Limiting the Transmission of Family Advantage: Ius Sanguinis with an Expiration Date

We may start from the consideration that those in the position of parents have an interest in and a particular responsibility to care for their children when young, implying a clear and fundamental interest in living together and being able to move together. These can be seen as necessary conditions for realising many of the intrinsic and non-substitutable goods of family life, or what have been called ‘familial relationship goods’, which include child-rearing and asymmetric intimacy.¹ These involve agent-specific obligations that can be realised only within family relationships of care and throughout childhood.² Thus this fundamental interest should be protected. Brighouse and Swift emphasise however, that we should not, in protecting these intrinsic goods, fail to distinguish them from other advantages external to familial relationship goods that parents can confer on their children, such as private education or concentrated wealth, which do not warrant protection. ³

Can ius sanguinis citizenship, even if not based solely on genetic descent, support such unwarranted transmission of privilege? Citizenship grants more than the opportunity to live with and be cared for by your parents when you are a child. It provides membership of a political community and the benefits at least of entry and residence in that state, the right to participate in national elections and sometimes access to other rights. Under a regime of ius sanguinis, even understood as grounded in the rights of parents and children to share citizenship, the transmission of citizenship to children born to citizens abroad can mean that people with no connection to the country retain the benefits of citizenship, and, at the very least, can lead to a mismatch between the citizen body and the community of those who live in, and are particularly subject to, the state. Thus, life-long citizenship in the absence of real connections could well be seen as falling into the category of advantages that parents should not necessarily be able to convey to their children.

This is not to suggest that ius sanguinis citizenship is just a form of property or unearned privilege.⁴ But there are still concerns about how to secure the legitimate interests of parents to care for their children, and of children to be protected, without justifying the transmission of privilege. My focus here is on considering how to guarantee the security of children to live and move with their parents through shared citizenship without supporting the unwarranted extension of privilege in the domain of citizenship.

This suggests the following limited justification for birthright ius sanguinis citizenship - rather than the universal child status and deferred, or provisional, ius soli citizenship that Dumbrava recommends.

First, birthright citizenship per se is justified because people need the protection of citizenship from birth.⁵ Note that this is not mainly because they are children and thus innocent or particularly vulnerable (pace Harder), nor despite the fact that they are children and thus (arguably) not capable of consenting or participating politically, but while they are children, and like others, are both subject to the power of a state and in need of protection by a state. Dumbrava’s proposal that children might gain a universal status of childhood and that citizenship should depend on their being able to choose, have established a connection, and developed capacities and virtues of citizenship overlooks the centrality of the legal status of citizenship to security, and the fact that this security should not be conditional on the qualities or practices of citizens.

The specific justification of ius sanguinis citizenship then derives from the way in which common citizenship between parents and children is the most secure way of guaranteeing their ability to live and move together. This can be in addition to the citizenship the child may acquire by ius soli; dual citizenship of the state of birth and that of parents’ is not in itself problematic if a person has connections in both countries.

Because children need citizenship from birth, there is an argument for birthright citizenship; because young children need to be able to live with (and be cared for by) their parents, there is an argument for ius sanguinis citizenship at the time where this is most needed. Both of these concerns support an award of citizenship that is not deferred, but that is also not always retained indefinitely.

It may be objected that the withdrawal of citizenship should not be lightly recommended. Indeed this is true. But the strongest ground for withdrawal is the absence of any genuine link between a person and the state of citizenship. Thus, writing on birthright citizenship, Vink and De Groot offer a similar suggestion⁶: ‘an alternative to limiting the transmission of citizenship at birth is the provision for the loss of citizenship if a citizen habitually resides abroad and no longer has a sufficient genuine link with the state involved’.⁷ Indeed they go on to say that ‘[f]rom our perspective, a provision on the loss of citizenship due to the lack of a sufficient link is to be preferred to limiting the transmission of citizenship in case of birth abroad’, on the grounds that this gives the child herself the opportunity to decide whether to establish that link, which thus should remain available until after majority, at the point when the child is better placed to make an independent decision.⁸

Thus, the parsimonious account of ius sanguinis defended here suggests that it should be awarded only provisionally – held through childhood, but requiring the establishment of connections of certain kinds, most clearly by a period of residence in the country of that citizenship by, or soon after, majority.⁹ Confirmation would not depend on abjuring any other citizenship, as the aim would not be to avoid or reduce dual citizenship, but rather to reduce the numbers of citizens whose connections to a country are minimal or non-existent.

Such a conditional citizenship could take seriously the justifiable claims of families without leading to the unwarranted extension of family advantage.