The nexus between nationality, citizenship and identity
Citizenship, nationality and identity are receiving considerable attention, especially in relation to global phenomena such as international migration. However, although one can find fragments of research dealing with various links between citizenship, nationality and identity, there have not yet been studies that address this nexus systematically.
Nationality is part of the social identity of a person. This is expressly recognised by the European Court of Human Rights in the pivotal judgment Genovese v Malta (2010) and recently confirmed in the judgments Labassee and Mennesson (2014). In Genovese, the Court for the first time explicitly provided that (access to) nationality falls within the scope of protection of the ECHR as part of a person’s social identity, which in turn is part of that person’s private life. The latter right is protected by Article 8 of the Convention. In Labassee and Mennesson, the Court stipulated that aspects relating to one’s social identity need to have consequences for the nationality position of children born from cross-border surrogacy arrangements.
The relationship between the nationality and the identity of a person is rather complex, due to the fact that the acquisition and possession of a certain nationality often depends on other elements of the identity of the person involved, for example his or her legal parentage. Consequently, an important issue is what happens if it is discovered that relevant parts of the identity of a person are different than was previously assumed, for example the person has other legal parents. Nationality is therefore not only part of the identity of a person but sometimes also the consequence of this identity.
A similar issue arises if a person acquired a nationality by naturalisation and it is later discovered that the personal data of the person are considerably different than those mentioned in the naturalisation certificate. The authorities may argue that the mismatch between the individual’s personal data and the naturalisation certificate justifies the cancellation of the naturalisation. While the authorities may in fact claim that the nationality was never acquired in the first place due to this mismatch, however small or insignificant the omission, the individual will obviously experience this as the loss of nationality. Such situations have been described as quasi-loss of nationality in the literature.
These examples require us to reflect on the question of what constitutes the identity of a person. How essential are, for example, the data on parentage, the name and the country of birth? Taking a global perspective on these issues, it is often particularly difficult, for the purposes of the acquisition of nationality, to establish the right facts in respect of a person’s identity. No comparative research has been conducted so far on the norms established by states in respect of the necessary documentation (e.g. birth certificates and other means of proof) and how the burden of proof is shared between the individual and the state if the documentation cannot be produced.
The role of identity is also important in the context of the loss of citizenship, in particular where citizenship is taken away when it is discovered that fraud was committed during the application procedure. This issue attracted a great deal of attention in the Netherlands a few years ago when a high-profile MP (Ayaan Hirsi Ali, now a famous secularist intellectual and research fellow at the Hoover Institution) was accused of having committed identity fraud when applying for naturalisation. But there have been numerous cases that have attracted no media attention and the effects of which were equally serious for the individuals concerned, especially where children are involved. It is therefore essential that this problem is mapped globally, particularly in light of the fact that identity fraud can sometimes be traced back to an applicant’s well-grounded fear to provide his or her correct data.
Author: Dr. Olivier Vonk