Nationality law abuse and fraud

Exploitation of blood and soil "birthright" principles

By William Wetherall

First posted 1 July 2009
Last updated 25 August 2009

Nationality strategies

Most people come by their nationality passively through birth. They happen to become nationals of the country where they were born, either because their parents were nationals (jus sanguinis), or because they were born there (jus soli).

Some parents, though, are known to contrive that their child be born under circumstances that allow the child to acquire a nationality it would not otherwise have been able to acquire. Contrivances amount to strategies that exploit nationality or family laws, not necessarily of another country.

Such strategies are not in and of themselves illegal. However, some countries, aware that their nationality and family laws are subject to unintended use if not abuse, or invite fraudulent use, are plugging the holes in their laws and procedures to make it more difficult for a person to obtain the country's nationality as a matter of personal convenience.

Benefits of having a nationality of convenience

Why go to the trouble to see that a child acquire a nationality other than what it would ordinary acquire? Mainly because it is possible to view another nationality as more advantageous in terms of the benefits that derive from possession of the nationality.

Nationality today is more likely to be viewed in terms of "rights" and benefits, than in terms of "duties" and obligations. A Chinese might be perfectly content with being and remaining Chinese. But a Chinese might also harbor an "American" or even a "Japanese" dream.

An American could also harbor a Chinese or Japanese dream, and a Japanese could harbor a Chinese or American dream. But in terms of sheer numbers of dreamers, the demand in China for US, Canadian, British, Australian, or even Japanese nationality is palpably stronger.

Parental motivation a nationality of convenience

Parental motivation to contrive that a child acquire a nationality other than the parent's or parents' nationality varies from "altruistic" -- more opportunities for the child in the future -- to "selfish" -- more opportunities for the parent or parents.

Benefits for child

The child, through possession of nationality, will have the right to live in the country and be treated as one of its nationals -- meaning access to more benefits, including education. Colleges will be easier to enter, and there will be no need to pay higher foreign student fees.

A child born in San Francisco to a Republic of Korean woman just travelling in the United States might be raised entirely in ROK but would have the option, later in life, to obtain a US passport on the strength of a US birth certificate.

Benefits for alien parent

As many countries facilitate the immigration of the alien parents, siblings, and children of a national, alien parents of a child who has obtained a nationality of convenience may stand to derive benefits through their parental ties with the child. They may qualify for a visa or other status that allows them to reside in the country and gives them access to benefits available only to nationals or to resident aliens.

In the above case, the child's ROK mother might also derive incidental benefits from that fact that the child is, or could claim to be, a US citizen. Such rights might include the right to raise the child in the US, or the right to reside in the US.

Alien parent rights equivocal

The United States government might not recognize an alien parent's claim to such rights simply because the child was born in the United States and incidentally became a US citizen. In fact some alien mothers of US-citizen children have been deported.

A federal court might be convinced, given the circumstances of the child's birth, that the mother should be permitted to reside in the United States. Or the court might agree with the government's argument that the child's nationality should be revoked because it was obtained through contrivance if not fraud.

Chain migration in the name of family unification

Not only the child and its parents stand to benefit through the child's nationality of convenience. Through the foothold established by the child's nationality, its siblings may be able to obtain residency privileges in the name of family unification.

The child's parents and siblings may also have an easier time naturalizing. As nationals (if not as settled aliens), they may use the same family unification measures to gain preferential status for their own parents, siblings, or spouses. This process can continue for several generations.

Merits and demerits for a state and its nationals

What a country and its nationals stand to gain from contrived acquisitions of nationality, or by the arrival of more newcomers as a result of chain migration, is not always clear. There are both merits and demerits.

States with shortages of labor would seem to benefit from population increases that contribute more to the labor pool than to welfare and other social costs. People so motivated to come to and remain in a country, even at the risk of punishment for infractions of its immigration laws, are thought by some defenders of "illegal" immigrants to contribute to the country's vitality. The same argument could be made for alien parents who contrive for their child to acquire a nationality of convenience from which they themselves might benefit.

States that consider themselves under-populated -- apart from labor shortages -- may also welcome newcomers. But they may not want the kind that are likely to gain nationality through contrivance if not connivance -- meaning through a back door of the state's immigration or nationality laws.

In either case, the impact of increasing numbers of aliens -- or of nationals with recent alien roots -- can cause anxiety among nationals who oppose the new arrivals because of cultural or racioethnic differences. The anxiety turns to resentment when the influx is seen as the result of exploitation of laws if not fraud, or if the increase in aliens is seen as a greater tax and welfare burden.

Criticism of pure jus soli laws

In jus soli states, criticism of incidental or contrived nationality acquisition is not limited just to people opposed to immigrants generally, much less to newcomers of a particular racioethnic descent. People who welcome legal immigration and legal immigrants also argue that people who acquire the country's nationality other than as the children of nationals or domiciled legal aliens are unjustly enriched by the affiliation.

Parents who contrive to acquire another state's nationality for their children are not necessarily guilty of breaking any laws. However, by exploiting the country's laws they are setting the wrong example of "citizenship" for their children. And they are undermining the "intent" of immigration and nationality laws, thus forcing their revision.

Such critics then argue that, because a purely jus soli principle is subject to abuse, conditioning the principle with a residency requirement -- on either a child's alien parents at the time the child is born, or on the child later in life -- is not inconsistent with the place-of-birth principle.

I would argue, though, that exploitation of loopholes in laws are part and parcel of "citizenship" everywhere where there are laws. While all countries may teach their children to abide by laws, adults teach, by example, that laws are meant to be broken, so to speak -- or at least they are meant to be used to personal and corporate advantage.

More importantly, though, imposing any residency requirement on nominally jus soli births is practically the same as adopting an ambilineal jus sanguinis principle that is moderated by a residency requirement for alien parents. As noted above, movements to protect jus soli laws from exploitation, and movements to make jus sanguinis laws more flexible, amount to a convergence of the two principles.

In the United States, for example, a moderated ambilineal jus sanguinis principle would allow any child born in the United States, to a citizen or non-citizen national parent, to acquire US nationality through the parent. Practically all Americans today would still have become Americans at birth had the US nationality law been an ambilineal jus sanguinis law.

A ambilineal jus sanguinis, moderated by a residency requirement for alien parents and/or their children, would attribute US nationality at time of birth to any child born to an alien parent who has fulfilled a residency requirement -- or later in life to any child who fulfills a residency requirement.

There would still, of course, have to be provisions to accommodate children born in the United State who would become stateless if, for any reason, they did not acquire US nationality.

At present, even US citizens -- whether born in the United States or born in another country -- must meet a residency requirement if their foreign-born children are to qualify as US citizens through jus sanguinis. Hence US "birthright nationality" is already partly "jus sanguinis moderated by residency requirements". I.e., some US citizens/nationals -- my children, for example, are treated as quasi aliens with regard the misnomered "right" of their children, if born in Japan, to acquire US nationality."

Disaccord of nationality, domicile, and residence

Most people reside where they are domiciled, and their domicile is within their country of nationality. As more people reside in one place for the sake of making a living but maintain their domicile in another place for legal purposes, or migrate to another country and settle there without naturalizing, there is an increasing dissonance between residence and domicile, or between one or both of these and nationality -- if not between all three.

States recognize the attachment to the country of settled aliens in many ways. Some relax their naturalization requirements for settled aliens. Others provide for acquisition of nationality without naturalization after a period of residence. Still others provide for nationality acquisition at time of birth by children born in the country to settled aliens who have resided in the country for a specific period of time.

Some countries view establishing a domicile in the country as reason to attribute the country's nationality to an alien. In some countries, accepting a university post or performing civil or military service in the country can qualify an alien for nationality by automatic operation of the law, i.e., without naturalization (a process of permission).

Some countries have, at times, attributed their nationality to an alien without the alien's consent if the alien lived in the country for a certain period of time -- in order to assure a consonance of nationality and residence. This is essentially the intent of jus soli -- a holdover from feudal law which considered anyone born in a territory to be allegiants of the territorial sovereign.

The United States generally attributes its nationality, through birth in its territory, without the consent of a child's parents, whether the parents are US citizens/nationals or aliens. The child passively acquires "birthright" US nationality the instant it is born on US soil -- though it speaks no language, has never heard of George Washington, and might grow up thinking it would be a good idea to overthrow the government. Yet an alien has to pass an English language test and a US History and Government exam, and survive a rigorous screening of character and political beliefs in order to naturalize.

Why, then, should a jus soli state not attribute its nationality, automatically, to any alien who has resided in the state as a settled alien? Should such attribution be made only with the alien's consent? Should a consenting alien be required to abandon or renounce other nationalities as additional proof of allegiance?

The worldwide trend in nationality laws has been away from attributing nationality through automatic operation of the law -- including nationality derived through marriage, adoption, service, and residence -- to nationality through naturalization. The main reason for this predicate the acquisition of nationality other than through birth, at time of birth, on personal choice. That is, a person of age to naturalize must want to acquire the state's nationality and opt to apply for permission to do so.

Case 1

Imagine, for example, a national of Japan who is a permanent resident of the United States but works and lives in Canada.

Multiple nationality

Children who acquire a nationality of convenience are often dual nationals. They may not actually reside in either of their countries of nationality. Or they may reside in the more incidentally acquired country of nationality only later in life. This results in less congruence of residence, domicile, and nationality.

The problem some states have with dual nationality is not what a dual national might (but not necessarily) personally gain by possess the state's nationality in addition to the nationality of another state, but the fact that the dual national might have little personal connection with the country, and offspring who stand to gain the country's nationality through the dual national parent might have even less connection with the country.

The simplest solution is to impose a minimum residency requirement on a dual national who is settled in another country as a condition of a child acquiring nationality. A more radical solution is to denaturalize a dual national who lives outside the country and has not lived in the country for a certain period of time. The most radical measure would denaturalize any dual nationality who does not chose the country's nationality by renouncing other nationalities.

Case 2

Take a person who was born in the United States to Japanese parents who happened to be living in the United States when the child was born. The parents register the child's birth at a Japanese consulate. A few months later they return to Japan, and the child is entirely raised and educated in Japan.

The child, after graduating from high school, decides to go to the United States to study but first needs to learn more English. The child goes to the US embassy in Tokyo and, armed with a US birth certificate, applies for and obtains a US passport.

The child attends an English school in California and waits on tables for a year. After year or so, the child enrolls in a community college as a US citizen and California resident, thus foreign student and out-of-state fees are waived.

After turning 20, the child files a notification with the Japanese consulate to the effect that the child chooses Japanese nationality and abandons US nationality. That, however, does not result in the child's loss of US nationality.

The Japanese-US dual national then migrates to Canada for graduate school and establishes a permanent domicile there. Then something goes wrong and the person ends up a ward of the city (Victoria), the province (British Columbia), and the state (Canada).

Involuntary nationality

Children who acquire nationality through birth at time of birth, or anytime after birth through actions of its parents or guardians, may be said to have acquired nationality involuntarily.

In jus soli (right of soil) states, a child born in the state stands to gain the state's nationality regardless of the intent of its parents. The child is considered to have a "right" to the state's nationality simply because it was born in the state.

In jus soli states, the "right" to nationality is based on the child's relationship with its parents. However, the "right" is not necessarily defined as a "right" in the state's nationality laws.

Japan's Nationality Law does not define acquisition of nationality as a "birthright" as such. Japan attributes its nationality only upon timely notification and consequential family registration. This is true for any acquisition of Japanese nationality -- whether through birth at time of birth, through acknowledgement later in life, or through naturalization later in life.

In other words, there is no attribution of a truly "involuntary" nationality in Japan except in the case of an infant or young child. But even in the case of an infant or young child, a parent or other person who may qualify as a legal representative of the child has to effect a timely notification. Older children and adults, of course, effect notifications on their own behalf.

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Traveling for nationality

Some states with primarily jus soli nationality laws have witnessed cases of birth in the country of a child to a foreign woman who came as a tourist when pregnant with the intent of gaining the state's nationality for her child. Whether there has been an increase in such births in countries like Canada and the United States, which appear to be most vulnerable, is not clear. Clearly, though, such births have become more conspicuous in the eyes of critics of immigration and nationality laws and policies in these and other place-of-birth states.

Convergence of jus soli and jus sanguinis

Great Britain in 1981, and Australia in 1986, modified their jus soli provisions in the direction of jus sanguinis, and/or imposed residency requirements on alien parents or on their children. Such provisions are comparable to those in the many jus sanguinis countries that now permit the children of first-generation immigrants to acquire their nationality depending on the length or status of either their parents' or their residency.

The object of imposing residency requirements on nationality acquired through jus soli is to make it more difficult to acquire nationality casually or through contrivance. The object of moderating jus sanguinis rules with residency conditions is to make nationality more available to those who have already settled.

The object of both movements in nationality law is to minimize the non-congruence of nationality, residence, and domicile.

Other states which historically have attributed birthright nationality to practically any child born in the country have also been re-examining their nationality laws with a view to preventing their exploitation by aliens who use them to secure a legal foothold in the country that would not otherwise be possible.

Mothers (if not also fathers) contrive that a child be born in another country to acquire its nationality through birth for many reasons. Some parents appear to have done so out of an awareness that a number of first- and second-generation musicians, artists, fashion models, and other celebrities boast of being "born in Honolulu and raised in Tokyo" or whatever. A number of celebrity Japanese women are known to have been on vacation, or on location related to work, or enrolled in a short-term English program, in Honolulu, Toronto, or New York, say, when their child happened be due.

"Maternity tourism" is not, however, limited to alien mothers. US citizens, born and raised overseas, who have not satisfied residency requirements in the United States, may also arrange to be in the United States at the time their children are born -- for otherwise their children would not become US citizens.

Jus soli states may also impose residency requirements on nationals born in the country -- in order to prevent jus sanguinis nationality through birth outside the country to nationals who, though born in the country, had not really established a residential connection with the country.

The move to impose residency requirements on alien parents and/or on children of alien parents -- as a condition for acquisition of nationality -- reflects the latent appeal of the idea that blood (family) is more important than soil in defining a native (through birth) population.

United States

Jus soli (right of soil, place of birth) remained a matter of customary law in the United States until the 14th Amendment to the Constitution in 1868. As late as US v Wong Kim Ark, 1898, some Supreme Court justices were arguing that a child born in the United States to alien (in this case Chinese) did not necessarily have a birthright to US nationality, if it could be construed that Wong Kim Ark, through birth to his Chinese parents, had become a subject of the Emperor of China, and therefore was not subject to the jurisdiction of the United States.

"Subject to the jurisdiction of the United States" has been a very important constraint on the acquisition of birthright citizenship in the United States. Until 1924, Native Americans under the jurisdiction of a tribal nation, recognized by the United States as a semi-sovereign entity within US jurisdiction, were eligible for citizenship only if they abandoned their status as a tribal member, which made them ineligible for treatment under laws related to Indian affairs.

Children born in the United States to alien parents who are in the United States under diplomatic immunity do not become US citizens, as they are presumed to share their parents' treaty-based (and qualified) exemption from US jurisdiction.

Though foreign missions in the United States are recognized as extensions of the government of another state, they are not regarded as extensions per se the state's territory and jurisdiction. The same is true for US government facilities outside the United States.

A child born in a US embassy or consulate, or on a US military base outside the United States, is not considered, under US nationality law, to have satisfied the "in the United States, and subject to the jurisdiction thereof" stipulation of Amendment XIV. Such a child will be therefore treated according to jus sanguinis rather than jus soli provisions.

So what about transient parents? A woman, say, who enters the United States while she is pregnant as a tourist? Does "subject to the jurisdiction thereof" include such transients?

Canada

If the US becomes stricter in its vetting of visa applications, and if its rules for birthright nationality become tighter, maternity traffic could shift more to Canada, which among the several states that historically adopted jus soli principles has the reputation of being more lax.

European Union

Nationality acquired in another state for convenience, whether of the parent or the child, is also an issue within the European Union, membership in which requires the recognition of a constitution and related laws that that are superordinate to state constitutions and laws. Member states may wish to defend their conventional geographic, demographic, and economic borders, yet all such borders become more porous as a consequence of membership.

Andrew Grossman asked the following question in an article called Birthright citizenship as nationality of convenience, which he prepared for discussion at the Council of Europe conference on "Nationality and the Child" held in Strasbourg from 11-12 October 2004, and published in "Proceedings, Council of Europe, Third Conference on Nationality" (Strasbourg, 11-12 October 2004, pages 109-121).

Grossman 2004

. . . if member states (as I argue) are not free to revoke the nationality of one of their nationals for the sole reason that he or she is exercising a Union right in another member state, may a state use a technical breach of immigration or residence registration rules to deny attribution of nationality to an infant born to migrant EU citizens in that state?

Other issues raised in Grossman's article have inspired some of the following discussions.

Related terminology

A number of terms are used, some of them pejoratively, in reference to either an act on the part of a parent to obtain a nationality of convenience for their child, or to a child who acquires such a nationality.

birth tourism
citizenship tourism / tourists
maternity tourism / tourists
maternity traffic
nationality tourism

anchor babies
passport babies

asylum shopping

chain immigration

Maternity tourism

Maternity tourism is not limited to quests for a nationality of convenience but may be about the maternity business.

Hong Kong, for example, was once (and to some extent still is) targeted by mothers from the mainland who wish to secure rights of abode in Hong Kong -- which is legally an SAR of PRC and issues its own passports. Today, however, "maternity tourism" is more likely to refer to the traffic that now flows to Hong Kong in order to take advantage of what are rumored to be the superior maternity wards of some of its hospitals.

Nationality tourism

The term "citizenship tourism" appears to be more common in English related to the European Union, though "nationality tourism" is also found in the literature.

Note that in English related to the People's Republic of China, "nationality tourism" (民族旅游) refers to tourism involving a "nationality village" (民族村) or the like within a "nationality area" (民族区). Here "nationality" refers not to PRC nationality (国籍) as a civil affiliation with the state, but to a governmentally recognized "racioethnic nation" or "race" or "ethnic group" within the state's nationality -- meaning, generally a so-called "minority nationality" (少数民族).

Expressions like X-族文化旅游, referring to "X nationality" as a specific racioethnic entity (Miao, She, Yao, et cetera), are usually translated "X-nationality cultural tourism". As a general expression 民族文化旅游 is translated "nationality" (predominately) or "national" or "ethnic" cultural tourism.

Opportunity, motive, and means

The controversy over an acquisition of what becomes a "felicitous nationality" or a "nationality of convenience" centers on the intention of parents of one nationality to go out of their way to secure another nationality for their child. Intentional acts can broken down by means.

Adventitious nationality

As Grossman says, "Accidental nationality is a fact of border life" (Grossman 2004). This might account for some cases of nationality acquisition along the US-Canadian or US-Mexico borders, as when a pregnant worker from one country unexpectedly delivers her child in the other.

A pregnant tourist, too, might encounter an an emergency that results in her child being born in a jus soli state that is not her country of nationality.

Such happenstance incidents of acquisition of "incidental" or "coincidental" nationality are too occasional to provoke any controversy -- besides which they are unintentional.

Contrived nationality

Any intent of a mother to be in a particularly country specifically to give birth in order to take advantage of its nationality laws would constitute an act of "parental contrivance" -- or "family planning" with an extended meaning.

Distinctions are then made between "individual action" as opposed to "organized traffic". The former constitute actions of parents who arrange to be in the country without the assistance of a third party who facilitates their travel, stay, and medical care -- whereas the latter would include cases of parents "arbitraging nationality" through a broker who arranges everything for a fee.

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Marrying for nationality

This is the most exploitable nationality strategy. As such it has been the most targeted by authorities on the outlook for immigration and nationality fraud.

Older nationality laws, in many countries, provided that an alien woman who married a national would or could acquire the country's nationality through the marriage alone. Most nationality laws today require that an alien spouse naturalize if she wants the countries nationality.

Japan's 1899 Nationality Law also provided, exceptionally among most nationality laws, that an alien man could derive Japanese nationality through marriage or adoption. These avenues to derivative nationality also ended from the 1950 Nationality Law.

Many countries, including Japan, ease naturalization conditions for an alien spouse of a national. Hence marriage is a possible strategy for obtaining nationality.

However, naturalization may result in loss of an original nationality. Marriage is more likely to be strategically used as a means of obtaining a status of residence which allows the alien spouse to legally reside in the country as an alien -- even after divorce.

Japan, like many other countries, is today more closely scrutinizing marriages between its nationals and aliens, especially those in which the alien spouse acquires or changes to a status of residence based on the marriage.

It is not clear that bogus international marriages involving Japanese nationals are increasing as a percentage of all international marriages. Most likely authorities are merely discovering more cases because there are more international marriages, and because there is now more "profiling" of suspicious unions.

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Divorcing (or remaining single) for nationality

Since 1985, Japan's nationality law has been ambilineal, hence the marital status of a Japanese woman who has a child fathered by an alien man no longer matters. Whether its mother is married to its father -- or, to put it more generally, regardless of who its father is -- a child that issues from the womb of a Japanese woman will acquire Japanese nationality through birth so long as its birth is registered in a timely manner. Presumably, from 2009, material acknowledgement after birth would also result in the child of a Japanese woman becoming Japanese.

But -- until 1985 -- the child born to a Japanese woman who was married to an alien was not eligible to acquire Japanese nationality through birth. Knowing this in advance, the parents might have chosen not to marry until after the child was born. Or, having decided to have a child after they married, the couple could first divorce, then conceive the child, and remarry after the child's birth if they felt that marriage was important.

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Acknowledgement for nationality

Acknowledgement is usually established at time of birth by the circumstances of birth -- i.e., the woman who gives birth is the mother, and the man to whom the woman is married is the father. When a child's parentage is unclear, acknowledgement made by later notification or some other procedure is usually voluntary on the part of the mother or the father or both.

However, acknowledgement can be judicially determined by litigation, as in a maternity or paternity lawsuit. A mother, for example, may claim that a certain man is the father and petition a court to review the facts and rule in her favor.

An established claim to parentage may also be contested. A man or woman might challenge another person's claim to paternity or maternity, or an adult might seek to revise the legal record of his or her own parentage.

Acknowledgement as a nationality strategy

My impression is that all states make some provisions for acquiring their nationality through parental recognition, before or after birth, in concert with their family laws. And it would seem that acknowledgement is one of the more exploitable strategies for acquiring a nationality of convenience.

Japanese authorities are clearly aware of the possibility of fraudulent acknowledgement under Japan's Nationality Law. Article 3, as introduced from 1985, provided for nationality by legitimation. In addition to being acknowledged by a Japanese parent, the child had to be legitimated by the parent's marriage.

The requirement of a notification of marriage constituted a significant hurdle for someone who might make a fraudulent acknowledgement claim. Besides which, legitimacy had been more important in Japanese family law as a civil status than mere parental recognition.

The elimination of the legitimacy condition -- by the Supreme Court's 2008 ruling that it was an unconstitutional distinction of status for purposes of determining a child's nationality through acknowledgement -- essentially left the flank of acknowledgement entirely exposed to abuse. Hence the toughening of the notification procedure, the introduction of penal provisions, and publicity that highlights the consequences of discovery a person has made a false notification -- meaning both the notification form and required supporting documents.

Though maternal acknowledgement is also possible, acknowledgement usually involves a man recognizing a woman's unborn embryo, or a child already born to the woman, as his. The acknowledgement form itself is simple and involves only a declaration of parental recognition. The supporting documents, however, include descriptions and evidence of the relationship between the man and woman that would verify or his or her claim of paternity or maternity -- short of a DNA or other biological test.

Hypothetical cases

While not impossible to assemble a notification of acknowledgement based on false information and get away with it, it seems it would take a formidable effort and involve considerable risk of discovery.

Case 1

Say a Chinese woman in Shanghai is pregnant. She wants her child to acquire Japanese nationality so she can gain a foothold in Japan. She thinks the father is a Japanese man she has been seeing and tells him.

He is single and agrees to acknowledge the embryo and makes a notification to that effect at the Japanese consulate. When the child is born, he files a notification of birth at the consulate. The child is entered in his family register, and the mother's name, nationality, and other particulars are noted as a matter of record concerning the child's birth and parentage.

So long as the facts in the declaration of acknowledgement are are vetted and accepted as corrected, there is no outward evidence of fraud. The parents are not pretending to be married. The acknowledgement was made prior to birth.

Case 2

Now take Case 1 but change the circumstances. The child has already been born. The woman has met a number of Chinese and Japanese men during the period that she conceived the child. Any one of these men could be the father. But it would be nice, she thinks, if the child had Japanese nationality.

The woman is still in touch with one of the Japanese men she had been seeing. She has money and he doesn't. She is not interested in marrying him but only wants her child to have Japanese nationality. She pays him a certain amount of money to acknowledge the child as his.

He file's a notification of acknowledgement with the Japanese consulate, under the rules of Article 3 as modified from 2009, and eventually the child is registered in his family register, again with its Chinese mother's name and other particulars.

So long as the child remained in Shanghai, in the care of its Chinese mother, it is unlikely that she would be able to derive any benefits in Japan from the fact that her child happened to possess Japanese nationality. Even if he were to take the child to Japan, she would have no particular rights accompany or follow him as the child's mother -- so long as they were not married.

If, however, she and the man were to agree to a marriage of convenience, he would be able to take her to Japan, or she would be able to follow him, as a spouse of a Japanese national. The fact that she was also the mother of a Japanese national would give credence to the "marriage" -- i.e., there would be less if any suspicion that the marriage was "bogus".

Once in Japan, they could file a notification of divorce which designated her as the parent who retained parental rights. As by then she would have established a domicile in Japan, she would be able to remain as the mother of a Japanese child who was also domiciled in Japan.

Case 3

Now situate Cases 1 and 2 in Japan rather than in Shanghai. The Chinese woman is studying or working in Japan and becomes pregnant. She may or may not know who the father might be, but she knows she wants to remain in Japan, and her visa status is shaky. This is her chance.

The woman knows a Japanese man who is not the father but is willing to help her secure a foothold in Japan. He has no intention of raising or supporting the child, but is willing to let her use his family register to facilitate it's acquisition of Japanese nationality.

So the "couple" contrive a plausible account of their "relationship" during the period that the child would have been conceived. He has no record of previous offenses of any kind that would suggest that his action was other than what it appeared to be -- a recognition of paternity. She, too, profiles as an honest hard-working woman.

That the child's parents do not wish to marry is now, under Article 3, their business. Their wish not to marry cannot prejudice the child's access to Japanese nationality.

the man's notification of acknowledgement is vetted and found to satisfy the requirements of the law. The child is registered as his. Because they are not married, they are not expected to be living together. The fact that she has physical custody, and the fact that he may not be visiting or otherwise supporting the child, does not affect the validity of his acknowledgement.

When it comes time for her to renew her visa, or apply for a more stable visa, she will refer to her child's status as reason to extend her status of residence or grant permission to remain in Japan with a new status of residence. The longer she stays, the more likely she will qualify for permanent residence or naturalization.

Of course, she could quickly become a long-term resident were the man to agree to marry her. They could then divorce and she could keep extending the long-term resident status as a divorcee and mother. Or they could remain married until she became a permanent resident or naturalized. Even as a divorced long-term resident, though, being the alien mother of a Japanese child, both domiciled in Japan, at some point she would probably qualify for permanent residence or naturalization.

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Adoption for nationality

Could someone in one country adopt a child from another as a means of deriving benefits in the child's country of nationality? This appears to be a very gray area.

Adoption of an alien child in Japan brings rights of guardianship but not Japanese nationality.

Presumably the child's domicile would changes to that of its guardian parents in Japan. Presumably its adoptive parents would not be able to derive a foothold in its country of nationality from their adoptive relationship -- at least while the were small.

When reaching a legally competent age, the child would be able to reside in its country of nationality. At that point its adoptive parents might be able to derive some sort of benefit in the country through their relationship with the child.

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Surrogacy for nationality

Surrogacy birth could also be exploited as a nationality acquisition strategy. If, say, Canada and the United States were to outlaw acquisition of their nationality by a child born in their territory to aliens who there as tourists. And say a Japanese couple absolutely wanted their child to acquire Canadian or US nationality at birth.

They could make a contract with a fertility clinic in North America to facilitate the surrogacy birth of their child -- using the woman's ovum and man's sperm -- to a Canadian or American woman. The child would acquire Canadian or American nationality through jus soli.

The Japanese man would acknowledgement the child as his, so it would also acquire Japanese nationality, and be registered in the family register he shares with his wife, as his child by an alien woman. But his wife could adopt the child, as thereby acquire rights of guardianship.

Adoption, however, would not change the child's status as a dual national. The child could not be naturalized because it is already Japanese. There would then be no cause for the child to lose its Canadian or US nationality until which time in the future the child might renounce its other nationality.

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"Rights" issues

"Rights" are often illusory. They exist in someone's mind but not in the law. "Human rights" not encoded as "rights" in law, and not recognized as "rights" by courts, are illusory.

Even when a "right" exists on paper, it may come attached with steep conditions that some individuals are unable to meet. Legal action based on the "right" will be taken only if the conditions are met, and the burden of proof falls on the person who stands to benefit from the "right" or the person's legal representatives.

In the case of nationality through birth, all that may be needed is a valid birth certificate. Since acquisition of nationality later in life is typically based on circumstances of birth and/or conditions of residency and livelihood, a person will usually have to document biological or other family relationships, as well as movements through one's childhood years, if not also economic or other qualifications.

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Administrative transparency and probity

The term "administrative probity" refers to transparency of procedures and accountability of officials. The object of related laws is to facilitate investigations of the conduct of, for example, a country's elected, appointed, or employed "authorities", who are supposed to uphold the law and follow regulations in a fair and impartial manner, and to otherwise rise above their personal interests.

Nationality is acquired either by automatic operation of the law (when stipulated conditions are met), or by permission granted by an official who has discretionary powers.

Acquisition by automatic operation of the law usually involves filing a "notification" or making a "claim" of some sort to acquire or confirm acquisition of nationality. Though the law may not describe such acquisition as a "right", the notifier or claimant will naturally consider it a "right" and be surprised that one's notification or claim is rejected.

When acquisition is not a "right" but a matter of receiving a grant of discretionary permission following an application, the applicant must not only file an appropriate petition with required information and documentation, but is at the mercy of the discretionary powers of the officials that process the application. Applicants naturally hope or expect that their application will be accepted, processed, and approved, and so they will also be surprised if it is not.

When competent authorities refuse to take a legal action sought by notification, claim, or application, the concerned parties will want to know why.

Some bureaucracies operate transparently and have procedures for "redress" which require authorities to explain themselves to the satisfaction of investigators or a court. Others lack transparency and probity -- meaning that concerned parties may never be able to find out why authorities found them ineligible for the legal action they sought.

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Border-crossing rights

Another complication in the acquisition of "birthright" nationality in right-of-soil states, or later acquisition of nationality through birth based on residence, is what to do with people who have border-crossing rights.

People living along the border between the United States and Canada, or between the United States and Mexico, for example, may be permitted to cross the border on a daily or regular basis in relation to their work. Does a child born in the United States, to a Canadian woman who resides in Canada but commutes to a job in the United States, become a US citizen through jus soli under US law applied to domestic birth, as well as through jus sanguinis in Canadian law applied to birth abroad?

Should the offspring of such border crossers be treated the same as, say, the offspring of aliens who are in Canada, the United States, or Mexico illegally, or legally but in a diplomatic capacity as as transients?

Native Americans in the United States and Canada

Qualified Native Americans whose territories straddle the US-Canadian border have treaty-based and even statutory border-crossing rights.

Such rights derive from the fact that subnational (tribal) affiliations are common to (though not necessarily equal in) both countries. Therefore, should US and Canadian nationality laws consider the offspring of Native Americans who qualify for border-crossing rights to be citizens of both countries by right of birth?

For more about the rights of Native Americans to cross the Canadian and US border, see Ethnic subnations in North America: Native status in the United States and Canada in the "Race" section of this website.

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