Why The World Is Giving Up On Birthright Citizenship

Authored by Ryan McMaken via The Mises Institute,

Last week, Donald Trump signed a new executive order which attempts to end so-called “birthright citizenship” in the United States. During the signing ceremony, Trump declared that the United States is “the only country in the world that does this with birthright…”

This is untrue and the Washington Post, among other publications, was quick to declare that Trump “falsely claimed” that the US is the only country with birthright citizenship, also known as the legal principle of unrestricted—or “pure”—jus soli.

Trump would have been accurate, however, had he said that birthright citizenship is becoming rare, and that it is especially rare among those wealthier countries that experience positive net in-migration.

In many countries, as generous welfare states attract growing numbers of migrants, the idea of unrestricted jus soli has become less popular.

Indeed, Europe no longer contains any states that offer birthright citizenship, and others have added new restrictions to what jus soli provisions they have. 

Decline of Jus Soli in Europe

Since the early modern period, migration between European states has been a significant phenomenon, and these numbers increased many times over during the Industrial Revolution. It was often the case, however, that these migrations were seasonal or limited to relatively small enclaves of minority populations.

Moreover, many areas of Europe were experiencing labor shortages since, throughout most of this period, Europe was a continent of emigration rather than immigration.

After all, during the nineteenth century alone, millions of Europeans emigrated to the Americas.

After the Second World War, however, things began to change due to decolonization and growing human mobility. As a 2018 report from the European commission puts it:

Large-scale immigration into Europe began after the Second World War as a consequence of decolonisation and of economic reconstruction. Although several north-west European countries, such as Germany and France, put specific immigration programmes in place to attract the desired workforce, most post-war immigration into Europe was spontaneous and unregulated. The general expectation in the receiving countries was that immigration was temporary and that immigrants would return to their countries when their labour was no longer needed. However, this expectation proved to be misguided. Although restrictions to immigration were imposed in the 1970s, following the economic stagnation caused by the oil crisis, the number of immigrants continued to rise. A new wave of immigration occurred after 1990, following the collapse of the Eastern Bloc and the launching of eastern EU enlargement.

In the UK, for instance, mass immigration from the colonies and from wartime ally states such as Poland intensified after 1945. As the second half of the century wore on, however, the prospect of continued migration drove new policies on naturalization and migration. For example, although the UK had long employed a liberal jus soli policy, the 

Commonwealth Immigration Act 1968 introduced patriality, which required those seeking British citizenship to prove they had a parent or grandparent who already possessed British citizenship. This move saw the beginning of a shift in British citizenship from jus soli to jus sanguine or citizenship passed on by parental lines rather than place of birth.

Over the past  thirty years, some countries have expanded the use of jus soli but only in restricted form. This proved to be part of a larger trend across Europe  toward restriction on jus soli naturalization and this has meant that

the number of countries that offer merely facilitated naturalisation is becoming smaller as more states introduce ius soli at birth conditional on legal long‐term parental residence, or, after birth, as an option at majority. The group of countries with double ius soli has also been strengthened through the recent reforms in Luxembourg and Greece.

Ius soli citizenship has also become more politicised, and, as in the case of adult naturalisation, has become increasingly conditional, through the introduction of more stringent residence requirements for parents, and of additional requirements for facilitated naturalisation, such as continuous residence, public order conditions, and language and civic knowledge tests.

In 2004, when Ireland abolished its unrestricted jus soli provisions, Europe ceased to have any states that offered “birthright citizenship.” Rather, European states have tended to add new jus sanguinis elements—requirements based on the origins of the child’s parents—to restrict jus soli. Today, nearly all member states of the European Union require that at least one parent be born in the country (i.e., “double jus soli”) in order to obtain automatic citizenship.

Source: “Acquisition and loss of citizenship in EU Member States,” 2018. 

Similar trends have happened in the European “outposts” of Australia and New Zealand. Unrestricted jus soli had existed in Australia, but this was abolished in 1986. Birthright citizenship was abolished in New Zealand in 2006.

Why Does Unrestricted Jus Soli Decline?

As migration flows increase, native populations often respond with calls for more restrictions on naturalization. It is easy to imagine the reasons for this. Given that citizenship and naturalization offer access to political participation, and also provide full access to the local welfare state, native populations may often conclude that rising numbers of new citizens from various “outgroups” could be a politically destabilizing factor. Other natives may fear that large numbers of new migrants place fiscal strain on public benefits.

This illustrates the interplay between immigration policies and naturalization policies. Strictly speaking, immigration and naturalization are separate phenomena, but in practice, high levels of immigration tend to lead to calls for restricting new migrants’ access to citizenship. The reverse is often true as well. 

In a 2010 empirical study on the determinants of new restrictions on naturalization, Graziella Bertocchi and Chiara Strozzi conclude that high migration levels impel local policymakers to introduce new restrictions on jus soli:

our results suggest that migration moves national legislation in the direction of jus sanguinis, not jus soli. In particular, when we take into account the legal tradition governing citizenship, we find that countries with a jus soli origin react to increasing migration by adding jus sanguinis elements. …

Our investigation reveals that migration has an overall negative effect on liberalization of citizenship legislation and adoption of jus soli elements. Moreover, a country’s legal tradition affects the way that it responds to migration. In particular, jus soli countries react to increasing migration through restriction.

On the other hand, those countries that have generally leaned toward jus sanguinis policies react to migration with fewer policy changes.

These conclusions also suggest it is not a coincidence that there are so few unrestricted jus soli states with positive net migration rates. Worldwide, nearly all states with unconditional jus soli are found in Latin America and the Caribbean. The countries in these regions are nearly all net out-migration countries, or countries with very little in-migration. Only three countries outside the Americas have unconditional jus soli: Chad, Lesotho, and Tanzania. All of these countries are net-outmigration countries.

As we see in the graph below, the countries with unconditional jus soli (colored red) are countries like Mexico, Peru, and Cuba. Migrants primarily flow out of these countries, not into them.

Sources: CIA Factbook; World Population Review. 

Canada and the United States are clearly outliers in that they have both birthright citizenship and positive net in-migration.  In nearly every other country with positive net in-migration, we find the state has either abandoned unconditional jus soli—like the UK, Ireland, and Australia—or never had it—such as Japan, Korea, and Switzerland.

The United States and Canada are Outliers

Not surprisingly, high migration levels combined with liberal naturalization policies are becoming a matter of increasing controversy in both the US and Canada. Donald Trump, of course, won re-election largely on an anti-immigration platform, partly fueled by public concerns over the growth of the welfare state and political destabilization due to widespread naturalization.

Meanwhile in Canada, following years of high immigration levels, the BBC reports there is “dwindling public support for immigration.”

A September poll of Canadians also showed that “for the first time in a quarter century, a majority now say there is too much immigration.”

What all this suggests is that over the longer term, unrestricted jus soli is a luxury for countries with negative rates of in-migration which do not face the political and fiscal consequences of large waves of foreign nationals arriving locally.

Eventually, both the United States and Canada are likely to follow the same path as other countries that have abandoned unrestricted jus soli in recent decades, regardless of what the law might currently say.