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Human Rights and Citizenship:The Challenge of Migrations

ISPI – Milan, November 13, 2006

Trends in Nationality Lawsand the Italian Case

Giovanna Zincone

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HARMONISATION FROM ABOVE

NEEDED AND IMPOSSIBLE • The Amsterdam Treaty transferred part of matters related to immigration

from the third pillar to the first one. Acquisition and loss of nationality were excluded from the transfer.

• EC concerns about the paradox of a single EU State enjoying other EU States' citizenship rights and single State-based access to European citizenship.

• Nationality laws extremely diversified & too rooted in single country political culture to be the subject of Community decisions in the near future and still extremely diversified.

• Procedures that lead to naturalization also differ: by declaration, by entitlement, by option or discretionary. This presentation will not deal with procedures.

• Main empirical source: R. Bauböck, E. Ersbøll, K. Groenendijk, H. Waldrauch (eds), Acquisition and Loss of Nationality (2 vols.), Amsterdam University Press, 2006. A comparative analysis in the old 15 Member States updated to May 2005.

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HARMONISATION FROM BELOWSOME COMMON FEATURES & TRENDS

• Favour minors born and/or educated in the country.• Avoid casual attribution by ius soli.• Avoid opportunistic acquisition by birth and by

marriage.• Link nationality to real bonds with the country, with

integration indicators and/or measures.• Favour foreigners of national origins i.e. less strict

requirements of residence, of belonging and integration. Very few reforms correcting this situation. Problem:discrepancy State v. civil society.

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PRESENT ITALIAN LAW (no. 91/1992)

AND THE AMATO BILL FROM A COMPARATIVE

PERSPECTIVE

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DUAL NATIONALITY / I• Dual nationality may cause problems. It often implies conflicts of loyalties, rights

and duties. • However in some cases is inevitable:

- Extension of gender equality principle to nationality matters, supported by international conventions (see Convention on the Nationality of Married Women, 29 January 1957 and the Council of Europe resolution (77) 12 on the nationality of spouses of different nationalities, 27 May 1977), allowing spouses to transfer nationality to each other and both nationalities can be transferred to their children.- Application of quasi-compulsory ius soli in some immigration countries combined with the conservation of parents’ nationality by ius sanguinis.

• In other cases, the countries of origin legislation can act as a deterrent from acquiring a new (second) nationality. Certain emigration States forbid the renunciation of nationality and/or link important rights such as property or inheritance rights to the legal status of citizen.

• International law initially stated the principle that multiple nationality was undesirable (see Convention of Strasbourg, 6 May 1963), but the principle was already abandoned with the European Convention on Nationality of 1977. There is a clear trend towards a more liberal tolerance of multiple nationality or even towards a formal acceptance of it.

• Legal solutions have been found in bilateral agreements, for instance in making the nationality of the country in which the person does not reside ‘dormant’ especially as far as electoral rights or draft duties are concerned (see Spanish-Argentinean Agreement, 14 April 1969, and Italian-Argentinean Treaty, 29 October 1971).

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DUAL NATIONALITY / II• Differences look greater than they actually are. • Belgium, Finland, France, Greece, Ireland, Italy, Portugal, Sweden, UK,

do not require that previous nationality be renounced. But Portugal accepts dual nationality on condition that the position of the country of origin on dual nationality is not an obstacle to naturalization. Greece asks only Macedonians to renounce previous nationality.

• Austria, Denmark, Germany, Luxembourg, The Netherlands and Spain require renunciation of previous nationality. This requirement can affect nationals of other countries where renunciation fees are particularly high, or where inheritance and property rights are linked to nationality.

• These countries adopt some exemptions:- refugees (all countries)- to applicants whose nationality law does not allow renunciation or imposes unacceptable conditions (Austria, Denmark, Germany, The Netherlands)- to children of bi-national parents (Austria, Denmark).

• In general, administrations prove quite flexible in approaching and managing situations of multiple nationality.

• Italy 1992 allowed dual citizenship (before it was accepted de facto). Amato’s Bill does not touch this aspect.

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INTRODUCTION OF IUS SOLI AT BIRTH & INTRODUCTION OF STRICTER REQUIREMENTS

(WHEN ALREADY IN FORCE)

• Denmark (2004 reform): by declaration only to Nordic Area parents.• Germany (2000 reform and 2005 amendments): ius soli principle

introduced, at least one parent with habitual legal residence in Germany for 8 years and unlimited residence permit for 3 years. No dual nationality: compulsory option when reaching majority.

• Ireland (2004 reform): only if one parent is entitled to reside without any restriction.

• Portugal (2006 reform): residence of at least one parent reduced and unified from 6 (Portuguese origins ) or 10 (others) to 5 years.

• UK (1983 reform): only if one of the parents is “settled” and holds Indefinite Leave to Remain (ILR).

• Italy 1992: no ius soli at birth. Amato’s Bill introduces the ius soli at birth (art. 1). At least one parent 5 years of residence and income requirement to apply for long-term resident status. Nationality can be renounced by the child when coming of age. Self determination.

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IUS SOLI BEFORE COMING OF AGE • Austria (1999): discretionary naturalization to minors born in

Austria after 4 years of residence. 2006 reform raised the requirement to 6 years.

• Belgium (since 1991; 2000 reform no longer automatic): both parents within 12 years after birth and main residence in Belgium during 10 years preceding declaration.

• France (1993; amendments in 1998): children’s nationality by declaration between 16 and 18, if minimum residence of 5 years since the age of 11. Parents can obtain nationality for their children between the age of 13 and 16, if minimum residence of 5 years after the age of 8. 6 months before the age of 18, and during the following year, they can renounce French nationality.

• UK (1983): children over 10 years who have spent 10 years in the country with no more than 90 days of absence in each year.

• Italy 1992: no ius soli before 18. Amato’s Bill (art. 2) also includes minors not born in the country (see 1.5 generation).

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IUS SOLI WHEN COMING OF AGE / I

• Belgium (Laws 1991, 1998, 2000): by declaration by a person of 18 or older, born in Belgium and his/her main residence in Belgium since birth and by a person between the age of 18 and 22 years, born in Belgium and resided there from the age of 14 until 18 or for at least 9 years and still resided in Belgium 12 months before the declaration.

• France (before 1994 and after 1998): automatically granted to foreign children born in France when they come of age. 5 years’ residence without interruption since the age of 11. They can renounce French nationality in the 6 months before turning 18, and during the following year.

• Luxembourg (1986 and 2001): by option (renouncing previous nationality) after the age of 18, 5-year residence, proof of sufficient degree of integration and knowledge of one of the 3 official languages.

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IUS SOLI WHEN COMING OF AGE / II

• The Netherlands (1985 and 2003): habitual residence since birth.

• Spain (1982): by option within 2 years after coming of age, if birth in Spain is certified by Spanish authorities.

• Italy 1992: by declaration within one year after coming of age, if they can prove uninterrupted and legal residence in Italy. Amato’s Bill (art. 2) also includes minors not born in the country and provides for nationality acquisition even before their coming of age (see 1.5 generation).

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DOUBLE IUS SOLI • Nationality at birth to foreign children born in the country

when at least one parent was also born in the country. Conceived in France then exported to Belgium, Ireland, Portugal (after 2006 reform), Spain, UK. Some countries added further requirements:

•The Netherlands (2003): one parent’s main residence in the country and one grandparent’s residence in the country when this parent was born.•Ireland (2005): foreign parents must have 3 years of residence.•Italy 1992: no double ius soli. Amato’s Bill introduces it with no further requirements. Nationality can be declined when the child comes of age.

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1.5 GENERATION

• Special favourable provisions for minors, even not born in the country. Requirements concern potential factors of integration, such as education and/or residence in formative age in the country.

• Adopted in Belgium, Denmark, Finland, France, Germany, Luxembourg, The Netherlands, Sweden.

• Acquisition after majority (as in Belgium, Denmark, Finland, Luxembourg, The Netherlands), before majority (France), or in a range of years immediately preceding and following majority (Germany, Sweden).

• Italy 1992: no provisions for the case in point. Amato’s Bill (art. 2): minors acquire nationality on parents’ request after 5 years of residence (of at least one parent and the minor) and if they have attended an educational cycle or a professional school or have worked for at least 1 year. Application and renunciation possible within one year after majority.

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IUS DOMICILII

• The residence requirement ranges from 3 years in Belgium, 4 in Ireland, 5 in France, Luxembourg, The Netherlands, Sweden, UK, 6 in Portugal, to 8 in Germany, 9 in Denmark, and 10 in Austria, Greece and Spain. The median value is 5.

• Prevailing trend towards reduction. Belgium (2000) from 5 to 3, Germany (2000) from 15 to 8, Portugal (2006) from 10 to 6.

• Italy 1992: 10 years for non-EU nationals. Amato’s reform project (art. 4) reduces this to 5 years.

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INTEGRATION AND LANGUAGE REQUIREMENTS

• Language knowledge not required only in: Belgium, Ireland, Sweden and Italy.

• Introduction or hardening of integration requirements (language, culture and public values tests and/or course attendance). Especially after the terrorist attacks, clear European trend: Austria, Denmark, France, Germany, Luxembourg, The Netherlands, UK.

• Italy 1992 (#formal Law) does not provide for any kind of language or integration requirement. Amato’s Bill (art. 5) makes naturalization dependent on linguistic and social integration. Possible indicator: to accept a list of shared public values. Soft assimilationism.

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IUS CONUBII / I

• All old 15 EU Member States facilitate acquisition of nationality by marriage, although with large differences.

• Duration of marriage required ranges from 1 year in Spain, 2 in Germany, 3 in Ireland, Luxembourg, and Portugal, to 5 in Austria.

• Some countries also require a period of residence: 1 year in Spain and Ireland, 3 years in Germany, Luxembourg, and UK.

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IUS CONUBII / II

• Since the early 1990s, a common trend is emerging: to fight “marriages of convenience”.

• By raising the period of marriage in the country or abroad: France (2006) from 2 to 4 years (already raised from 1 to 2 in 2003).

• By introducing or raising residence requirements: Belgium (1993) 3 years, Denmark (2002) from 4 to 6 or from 6 to 8 (depending on the duration of marriage), France (2003) 1 year.

• By extending integration requirements to ius conubii: knowledge of or bond with the country (Greece, Portugal) or knowledge of vehicular language/s (Austria, France, Luxembourg) or both (Denmark, The Netherlands, UK).

• Italy 1992: duration of marriage required only 6 months for couples living in Italy, 3 years for those living abroad. No residence requirements. Amato’s Bill (art. 3): 2 years of marriage for couples residing in Italy, 3 years abroad.

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IUS SANGUINIS: DESCENDANTS OF EXPATRIATES OR PEOPLE LIVING IN FORMER

NATIONAL TERRITORIES / I

• All old 15 EU Member States provide for the transmission by ius sanguinis abroad. Some countries only at certain conditions:

• Belgium: registration within 5 years and no dual nationality even before the age of 18.

• Denmark: residence in the country before the age of 22. Loss can be avoided by stating willingness to maintain nationality in front of public authorities.

• Spain: limits transmission abroad to the third generation for dual nationality.

• UK: third generation: parent residence in UK for at least 3 years, registration within 12 months from birth.

• Other countries whose only condition is to register birth at the consulate: Austria, Germany, Greece, Portugal.

• No trend towards restriction. Portugal (2006) even reinforced provisions in favour of offspring abroad. Partial exception: Germany (2000) excluded children born abroad from German parents born abroad after 31.12.1999 and permanently resident there.

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IUS SANGUINIS: DESCENDANTS OF EXPATRIATES OR PEOPLE LIVING IN FORMER

NATIONAL TERRITORIES / II

• Italy 1992: transmission of nationality to offspring abroad with no limit of generation. Already 1912 Nationality law: almost impossible to lose nationality even for a descendant of expatriates, unless by voluntary act.

• Large numbers of people holding this kind of “spare nationality” applied (and are still applying) for an Italian passport. According to our survey based on data of the Italian Ministry of Foreign Affairs, between 1998 and 2004 about 538,000 people obtained an Italian passport at a consulate abroad. Most of the new passports were issued in Argentina and Brazil.

• Source: G. Gallo and G. Tintori, in G. Zincone (ed.), Familismo legale. Come (non) diventare italiani, Laterza, 2006.

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DESCENDANTS OF EXPATRIATESREACQUISITION BY SIMPLIFIED REQUIREMENTS OR

SPECIAL PROGRAMMES / I

• Many EU countries provide for simplified access to nationality for aliens of national origins or belonging to areas or groups considered culturally similar.

• Only few allow reacquisition to co-ethnic aliens residing abroad and holding another nationality.

• Germany: Art. 116 of the Basic Law, Germans displaced as a result of post-war measures or redefinition of the borders entitled to acquisition of German nationality, even if residence abroad is maintained.

• Portugal: former Portuguese or who have Portuguese ancestry have easier access to naturalization; not required to prove residence in Portugal, knowledge of the language and effective connection to the community.

• Spain: children of emigrants who may have lost Spanish nationality are entitled to naturalization without residence requirements.

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DESCENDANTS OF EXPATRIATESREACQUISITION BY SIMPLIFIED REQUIREMENTS OR

SPECIAL PROGRAMMES / II

• Recent years: no clear trend towards a restriction for these provisions.• Exception: Germany. 1993: annual quota of 225,000 for so-called

Aussiedler. 1996: late Aussiedler have to accept the place of residence assigned to them if they wish to receive integration aid and social benefits. 2000: quota reduced to 100,000 persons. Prior to entry, a language test.

• Italy 1992: dual nationality clearly stated reduces residence requirement for aliens of national origins to 3 years, instead of 10 for the other aliens, further reduction to 2 years for minors. (A reduction to 4 is also provided for EU citizens; only Austria provides for reduction for other EU citizens,)

• Reacquisition programmes for former nationals. 1992: very easy reacquisition window open until 1994, then extended to 1995, and 1997 (163,756 reacquisitions). 2000: same measure open for a 5-year period to aliens of Italian descent belonging to territories included within former Yugoslavia borders after WWII. 2006: extended the provision with no time limit; the 2006 provision introduces for the first time a language test to prove they belong to “Italian culture”.

• Amato’s Bill: no change.• Source: G. Zincone (ed.), Familismo legale. Come (non) diventare italiani,

Laterza, 2006.

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CRUCIAL POLITICAL ROLE OF EXPATRIATES AND THEIR DESCENDANTS

• Since 2001 (Constitutional Law no. 1 1/ 17/ 2000, and n. 1 of January 23 2001, and Law n. 459 12/ 27/ 2001), Italian residents abroad can vote for their own representatives: 6 senators and 12 deputies. By contrast, extremely difficult to vote for those temporarily residing or travelling abroad. They must register at the consulate by the end of the year preceding the elections.

• General elections (2006): 4 senators were elected in the centre-left cartel, one in the centre-right, and one as an independent. 7 deputies were elected in the centre-left cartel, 4 in the centre-right, and one as an independent. Their vote is now pivotal for the centre-left’s narrow majority in the Senate.

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CONCLUSIONS I

• In contrast with general opinion, new trends in nationality laws are not only restrictive but also include more liberal measures (reduction of time of residence for ius domicilii; introduction of ius soli and preferences for 1.5 generation).

• Restrictions introduced tend to counter opportunistic behaviour and lack of integration.

• Countering of opportunistic behaviour and lack of integration does not apply (with few exceptions) to expatriates and their descendants and to aliens of national origins.

• Amato’s bill appears embedded in the EU frame, which does not imply high chances that it will pass without changes.

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CONCLUSIONS II

• We are facing a “sliding borders” phenomenon. Physical borders are moved into neighbour countries, in countries of origin and of transit (asylum & third safe countries; detention camps in transit countries; indicted terrorists’ deportation & interrogation in original or in third countries). Substitution of frontier borders with rights borders. Reduction or denial of immigrants’ rights aimed at discouraging immigration. Repositioning of integration. Supposed to take place and to be fostered mainly after entry and before naturalization, it has been moved to the upper step of the acquisition of nationality and to the lower step of entry (Judgment of the Court (Grand Chamber) of 27 June 2006 in Case C 540/03) on family reunification.

• Which integration requirements and measures? At which step?• Can comparison act as factor of convergence from below?

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Human Rights and Citizenship:The Challenge of Migrations

ISPI – Milan, November 13, 2006

Trends in Nationality Lawsand the Italian Case

Giovanna Zincone