The importance of nationality for children
In a world where the principle of non-discrimination was fully realised, nationality would not matter. Nationality would not affect access to basic services such as health care and education, or to place related activities such as crossing an international border, or moving freely within a state. This is not the world we live in. Despite three quarters of a century of global human rights norms and two decades of near universal child rights principles, nationality matters. And it matters for children as much as it matters for adults. The importance of nationality for children overlaps but is not co-extensive with the importance of nationality for adults. The following discussion addresses key issues relevant to this subject.
2. Nationality, children and individual rights
Nationality is the legal confirmation of a reciprocal bond between person and state, a bond that connotes obligations and privileges. Many of these obligations and privileges are not applicable to nationals under 18 years of age: children cannot vote, they cannot stand for public office, they cannot serve on juries, and, as a matter of international law, they cannot be compelled to participate in active combat. But these exclusions do not negate the importance of nationality for children.
Among a plethora of examples, consider the following. First, even a very young child, like an adult, will need proof of nationality to qualify for safe and legal border crossing. Second, more age specifically, though primary education is supposed to be free and universally available to all children irrespective of nationality, comparable international mandates do not apply to other, equally critical, educational opportunities, a deficit with consequential implications. Compared to their non-national peers, children who are citizens generally have privileged access to early childhood development and preschool opportunities, as well as to post primary education, college scholarships and other educational facilities. The same enhanced access for citizen children also applies to health care, to social welfare protections and to other critical economic and social rights facilities.
3. Nationality, children and relational benefits
It is not just individual rights and benefits that are at stake for children when questions of nationality are at issue. Relational benefits, and in particular the right to respect for family and private life, are also implicated, benefits that constitute a peculiarly important set of ties in childhood, given its characteristics of dependence, vulnerability and rapid developmental growth. A child’s early environment, physical but also emotional and affective, has lifelong potential impacts on his or her wellbeing and functioning as an adult. More particularly, as widely recognised, the family constitutes “the fundamental group of society and the natural environment for the growth and wellbeing of all its members and particularly children”. Access to family life, to the predictability and security that guaranteed continuity of contact to parents or other caregivers, is critical for healthy development. Children separated from their parents have higher mortality and morbidity, and are at far greater risk of abuse and violence. It is for this reason that the Convention on the Rights of the Child reserves its strongest language for states’ obligations to avoid the separation of parent and child: recognised, the family constitutes “the fundamental group of society and the natural environment for the growth and wellbeing of all its members and particularly children”. Access to family life, to the predictability and security that guaranteed continuity of contact to parents or other caregivers, is critical for healthy development. Children separated from their parents have higher mortality and morbidity, and are at far greater risk of abuse and violence. It is for this reason that the Convention on the Rights of the Child reserves its strongest language for states’ obligations to avoid the separation of parent and child:
States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child.
The ability to enjoy and depend on family life may be critically tied up with questions of nationality. A stateless child or a child who cannot prove his or her nationality may have difficulty asserting a claim to enter or to remain in the country where key family members live, with life shattering implications.
Consider the following cases, separated by over a century, each based on one of the two central principles for nationality acquisition, jus soli (birthright citizenship) and jus sanguinis (citizenship by descent). The first case illustrates the importance of nationality for securing entry to a place where a child’s family resides, to ensure reunification. In 1897, Leong Quai Ho attempted to return to San Francisco, her city of birth, after a stay in China. But the San Francisco immigration inspectors challenged her jus soli claim to US nationality. They asked: “In what part of China were you born.” “I was not born in China,” Leong explained for the second time, “I was born in California.” “Well go on,” frustrated inspectors prodded, “give us the rest of your story, let’s have it.” Though a citizen, she did not look like one. Eventually, but only after protracted and costly litigation, was Leong Quai Ho finally admitted to the US and allowed to reunify with family. Because of questions about her nationality, Ho’s whole future was plunged into uncertainty.
The second case concerns the other element in the right to respect for a child’s family life, the prevention of separation from family. In 2001, the U.S. Supreme Court considered another East Asian case where a child’s entitlement to US nationality was at issue. Tuan Anh Nguyen was born to an American father and a Vietnamese mother in Vietnam. The parents never married and the mother left the family shortly after Nguyen’s birth. When the boy was six, he moved to the US with his father and lived there with him throughout his childhood. His early biography only became salient when he was convicted of a felony and, as is mandatory for aliens convicted of serious criminal offences, served with a deportation order as his term of imprisonment came to an end.
For Nguyen in his early twenties to be deported to Vietnam, a foreign country to which he had no ties—linguistic, cultural or personal—would be devastating. But avoiding this depended on proof of his US nationality. Had his parents married, or his mother rather than his father been a US national, Nguyen would have had little difficulty in asserting his US nationality by descent (or jus sanguinis), subject to certain residence and procedural requirements. But because neither of those circumstances obtained, Nguyen failed in his claim for US nationality and the guarantees of continued family and private life that this would have enabled. Again a child’s nationality could hardly have had more dramatic personal consequences.
4. Nationality, children and a sense of belonging
A key, perhaps the most important, attribute of nationality is non deportability, or the lifelong guarantee of a right to entry and to indefinite residence in the country of one’s nationality irrespective of criminal conviction, prolonged foreign absence or any other personal behaviour. It is through this entitlement that the enduring bonds of national identification are protected. Whether a child (or any individual) identifies affectively with a particular nationality, with the cultural, linguistic or religious environment of the nation in question, is incidental to the legal protection it affords. To be sure, many nationals feel a profound sense of loyalty and comfort from the sensation of community belonging that comes with national membership – the pride in a flag, a glorious history, a sporting victory or a political leader. But the protection afforded by nationality is more fundamental. By blocking and nullifying the threat of deportation, national membership protects the building blocks fundamental to life. It prevents the separation of a child from his or her immediately supportive environment, not only parents and nuclear family members, but the private life that he or she has built, including the school friends, the cultural traditions, the familiar spaces, as well as the climate, language and foods that constitute the fabric of quotidian rootedness.
5. Nationality, children and public policy
At a time in global history when nationalism and xenophobia are particularly resurgent and when the significance of national borders is being reasserted, even in regions where these concerns had diminished, nationality and the ability to prove it are increasingly salient. As noted, they impinge on access to an extensive set of entitlements and opportunities, and their absence, statelessness, has momentous consequences. “[Nationality] defines the framework in which the balance between self-interest and public concern is negotiated, both by the individual citizen and by the polity, because citizens’ interests are central to the assessment of what is a public good”. The interests of non-citizens or stateless persons, by contrast, are of subsidiary political concern.
Whether they are short term visitors or long term residents, non-citizens lack a vote and thus, as a community, have compromised an at best derivative political leverage vis à vis politicians. The Swedish government’s abrupt decision in 2016 to reverse its long-standing policy of generous reception of unaccompanied refugee children by restricting access and impeding family reunification, is a case in point. Toleration of increasing levels of Islamophobic rhetoric in mainstream public discourse, as in the case of the 2016 US Presidential campaign and much pro-Brexit propaganda, is another.
Non-citizens are also particularly vulnerable to the hostility of nationals, convenient targets for marginalisation, scapegoating and stigma at times of national crisis, whether economic, social or both. These detriments also apply to children, despite the fact that, according to binding and very widely ratified international law, states have an obligation to consider the best interests of children, irrespective of their nationality, in all matters affecting them, an obligation that does not apply to adults. This obligation exists for matters of divorce, adoption or access to social welfare services just as much as it does for decisions within the domain of immigration law – permission to access or remain on the territory. Because of their peculiar dependence on state provision – in respect of schooling, primary health care, and social protection for example – children stand to lose critical benefits where their interests are neglected. What is more, because of the distinctive vulnerability that comes with early childhood, the risks of irreversible harm from rights violations and deprivations are most severe.
Though nationality does not, on its own, guarantee wellbeing or enjoyment of the constituent elements of a safe and rights endowed life, its absence is strongly correlated with serious rights violations and profound human suffering. One of the clearest illustrations of the devastating impact of statelessness on the life chances of children is the situation of the Rohingya Muslim minority in Rakhine state, a western province of Myanmar.
Despite centuries of residence in and identification with the region, the Rohingya have been denied nationality by the Myanmar government. Rohingya children, as a result, are denied access to Burmese schools, their births are unregistered, their need for all forms of health care, including primary health care, is severely neglected and they lack the proof of identity that would facilitate international travel and access to refugee protection.
Myanmar, like all states that have ratified the CRC, is obliged by law to consider the impact on every child of public policies or state practice that impinge on that child, whether or not the child or the child’s parents are stateless. Its continuing failure to do so, including after a momentous political transformation that has introduced democratic principles and installed as a leader a Nobel Peace prize laureate with an illustrious human rights record, is a powerful reminder of the critical importance of nationality for children worldwide.