US debate over birthright spark interest in other avenues for citizenship

Jus soli, commonly referred to as birthright citizenship, is the right to citizenship of persons born in the territory of a country (except where they are not subject to the jurisdiction of that country, as is the case for the children of foreign diplomats).

In the United States, jus soli is enshrined in the 14th Amendment to the Constitution, which, in its first clause (the ‘Citizenship Clause’), states that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.” The Amendment was adopted in 1868 as a means of ensuring that people of colour born in the United States – the children of slaves and freed slaves – would receive equal treatment under the law.

Already in his electoral campaign, and throughout his presidency, Donald Trump has affirmed his belief that jus soli should come to an end in the United States. In an interview dating to 30 October 2018, he stated that he could terminate jus soli by virtue of an executive order, and that the United States is “the only country in the world where a person comes in, has a baby and the baby is essentially a citizen of the United States for 85 years with all of those benefits.”

There is no precedent for the overturning of an Amendment to the Constitution by executive order and, according to a statement released on the same day by fifteen of the United States’ most esteemed legal academics, “[t]here is no serious scholarly debate about whether a president can, through executive action, contradict the Supreme Court's long-standing and consistent interpretation of the Citizenship Clause of the 14th Amendment.” The United States is also not the only country to operate under the principle of jus soli: Canada, Mexico, the Caribbean jurisdictions, and many Central and South American countries also afford citizenship to persons born in their territories.

Despite the inaccuracies presented by Mr Trump in his interview, his statements have caused heated debate not just about jus soli, but about the attainment of citizenship as a whole. With respect to the former, critics of jus soli argue that it fosters underhanded immigration by incentivising non-citizen mothers to give birth in countries with birthright citizenship. They also reason that it opens citizenship to persons with no cultural or historical link to the birthright country. On the other hand, proponents of jus soli stress that, just as a country imposes obligations on persons under its jurisdiction, so should it enforce their rights. In the context of immigration, they note that the right of citizenship is given to the mother’s child – an innocent new-born – and not to the mother. Children, it is argued, should not be punished for the acts of their parents. Finally, jus soli is viewed as a source of diversity, generating creativity, innovation, and vibrancy whilst also working against elitism and inequality.

Recent discussions surrounding how citizenship is obtained do not centre on jus soli alone. One other popular topic of discussion is the relatively new concept of jus pecuniae. Also known as citizenship by investment, jus pecuniae is the right to citizenship for persons who make an economic contribution to the recipient country.

Citizenship by investment finds its roots in the Caribbean, where five jurisdictions have included it in their laws, and it has been adopted in Europe (in Bulgaria, Cyprus, Malta, and, as of 2018, Moldova and Montenegro), Cambodia, Jordan, Turkey, and Vanuatu.

All five of the Caribbean jurisdictions that have citizenship by investment provisions – Antigua and Barbuda, Dominica, Grenada, St Kitts and Nevis, and St Lucia – are also jus soli jurisdictions. This is unsurprising, as both means of obtaining citizenship place greater value on the future connection a person will have with the jurisdiction (whether by virtue of birth or investment), than on any past connection. Indeed, neither require the citizen to show family ties to, residence in, or cultural, historical, or linguistic links to the nation. In the case of birthright, all that is required is birth. In the case of citizenship by investment, all that is required is an economic contribution.

Laying claim to citizenship by virtue of jus pecuniae is, however, less simple than by jus soli. Jus soli does not require an evaluation of the moral character and past activities of an applicant – because even a new-born can claim citizenship by birth. A birth certificate showing birth in the birthright country, or one of its territories, would be enough to obtain citizenship. Citizenship by investment in the Caribbean, however, requires the main applicant to be at least 18 years old. Furthermore, the main applicant must pass stringent due diligence evaluations, focusing not only on his or her background, but also family connections, education history, employment and business history and, crucially, source of funds. Due diligence must be carried out by the relevant Government, and all Caribbean jurisdictions engage the services of independent, professional firms to conduct enhanced due diligence on applicants. Finally, whilst it is almost impossible to be deprived of one’s birthright citizenship, Caribbean jurisdictions have the right to deprive their economic citizens of citizenship in the case of fraud, and, in some cases, later illicit behaviour on the part of the applicant.