By Cat Woods -
Within hours of taking office, U.S. President Donald Trump signed an executive order to end birthright citizenship for babies born to a mother and father who are not US citizens or lawful permanent residents. The executive action was intended to take effect on 19 February, but has faced multiple legal challenges. LSJ looks at the principle of "jus soli", the right of anyone born in the territory of a state to nationality or citizenship, and changes to Australian citizenship laws in recent decades.
President Trump has claimed America is the only nation to allow birthright citizenship.
“Birthright, that’s a big one,” Trump said while signing executive orders on his first day in office. “It’s ridiculous. We are the only country in the world that does this with the birthright, as you know, and it’s just absolutely ridiculous.”
That claim is not true. Nearby neighbours Canada upholds birthright citizenship through its Citizenship Act, as does Mexico where it’s enshrined in the Constitution.
Since 2004, no European nation offers birthright citizenship. Rather, most nations recognise “jus sanguinis” (right of blood), which determines nationality depending on the nationality of parents. Only in the case of individuals at risk of statelessness does a nation have the obligation to grant nationality (in the case of at-risk immigrants, for example).
Australian citizenship increasingly restricted over the last century
The Nationality and Citizenship Act of 1948 established the status of an Australian citizen for the first time, distinguishing it from a British subject with permanent citizenship. The legislation introduced measures that made it more challenging for non-British applicants to gain citizenship. Applicants had to have lived in Australia for at least five years, have ‘adequate’ English, prove that they were loyal and of good character, give three references, declare an intention to naturalise two years before the application, and place an advertisement in the newspapers notifying others of this intention.
Over the following decades, the process of applying for citizenship became less arduous.
In 1973, British subjects became ‘non-citizens’, the waiting period for applicants was reduced from five years to three years, and the Act was renamed the Australia Citizenship Act. In 1984, the English language requirement no longer applied to those over 50.
However, under Prime Minister Bob Hawke, this trajectory was curbed by a tightening of citizenship laws. From 1986, children born of visitors to Australia, temporary entrants and illegal immigrants no longer acquired citizenship automatically at birth.
Dr Sangeetha Pillai is a constitutional lawyer and a Senior Research Associate at the Andrew and Renata Kaldor Centre for International Refugee Law.
She tells LSJ, “Absolute birthright citizenship was abolished in 1986 because there was a perception that it was being used to obtain an immigration advantage. In 1985 there was a High Court case called Kioa v West. The plaintiffs, Mr and Mrs Kioa, had overstayed their visas, and the government ordered that they be deported. But while in Australia they had had a baby daughter, Elvira, who was an Australian citizen by birth. Elvira wasn’t subject to the deportation order, but because she was a baby it was understood that she would leave with her parents. The Kioas argued that, as an Australia citizen, Elvira had a legitimate expectation that she would be able to reside in Australia, and that this meant she should have been given natural justice – in this case, an opportunity to make a case against her parents’ deportation order.”
The Kioas lost the case.
Pillai says, “Despite this, there was a bipartisan feeling that it was necessary to ensure that citizenship could not be abused to create an ‘immigration advantage’. This was the main impetus for the 1986 amendments – which changed the law so that birthright citizenship would only be granted to children born in Australia if at least one of their parents was an Australian citizen or permanent resident.”
“There was a view that if people who were temporarily or illegally in Australia could circumvent regular migration processes, this would compromise migration law and policy, and be unfair to people who wanted to migrate to Australia and who were adhering to the normal migration processes.”
In 2002, the Howard Coalition Government, repealed section 17 of the Act, enabling Australian citizens to acquire another citizenship without penalty.
There have been debates for at least the last 30 years over citizenship tests which have attracted submissions claiming that they actively discriminate against particular nationalities and cultures. Presently, there is a digital, multiple choice application test designed to establish basic English skills and “what it means to be an Australian citizen”. Only those over 60 are not required to undertake the test.
According to the Australian Citizenship Act 2007, Australia requires at least one parent to be an Australian citizen or permanent resident, or a child born in Australia to spend the first ten years of their life in Australia (irrespective of their parents’ citizenship status), much like New Zealand.
Pillai says Trump’s executive order to end birthright citizenship differs substantially from Australia’s citizenship amendments of 1986.
“Notably, the 1986 amendment went against the grain of what was happening with citizenship law and policy at the time – which made citizenship more accessible to people who wanted it,” she says. Prior to the amendment, the rules had been relaxed and waiting times slashed. “There were exceptions, but for the most part, people who came to Australia as temporary migrants had viable pathways to permanent residency, and permanent residents had a pathway to citizenship, if they wanted it, says Pillai. When the rules were tightened, there didn’t seem to be that much impact.
“[T]o my knowledge (there was) no great surge in attempts to exclude Australian-born children from the country – if anything along these lines had been attempted it would almost certainly have led to a constitutional challenge.”
Trump’s executive order threatens birthright citizenship
President Donald Trump issued an executive order on 20 January to end birthright citizenship along with ramped up measures on deportation. It has garnered enormous media attention, both for the proposed legislative changes and for the method in which he is attempting to challenge the US Constitution. It is not an act without precedent, however.
The Fourteenth Amendment declares that “[a]ll 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.”
Under common law, the only people not “subject to the jurisdiction thereof” are those subject to a foreign sovereign and immune from US laws, such as children born to foreign diplomats while in the United States.
Prior to the adoption of the Fourteenth Amendment, the Supreme Court’s 1859 Dred Scott v. Sandford decision threatened to alienate African Americans from citizenship. The Court held that Scott was “not a citizen . . . in the sense in which that word is used in the Constitution,” and therefore that American common law was not applicable to freed slaves of African descent.
Congress subsequently passed the Civil Rights Act of 1866, which codified birthright citizenship nationally, and ratified the Fourteenth Amendment. The interpretation of the Fourteenth Amendment was tested in the 1898 Supreme Court case U.S. v. Wong Kim Ark, in which the Court considered whether the child of Chinese citizen parents, who were lawful permanent residents in the United States, was a U.S. citizen under the Fourteenth Amendment. In resolving this issue, the Court determined the Fourteenth Amendment “in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled in the United States.”
Assistant Attorney General in charge of the Office of Legal Counsel under the Clinton administration, Walter Dellinger testified before the subcommittees on immigration and claims regarding legislation that would deny birthright citizenship to certain children born in the US. The “Citizenship Reform Act of 1995,” proposed to deny automatic citizenship at birth to children born in the United States to parents who are not citizens or permanent resident aliens. Section 3(a) of the bill proposed to define the phrase “subject to the jurisdiction thereof” to include only children born to U.S. citizens or permanent resident aliens.”
He claimed, “A bill that would deny citizenship to children born in the United States to certain classes of alien parents is unconstitutional on its face. A constitutional amendment to restrict birthright citizenship, although not technically unlawful, would flatly contradict the Nation’s constitutional history and constitutional traditions.”
Dellinger referred to the adoption of the Fourteenth Amendment in 1866, which safeguarded the right to citizenship based on birth within the US jurisdiction, a right that exemplified “this great principle of the common law”.
He asserted, “[W]e cannot and should not try to solve the difficult problems illegal immigration poses by denying citizenship to persons whose claim to be recognized as Americans rests on the same constitutional footing as that of any natural-born citizen.”
Under Trump’s first term, U.S. State Department warned of ‘birth tourism’
President Trump’s executive order was no surprise. He had indicated that he’d take this measure as early as his first term.
In 2022, the US Department of State released a report on ‘birth tourism’. It stated “Birth tourism refers to expecting mothers traveling to the United States to obtain U.S. citizenship for their children. These tourists often cite the superior educational and professional opportunities available in the United States as their justification for making such a trip. Obtaining U.S. citizenship for their children is a hedged bet—a rainy day fund for a better life.”
Despite not keeping specific record of the alleged birth tourism, two firms were identified as operating to enable women from China and Russia respectively to give birth in the US for the purposes of securing citizenship. The US Department of State announced in January of 2020, “[T]he Department is amending its B non-immigrant visa regulation to address birth tourism. Under this amended regulation, U.S. consular officers overseas will deny any B visa application from an applicant whom the consular officer has reason to believe is traveling for the primary purpose of giving birth in the United States to obtain U.S. citizenship for their child.”
U.S. states take legal action to challenge executive order
In the final week of January, US District Court Judge John Coughenour ordered Washington state’s lawsuit, filed with Oregon, Arizona and Illinois, to be consolidated with another that the Northwest Immigrant Rights Project filed.
On 23 January, Coughenour granted a 14-day restraining order blocking the executive action. The judge called President Donald Trump’s order “blatantly unconstitutional.”
“Tough on borders” approach increasingly challenging for wannabe citizens
Pillai says, “Over the last couple of decades, it has become progressively harder for a person to become a full member of the Australian community. There are more blockers in place that prevent – and in some cases outright ban – a person from progressing from temporary resident to permanent resident to citizen. Simultaneously, it has become progressively easier for a person to lose their place in the Australian community. Visa cancellation powers have massively expanded, and citizenship too has been made susceptible to revocation. Much of that has gone hand in hand with a narrative of being tough on national security and keeping borders secure.”
