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Birthright Citizenship

discovered only after majority. Belgian legislation grants an option right to the child older than 18 years born abroad of a Belgian national (BEL 12bis). If the child born abroad is only the adopted child of a Belgian national and the child did not yet receive Belgian citizenship, the Belgian legislation provides for an option right to be used between the age of 18 and 22 (BEL 13(3) juncto 14 and 15). The child born abroad of one Slovenian parent between the age of 18 and 23 has a comparable option right (SLN 6; see for adopted children: SLN 7).

In most countries, (minor) children often acquire the citizenship of the country if one of their parents acquires this citizenship. In countries where this is not the case and for cases where the conditions in the legislation are not met, (minor) children sometimes have a right of option to the citizenship involved if certain requirements are met (see e.g. BEL 12bis(1)(2); POR 2). We do not discuss these provisions here (see the online database on www.eudo- citizenship.eu for an overview of ‘filial extension’, mode A14).

To conclude this section, some critical remarks on the use of the exception allowed by the European Convention (ECN 6), in respect of the transmission of the citizenship iure sanguinis a patre in case of children born out of wedlock, are appropriate. As we see the issue, three different arguments are used in order to exclude (some) children born out of wedlock from the transmission of the citizenship of their father.

First, one could argue, that a child born out of wedlock will less likely develop close ties with the state of citizenship of his father, in particular if he lives abroad. This seems to us to be the background of the Danish and Swedish legislation.

Second, in countries where a man can recognize a child, even in cases where this is not in conformity with the biological truth, there is a certain danger that recognition, if it does have citizenship ex lege consequences, can be abused to circumvent procedures and restrictions in respect of international adoption. This was, for example, the case in the Netherlands. The Netherlands Nationality Act of 1985 mentioned recognition and legitimation as grounds for acquisition of citizenship (NET 4, old). Later it was discovered that some Netherlands men – after having received money – recognized foreign illegitimate minors in order to give them Dutch citizenship and therefore free access to the Netherlands. As a reaction to this discovery, the government of the Netherlands abolished recognition and legitimation as grounds for ex lege acquisition of citizenship in 2003. This amendment was heavily criticized in the legal literature inter alia because in most cases of recognition and legitimation the man involved really is the biological father of the child (e.g. Tratnik 1989; Koens 1998). Furthermore, the Public Prosecutors Office already had the possibility to request the annulment of a recognition if the recognition violates public policy (ordre public). Because of the fact that many difficulties arose regarding the rules which came in force in 2003, the citizenship consequences of a recognition were re-introduced in 2009, although the ex lege acquisition of Dutch citizenship is now restricted to recognition of a child younger than seven years.

Thirdly, the acquisition of a citizenship ex lege based on recognition or legitimation can be problematic for completely different reasons. It may be the case that an older foreign minor acquires a certain citizenship because of recognition or legitimation without his own consent in respect of the citizenship consequences. This leads to problems if the acquisition of the new citizenship causes the loss of his previous citizenship (usually the citizenship of the mother). Although one of the requirements for recognition or legitimation is normally the consent of the mother of the child (in the Netherlands until the child reaches the age of 16) as well as the consent of the child (in the Netherlands if he is older than 12 years), these consents are focused on the establishment of a family relationship between the child and the man involved. The citizenship dimension of a recognition is in many cases not taken into account.

RSCAS/EUDO-CIT-Comp. 2010/8 - © 2010 Authors


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