Why and where local naturalisation may work – a rejoinder
Bronwen Manby (London School of Economics, regional GLOBALCIT coordinator for Africa)
In my introductory piece for this forum, I proposed that, in order to increase access to citizenship for migrants, the process should be decentralised. The vast majority of the responses to my proposal pointed out why this was a bad idea – which is more or less what I expected. In this rejoinder, I consider whether my original idea survives these critiques.
I should state right away that I agree with many of the objections: the proposal needs to be treated with care. Like Barbara von Rütte and Irene Bloemraad, I recognise that a decentralised naturalisation process could be more discriminatory rather than less. Like Sanzhuan Guo, I do not think that decentralised naturalisation is likely to achieve much in a system where citizenship administration is highly securitised and suspicion of foreigners widespread. Like Christine Hobden and Luicy Pedroza, I can see the risks of tiered citizenship rights if differential criteria are created for naturalisation in different localities. Like Sujata Ramachandran, I am concerned that more flexible local integration processes may turn out to be vulnerable to manipulation or reversal by central authorities in the longer run. And like Amal de Chickera, I think that naturalisation should never be proposed as a solution, even as a political compromise, if it forces people to apply to be granted a citizenship that in law they already hold or of which they have been arbitrarily deprived.
If I agree with these criticisms, what are the circumstances in which I nonetheless think that decentralisation of naturalisation may provide a good way forward? Like Rainer Bauböck, I think that national context is the central consideration.
Where might decentralised naturalisation work?
The countries where I think decentralised naturalisation could work are above all those states in Africa where many people are currently without state-issued identity documents of any type – birth certificates, national identity cards, passports – and therefore their legal status as citizens or non-citizens of the country of residence is not clear. My proposal was, however, not for unregulated local autonomy in naturalisations. Rather it seeks a more active deliberation on the proper balance between national level rules and oversight, and local level implementation and certification of membership, and to make those rules and processes more transparent and equitable.
The states where such reforms are most necessary are those that have established descent-based legal regimes, with limited or no rights to citizenship based on birth in the territory, so that particular minorities have been excluded from recognition of citizenship over more than a single generation. The individuals for whom it is most necessary are those who are of mixed parentage, born in a third country, perhaps long-term residents in another; and who hold none of the documents that would enable them to naturalise under current procedures or be recognised as the citizen of any other state. Unless they are recognised as refugees, there is indeed no legal residence status available to them.
In this context, the choice may not be between a centralised system that treats applicants more objectively and equally, and decentralised discrimination; but between types of discrimination. The existing centralised regimes for naturalisation discriminate in favour of the wealthy, who have the income and status enabling them to secure a work or residence permit, access to lawyers, and existing identity documents. A decentralised regime might discriminate against those groups and in favour of people who have shown themselves to be integrated and valued members of the community at local level. This could perhaps rather be described as a form of affirmative action in favour of minorities that have faced past discrimination in access to documents, or more generally, the poor. Nonetheless, there is always the danger that decentralised processes may favour some groups over others, and they may not be a good solution in contexts where there are severe local tensions over access to land and other resources.
There are particular challenges where nationality law is exclusively descent-based and many are currently excluded, as is the case, for example, in Côte d’Ivoire, where Alfred Babo traces the history of controversy over access to citizenship. The risks are even higher where citizenship is also ethnically determined, as it is in practice (though not in law) in Ethiopia, where Yonatan Fessha points out the dangers of decentralisation. Yet even if citizenship is closely linked to ethnicity, decentralised naturalisation could be a solution if well-regulated in law. In Nigeria, for example, the de facto basis of citizenship is a ‘certificate of indigeneity’, similar to the ‘kebele ID’ issued in Ethiopia, and it creates similar problems of discrimination against ‘non-indigenes’. But the flexibility of this system can also allow for the absorption of migrant populations: the problem may lie not in the idea, but in the lack of a legal framework and independent oversight of decision-making.
Ibrahima Kane points out that in the more favourable environment of Senegal, the creation of a formal role for local government could provide a much-needed boost to the integration of foreigners. The empowerment of municipalities could also help to eliminate corruption in nationality administration – by making legal the practices that already take place within the civil registry and judicial system to recognise late registration of birth. Such alternative pathways to citizenship are also widespread in Mexico, as Imke Harbers reports.
Corruption is frequently reported as a concern in Africa in relation to fraudulent access to citizenship documents: in October 2020, the former Malawian minister of home affairs and national security was sentenced to six years imprisonment for the sale of passports. Yet sometimes corruption is enabled by the law itself: in Comoros, a law allowing the grant of ‘economic citizenship’ was transformed into a scheme to impose Comorian citizenship on tens of thousands of stateless Emirati bidoon, and, incidentally, mobilised by Iranians seeking to evade US sanctions. The entirely legal ‘golden passport’ schemes of Cyprus and Malta have enabled corrupt individuals to move freely within Europe. And what is called corruption in the issuing of civil registration documents to ordinary Africans – who wish only to live their lives and lack the means to obtain identity documents through the usual channels – could simply evaporate if practical routes were provided to regularise their legal status.
A key point here, however, is that Senegal’s nationality law is already quite open: the second generation born in the country acquires citizenship automatically at birth (the rule of double ius soli). In Mexico, as in most of the Americas, the law is even simpler: any child born in the territory acquires citizenship at birth. As Diego Acosta argues, naturalisation in pure ius soli states becomes less important. While late birth registration may function as a form of naturalisation in these countries, it is not radically disturbing the idea of the nation. This context is very different from Côte d’Ivoire (the only country of former French West Africa not to adopt double ius soliat independence) or Ethiopia. If nationality laws already provide only very weak rights based on birth in the territory – as in Switzerland – then it seems that naturalisation will also be difficult to access, at whatever level of government it is carried out. Nevertheless, Barbara von Rütte acknowledges that decentralised naturalisation in Switzerland can help to create ‘a feeling of ownership for citizenship at the local level’. Even if naturalisation remains a centralised decision, local governments can still play an effective role in facilitating access, as Erin Aeran Cheung shows in the case of Korea.
I have to agree, however, that if a central government, following (or leading) a xenophobic national mood, chooses to restrict and reduce access to citizenship – the situation Sujata Ramachandran describes in the North-East Indian state of Assam, and Christine Hobden in South Africa – then it is unlikely that any procedural changes will make much difference.
Legal identity and status as an alternative solution to naturalisation
Some of the contributions to this discussion have proposed that, although local naturalisation is not conceivable, local authorities could play a role in recognising a form of legal status tied to that locality. Such a status would at least give a person some degree of protection and ability to integrate into society, with rights to work and access healthcare and education, even if not citizenship and its associated civic, political and unconditional residence rights. Lilian Frost considers that in the Middle East a devolved naturalisation procedure might only be contemplated as a means of softening gender discrimination in transmission of citizenship to children, or to recognise cultural or family ties across borders. Thus, forms of quasi-citizenship, such as the status held by some Palestinians in Jordan, could be a more practical way of helping the most vulnerable – including refugees – than insisting on access to citizenship itself.
Luicy Pedroza cautions against blurring the lines between local authority recognition of legal identity and the award of citizenship status. In her view, the conflation of civil registration with a form of ‘naturalisation’ is to be avoided; the former should rather be seen as an important first step, valuable in its own right. It is a ‘different endeavour’, albeit equally important, to establish a legal path of access to naturalisation.
I can see the case for this approach: if access to citizenship is politically impossible, let us be pragmatic. It is an approach that has helped, gradually, to reduce statelessness in some states. In Estonia (similarly to Latvia, highlighted by de Chickera), the reaction to the period of Soviet rule was to decide in 1992 that citizenship would be extended only to the citizens of the Estonian Republic created in 1918 and their descendants. Residents who did not qualify for citizenship under this rule, largely Russian-speakers, were documented as ‘persons with undetermined nationality’, giving them legal residence, but not citizenship; at the same time naturalisation was made more difficult. In January 2015, however, Estonia reformed its law to attribute citizenship automatically to children born in the country to a parent holding this status. The interim legal status permitted a political movement towards recognition of the rights of those born in the country after independence was restored.
In many African states, by contrast, there is no permanent residence status (there are of course exceptions). Non-citizens resident in the territory either have a temporary permit (which could include a refugee permit) or are in irregular status. In West Africa, there is a third possibility, since they may be exercising their free movement rights within the Economic Community of West African States (ECOWAS). ECOWAS citizens in other ECOWAS states, however, may face the same problems of proving their residence as EU citizens are now facing in the UK. The universal adoption of rules to establish a status of permanent residence could facilitate not just naturalisation, but also the grant of citizenship to children of permanent residents.
Such an approach could, however, undermine the ideal of political equality – a value highlighted by Christine Hobden – much more than any local naturalisation scheme. If there were a formal requirement to apply for permanent residence, the application procedure could simply create a new barrier in the path to naturalisation. If, on the other hand, permanent residence was acquired on a nearly automatic basis after a certain number of years, the introduction of the concept could provide a powerful tool for resolving the situation of those whose status is currently unclear. Nonetheless, there remains the danger that a permanent residence status, while at least enabling a degree of stability for the daily lives of those included, becomes a permanent non-citizen status of second-class members of society.
The problem of democratic boundaries
As Rainer Bauböck highlights, the central problem in the African states with which I am most familiar is the paradox of democratic boundaries: who decides who makes up the ‘demos’? In post-colonial states whose boundaries were drawn with rulers by European powers sitting round a table in Berlin in 1885, the legitimacy of central rules for the grant of citizenship has been repeatedly put in question, whether that be the attribution of citizenship at birth or acquisition through naturalisation. At independence, the laws established rules that both presumed some level of initial consensus over belonging in the new states, and also that everyone’s birth was already registered and that those not in the country of their birth had migrated through regular routes with the appropriate visas. This fantasy world meant that decentralised decisions over the formal recognition of local belonging or national citizenship were inevitable.
The simple ius soli rule put in place at independence in all former British territories proved unacceptable in the context of the radical disturbances to pre-colonial political economies, and has gradually been repealed or disregarded in all states where it was initially intended to apply. Yet the double ius soli rule of most former French territories has proved remarkably durable, and is not questioned where it exists; the possibility of judicial recognition that a person has the “apparent status” of a citizen (the idea of possession d’état) is similarly accepted. Moreover, as I argued in my kick off contribution, opinion polling shows that African citizens are more open to naturalisation of foreigners or the grant of rights based on birth in the country than their politicians have been. Depending on context, local level structures may well have more legitimacy and accountability in decision-making around admission of new members of the community than the national government – though national regulation of the process, through laws that establish clear criteria and oversight mechanisms, would remain a critical check against the sorts of abuses others have warned of in this dialogue.
In considering whether local naturalisation may be both feasible and desirable, we must answer a number of interconnected questions. What is the current basis for attribution of nationality at birth: does it provide at least some general rights to access citizenship based on birth in the country (even if not simple ius soli), so that naturalisation is not the only route to integration? What is the current percentage of the population estimated to be ‘foreign’? Is access to citizenship highly politicised, whether at national level or in specific localities? Is xenophobia generally a dominant feature of politics? Are the basics of the rule of law in place, such that arbitrary decision-making may be checked by the courts, and there is space for lawyers and civil society organisations to assist those who need help? Is the society one where very large numbers of people are currently undocumented, including many who are completely integrated; or is that true of only a handful, so that more usual routes to access naturalisation may be available?
A decentralised naturalisation procedure may be most easily conceived of in countries where many are currently undocumented, and where citizenship laws are relatively liberal in granting rights based on birth in the territory, so that access to citizenship through naturalisation is not such a high-stakes game. But could it be more universally proposed?
I recognise again the force of Amal de Chickera’s argument: sometimes naturalisation is the wrong answer to the question of exclusion from birthright citizenship. This is of course the case for those who have been subjected to a collective refusal to recognise previously held citizenship, as in the case of the Rohingya of Myanmar, the Bengali-speakers in Assam, or Dominicans of Haitian descent. But could naturalisation be an answer to the situation of groups and individuals who have never previously been recognised as citizens? Is the example that Luicy Pedroza gives of the registration and naturalisation of members of Ngäbe-Buglé indigenous community on the border between Costa Rica and Panama illegitimate? After all, the Australian courts have judged that people of indigenous origin cannot be aliens in Australia, whatever the technical legal position. Or was this procedure a pragmatic solution framed within the legal procedures that work in that context?
Above all, however, I return to the point that where many are undocumented, including those whose citizenship is uncontested, local procedures for validation of citizenship are already pervasive. The blurring between registration of legal identity and the grant of citizenship that Pedroza warns against is to some extent inevitable. My proposal aims to establish more transparent regulation and more predictable decision-making within these procedures. By creating this legal framework, it pushes back against the radical centralisation of these processes in many African states as new identification systems are being rolled out – as Yonatan Fessha notes in the case of Ethiopia. Decisions over the legal framework for recognition or grant of citizenship will always be political, and in some contexts may seem impossible to resolve; yet, as I have argued elsewhere, reforms to law and procedures may also contribute to a gradual de-politicisation of citizenship, if the processes are seen to be legitimate and fair.
Human Rights Watch, ‘They Do Not Own This Place: Government Discrimination against Non-Indigenes in Nigeria’ (New York, April 2006).
‘Indigeneity, Belonging, & Religious Freedom in Nigeria: Citizens’ Views from the Street’, Nigeria Research Network Policy Brief (University of Oxford and Development Research and Project Centre, Kano, 2014).
Atossa Araxia Abrahamian, Cosmopolites: What It Is like to Be a Citizen of the World (New York: Columbia Global Reports, 2015).
Global Witness, ‘Europe’s Golden Doors: Lack of progress in stopping the criminal and corrupt accessing Europe via golden passports and visas’ Briefing, 27 March 2020.
‘Good Practices Paper – Action 2: Ensuring that no child is born stateless’ UNHCR, March 2017.
Bronwen Manby, Citizenship in Africa: The Law of Belonging (Oxford: Hart Publishing, 2018).