Over the past ten years, there has been rising concern around several nationality-related issues. Nationality is closely related to the mobility of people and their eligibility for the issuance of a passport, which is associated with the right to travel internationally and to return to the issuing country, and to the problem of identity. This paper looks into several common problems arising from nationality.
A passport is a very important identity document, and a prerequisite for international travel. To citizens in countries without a national identity card, the national passport invariably becomes one of the de facto legal identity documents issued by the most trustworthy government authorities. The issuance of a passport, as a trustworthy identity document, requires verification of the following:
- the nationality of the applicant
- the identity of the applicant
Identity verification, needless to say, is of paramount importance to ensure the document is trustworthy.
The nationality concern may carry more weight. It entitles the holder to apply for their national passport which, among other functions, facilitates international travel. More importantly, the passport provides an assurance to all other countries that the issuing state of the passport will accept the return of the holder for whatever reason, that is, the concept of a ‘guaranteed right of return’, even if the holder is a convicted criminal or terrorist. Nationality provides the owner a wide range of constitutional rights, such as the right to vote, the right to be elected and the right to hold a senior position in running the government of the nation, for example becoming a legislator, minister, or even a head of state.
Nationality, or the citizenship of a nation, is always a complicated issue which depends very much on complex domestic legal provisions covering a whole sum of related issues. The most important and common issues of concern include the methods of acquisition and renunciation, the problem of dual or multiple citizenship, and all related matters.
Nationality vs citizenship
There may be a subtle difference between nationality and citizenship from different perspectives. For example, as a matter of academic discussion, the term ‘nationality’ can be used to refer to an ethnic or racial concept indicating a person’s ethnic origin or country of birth. On the other hand, ‘citizenship’ will be taken as a legal or juristic concept whereby people may acquire a citizenship as a result of legal procedures. This article does not dwell on this point, but will simply refer to the broad term ‘nationality’ embracing both concepts.
Different countries have different requirements for nationality, depending on the detailed provisions set out by relevant domestic laws. For example, in the UK, nationality is not automatically conferred to those born in Britain. Broadly speaking, citizenship or nationality can commonly be acquired by two main methods: jus soli and jus sanguinis.
‘Jus soli’ means ‘right of the soil’, or birthright citizenship, whereby a newborn will acquire the nationality or citizenship of the country where it is born. This concept originates from British common law. The UK had adopted this concept prior to the introduction of the new Nationality Act decades ago, but it is very rarely adopted nowadays. The United States of America is the predominant example of a nation which still uses this concept. Any child born within the country’s territory will be eligible for US citizenship and the issuance of a US passport. This concept also applies to any child born in the country’s waters or airspace. Since the Twenty-seventh Amendment of the Irish Constitution was enacted in 2004, no European country grants unconditional or near-unconditional citizenship by jus soli.
‘Jus sanguinis’ means ‘right of blood’: the citizenship is inherited from parents and not granted according to birthplace. This is a concept of the continental civil law system, which is much influenced by the Roman legal system.
At present, almost all countries in Asia, Europe, Africa and Oceania grant citizenship to newborns primarily according to the concept of jus sanguinis, or a restricted form of jus soli in which citizenship according to birthplace is automatic only for the children of certain immigrants or in accordance with certain conditions specified by domestic law.
Most countries with unconditional or near-unconditional jus soli laws tend to grant birthright citizenship (and nationality) based on jus sanguinis rules as well, although these stipulations tend to be more restrictive than in countries that use jus sanguinis as the primary basis for nationality.
Nationality for newborns born in the air or at sea
Countries that have acceded to the 1961 Convention on the Reduction of Statelessness will grant nationality to otherwise stateless persons who were born on their territory, or on a ship or plane flagged by that country (see Figure 1).
Tightening nationality law
Nationality is always a complicated issue because of the governing effect of domestic laws. There are international provisions and guidelines on identity management and related issues, particularly the contribution from international bodies such as the International Civil Aviation Organisation (ICAO) and the International Organisation for Migration (IOM). However, these are no more than suggestions and guidelines, and compliance with them is not compulsory. The ICAO specifications for Machine Readable Travel Documents of course have more weight for member States because they specify the format a passport must have to be valid for international travel. However, nationality is primarily a domestic issue within a nation and an important symbol of national sovereignty. This is a reason that not many international guidelines touch on nationality and related issues.
This complexity is aggravated by the rising mobility of people and the tendency for countries to take in migrants from other countries. After the Second World War, countries have been taking a liberal approach to taking in foreign migrants so as to boost the local population and economic growth through a large intake of migrants with special skills, as labour, or due to other causes including acceptance of refugees for humanitarian reasons. The United States, Canada, Australia, and New Zealand are typical examples of countries with these patterns of migration.
As a result of terrorism and the rise in cross-territorial crimes, including identity issues, countries have been introducing stricter rules and conditions for the intake of migrants and granting nationality in the past decade. These tightening requirements include a lengthy period of residence in that country, identity and integrity screening, language tests and other forms of examinations.
Acquisition of the nationality by a migrant brings significant obligations and rights. Obligations include allegiance to the nation, taxation and military services. Rights include the right to apply for a national passport, unconditional right of return to the nation, the right to vote and the right to take up an official position in the government.
One problematic or interesting scenario arising from nationality at the present time is the issue of dual or multiple nationality of an individual. Each nation has unique nationality laws governing its respective nationals, some impose a strict requirement forbidding dual nationality while others take a relatively liberal approach allowing nationals to possess dual or even multiple nationalities, (of course meaning possession of multiple national passports). The latter situation is common in many countries with a high rate of immigration.
An important yet interesting issue arises in these multiple-nationality cases: “Which nationality will take priority and should the person be allowed to take up a senior official position in the national government without first renouncing the other nationality which he or she also holds?” This issue was vividly illustrated last year and earlier this year in Australia, a typical example of a country with a high immigration rate.
Starting from the second half of 2017, the eligibility of a number of members of the Australian Parliament (MPs) was thrown into doubt. The gist of the issue was that the Australian constitution prohibits its members from having allegiance to a foreign power. This is a common practice in many countries due to national security concerns. This nationality saga has triggered a series of litigations in Australia. These arguments hinged on a technical issue of the law: whether the MPs in question had taken ‘reasonable steps’ to renounce their foreign citizenship when nominated for election. This event caused fifteen sitting politicians to either be ruled ineligible by the High Court of Australia or to resign pre-emptively. At one point the incident had cost the ruling coalition government its marginal majority in its House of Representatives. The saga also sparked off a call for a referendum to change the constitution, in view of the large number of nationals in Australia holding two or more nationalities.
This incident not only demonstrates the problem of dual nationalities from a national security perspective but also exposes a serious problem for identity management. It is acceptable for a person with multiple nationalities to hold passports issued by various nations as long as the holder’s biographic and biometric data are identical in all documents. However, it is already a known cross-border identity crime to hold passports with different identities to allow criminals to gain entry into different countries. Although obtaining a different national passport (even a genuine one) with a different identity is a non-starter in countries with stringent identity management and screening processes, it may not prove too difficult in developing and less-developed nations. Many syndicates are involved in the human trafficking business by exploiting this trick, and border guards around the world regularly detect these types of crimes. The introduction of biometric data in passports may help to make the trick more challenging but it is not a panacea, particularly if the criminal uses the same problematic document to travel to specific places. The problem is aggravated by the ease of getting another nationality from countries which sell their nationality.
Nationality for sale
Another common problem relating to nationality is the so-called ‘nationality for sale’ or ‘passport of convenience’ issue. A number of countries have been offering their nationality to foreigners, normally under the name of an investment scheme or other terminology for a variety of objectives, such as attraction of foreign investments, better cash flow, GDP growth or increase of population. These countries commonly have a relatively low population and small geographical size, and are spread across Africa, the Caribbean, the Pacific Islands and even the EU.
Unlike the migration states mentioned above, these relatively small countries normally grant their nationality with very liberal or loose requirements. For example, they may waive the requirement of residence or even compromise the identity verification process by not requiring the physical presence of the purchaser in the country. There have been reports that terrorists, criminals and persons with doubtful/questionable identities have obtained another nationality and national passport through this method.
The weakest link
An official document certifying the nationality of the holder is the most important breeder document for a national passport, the most official and trustworthy identity document for international travel. Unfortunately, these certificates of nationality very often do not keep up with the present-day advancements in technology for identity documents. The certificate tends to be paper-based without, or with very simple and basic security features, such as a watermark and a national seal. Many nationality certificates do not carry the photograph of the legitimate holder, not to mention biometric information (see Figure 2). In addition, the birth certificate – another important breeder document for identity documents and very often the document testifying the nationality of the holder – has long been criticised as the weakest link in the identity management chain, because of the lack of a unique identifier for the newborn.
Large-scale digitisation and maintenance of documents and records is only becoming widespread after advancements in technology over the past two decades. Although digitised records certainly help to establish the entitlement of the applicant for nationality and a national passport in an effective and trustworthy way, the majority of government authorities still relies on paper-based and historical records to ascertain eligibility for nationality. This problem is not uncommon for births that took place during the baby boom era after the Second World War, and it may even be a more serious issue for new claimants of nationality born prior to that generation. When a person holding a birth certificate or nationality certificate issued some 50 years ago with only basic biographical information, suddenly turns up to apply for their first passport, the authorities will do their best to trace the background of this person, but only secondary evidence (such as residence or employment records) can be gathered, which hardly constitute watertight proof against fraud.
It is even more worrying if this happens in countries with more relaxed identity management systems.
Not everyone has a nationality. According to the United Nation High Commission for Refugees (UNHCR), at least 10 million people around the world are denied a nationality at this present time. The international legal definition of a stateless person is “a person who is not considered as a national by any State under the operation of its law”. In simple terms, this means that a stateless person does not have the nationality of any country. Some people are born stateless, but others become stateless.
The 1954 Convention Relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness are the key international conventions addressing statelessness. They are complemented by international human rights treaties and provisions relevant to the right to a nationality in respective countries.
Statelessness can occur for several reasons:
- Gaps in nationality laws.
Every country has laws which establish under which circumstances someone can acquire nationality or have it withdrawn. If these laws are not carefully written and correctly applied, people can be excluded and left stateless, for example, children who are of unknown parentage in a country where nationality is acquired based on descent from a national. Fortunately, most nationality laws recognise these children as nationals of the state in which they are found.
- Emigration from someone’s birth country.
A child born in a foreign country can risk becoming stateless if that country does not permit nationality based on birth alone and if the country of origin does not allow a parent to pass on nationality through family ties. Additionally, the rules setting out who can and who cannot pass on their nationality are sometimes discriminatory. The laws in some countries do not let women pass on their nationality, while some countries limit citizenship to people of certain races and ethnicities.
- The emergence of new states or transfers of territory between existing states.
Even when new countries make their nationality available to anyone, ethnic, racial and religious minorities who frequently have trouble proving their link to the country are often left without a nationality. In countries where nationality is only acquired by descent from a national, statelessness will be passed on to the next generation.
- Loss or deprivation of nationality.
In some countries, citizens can lose their nationality simply by having lived outside their country too long. States can also deprive citizens of their nationality through changes in laws that leave whole populations stateless, using discriminatory criteria like ethnicity or race.
Whatever the cause, statelessness has serious consequences for people in almost every country and in all regions of the world. Stateless people may have difficulty accessing basic rights such as education, healthcare, employment and freedom of movement. As a result, they are often not allowed to go to school, see a doctor, get a job, open a bank account, buy a house or even get married. Many of them can subsequently face a lifetime of obstacles and disappointment. The UNHCR has set a goal to end statelessness by 2024.
Unlike nationals, stateless persons will have to travel on identity documents for stateless persons issued by the respective authorities of the countries they reside in, in accordance with the domestic legal provisions. Examples
of such identity documents are a certificate of identity, refugee identity certificate, a re-entry permit and a travel document for refugees (see Figure 3).
The above shows certain common problems arising from nationality, and these are by no means exhaustive, nor are they unique examples. Authorities are aware of these problems, but it remains to be seen what improvements will be made in the coming years, and to what extent these problems will be dealt with in a concerted manner or in a more collaborative way across territories. Of course, matters such as the disparity of economic growth, volume of population, domestic laws and legal systems, and standards of technology advancement among nations will make this problem even more complex and challenging.
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