Child Citizenship Advocacy
ACA holds a clear position on the transmission of one’s US citizenship to children born overseas. All US citizens should enjoy the same right to transmit U.S. citizenship to all of their children at birth, including all children born to or adopted by a U.S. citizen abroad.
Every year about 60,000 children are born overseas to a U.S. citizen parent. Of these, 90% acquire U.S. citizenship at birth while 10% do not. If the US citizen parents of these children have not fulfilled certain residency requirement in the United States, then their children are unable to attain US citizenship. Depending on the country in which this children reside, they may be ineligible to obtain the citizenship in the country of their birth.
The United States inspired and helped draft several UN human rights instruments which give detailed descriptions of the basic rights that all individuals are supposed to share without discrimination of any kind. This includes the right of every child to acquire at birth a name and a nationality.
Despite careful drafting, these UN instruments have a major lacuna. There was no clear definition of which government is supposed to assume the responsibility for its citizens who live away from home. It was nowhere stated whether it should it be the country where the person came from, the country where the person was living, or perhaps both. If a citizen's home country and its overseas host country both refuse to protect this human right, there can be a legislative vacuum in which children are ignored by everyone and may find themselves to be stateless.
Why the Problem Arises
In general, the right to acquire citizenship at birth derives from two distinct legal traditions. The first is "jus soli", an Anglo-Saxon concept that is used by Great Britain, the United States, and others. The second is "jus sanguinis", a fundamentally different concept, which dates at least to Roman times and is used by most of the other countries of the world. The two are not congruent and therefore do not cover all of the same individuals in every circumstance. Care must be taken to ensure that no one is left out.
Under "jus sanguinis" the nexus that is recognized by the law is the link between the parent and the child. A birth brings an automatic continuity of the citizenship of the parent to the child by virtue of this blood (sanguinis) tie. The place of birth, therefore, does not create any legal problem in the continuity of citizenship. No principle, other than "jus sanguinis", needs to be invoked for human rights to be transmitted equally and ubiquitously, unless, of course, a government chooses to endow only expatriates of one sex with this "jus sanguinis" right.
In "jus soli" countries the nexus recognized by the law is that between the child and the location of birth. The place of birth alone qualifies the child to automatically receive that country's citizenship, normally irrespective of the citizenship or nationality of the parents when the child is born.
Overseas citizens from countries with "jus soli" legislation can face difficulties when they reside and have children in countries with "jus sanguinis" laws. Unless the laws of their home country also offer "jus sanguinis" provisions to protect them while they are away from home, some of their children can find themselves stateless. How liberally a "jus soli" country extends "jus sanguinis" provisions to its overseas citizens will determine how much human rights deprivation, if any, they will have to suffer.
Legislation has been introduced that would address the issues of citizenship passage for US citizens parents and help millions of families of U.S. citizens that have been separated or face separation by spousal immigration denials or deportations. The American Families United Act (H.R. 2920) https://www.congress.gov/bill/117th-congress/house-bill/2920?s=1&r=3 ACA supports this legislation. See ACA's letter here.
Last Updated July 22, 2014