No Country for Indigenous Men?

What does it take to be a natural citizen of a country? Does a person only have to be born within the borders; do they need only to have some sort of ancestral connection to it; or is there some other criterion that a person must satisfy? The High Court of Australia is poised to decide the answer to these questions as far as it pertains to Australian citizenship. The relevant cases both involve people who were born outside of the country to an Aboriginal parent, and who relocated to Australia as children. However as neither man ever obtained Australian citizenship, and are in the country on visas, Australian immigration authorities want to subject them to deportation. Both men have been convicted of crimes for which Australian law allows the government to revoke immigration visas. Those defending the two men, Daniel Love and Brendon Thoms, argue that it is absurd to claim that any Aboriginal person could count as an immigrant who needs a visa in the first place.

The defense of the Aboriginal men depends on the idea that they have some sort of automatic—or nearly automatic—citizenship or at least resident status. (For brevity, we’ll just use ‘citizenship’ to refer to both statuses.) Automatic citizenship is often referred to as birthright citizenship. To have birthright citizenship is to count as a citizen of a country simply by being born. But there are two ways to think of when someone has such a birthright. The first is jus soli (literally, “law of the soil”), which confers citizenship on any person born within the territorial borders of a country. This is the idea of birthright citizenship at issue in immigration debates in the United States, and which President Donald Trump infamously said that he could revoke. However given that neither Love nor Thoms were born in Australia, this can’t be the sense of birthright citizenship at issue.

The second conception of birthright citizenship is jus sanguinis (literally, “law of blood”), which confers citizenship on any person born to one or more parents who were themselves citizens. Jus sanguinis is not commonly referred to as birthright citizenship, but it is helpful and appropriate to think of it as such because it is a mechanism of conferring citizenship status to someone automatically at birth. Moreover this is the mechanism by which it is possible to claim that Love and Thoms have birthright citizenship. Both of them have one parent who is an Australian Aboriginal.

However, Australian law no longer has any birthright citizenship mechanisms. Australian law does not contain a simple jus soli provision anymore, as of the 1986 Australian Citizenship Amendment Act. Children automatically receive citizenship when born within Australian territorial borders only if born to at least one parent who themselves had Australian citizenship or resident status at the time of the child’s birth. Neither does Australian law provide for automatic citizenship by a jus sanguinis mechanism. Instead it is allowed for the parents of a child born outside of Australian borders to apply for the child’s citizenship, provided that the parents are themselves Australian citizens at the time of the child’s birth. Neither Love nor Thoms, nor their respective parents, ever applied for citizenship.

In lieu of a mechanism of birthright citizenship, Love’s and Thom’s representatives are appealing to the idea that as Aboriginal people the two men have a significant connection to the Australian land that confers on them some sort of significant legal standing. This defense invokes an alternative to birthright citizenship called jus nexi (literally, “law of linkage”), which confers citizenship on any person who has an immediate stake in the laws and operations of a country. Jus nexi does not function automatically but confers citizenship on the basis on the contingent fact of a person’s being a “stakeholder” in a country. In the case of Love and Thoms it is specifically their Aboriginal heritage that is taken to make them stakeholders. (This makes the issue a bit confusing, but in general jus nexi is not an automatic mechanism: it does not confer citizenship on the basis of being born to certain parents, or in a certain place.)

Immigration is an increasingly complex problem for governments as refugees and those seeking new opportunities move from one country to another. The social tension and financial pressure that attends such migration has drawn anti-migration reactions not only from people, but from the governments themselves. (The permanent furor over immigration in the United States attests to that.) The invention of jus nexi is one way in which theorists have tried to update the conceptions of the mechanics of citizenship in response to increased migration, and to avoid travesties like the one Australia’s government aims to perpetrate.