With regard to the father, all states provide, in principle, for the acquisition of their citizenship if the father of a child possesses the citizenship involved at the time of the child’s birth. Of course, it has to be mentioned again that some countries provide for an exception, if the child was born abroad (see below). In order to conclude that a child derives a certain citizenship iure sanguinis a patre, of course it has to be determined that a person is the child of a certain ‘father’ in the sense of the provisions involved. All states provide that a child born within wedlock acquires the citizenship of the husband of the mother (e.g. AUT 7(1)(a); CYP 4(1)(a) and (2)(a); DEN 1(1); FIN 9(2); ICE 1(1); SWE 1(3); SWI 1(1)(a) SWI). Furthermore, citizenship can usually be derived from this father even if he died before the child’s birth (AUT 7(1)(b); BEL 8(2); EST 5(1)(2); FIN 9(3); NET 3(1); NOR 4(2); SWE 1(4) and (5); cf. LUX 1(1)).
Below we discuss further issues related to the derivation of citizenship from the father, by establishing the descent of a child by legitimation, recognition, or judicial establishment. First we discuss the more generic exceptions made by some countries in case of birth abroad.
2.2 Birth abroad
A substantial number of European states limit the transmission of citizenship in the case of birth abroad. The reason to limit the transmission of citizenship in case of birth abroad is linked to the function of the institution of citizenship as such. As was already mentioned above, citizenship should be a manifestation of a genuine link between a person and a state. If several generations have already been born abroad, it becomes less likely that the next generations will develop a link which justifies the possession of the citizenship of the country of their ancestors’ origin. From this perspective the European Convention also explicitly accepts – in principle – limiting the transmission of citizenship in the case of birth outside the country is acceptable (see Explanatory report on ECN 6, nos 65 and 66):
However, it should be noted that this provision does not require a State to grant its nationality to children born abroad generation after generation without limitation, when such children have no links with that State. Normally, such children will acquire the nationality of the State of birth (with which – presumably – they have a genuine and effective link). 5
With regard to the descent-based attribution of citizenship to children born abroad, both Belgium (1985) and Germany (2000) have limited the application of ius sanguinis to the first generation born abroad, in a somewhat similar fashion to the limitation already applied more traditionally by Cyprus, Ireland, Malta, Portugal and the United Kingdom. Not surprisingly, these are traditional ius soli regimes where birth in the territory of a country has a symbolically higher value than in ius sanguinis regimes, where intergenerational transmission plays a more significant role. The second generation born abroad only acquires citizenship if children are registered within one year (Germany, United Kingdom), two years (Cyprus) or five years (Belgium). The Irish, Maltese and Portuguese citizenship laws do not state a registration period and Portugal does not limit the extension of ius sanguinis to the second generation born abroad. Children born abroad to Belgian and German parents—of any
5 See also Recommendation R 99(18) of the Committee of Ministers of the Council of Europe on the avoidance and the reduction of statelessness, adopted on 15 September 1999 (rule II A, sub a): ‘Exceptions made with regard to children born abroad should not lead to situations of statelessness.’ This exception is repeated in Recommendation 2009/13 of the Committee of Ministers of the Council of Europe on the position of children in nationality law, Principle 1. This is an important addition to the Convention, which ideally should be added to the actual text of the Convention, preferably in an additional protocol.
RSCAS/EUDO-CIT-Comp. 2010/8 - © 2010 Authors