic Britons to return to Britain from the former colonies.[41]
TheBritish Nationality Act 1981 differentiated between British nationality,British Overseas Citizenship, andBritish Dependent Territory Citizenship, recognizing the right of settlement only for British nationals.[41] It is notable that it was enacted after the contraction of the Empire was completed, and was offered to all substantial populations of descendants of ethnic Britons in the former colonies.[41]
TheImmigration and Nationality Act of 1965, the latest of a series of such Acts, establishes nationality law of the United States. This is codified inChapter 12 ofTitle 8 of the U.S. Code, in which section 101(a)(22) states that the term "national of the United States" means:[42]
The explanatory comments of this section, when originally written in 1940, provided clarification that all citizens were nationals of the United States but not all nationals were citizens.[6]: 1709
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