Unblocking access to citizenship in the global South: Should the process be decentralised?

Promises and Pitfalls of Decentralised Naturalisation

Rainer Bauböck (European University Institute, Florence and Austrian Academy of Sciences, Vienna)

Bronwen Manby’s proposal for decentralising naturalisation builds on the idea that local communities may often be more welcoming than national governments when it comes to recognising people as de facto members of the community. Manby suggests that devolving the power to determine de iure citizenship to the local level may help to increase rates of naturalisation in countries of the global South. One of the lessons to draw from the debate in this forum is that this strategy needs to be contextualised. Its success will depend, on the one hand, on the nature of the state and its political regime and, on the other hand, on local communities’ openness for including groups stigmatised as foreigners.

Before discussing a therapy, we need to agree on the diagnosis. Manby starts from the observation that many countries in the global South have experienced large scale migrations and refugee movements or host native minorities that were not awarded citizenship after the country gained independence. Naturalisation is, however, generally considered an exceptional privilege and political authorities enjoy wide discretion in granting citizenship. Where large populations reside permanently in a territory without having access to citizenship, this is bad for the individuals concerned, since it deprives them of security of residence and a say over their future. It is also bad for the country since it means that its politicians don’t have to listen to entire sectors of the population and represent their interests.

The political value of citizenship in the global South

Irene Bloemraad raises the question of how beneficial it is to acquire the citizenship of poor and unstable countries. Comparative scholars studying naturalisation have noticed that immigrants from the global South in countries of the global North experience a greater improvement of their economic prospects through naturalisation compared to North-North migrants. This suggests that the economic value of naturalisation in South-South migrations may also be rather low. Even more obviously, as Yossi Harpaz shows, where middle class people in countries with “second-tier” citizenships can choose to obtain a second passport without moving to the state issuing it, they will dig up their ancestral roots in a country with “first-tier citizenship” rather than in a poor one. For similar reasons, as documented in Jelena Dzankic’s recent book, demand for passports in those countries that offer them for sale to global investors is highest in countries like Cyprus and Malta, where it comes with the benefits of EU citizenship.

Yet, as this forum has shown, the value of citizenship is not merely determined by the number of countries one can travel to without visa. Citizenship involves a claim to protection by a particular government and, as Christine Hobden emphasises, a claim to political equality. Not every citizenship has this kind of value. That of North Korea doesn’t. There are countries where only regime change can give back value to citizenship. Yet promoting the protective value of citizenship and the inclusion of currently excluded groups must be high on any agenda of furthering democracy and development throughout the global South.

The problem of blocked access to citizenship is, however, not unique to the global South. My own country, Austria, has had a naturalisation rate of just 0.7 percent for the last ten years.[1] In recent elections in Vienna, 30 percent of residents in the capital were disenfranchised because they did not have Austrian citizenship.[2] While democracy suffers a legitimacy deficit everywhere if large populations remain excluded from citizenship, the protective function of citizenship is comparatively more important in countries with weaker rule of law and political institutions where non-citizens can easily become the scapegoats for government failure. The problem we are discussing in this forum is thus a big one in the global South and it ought to be addressed.

Looking at naturalisation through two lenses

A second question raised by Amal de Chickera in one of the strongest interventions in this forum, is whether facilitating naturalisation is the right answer where the problem is a denial of the right to nationality that a group has previously held. When minorities perceived as undesirable are deprived of citizenship and children born in the territory remain stateless, governments should be pushed to respect a human right to nationality instead of being encouraged to grant these excluded people naturalisation. In de Chickera’s view, naturalisation is by its very nature “a discretionary process far removed from rights” and governments should not be let off the hook by allowing them to decide whom they want to grant citizenship. Focusing on naturalisation as an answer risks legitimising ex post the violation of the human right to a nationality. De Chickera himself concedes, however, that naturalisation may be the right response to “situations of first-generation migration or displacement. But here too, we should make a greater effort to begin scrutinising naturalisation powers and processes through a human rights lens.”

Let me suggest that we can see the problem in full depth only if our spectacles combine a human rights lens for one eye with a democratic inclusion lens for the other one. Looking through the first one will show us which norms apply universally and ought to be fleshed out in international law. These include indeed strong protection against citizenship deprivation and statelessness and they cover also norms against discrimination in naturalisation, e.g. on grounds of gender, race or ethnicity. Yet this does not address concerns about large populations of migrants who do possess a citizenship of origin and are barred from becoming citizens of their host country by strict, but not overtly discriminatory, naturalisation conditions and highly discretionary procedures. Looking through the human rights lens points us towards courts, and especially international ones as the institutions that are called on to address the problem, as Diego Acosta argues for the Latin American context.

If we now squint through the second lens, we will see instead governments that require some kind of legitimacy in the eyes of the people over whom they govern. The conundrum is that through their citizenship laws states define who belongs to the people in whose name their government claims to rule. To escape the paradox of democratic boundaries that lurks behind this, citizenship laws must be sufficiently inclusive and politically widely supported. This cannot be achieved through court decisions and external pressure alone. It requires instead mobilising internal resources for inclusion within the society and forcing government institutions to be responsive.

This is what I think Manby’s proposal tries to achieve by betting on the social dynamics of inclusion from below, at the local level. Looking through this second lens will provide support not only for ius soli for otherwise stateless children, but also for those born and raised in the country who inherit another citizenship from their parents. And it would strengthen the case for changing the nature of naturalisation from a discretionary grant to an entitlement for those who meet a set of reasonable conditions specified in the law.[3] At the same time, the democratic argument points to the need for broad popular support for such inclusion, which cannot be legislated but must be brought about by intermediary actors and through political campaigns, as Erin Aeran Chung shows in her comparison of South Korea, Taiwan and Japan. Authoritarian regimes like the Chinese one with a population that is generally hostile towards foreigners do not make for promising settings, as Sanzhuan Guo explains.

I think this democratic lens provides a helpful complementary view even where statelessness is the issue. Consider the case of Latvia, mentioned by de Chickera. When Latvia seceded in 1990 from the Soviet Union, by which it had been unlawfully annexed in 1940, it was not entirely unreasonable to turn only those automatically into citizens who had already been Latvian citizens in 1940 or would have been so by descent from Latvian parents if the country had not been swallowed up. Unlike the long-established Russian minority from the pre-war period, the large population of ethnic Russians who had settled in Latvia during the period of annexation could be reasonably expected to show their loyalty and commitment to the newly independent state by applying for naturalisation. What was wrong in this case was not naturalisation as the pathway to citizenship, but the conditions that made it very difficult for Russian speakers to acquire Latvian citizenship. As a result, in 2018 more than 10% of the country’s population were still stateless.

The case of the Rohingya is clearly different, since it involved indentured labour migration from North India to Burma under British rule, and the establishment of administrative boundaries that cut through pre-existing communities, rather than territorial annexation by a powerful neighbour. The Rohingyas’ citizenship in Myanmar should therefore be recognised instead of being made conditional upon naturalisation. Sujata Ramachandran discusses Bengalis in Assam, some of whom may have arrived as irregular migrants from Bangladesh, but many of whom are legally citizens and have in the past been registered as voters. The key point is that these are cases of denial or deprivation of a citizenship status that had previously been already recognised de facto or de iure. Where membership claims remain unclear, a human rights goal of overcoming statelessness may be best achieved through a process of regularisation with a guaranteed pathway to citizenship through naturalisation. Building a political consensus that these people have already become de facto members of the community will be as important in bringing about such a solution as insisting on their human right to a nationality.

Four pitfalls to be avoided when decentralising naturalisation

Most contributors to this forum are, however, sceptical that decentralisation will help to facilitate access to naturalisation. Based on their expertise on specific countries, regions or historical periods they raise many objections against giving local authorities the power to determine who will become a new citizen. I will take a slightly different approach. Instead of demonstrating why Manby’s proposal is unlikely to work in a particular context, I will try to extract from this debate the general arguments under which conditions decentralised naturalisation is likely to be blocked or have perverse effects. This leaves the space open for two positive conclusions. First, there may be contexts in which these negative conditions are absent or sufficiently weak to make pursuing this strategy worthwhile. Second, once we know the pitfalls, it may be possible to avoid them. I don’t have sufficient expertise on the contexts for citizenship policies in countries in the global South to flesh out either of these positive responses. All I hope to show is that, in the absence of plausible alternative strategies, Manby’s proposal may survive the critiques and become even stronger once they have been taken on board.

Decentralisation may generate more exclusion

The first caveat is the most obvious one. Decentralisation must not lead to even more exclusion than a current centralised procedure does. Barbara von Ruette explains how the Swiss federal citizenship law specifies the rules for acquisition by birth and for loss of citizenship as well as minimum conditions for naturalisation, but lets the cantons and municipalities add more naturalisation requirements and apply their own procedures. The effect is not only strong inequality of conditions for naturalisation in different parts of the country but probably also lower numbers overall than could be achieved if the federal conditions were sufficient and uniformly applied.[4] Switzerland is a unique case of a confederation in which federal citizenship is formally derived from local and cantonal citizenship rather than the other way round as in all other modern federal states. There is thus no reason to fear that decentralisation in other countries would follow a Swiss logic. But the cautionary lesson is still important and suggests that national level legislation should set not only minimum but also maximum conditions for naturalisation and monitor their application through national courts (as Manby herself says). Luicy Pedroza suggests a similar approach to decentralised procedures when arguing that national laws should allow local authorities to exercise discretion only in favour of the applicant but not when undercutting national standards.

Hobden mentions another reason why decentralisation may lead to even higher barriers for naturalisation than central state procedures. Where societies have become infested with pervasive xenophobia, local governments may be under greater pressure to restrict access to citizenship than more remote national authorities, and local witnesses may not dare to step forward in support of applications. As Bloemraad points out, the local ‘warmth of welcome’ matters. Yet often it is the national government that instigates xenophobia to mobilise nativist political support and deflect from its failures. Where this is the case, decentralisation cannot guarantee access to citizenship throughout the country, but may open it up in parts of the territory where central government control is weaker.

Decentralisation makes access to citizenship more unequal

A second worry about decentralisation is closely related to the first. As pointed out by Bloemraad, Ramachandran and several others, even if it might unblock naturalisation for more people, it is likely to make the conditions for access highly unequal. Since citizenship is a status of political equality, should we be willing to accept a trade-off between more persons being admitted and stronger inequality of access?

Hobden puts this objection most forcefully when arguing that democratic principles require keeping the differences in access to citizenship to a minimum in order to protect the core value of political equality. Yet, as she notes herself, access to citizenship is already highly unequal for those who get it automatically at birth and those who have to apply for naturalisation. Moreover, virtually all citizenship laws in democratic countries grant fast-track access to citizenship to certain categories, e.g. if they are the children or spouses of citizens. Unequal conditions for access to citizenship need not be unfair as long as they reflect the different strength of claims. If decentralised determination of citizenship leads to better access for people whom a local community recognises as belonging this does not have to be an arbitrary selection criterion and could in fact produce greater equality of respect between old and new citizens within the local community.

There are, of course again strong caveats here. It is one thing to fast track some naturalisations based on local recognition and quite another to exclude others on grounds of local non-recognition. Maybe decentralisation should thus be used only for facilitated naturalisation with a state-wide procedure for ordinary naturalisation remaining under central administrative control? When assessing this proposal, we must keep in mind that not only in countries of the global South, but also in some old democracies in the North (including Austria) fewer people acquire citizenship via so-called ordinary naturalisation based on length of residence in the territory than are granted facilitated naturalisation. This means that unblocking access to citizenship through decentralisation may do more to boost numbers than strengthening uniform national standards for ordinary naturalisation.

This proposal differs from Imke Harbers’ interesting argument about two pathways to citizenship in Mexico. As she explains, naturalisation is a centralised process for few and better-off immigrants, whereas access to citizenship through late birthright certification is already decentralised and helps to include larger populations born to irregular migrant parents. But we need to find also a pathway for first-generation immigrants. For them, it would be important to strengthen a procedure for ordinary naturalisation at central state level while also opening up facilitated naturalisation at local level, tapping into the same resources required for local birth registrations. When considering any such proposal, inequality of access should be a lesser concern than overcoming exclusion.

Decentralisation may produce unequal citizenship statuses

A third concern follows from the second one and is clearly articulated by Pedroza: “More than the risk of unequal processes across localities, I worry that decentralised processes may produce unequal citizens.” Involving the local community in admitting new citizens may make it more likely that they will be accepted as equal members, but it may also make it less likely that such locally created citizenships will be recognised throughout the country. Ramachandran likewise points out how local practices of inclusion of Bangladeshi migrants in Assam through issuing ration cards and voter registration arose suspicion towards the holders of these documents and may even have contributed to a backlash against them in the region.

This is a very serious worry. While inequality of access to citizenship is often inevitable and sometimes justified, it must not carry over into inequality of citizenship rights and status. But this concern does not only arise where naturalisation is decentralised. As mentioned by Pedroza, in Latin America naturalised citizens do not enjoy the same political rights (especially in access to public offices) as birthright citizens do.

Maybe the example of the European Union can be helpful to point towards an answer. EU citizenship is derived from Member State nationality, access to which is fully decentralised to each state. In its Micheletti judgment, the Court of Justice of the EU obliged Member States to recognise all those who have been turned into EU citizens by any other Member State under that country’s own national rules. And EU law prohibits discrimination on grounds of nationality of mobile EU citizens who take up residence in another Member State. These rules have been necessary to create an area of free movement between states that jealously guard their sovereign right to determine their own citizens. The model has its limits because it lacks even minimum standards for acquisition of the common citizenship of the Union and because it has to rely heavily on the authority of the court to interpret the rights of citizens. But it still illustrates that equal recognition of a citizenship obtained under unequal conditions in a highly decentralised procedure is possible.

Instead of considering potential non-recognition of decentralised naturalisation as a knockdown objection, we should consider how this problem could be tackled in particular national contexts. Some of these will be very unfavourable and it may then indeed be unwise to push for decentralised naturalisation. Yonatan Fessha’s analysis of ethnoterritorial federalism in Ethiopia, where decentralising naturalisation could strengthen titular majorities and deepen the exclusion of ethnic minorities, provides clear enough objections. Yet in national contexts that are less unfavourable it may still be worthwhile to consider how nation-wide recognition for decentralised naturalisations could be achieved.

Decentralisation facilitates abusive mass naturalisation

The final worry that I find in the contributions to this forum is that local naturalisations may not perpetuate exclusion from or inequality of citizenship, but provide instead political leaders with opportunities to increase the number of their voters. Based on historical reports about decentralised naturalisation until the early 20th century, Bloemraad points to the experience that local political outreach to immigrants “could be rife with corruption and graft as politicians hustled for supporters”. This concern is as old as citizenship itself. Already Aristotle warned that democratic leaders “habitually add in as many men as possible and make them all citizens”.[5] We may wonder, though, how this problem is associated with decentralisation. Mass naturalisation can also be used as a political tool by central state leaders. The answer seems thus that naturalisations should generally be a process of admission to citizenship based on individual applications and vetted by public administrations according to criteria laid down in the law, no matter whether these administrations are local or national ones. Naturalisation decisions should never be a prerogative of executive leaders, as is unfortunately often the case in African and Asian states. And just as presidents should not be able to create new citizens according to their personal whims or political interests, such powers should also not be transferred to local mayors.

Yet this answer is still incomplete. There are circumstances when citizenship needs to be bestowed on larger groups in order to overcome a situation of protracted exclusion. Alfred Babo mentions the case of mass naturalisation of 8000 Burkinabe (descendants of immigrants from Burkina Faso) in Côte d’Ivoire in 1995 many of whom were arguably already Ivorian under the law, although not formally recognised as such. Collective inclusions will often be regarded by political opponents as self-serving policies to boost support for incumbents. And where such groups are locally concentrated and clearly marked as ethnic minorities, decentralised mass naturalisation may become politicised in a nasty way. Again, this is a contextual caveat rather than a general objection.

The presence of very large and distinct groups excluded from citizenship raises a more general conundrum. Naturalisation is meant to be a process through which individuals join an existing community of birthright citizens. The higher the percentage of non-citizens in the population, the more urgent the problem of their exclusion, but the more disruptive massive naturalisations will be in political terms since they challenge the very idea of integration into a pre-existing community. Decentralisation presupposes a relatively stable national context and can obviously not provide a solution in such circumstances. Instead, just as when new states are formed, citizenship may have to be reset altogether. Consider the Arab Gulf states discussed by Lillian Frost where majorities of the population consist of non-citizens who had originally been imported as temporary migrant workers. A democratic transition in such countries could not keep them excluded. Under which conditions would current citizens be willing to acquiesce and become a minority? In a context very different from that of massive immigration changing the demography of a receiving country, the abolition of apartheid in South Africa provided a rare hopeful example how an exclusionary citizenship regime can be peacefully replaced with an inclusive one. Its lesson is that it takes responsible leadership to avoid mayhem in such transitions.

Tapping into the resources of local citizenship

In the preceding GLOBALCIT forum I asked whether local citizenship should be denationalised by disconnecting it from national citizenship. In our current debate Manby asks the converse question whether access to national citizenship should be localised, which presupposes that the two levels of citizenship be connected. I think that it is still possible to answer both questions affirmatively. Local citizenship can offer resources of solidarity among residents independently of their origin and place of birth. Turning local citizenship into a recognised status of all residents that comes also with local voting rights can complement a national citizenship based on birthright that immigrants can acquire only through individual naturalisation. However, where access to national citizenship is denied to large groups, tapping into the resources of local citizenship could help to unblock this route to citizenship. This strategy will not work in many contexts and the contributions in this forum have shown why. They have not shown that it should be abandoned altogether.  

[1] This means that each year only 7 out of 1000 non-citizen residents have acquired Austrian citizenship.

[2] As Vienna is also a federal province, citizens of other EU countries can vote in urban districts but not at the city level.

[3] Ordinary naturalisation is formally an entitlement in quite a number of Northern states (e.g. Belgium, Canada, Germany, Netherlands, Portugal) and, as Diego Acosta mentions, also in some South American ones (Chile and Argentina).

[4] This is, however, not entirely clear. A comparison with Austria, a neighbouring country of similar size and immigration history, shows that the latter’s much more centralised naturalisation regime in which the nine provinces are in charge of implementing the same conditions specified in federal law produces considerably lower naturalisation rates than Switzerland’s. Of course, other factors may explain this difference.

[5] Aristotle (1962). The Politics. London Penguin, book VI, iv.