The UK Home Secretary Theresa May announced that she would ask the House of Commons to adopt a controversial amendment to the Immigration bill, which would allow her to withdraw the citizenship of terror suspects, even if this would render Read More …
By EUDO CITIZENSHIP expert Gerd Valchars
Following a report of an allegedly large number of jihadists from Austria in the Syrian civil war (an estimated 80-100 persons), the Austrian Minister of the Interior, the Minister of Foreign Affairs and Integration and the Minister of Justice, all three belonging to the conservative People’s Party (ÖVP), announced plans to strip such fighters of their Austrian citizenship. As a first step, the citizenship act would have to be amended, as the current provisions (articles 32 and 33) only provide for a loss of citizenship by persons serving in the public or military service of a foreign country. The planned amendment would extend this to “persons participating in armed conflicts in a foreign armed group” (“Personen, die sich an bewaffneten Konflikten einer ausländischen bewaffneten Gruppierung beteiligen”) if these persons are dual nationals, as statelessness would be in contradiction to international law. Nonetheless, as a second step the ministers consider extending deprivation also to persons with only Austrian citizenship. Acknowledging the potential conflict with international law they intend to “start discussions with the relevant international institutions”. There seems to be some confusion as to which these relevant international institutions could be since the Minister for Foreign Affairs and Integration mentioned “the EU-level” but neither the UN nor the Council of Europe, which are the International Organisation that have actually adopted the relevant conventions. The Minister of the Interior explained the motivation for the plan as follows: “Austrian citizenship is of great value and must not abused by Islamists” (“Das hohe Gut der österreichischen Staatsbürgerschaft darf durch Islamisten nicht missbraucht werden”).
Until now the Austria law (Art. 32) provides the possibility to deprive a person of his or her nationality if such person enters, on his own free will, the military service of a foreign state. In these cases even statelessness is accepted as Austria declared reservations in this respect when ratifying the UN Convention on the Reduction of Statelessness in 1972. A second provision (Art. 33) allows for withdrawal of citizenship if the behaviour of a person employed by a foreign state seriously damages the interests or the reputation of the Austrian Republic.
Further measures in the Ministers’ „five point action plan“ consist of withdrawing protection status from refugees fighting in armed conflicts; denying minors the right to leave the EU without the consent of their parents; and creating a “de-radicalisation hotline”.
The proposed measures would need consent by the co-ruling Social Democrats.
Read more in Die Presse, ORF and Krone.
Read a critical commentary regarding the populist aspect of these planned measures in Der Standard.
Compare with the Convention on the Reduction of Statelessness, New York, 30 August 1961.
How much does European citizenship cost in the EU? This was the question that has raised so much controversy over the Maltese citizenship-for-sale programme. The outright selling of Maltese nationality to rich foreigners led to unprecedented responses by the European Read More …
In this Essay, Professor Patrick Weil reexamines the constitutional function of the passport in relation to American citizenship. The State Department recently developed a policy of passport revocation whereby some Americans are transformed into de facto stateless persons, like Edward Read More …
Western societies show varying reactions to the challenges of immigration. This is especially true with regards to voting rights for immigrants. This article shows that previous research has neglected generalized trust as a powerful predictor for different degrees of inclusiveness Read More …
This special issue brings together scholars from various disciplines to explore current issues and trends in the rethinking of migration and citizenship from the perspective of major immigrant democracies – Australia, Canada, and the USA. These countries share a history of Read More …
Present-day Americans feel secure in their citizenship: they are free to speak up for any cause, oppose their government, marry a person of any background, and live where they choose—at home or abroad. Denaturalization and denationalization are more often associated Read More …
Culling the Masses questions the widely held view that in the long run democracy and racism cannot coexist. David Scott FitzGerald and David Cook-Martín show that democracies were the first countries in the Americas to select immigrants by race, and Read More …
By EUDO Citizenship expert Anuscheh Farahat
The ‘option model’ in German nationality law has been highly disputed ever since its introduction in January 2000. Under the ‘option model’ children of foreign parents may acquire German nationality if they are born in Germany. However, this ius soli is conditional upon two requirements. At least one of the parents must have had habitual legal residence in Germany for at least eight years and he/she must either possess a permanent residence permit or have exercised freedom of movement as an EU citizen. If both conditions are fulfilled, children of such parents acquire German nationality in addition to the nationality acquired by decent. However, their status as German citizens is precarious. Unlike the children of bi-national couples (consisting of one German and one foreign national), who acquire both nationalities by descent, between the age of eighteen and twenty-three the children of two foreign nationals are required to renounce their foreign nationality in order to keep the German one. This is because when ius soli was introduced for the first time ever in 2000, the new law did not abandon the principle of avoiding multiple nationalities. As a consequence, the nationality status of thousands of young Germans remains uncertain, since they lose their German citizenship automatically if they do not prove that they have renounced their foreign nationality. Moreover, even when they opt for the German citizenship, they often face severe bureaucratic obstacles and financial burdens in proving the renunciation of their foreign nationality. Many migration lawyers have since criticised the model for creating a second-class nationality status for children of immigrants and thereby denying them full inclusion into the German society. It has been argued that the ‘option model’ violates Articles 3 of the German Constitution (Grundgesetz), because it disadvantages ius soli children compared to children of bi-national couples (Wallrabenstein 1999:223; 2008:5). Moreover, it is debatable whether the ‘option model’ is compatible with the jurisprudence of the ECJ on EU citizenship, particularly the conditions for loss of EU citizenship set out in the Rottmann case (C-135/08). Some migration lawyers have argued that the automatic loss of the German passport in cases where the ius soli child either does not declare anything or cannot prove the renunciation of the foreign nationality is disproportional and not compatible with EU law (Lämmermann 2012: 79).
Fourteen years after its invention, it seemed as if the ‘option model’ was about to disappear when the new German government signed their coalition agreement in autumn 2013. The social-democrats intended to allow for multiple nationalities in general, both in cases of birthright acquisition and of naturalisation. In contrast, the two Christian parties (CDU and CSU) were against any changes of the current legislation. According to the compromise they reached, the current naturalisation rules will be left untouched, but the duty to opt between the German and foreign nationality will be abolished for children who ‘were born and raised’ in Germany. Thus, multiple nationalities will thereby be accepted for most ius soli children. However, soon after the new government took office the coalition partners started an argument about the meaning of ‘born and raised in Germany’. The representatives of the CDU and CSU claimed that only children who demonstrate a particular link to the German society should be allowed to keep both nationalities. Finally, the coalition agreed upon a draft bill according to which the ‘option duty’ will be waived for children of immigrants born in Germany who have either eight years of residence in Germany before turning twenty-one or have attended a German school for at least six years (while the residence requirement for the parents remain the same). To be more inclusive, the law would treat graduation from a German school and completion of professional education in Germany as sufficient. In cases when none of these criteria can be fulfilled, a ius soli ‘child’ may be able to prove a comparable close link to Germany, on the condition that the duty to opt would impose a particular hardship in the individual case. Accordingly, the citizenship administration will have to decide on a case by case basis whether the children are exempted from the ‘option duty’ and can keep both citizenships.
The German government considers this legislative proposal as an important step toward the acknowledgement of factual ties of children who have spent most of their childhood in Germany. According to it, the goal to avoid multiple nationalities shall give way to that of full integration of persons who have been born and raised in Germany. An estimated number of 40,000 young Germans per years will benefit from the new regulation as from 2018. Hence, if the bill is adopted as introduced this would clearly improve the situation of the vast majority of ius soli children.
However, given the heated debate on multiple citizenship and integration over the last years, it does not come as a surprise that the new bill was met with immediate criticism from judges and migration lawyers. The parliamentary opposition criticises the remaining bureaucratic hurdles and costs associated with the examination of the criteria for being raised in Germany. Immigrant groups, such as the Turkish Community in Germany (Türkische Gemeinde), are concerned that children of immigrants are only half-heartedly welcomed and still face symbolic hurdles on their way to full and equal membership. The New Association of Judges (Neue Richtervereinigung) argues that an outright abolition of the ‘option model’ would have been preferable and would have removed uncertainties and second-class nationality altogether. Finally, church representatives argue that the preservation of the ‘option model’ is a challenge to legal equality and poses serious problems during the identification process of young Germans.
German migration law has improved a lot over the last decade. Most importantly, the new residence act (Aufenthaltsgesetz) of 2005 views every immigrant as a potential permanent resident, independently of the purpose of an immigration status (protection as a refugee, qualified worker, family member etc.). Thus, every immigrant may – in principle – become a permanent resident after five years and eventually qualify for naturalisation, which is a significant improvement from before 2005, when only some immigration status allowed the acquisition of a permanent residence permit. Even though this was an important step toward acknowledging the fact of being an immigration country for decades, many provisions in German citizenship law still embody the conception that acquisition of nationality by immigrants and their children presupposes social ties and constitutes a reward for successful integration. This conception seems rather outdated, given the fact that we live in a century of increased mobility and also given the need for more immigration for economic reasons. Moreover, international law, and in particular the European Convention on Nationality, has abandoned the principle of avoiding multiple nationalities long ago and developed new tools for dealing pragmatically with potential conflicts in case of multiple nationalities (such as military duties or electoral rights). Even in Germany itself more than fifty percent of the naturalised citizens already can keep their original nationality. Finally, nationality has long lost its crucial role for conveying citizenship in a broader sense: political participation, social protection and even protection against expulsion are also available on the basis of an immigrant status, often depending on the duration of residence and the social ties, but not necessarily on nationality.
The German government was very close to making an important step to finally dispose of the outdated understanding of nationality as a reward for integration in favour of a modern and inclusive regulation of citizenship. With the current proposal, the coalition holds on to the highly symbolic link between proven integration and acquisition of nationality instead of using full membership as a tool to empower and thereby include children of immigrants at the earliest possible moment. Moreover, it is debatable whether the proposed bill is compatible with the ECJ jurisprudence on EU citizenship. One could argue that the new regulation indirectly restricts the freedom of movement, since the applicability of the duty to opt may result from exercising the right to free movement, a core element of EU citizenship. Of course, the new law will definitely improve the situation of many young adults who won’t have to make the difficult choice between two nationalities any longer. Moreover, the proposed bill will enhance the certainty of the status of ius soli children by allowing them to request an early statement that they fulfil the criteria for exemption from the ‘option model’. Consequently, the new bill certainly makes an important step toward tolerating multiple nationalities in general. However – as always in this matter – it is characterised by symbolic requirements and an exaggerated concern for loyalty. This is even more apparent in comparison with the children of bi-national parents who may keep their dual nationality even if they were neither born nor raised in Germany. Actually, even in symbolic terms, the option model is self-defeating as any child to whom it applies can opt for German nationality even if it has only been born, but not raised in Germany at all. Hence, loyalty and actual bonds may not be things that can be ascertained by the exercise of the duty to opt or by the attendance of a German school. The new bill, however, does not dispense of this redundant understanding of nationality and loyalty. Instead it introduces an ‘option model’ light, which – admittedly – will only be applicable to few cases in the future, but which nonetheless sends the message that citizenship must be earned – at least for some!
Sources:
F. Lämmermann, Unionsbürgerschaft und Optionspflicht – ein Widerspruch?, Zeitschrift für Ausländerrecht und Ausländerpolitik (ZAR) 2012, p. 75-80
A. Wallrabenstein, Das Verfassungsrecht der Staatsangehörigkeit (1999)
A. Wallrabenstein, Stellungnahme im Rahmen der Anhörung des Innenausschusses zum Staatsangehörigkeitsrecht,A-Drs. 16(4)311 B (2008).
The commentary is reproduced also in the Verfassungsblog.
by EUDO Citizenship Expert András Bozóki
Forthcoming article in IWMpost 2014/1, reproduced with permission of The Institute for Human Sciences (IWM), Vienna
Hungary’s parliamentary elections in April saw a 61% turnout, the lowest since 1998. The high abstention rate was a sign of disaffection with Hungarian politics: four-tenths of the electorate believed it was left without a genuine political choice.
Fidesz, the rightwing populist party led by Viktor Orbán, received 45% of the votes, giving it a strong mandate to continue to govern. Thanks to the disproportional voting system introduced by Fidesz, the party retained its two-thirds parliamentary majority. However, of a total of 8 million citizens eligible to vote, only 2.1 million cast their ballot for Fidesz; this was 8% (or 600,000 voters) less than in 2010. Orbán’s description of the new electoral system as the manifestation of “national unity” is therefore clearly implausible. However, Orbán’s charismatic leadership and his anti-European, Christian-nationalist rhetoric have managed to forge an alliance between conservative voters and the lower middle class, which expects the state to halt its existential decline. In 2002 and 2006 – when the previous election system was still in place – this solid, two million-strong voter base didn’t suffice for a Fidesz victory. This time, it secured the party a supermajority.
The alliance of leftist opposition parties came second with 26% of the vote. Led by Attila Mesterházy, the alliance is made up of the Hungarian Socialist Party (MSZP), Together (Együtt), Dialogue for Hungary (PM), the Democratic Coalition (DK) and the Hungarian Liberal Party (MLP). Since the previous elections, the alliance has managed to increase its vote by nearly 300,000, receiving a total of 1.2 million votes. Nevertheless, its performance at the polls is seen as a crushing defeat. In the last four years, the left has been unable to reinvent itself from the ground up. It has failed to communicate a clear identity or program; its leaders, who are engaged in constant rivalry, decided to field a joint list only at the last minute. The primary message of the alliance was a desire to run Viktor Orbán out of office; it had nothing to offer in terms of a genuine and positive vision. The list was dominated by MSZP politicians, held responsible by voters for the policy failures in the period up to 2010. Following their defeat, the leaders of the coalition parties announced that they would be running separately in the European parliamentary elections in May.
The third place went to far-right party Jobbik, with 20.5% of the vote. This represents some one million voters, 3% (100,000 votes) more than in the previous election. The results for individual constituencies show that in half the country Jobbik beat leftwing candidates. Several newspapers commented that the elections were a great victory for Jobbik, which promotes Hungarian nationalism, radicalism, anti-globalization and racism. Analysts blamed Orbán for the growing support of rightwing extremists and said that Europe could no longer ignore the far-right. In the months before the elections, Jobbik assumed a more moderate tone, campaigning with the slogan of “livelihood, order and accountability” and muting its standard racist message. It not only ran successfully in the poorest, north-eastern region of the country, but also managed to gain new positions in counties in the west. Today, Jobbik is a party with a national presence and the potential to capture the political center.
The green party, Politics Can Be Different (LMP), came last with 5.2% of the vote. Although this falls short of the party’s 2010 performance, it may grant green policies a new lease on life. Keeping an equal distance from both the rightist and the leftist bloc, LMP sent a middle-of-the-road, anti-establishment messages to its voters during the campaign.
The OSCE found that the elections themselves were effective and largely transparent, however cast doubt on the legitimacy of Orban’s landslide victory, commenting on the “undue advantage” enjoyed by Fidesz and the lack of freedom for the opposition during the campaign. The European Parliament, the European Council, the United States, and several EU member states have also openly criticized this abuse. The German government demanding that Orbán observe “fundamental rights” and govern responsibly. The Financial Times leader column suggested that Hungary’s EU partners could not continue to greet each outrage with embarrassed silence.
The act on electoral procedure was passed without meaningful public debate, in violation of both Hungarian and international practice. Constituency boundaries were shifted around to make leftwing districts more populous than rightwing districts, causing a leftwing vote to carry less weight. Different rules apply to Hungarian nationals abroad and so-called “Trianon” Hungarians living beyond state borders. Moreover, under the new system extra mandates are added to the list of the winning party receives, which makes the regulation extremely disproportionate. These rules violate the principle of equal vote. There has also been a failure to properly regulate a number of important areas connected to campaign financing, such as the campaign activities of satellite organizations. Using public funds, Fidesz outsourced part of its campaign to a civic organization with close ties to the party, the Civil Alliance Forum (CÖF). Thanks to new financing regulations, the transparency of the system and its accountability has been compromised.
The Media Council set up by Fidesz is not politically neutral. The acquisition of media companies by investors with close ties to Fidesz undermines the plurality of the media and forces journalists to self-censor. Regulations introduced by Fidesz prohibit commercial television stations from running financed promotions, which did not stop government ads being aired. The majority of television channels broadcast reports that are biased towards Fidesz. Together, these factors grant the government significant and unfair advantages and restrict citizens’ access to proper information. The result has been a loss of public confidence in the electoral system. Not only Fidesz as a party campaigned, as it is usual in any multiparty democracy, but the Fidesz-controlled state administration “campaigned” too by using taxpayers’ money and creating an uneven playing field. The boundaries between party and the state became blurred. This violates the principles about fair competition laid down in OSCE’s 1990 Copenhagen Document.
The lower middle classes and the poor, victims of the discriminative governmental social policies of the past four years, have been compensated with utility-cost cuts. While advertising on utility-cost cuts are delivered regularly to all Hungarian citizens, the burden of special taxes is borne by various segments of the population in isolation. The majority of the public has been convinced by the media that, despite permanent economic stagnation, “Hungary has been performing better” over Fidesz’s four-year term.
Today, the Hungarian public is constantly reminded by its political leaders of the importance of national pride. Individual rights and the democratic institutions that protect them have taken a backseat to constitutionally endorsed policies of collective identity and cultural uniformity. With government propaganda about “order”, “home”, “fatherland” and “family” drowning out all other voices, many are voting with their feet: In the past four years, half a million people have left the country.
Read our earlier news on the issue.
Read a commentary on the final election results by Kim Lane Scheppele and her earlier commentaries on the Hungarian franchise politics
