Citizenship and the processes of naturalisation: Does the right to emigrate include the right to immigrate?

The intention of this paper is to analyze the right of the migrants, the requirements that they have to comply with in order to gain a citizenship in their resident country and the processes of naturalisation. This analysis will be made starting with the Universal Declaration of Human Rights from 1948, using the references of Seyla Benhabib, author of the book The rights of others and well known scholar on the subject of citizenship and migrant rights, than comparing the experiences that European countries have with the subject and the different ways they are constitutionally dealing with it, and ending with two case studies about migrants vs. the state. To start with some statistics on the issue: It is estimated that, whereas in 1910 roughly 33 million individuals lived in countries other than their own as migrants, by the year 2000 that number had reached 175 million. During this same period (19102000), the population of the world is estimated to have grown from 1.6 to 5.3 billion that is threefold (Zlotnik 2001, 227). Migrations, by contrast, increased almost six fold over the course of these ninety years. Strikingly, more than half of the increase of migrants from 1910 to 2000 occurred in the last three and a half decades of the twentieth century, between 1965 and 2000. In this period 75 million people undertook cross border movements to settle in countries other than that of their origin (United Nations, Department of Economic and Social Affairs 2002).1 In order to speak about rights of foreigners, first we have to make distinction between terms. As Seyla Benhabib precisely explains: One becomes a refugee if one is persecuted, expelled, and driven away from ones homeland; one becomes a minority if the political majority in the polity declares that certain groups do not belong to the supposedly homogeneous people; one is a stateless person if the state whose protection one has hitherto enjoyed withdraws such protection, as well as nullifying the papers it has granted; one is a displaced person if, having been once rendered a refugee, a minority, or a stateless person, one cannot find another polity to recognize one as its member, and remains in a state of limbo, caught between territories, none of which desire one to be its resident.2 Universal Declaration of Human Rights If we read closely the Universal Declaration of Human Rights we can notice that it speaks about the right to leave your country (and return), but not about a right to live in another country. Afterwards it introduces the right of asylum, and relates these rights to the next one, the right of nationality and at the same time the right to change his nationality.
Universal Declaration of Human Rights
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Article 13. (1) Everyone has the right to freedom of movement and residence within the borders of each state. (2) Everyone has the right to leave any country, including his own, and to return to his country. Article 14. (1) Everyone has the right to seek and to enjoy in other countries asylum from persecution. (2) This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations. Article 15. (1) Everyone has the right to a nationality. (2) No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.
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As Benhabib precisely explains: The Universal Declaration is silent on states obligations to grant entry to immigrants, to uphold the right of asylum, and to permit citizenship to alien residents and denizens. These rights have no specific addressees and they do not appear to anchor specific obligations on the part of second and third parties to comply with them. Despite the cross border character of these rights, the Declaration upholds the sovereignty of individual states. Thus a series of internal contradictions between universal human rights and territorial sovereignty are built into the logic of the most comprehensive international law documents in our world.4 Benhabib: The rights of others In her thorough analysis of the rights of migrants and citizenship, Benhabib elaborates the works of three distinguished authors and their theories: Jurgen Habermas, with his distinction between we and others, Immanuel Kant, with the right of hospitality, and Hannah Arendt, with her connection between losing state and losing all rights. Benhabib wants to focus our attention to the birth of nationalism as a distinction between the citizens and the others. In The European Nation-State, Jurgen Habermas has observed: There is a conceptual gap in the legal construction of the constitutional state, a gap that is tempting to fill with a naturalistic conception of the people. One cannot explain in purely normative terms how the universe of those who come together to regulate their common life by means of positive law should be composed. From a normative point of view, the social boundaries of an association of free and equal associates under law are perfectly contingent. (1998, 115116). Since the nineteenth century, and extending to the state formations that emerged after decolonization and the end of communism, this conceptual gap has been filled by the ideology and practice of nationalism. In fact, nationalism is constituted through a series of imaginary as well as very real demarcations between us and them, we and the others.5 Not romantically but rationally Benhabib explains Kants right of hospitality (right of a stranger not to be treated as an enemy when he arrives in the land of another) as a double-edged sword. On the one hand, Kant wants to avoid the justificatory use of this construct to legitimize western colonialist expansion; on the other hand, he wants to base the right of human beings to enter into civil association with one another upon the claim that, since the surface of the earth is limited, at some point or other, we must learn to enjoy its resources in common with others. Kant himself notes the oddity of the locution of hospitality in this context, and therefore remarks that it is not a question of philanthropy but of right. In other words, hospitality is not to be understood as a virtue of sociability, as the kindness and generosity one may show to strangers who come to ones land or who become dependent upon ones acts of kindness through circumstances of nature or history; hospitality is a right which belongs to all human beings insofar as we view them as potential participants in a world republic. Kant writes: Hospitality [Wirtbarkeit] means the right of a stranger not to be treated as an enemy when he arrives in the land of another. One may refuse to receive him when this can be done without causing his destruction; but, so long as he peacefully occupies his place, one may not treat him with hostility. It is not the right to be a permanent visitor [Gastrecht] that one may demand. A special contract of beneficence [ein . . . wohltatiger Vertrag] would be needed in order to give an outsider a right to become a fellow inhabitant [Hausgenossen] for a certain length of time. It is only a right of temporary sojourn [ein Besuchsrecht], a right to associate, which all men have.
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They have it by virtue of their common possession [das Recht des gemeinschaftlichen Besitzes] of the surface of the earth, where, as a globe, they cannot infinitely disperse and hence must finally tolerate the presence of each other (Kant [1795] 1923, 443; cf. 1949, 320).6 To conclude her theory of losing rights and rights to have rights Benhabib uses the explanations of Hannah Arendt. Arendt always insisted that among the root causes of totalitarianism was the collapse of the nation-state system in Europe during the two world wars. The totalitarian disregard for human life and the eventual treatment of human beings as superfluous entities began, for Hannah Arendt, when millions of human beings were rendered stateless and denied the right to have rights. Statelessness, or the loss of nationality status, she argued, was tantamount to the loss of all rights. The stateless were deprived not only of their citizenship rights; they were deprived of any human rights. They are deprived, not of the right to freedom, but of the right to action; not of the right to think whatever they please, but of the right to opinion.7 Comparison citizenship for migrants in three European countries: Spain, France, Germany In modern theory, Maarten P. Vink and Gerard-Ren de Groot, from the EUDO Citizenship Observatory analyze the trends of regulations in European countries, precisely concerning the birthright citizenship and the distinction of ius soli and ius sanguinis traditions. We observe two broad trends in birthright citizenship policies across Europe since the early 1980s. (a) Although it was the mid-1980s before most states fully realised the principle of gender equality, there is a clear trend toward completing the equal treatment of women and men with regard to descent-based citizenship attribution. In Central and Eastern Europe, equal treatment largely took place by virtue of post-war Soviet inspired legislation, whereas in Western Europethis was accomplished a few decades later. In the 1990s equal treatment has focused specifically on children born out of wedlock, adopted or born abroad. With regard to the latter category there are also some counter-movements towards limiting the application of ius sanguinis. (b) There is a clear process of convergence between countries with ius soli and ius sanguinis traditions. While traditional ius sanguinis countries (Belgium, Germany, Greece) have introduced or extended ius soli provisions for second and third-generation immigrants, classic ius soli countries (the UK, Ireland) have limited these provisions. Despite this converging trend, ius soli remains hotly contested, particularly in the context of debates of multiple citizenship, not only in countries such as the Baltic States with sizeable national minorities, but also in Western Europe (Austria, Denmark, Norway).8 Having this in mind we will analyze the differences between three European countries with a large number of migrants, with focus on latest developments and regulations of the issue of citizenship.
Spanish Civil Code Article 18 The continuous possession and use of Spanish nationality during ten years, in good faith, and based on title registered before the Civil Registry, is cause for the consolidation of the nationality even if the title that originated it is void. Article 22 1. To grant the concession of nationality by residency, this residency should have lasted for ten years. Five years will be enough for
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those who have obtained refugee status, and two years in the case of nationals by birth from Latin American countries, Andorra, the Philippines, Equatorial Guinea or Portugal or of Sephardim. French Civil Code Art. 21-17 (Act no 93-933 of 22 July 1993) Subject to the exceptions laid down in Articles 21-18, 21-19 and 21-20, naturalisation may be granted only to an alien who proves an usual residence in France for five years before the submission of the request. Art. 21-18 (Act no 73-42 of 9 Jan. 1973) The probationary period referred to in Article 21-17 shall be reduced to two years: 1 As regards the alien who has successfully completed two years of university education in view of getting a diploma conferred by a French university or establishment of higher education; 2 As regards the alien who gave or can give significant services to France owing to his competences and talents. Art. 21-24 (Ord. no 45-2441 of 19 Oct. 1945) Nobody may be naturalised unless he proves his assimilation into the French community, and specially owing to a sufficient knowledge of the French language, according to his condition and of the rights and duties conferred by French nationality" (Act no 2003-1119 of 26 Nov. 2003). German Nationality Act Section 3 [Acquisition of citizenship] (1) Citizenship is acquired 5. for a foreigner by naturalization (Sections 8 to 16, 40b and 40c). (2) German citizenship shall also be acquired by any person who has been treated by German public authorities as a German national for 12 years and this has been due to circumstances beyond his or her control. In particular, any person who has been issued a certificate of nationality, a passport or a national identity card shall be treated as a German national. Acquisition of citizenship shall apply as of the date when the person was deemed to have acquired German citizenship by treating him or her as a German national. The acquisition of German citizenship shall extend to those descendants who derive their status as Germans from the beneficiary pursuant to sentence 1. Section 8 [Discretionary naturalization] (1) A foreigner who is legally ordinarily resident in Germany may be naturalized upon application provided that he or she 1. possesses legal capacity pursuant to Section 80, sub-section 1 of the Residence Act or has a legal representative, 2. has not been sentenced for an unlawful act and is not subject to any court order imposing a measure of reform and prevention due to a lack of criminal capacity, 3. has found a dwelling of his or her own or accommodation and 4. is able to support himself or herself and his or her dependents.

In order to have a right to ask for a citizenship, all three countries require the foreigner to be legally resident in the country for a certain number of years, the number differs from country to country: Spain 10, France 5 and Germany 12. The countries make exceptions for different cases/countries, Spain for Latin America, Andorra, Portugal... and France for countries that used to be its protectorates. What is interesting is that faced with huge waves of migrations the countries are trying to tighten their regulations for gaining citizenship. In this context, Germany has the strictest rules asking for proof for accommodation and financial means, and in the case of children of foreign parents they have to renounce the second citizenship by the age of 23. This year France approved a new decree with which the foreigners asking for a citizenship have to pass a test for knowledge of French language, culture and history. The same trends are visible in Spain too, since the ruling party PP, in its programme last year had a promise to vote a new law introducing a citizenship test about knowledge of Spanish language, history and culture. Also, another specific issue, often argued by fighters for migrants rights, is the notion that France and Germany dont allow non-nationals the right to vote on elections. Two case studies: Fereshta Ludin and France Sikh Turban In order to define the concrete ways the countries are dealing with specific cases of foreigners living in their countries as citizens, but still with a strong connection to their culture and religion we will introduce two cases: first of Fereshta Ludin, of Afghani origin and German citizenship, and second of United Sikhs cases submitted to the UN Human Rights Committee.

1. Benhabib stresses the first case: An elementary schoolteacher in Baden-Wurttemberg, Fereshta Ludin, of Afghani origin and German citizenship, insisted on being able to teach her classes with her head covered (see Emcke 2000, 280285). The school authorities refused to permit her to do so. The case ascended all the way to the German Constitutional Court (BVerfG) and on September 30, 2003, the court decided as follows. Wearing a headscarf, in the context presented to the court, expresses that the claimant belongs to the Muslim community of faith (die islamische Religionsgemeinschaft). The court concluded that to describe such behaviour as demonstrating a lack of qualification (Eignungsmangel) for the position of a teacher in elementary and middle schools clashed with the right of the claimant to equal access to all public offices in accordance with article 33, paragraph 2 of the Basic Law (Grundgesetz), and also clashed with her right to freedom of conscience, as protected by article 4, paragraphs 1 and 2 of the Basic Law, without, however, providing the required and sufficient lawful reasons for doing so (BVerfG, 2BvR, 1436/02, IVB 1 and 2). While acknowledging the fundamental rights of Fereshta Ludin, the court nevertheless rejected her plea and transferred the final say on the matter to the democratic legislatures. The responsible provincial legislature is nevertheless free to create the legal basis [to refuse to permit her to teach with her head covered] by determining a new within the framework set by the constitution the extent of religious articles to be permitted in the schools. In this process, the provincial legislature must take into consideration the freedom of conscience of the teacher as well as of the students involved, and also the right to educate their children on the part of parents as well as the obligation of the state to retain neutrality in matters of worldview and religion (BVerfG, 2BvR, 1436/02, 6).9 2. In 2008, United Sikhs submitted the cases to the UN Human Rights Committee (UNHRC). MRG submitted amicus briefs in December 2008 to the UNHRC in cases regarding the failure to renew residency cards and passports due to the applicants wearing a turban in the relevant passport or residency card photographs.10 In January this year UNITED SIKHS held a media conference to announce the UN decision that France violated religious freedom by banning religious signs on ID documents, in a first UN case brought by UNITED SIKHS lawyers against France, since the law was passed in 2004 banning religious signs in schools, including the Sikh turban. As they announce in their press release: The Sikh community globally is very encouraged by the UNs ruling on Frances ban on the turban. The decision of the UN Human Rights Committee is significant to Sikhs who regard the Turban as an integral part of their being. A Turban wearing Sikh never removes his Turban, as is evident from the most public Sikh person, Indian Prime Minister, Dr Manmohan Singh.11 Conclusion If we start our thought with the Universal Declaration of Human Rights, considered to be the highest legal document aimed to protect human rights and its exclusion (not mentioning) of the right to immigrate in a country and end it with the recent developments in the world, especially EU, regarding the atmosphere of voting new laws with stricter regulations for foreigners asking for a citizenship, we can easily conclude that in a world which is moving towards globalization and multiculturalism, the countries more than ever are trying to protect their citizens from the so
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Minority Rights, http://www.minorityrights.org/552/key-mrg-legal-cases-undertaken-since-2002/key-mrg-legal-cases-undertakensince-2002.html#france United Sikhs, http://www.unitedsikhs.org/

called others. Or as Benhabib explains her view of cosmopolitism: While the paradox that those who are not members of the demos will remain affected by its decisions of inclusion and exclusion can never be completely eliminated, its effects can be mitigated through reflexive acts of democratic iteration by the people who critically examine and alter its own practices of exclusion. We can render the distinctions between citizens and aliens, us and them, fluid and negotiable through democratic iterations. Only then do we move toward a postmetaphysical and post-national conception of cosmopolitan solidarity which increasingly brings all human beings, by virtue of their humanity alone, under the net of universal rights, while chipping away at the exclusionary privileges of membership.12

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