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Birthright Citizenship

application of either ius soli or double ius soli at birth (see Table 4). This is not surprising given that, since the 1900s, the essentially British ius soli tradition is alien to continental Europe (Weil 2001: 21). From this perspective the gradual inclusion of ius soli provisions at birth, even though for the moment mainly limited to West and Southern European countries, is remarkable in itself (see De Groot 2005: 210–15).

5.1 Residence parents

As mentioned above, the first face of the converging ius soli trend is that traditional ius soli countries amend their ius soli principle. Since 1983, children of non-citizens born on the territory of the United Kingdom only acquire British citizenship iure soli if the parents meet certain residence requirements (De Groot 2005: 201). Since the British Nationality Act of 1981 entered into force on 1 January 1983, a person born in the United Kingdom after that date is a British citizen if at the time of its birth her or his father or mother is (a) a British citizen or (b) settled in the United Kingdom (UK 1(1)). References in the British Nationality Act to a person being settled in the United Kingdom are references to her or his being ordinarily resident in the United Kingdom without being subject, under the immigration laws, to any restriction on the period for which he may remain (UK 1(8) juncto 50(2)).

After the British amendment, for a long time Ireland was the only European country with a virtually unrestricted ius soli provision in its citizenship law. Until 2001 Ireland applied a strict ius soli (IRE 6(1) old): by birth on Irish territory a child acquired the citizenship of Ireland. An exception was exclusively made for children of aliens entitled to diplomatic immunity (IRE 6(4) old; cf. IRE 6(6)(b) for current provision). This exception conformed to the 1961 Optional Protocol to the Vienna Conventions on Diplomatic relations, concerning Acquisition of Nationality and the 1963 Optional Protocol to the Vienna Conventions on Consular relations, concerning Acquisition of Nationality (cf. POR 1(1)(e)).

Since 2001, every person born in the island of Ireland is entitled to be an Irish citizen (IRE 6(1)). A person born in the island of Ireland is an Irish citizen from birth if he or she does, or if not of full age has done on his or her behalf, any act which only an Irish citizen is entitled to do (IRE 6(2)(a)). Since 2005, however, following popular dissatisfaction with the seemingly unreasonably unrestricted Irish practice, Ireland introduced the condition that, at least for one parent, a three-year residence period is required before citizenship can be attributed iure soli to a child born on Irish soil (Handoll 2006; see also Honohan 2010a). This amendment was triggered by the Chen case, decided by the European Court of Justice in May 2004.10 As a result, none of the countries studied for this report today applies ius soli as a general ground for acquisition of citizenship anymore. 11

Portugal has a provision which is comparable to the current Irish one, although with a more restrictive residence requirement for the parents: if one of the parents is resident in Portugal for at least five years at the moment of the birth of the target person, he or she can acquire Portuguese citizenship by means of a declaration (POR 1(1)(e)). This residence period was increased from six to ten years, in 1994, for persons from non-Portuguese speaking countries. In 2006 the residence requirement was harmonized at five years, for all nationality

10 11 Case C-200/02, Zhu and Chen v. Secretary of State for the Home Department, Judgment of 19 October 2004. In Luxembourg, since 2001, birth in Luxembourg before 1 January 1920 established the possession of citizenship of Luxembourg (LUX 4(1)old). This provision, however, was in particular important for the proof of citizenship and did not manifest the desire to introduce ius soli-acquisition in the Luxembourgian legislation as a basic principle. This rule does not exist anymore in the new Nationality Act which came in force in 2009.

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


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