Economic Conditionality

A little noticed restrictive trend, which is squarely situated in a neoliberal context, is economic in nature: making access to citizenship more expensive and dependent on the financial self-sufficiency of the applicant. In this respect, citizenship becomes quite literally “earned.” A comparison of eight European Union states found that in seven of them the fees for naturalization have gone up in the new millennium, more than doubling on average [Stadlmaier Reference Stadlmaier2018: 50].

Particularly in the UK, on top of extraordinarily high visa and permanent residence fees, naturalization fees have dramatically risen over the past few years, reaching slightly over GBP 1,200 per adult and GBP 1,000 per child in 2018, which adds up to a non-trivial investment for the standard family of four. This change was deliberate, and it mirrors precisely the rise of neoliberalism and the devolution of the welfare state.Footnote ¹ In the 1920s, before the rise of the post-WWII welfare state, there was an attitude among British naturalization officers that one could call “neoliberal” before the word: an application from an unemployed person “could not normally be expected to succeed.”Footnote ² At the welfare state’s height, in the late 1960s, there was the opposite attitude that naturalization fees should not be set too high, “not… to form a barrier to worthy applicants of humble means.”Footnote ³ In yet another drastic turnaround, between 2004 and 2017, the fees skyrocketed, growing more than six-fold, from approximately GBP 200 per application (by a person living alone) to over GBP 1,200.Footnote ⁴ The fee explosion was aggravated by a rule change, in 2009, that charged each member of a family extra, and no longer treated the family as one unit. Interestingly, the fee hike was not only motivated by making the naturalization process self-financing and to relieve “UK taxpayers” of the bill, which was a dominant motive under Conservative Prime Minister David Cameron’s plan to make the entire British immigration system “self-funded” by 2020.Footnote ⁵ In addition, and importantly, the fees were set deliberately higher than the actual cost for a symbolic purpose, to express and reinforce the “importance” and “value” of British citizenship. The attendant assessment of “value” peculiarly fused a neoliberal utility and a nationalist morality element, the new idea being that “the ‘value’ of citizenship has to be reflected in the sum of money that the administration asks foreigners to pay in return for their acquisition of citizenship.”Footnote ⁶ This was considered unproblematic from a liberal point of view because naturalization, after all, is voluntary: “A person who is settled in the UK is not required to become a citizen,” as a member of the House of Lords defended the naturalization fee explosion in a 2016 debate.Footnote ⁷

It must be conceded, however, that in contrast to other European countries, there was no parallel move in the UK to make the receipt of welfare an exclusionary ground for naturalization. Accordingly, one may consider the fee hike the functional equivalent to the exclusion of applicants because of welfare dependence: “People might be unemployed, they might rely on benefits, we don’t care. We want them to pay the fees, that’s it,” as a Home Office bureaucrat describes the dominant attitude.Footnote ⁸

The trend toward economic conditionality is not limited to Europe. In Canada, under the conservative Stephen Harper government, which at the same time tried to make Canadian citizenship more nationalistic and “warrior”-type, there was a significant fee hike in 2014, from CAD 100 to CAD 530. However, this was less morally loaded than in the UK, and simply followed the economic rationale that post-birth citizenship acquisition had become “too cheap” and that the full cost of the procedure had to be shouldered by applicants. In one commentator’s view, the Harper government undermined its own nationalist intention, because it “tacitly adopted the view that citizenship is a commodity” [Macklin Reference Macklin and Mann2017: 7].

Perhaps even more important than the increasing fees for citizenship acquisition is its conditioning on the applicant’s financial independence and non-use of social assistance. This trend has been particularly marked in Europe, as a protective measure for its more developed welfare states. It still boils down to symbolism, considering that residence and not citizenship triggers the access to most welfare benefits. As it is the reverse side of welfare chauvinism, which is the attempted limitation of welfare benefits to co-nationals, the denial of citizenship to welfare-state clients has been a central plank of radical right parties, even though it is not limited to the latter. For instance, in Denmark, a restrictive citizenship circular issued after the 2005 elections, which bore the imprint of the electorally ascendant populist Danish People’s Party, included a new self-support clause, according to which anyone who had received social aid for more than one year (later reduced to six months) over the past five years was automatically denied access to Danish citizenship—the Danish People’s Party had even demanded an extension of the aid-free period to ten years [Ersbøll Reference Ersbøll2015: 25]. A somewhat milder self-support clause was hardened in a similar political context in Austria. A 2005 amendment to the Citizenship Law, which was passed under a coalition government that included a radical right party (the BZÖ [Bündnis Zukunft Österreich], a splinter of the FPÖ, and led by populist maverick Jörg Haider), decreed that a citizenship applicant must not have received social assistance for more than three years within the last six years, without any exception [Stern and Valchers Reference Stern and Valchers2013: 22-23].

However, it must be stressed that radical right parties may have hardened but they did not invent financial self-sufficiency clauses. German citizenship law, for instance, which had never been affected by a radical right party, has always included as condition for naturalization that an applicant does not receive social aid (Sozialhilfe) or unemployment compensation. The difference with Austria is that German lawmakers never tried to waive any exceptions to this rule: if a person cannot be held responsible for her social aid dependence, she is still entitled to naturalize [Hailbronner and Farahat Reference Hailbronner and Farahat2015: 12]. Overall, a comparison of nine EU countries found that radical right parties had an influence on economic performance criteria in citizenship law “only when they have been strong over a longer period of time” [Stadlmaier Reference Stadlmaier2018: 55].

Penal-Law Conditionality

A second new hurdle to naturalization, which is likewise closely but not exclusively related to radical right influence, is penal law. In Denmark, a 2002 change of the citizenship law, the first that was influenced by the Danish People’s Party, among other restrictive measures, saw a new conduct rule that an imprisonment between one and two years necessitated a waiting period of eighteen years, while a sentence of two years and more forever excluded the possibility of acquiring Danish citizenship [Ersbøll Reference Ersbøll2015: 24]. In 2005, this already harsh conduct rule was further tightened: lighter sentences also incurred long waiting periods, while an 18-month imprisonment permanently precluded naturalization [ibid.: 25]. In Austria, under the 2005 reform of citizenship law, any conviction other than for an offence “committed out of negligence” rules out Austrian citizenship, and from 2011 even administrative infractions that are deemed “serious,” including violations of the Road Traffic Regulation, can be regarded as an “obstacle” to naturalization [Stern and Valchers Reference Stern and Valchers2013: 22].

Considering the centrality of security and law and order in radical right discourse, and the latter’s knee-jerk association of immigrants with crime, these developments do not surprise. However, the German naturalization rules also have always precluded citizenship for penal law violators, and an amendment to the citizenship law in 2006 further increased the ambit of legal infractions that bar an individual from German citizenship [Hailbronner and Farahat Reference Hailbronner and Farahat2015: 12]. One must conclude that the degree but not the fact of tying naturalization to a clean legal record may show the hand of the radical right.

By far the strictest, even heinous, tying of naturalization and conformity with the law is observable in the United States. The means for this has been the “good moral character” clause, which has been a central part of US naturalization law since its inception in 1790. The clause, which aims to test the “fitness” of an applicant [Lapp Reference Lapp2012: 1590], was long left statutorily undefined. Interestingly, well into the mid-20th century, the courts and the federal administration interpreted it in a lax and forward-looking way. Not before the 1952 Immigration and Nationality Act, murder and other offenses, including “habitual drunkenness,” adultery, polygamy, and illegal gambling, were formally listed as precluding an applicant from citizenship under the clause, but only if these acts occurred in the five-year residence period preceding the application. When the first “good moral character” case was adjudicated by a US court, in the mid-1870s, and when there was still no clarity as to what standards to apply, the court argued that “probably the average man of the country is as high as it (the standard) can be set” [ibid.: 1586]. Similarly, a mid-20th century training manual for federal naturalization officers decreed that the implementation of the good character clause should leave “ample allowance for reformation” [ibid.: 1589], setting present (and the promise of future) moral character, rather than past behavior, as benchmark. As the US Supreme Court declared in an early 20th century citizenship case, “good moral character” is “being exacted because of what [it] promised for the future, rather than what [it] told of the past” [ibid.: 1585, fn.87]. These views were in line with the redemptive “penal welfarism” that guided the American justice system between the 1880s and 1970s [see Garland Reference Garland2001: ch.1].

With the decline of the “rehabilitative ideal” and the rise of revengeful “expressive justice” in the US [Garland Reference Garland2001: 8], an archaically punitive and essentialist interpretation of the good moral character clause became dominant. Key to this was the late 1980s’ invention and subsequent hardening of the legal concept of “aggravated felony” in immigration law. It automatically makes an immigrant deportable, and forever disqualifies him or her from meeting the good moral character requirement in naturalization law, even if the conviction long preceded the five-year residence period prior to citizenship application, and even if the sentence was suspended and removed from a person’s legal record and he or she is thus rehabilitated and “clean.” Once guilty, always guilty, never a citizen—this is the savage logic. Crucially, the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), passed under Bill Clinton’s Democratic presidency, greatly increased the number of crimes qualifying as “aggravated felony,” including small lawbreaking that is otherwise legally classified as “misdemeanor.” “Aggravated felony” no longer meant, as in the past, only “high crime,” like homicide, but any wrongdoing that is punished with a prison sentence of more than one year, even if the sentence has been suspended. Under current American justice, this means that stealing a videogame worth USD 10 can constitute “aggravated felony” under immigration law and thus not only exclude a person from US citizenship forever but, more seriously, make him or her deportable without the possibility of judicial review [Lapp Reference Lapp2012: 1592, and fn.135]. In the enforcement-obsessed past quarter-century, immigration law has added thousands of “classes” of behavior that forever exclude a “good moral character” finding. In addition, a catch-all provision in the law enlarges the scope of potential restrictiveness even further: “The fact that any person is not within any of the foregoing classes shall not preclude a finding that for other reasons such a person is or was not of good moral character” [quoted in ibid.: 1593]. As the American jurist Kevin Lapp has documented, helped by this catch-all clause, the “aggravated felony” construct “prevents or hinders a greater number of immigrants than ever from proving their present good moral character,” and there is now a shadow population in the US that “forego[es] pursuing citizenship because truthfully disclosing past misdeeds creates too great a risk of detention or deportation” [ibid.].

Cultural Conditionality

The single most debated new hurdle to naturalization is a cultural one. In his analysis of current naturalization trends, Liav Orgad [Reference Orgad and Shachar2017] lists a restriction-minded “cultural turn” as a key development in recent naturalization laws, expressed above all in citizenship tests that have proliferated in Western Europe since the early millennium. The defense of majority culture, or what Orgad [Reference Orgad2015] has dubbed the “cultural defense of nations,” has also been the main preoccupation of the populist radical right. One might thus think that its effort to change naturalization law would be stronger and more unrelenting in this than in other respects of the law, pushing for a return of cultural assimilation as a naturalization requirement. This has generally not happened. An authoritative study of civic integration policies in Western Europe, of which citizenship tests are a central part, concludes that these policies are beholden to “liberal values” [Goodman Reference Goodman2014: 15]. And, to the degree that thicker and more particularistic “national values” are foregrounded in the naturalization procedure, Sara Goodman subtly observes that “(k)nowing national values and believing in them are two different things… The state can mandate knowledge and the professing of loyalty, but not morality or belief” [ibid.: 33]. Even Liav Orgad, who had earlier indicted the “illiberalism” of cultural defense policies in some European states [Reference Orgad2015: ch.3], later argued that these policies “do not mark a return to cultural assimilation. Perhaps paradoxically, cultural defense policies reveal how light citizenship as a source of identity becomes. Liberal states attempt to define the rules for joining the community in cultural terms, but end up with a thin version of what ‘culture’ is” [Orgad Reference Orgad and Shachar2017: 353].

An examination of the contents of citizenship tests in four West European countries, plus the United States, found that only the Netherlands “requires immigrants to be aware of and accept certain sociocultural norms” [Michalowski Reference Michalowski2011: 749]. The Dutch citizenship test, crafted in the context of a strong radical right, is the only one that includes “illiberal” questions about “traditions and public moral.” However, the test can in principle be passed even if all answers in this category are incorrect, because the majority of questions are concerned with liberally inconspicuous topics like “economy and public goods and services” and “politics, history and geography” [ibid.: 758]. Importantly, in all other examined countries, surprisingly including Austria and Germany, which Ines Michalowski takes as traditional representatives of an “ethno-cultural understanding of citizenship,” the citizenship tests “(convey) a politically liberal community of citizens, united around legal and political norms, rather than around sociocultural ones” [ibid.: 749].

In fact, liberalism, which is perceived as being under siege in Europe by its sizeable Muslim population of immigrant origins, is the central preoccupation and defense-line in naturalization law’s “cultural turn.” This yields the paradox of “illiberal liberalism” [Orgad Reference Orgad2010]. One example is the Netherlands, where the “Dutch norms and values” that fare centrally in its coercive civic integration policies, at closer look, are (neo-)liberal values, such as “(p)rogressive views, individualization, the expectation that you will do anything you can to strive for your own success, taking responsibility for your environment.”Footnote ⁹ The perhaps most drastic example of illiberal liberalism is France, where it is official policy, sanctioned by the Conseil d’Etat, that someone who wears a Burka cannot become a French citizen, because this is deemed incompatible with the “values essential to the French communauté, notably the principle of gender equality.”Footnote ¹⁰

Taking again the Dutch case, as one of Europe’s most restrictive civic integration regimes, there may be the intention of cultural assimilation, but there is little possibility of enforcement, at least by way of the citizenship test format. Indeed, the standardized and formalized test format itself guarantees a minimum amount of liberalness. This is because it increases the naturalization procedure’s calculability on the part of citizenship applicants, who are no longer subject to the whims of an open-ended, individual interview procedure whose outcome is always discretional. One might even question the assimilatory intention, considering the self-deprecating tone in which the Netherlands presents itself to newcomers as “too cold” and “they really are white” [see Orgad Reference Orgad2015: 101].

In an interesting exchange on the question of whether the new citizenship tests are liberal, Ines Michalowski [Reference Michalowski, Bauböck and Joppke2010: 6] finds “illiberal” the Dutch “big state” posture to “define cultural and religious difference (not) as the private affair of each citizen (but) as a public issue that may require state interference.” However, even the one-fifth of questions in the Dutch citizenship test that, by Michalowski’s classification [Reference Michalowski2011: 762], pertain to what is ethically “good” rather than to what is morally “right,” and in this sense are “illiberal” in her view, qua being pressed into a standardized test format, are in the cognitive mode. They are learnable and repeatable, without the possibility for the state, perhaps not even its intention, to enforce and ensure that the test taker adopts and internalizes the respective standards in her own behavior. Moreover, when answering to Michalowski’s “big state” charge, Randall Hansen [Reference Hansen, Bauböck and Joppke2010: 26] makes the useful distinction between knowing about and accepting social norms as a matter of fact, on the one hand, and being asked to adopt and to “like them,” on the other. The latter is arguably not something that the Dutch state could legally and reasonably require of its immigrants and citizenship applicants. Of course, the line between acceptance and identification is difficult to draw. But unless it is drawn, societies could not be distinct historical formations. As the philosopher Samuel Scheffler [Reference Scheffler2007: 111] reasonably pointed out, even the liberal state “cannot avoid coercing citizens” (and citizenship applicants, one might add) “into preserving a national culture of some kind.” This begins with the trivial fact of establishing and preserving an official language, the learning and mastering of which, however rudimentarily, is a central purpose and requirement of all citizenship tests.

New World Restrictiveness

Considering that the United States has practiced citizenship tests for over 70 years, it is astonishing that their new-millennium introduction in Europe has stirred intense debate. Is there a difference in kind between a more “inclusive” New World and a “restrictive” Europe (as claimed, for instance, by Elias Reference Elias2016)? In the following, I suggest that this contrast is overdrawn, and that there is a convergence towards a restrictive approach to naturalization.

Take recent naturalization reforms in Canada and Australia. To “strengthen” Canadian citizenship, which tellingly boiled down to making it “harder to get and easier to lose” [Macklin Reference Macklin and Mann2017: 6], has been the guiding light of two restrictive citizenship laws passed by Stephen Harper’s conservative government in 2008 and 2014. For Canadian jurist Audrey Macklin, they meant nothing less than a retreat from Canada’s self-image as a “normative immigration country” [ibid.: 2]. Complementary to this diagnosis, in sociologist Elke Winter’s view [Reference Winter2015: 30], the two laws entailed a European-style “renationalization of citizenship,” in transforming naturalization from “stepping-stone” into “end point of the integration process.”

The 2008 law, which also happened to be the first new Canadian citizenship law in 30 years, reintegrated so-called “Lost Canadians” into the country’s citizenry. These are people, a good number of them living for decades as naturalized Americans in the United States, who had unknowingly lost their Canadian citizenship due to some anachronistic and discriminatory features of the 1947 Canadian Citizenship Act, which were not retroactively rectified by a legal reform in the 1970s [Winter Reference Winter2014: 54]. At the same time, the 2008 law limited citizenship by descent to the first generation abroad, which made the Canadian regime for transmitting citizenship abroad one of the strictest in the world. At first sight, the dual-pronged 2008 law seems to be of one liberal cloth, because past discrimination based on gender, marital status and dual citizenship was rectified, in the case of the Lost Canadians, while the restriction of citizenship by descent, which was previously available without a generational stopping-point, strengthened a territorial and socialization-based, non-ethnic understanding of citizenship. In reality, both prongs of the reform were of one “re-ethnicization” cloth, as Winter shows [ibid.: 57], because the Lost Canadians happened to be mostly white European-origin Canadians, while the first-generation limitation for Canadians born abroad targeted more recent, non-European-origin Canadians. A prime example of the latter are Lebanese-Canadians, who were spectacularly evacuated at great cost after the Israeli invasion of Lebanon in 2006. Many of them had little connection to Canada, stirring a debate about “Canadians of convenience” who abuse “Hotel Canada.”Footnote ¹¹ The favored group being of European-origin, while the disfavored was more likely to be non-European, suggests a “tribal” or even racial subtext to the 2008 Canadian Citizenship Act [Winter Reference Winter2014: 51-54].

Further administrative changes, between 2009 and 2012, confirmed the “shift toward a more nationalist citizenship regime” in Canada [Winter Reference Winter2015: 18]. There was a tightening of the rather easy citizenship test, and a new rule that members of the Canadian Armed Forces had to be present at all citizenship ceremonies—which prompted Audrey Macklin [Reference Macklin and Mann2017] to see Canada on the way from “settler society” to “warrior nation.” Finally, in 2014, the appositely entitled Strengthening Canadian Citizenship Act combined a controversial new provision of citizenship stripping for terrorists with a significant tightening of citizenship acquisition through naturalization. In the latter respect, the required permanent residence time was increased from three out of four to four out of the last six years of prior residence in Canada. Crucially, to further combat globally mobile “Canadians of convenience,” “residence” was now defined as “physical residence,” with at least 183 days per year spent in Canada, to be proved by one’s income tax returns. In a nasty but hugely significant side-plot, those who had entered as temporary workers, but also as refugees or international students, could no longer earn “half-time credit” toward fulfilling the residency requirement for naturalization (that is, have their non-permanent-residence time at least partially recognized) [ibid.: 12]. If one considers a new reality of “two-step migration,” which follows the European logic of Aufenthaltsverfestigung (consolidation of residence over time), and as a result of which most newcomers to Canada arrive on temporary work or study visa, this constituted a significant new hurdle to citizenship.

This and several other provisions of the 2014 Canadian Citizenship Act were immediately rescinded by the Liberal government under Justin Trudeau, after he won the national elections in 2015. Trudeau had made a liberal line on citizenship a central motif of his successful campaign against Harper, particularly attacking the controversial banishment provision with the notion that citizenship is an inalienable right. However, the nine-year-long Harper regime still shows the darker possibilities in a country that is globally hailed for its progressive immigration and citizenship policies. And the trend toward temporary migration, with significantly higher obstacles for low-skilled immigrants in acquiring citizenship, continues unabated—Antje Ellermann [Reference Ellermann2019] has appositely referred to it as the rise of neoliberal “human capital citizenship.”

Australia is very similar in this respect. Recent Australian reforms confirm the general trend, across the liberal state world, toward a “more conditional” understanding of citizenship [Thwaites Reference Thwaites2017: 30]. In late 2015, a provision of citizenship stripping for terrorist acts was introduced, which, unlike the Canadian, remains in place. More relevant for our discussion of naturalization trends, a new citizenship bill, proposed in 2017, aimed at “strengthening the requirements to become an Australian citizen” [Australian Government 2017: 6]. Presented in the contemporary standard diction that [Australian] citizenship is “an extraordinary privilege” [ibid.: 5], a key provision of the bill increased from one to four years the required time spent in permanent resident status, prior to the citizenship application. This was still low, by European standards. However, previously it had sufficed to have spent 12 months as permanent resident over a four-year residence period.

Even more than the kindred provision in the 2014 Canadian Citizenship Act, this would have huge implications in a context of “two-step” migration, which at first is only temporary. Initially introduced for low-skilled immigrants, two-step migration by now predominates also for the high-skilled. Between 2006 and 2013, the stock of temporary visa holders in Australia more than doubled, from about 350,000 to over 800,000 [Mares Reference Mares2016: 56], most of whom eventually try to move toward permanent residence status. However, the number of permanent residence visas per year is capped, while that of temporary visas is not. This disparity has led to the rise of a “class of long-term residents who are denied full inclusion and participation in the Australian community through citizenship” [Thwaites Reference Thwaites2017: 27]. And this is not all. In 2013-2014, 50% of all permanent immigrant visas went to people who already resided in Australia on temporary visas [ibid.: 28, fn.133]. However, since the introduction of “priority processing” in 2009, which aimed at reducing an escalating backlog, the second step in two-step migration, from temporary to permanent, is essentially reserved for the high-skilled and students, in particular if their skills are in high demand [ibid.: 28].

This means that access to Australian citizenship is increasingly skewed by class and education, which makes it another instance of “human capital citizenship” [Ellermann Reference Ellermann2019]. The neoliberal logic of this was perfectly expressed by the Secretary of the Department of Immigration and Border Protection, when celebrating his department’s 70th anniversary in 2014: “In the world of globalized travel, investment and labor mobility, the art of tapping into the resource of international human capital no longer consists of the slow and steady build-up of the population base, in the way it did seven decades ago. Today, we need a strategy and plan for attracting those in the ready-made global pool of travelers, students, skilled workers and business-people, the latter with money to invest and ideas to commercialize.”Footnote ¹²

However, there is a second, even more interesting repercussion in the extension of the required permanent residence period in the 2017 Australian citizenship bill: it “will enable greater examination of an aspiring citizen’s integration with Australia” [Australian Government 2017: 9]. Among the integration efforts to be exacted and “documented” during this period, a government paper lists the following: whether “people who can work are working, or are actively looking for work or to educate themselves,” “contributing to the community by being actively involved in community or voluntary organizations,” “properly paying their taxes,” “ensuring their children are being educated,” and their “criminal records” [ibid.: 6]. Moreover, the new law would toughen the English language requirement, from “basic” to “competent,” newly to be fulfilled before taking a citizenship test; it would “(strengthen) the Australian Values Statement,” by formally “requir(ing) applicants to make an undertaking to integrate into and contribute to the Australian community”; and it would “(strengthen) the test for Australian citizenship” by adding new questions that really “confirm an applicant’s values” [ibid.: 10]. This comes dangerously close to transforming a previously knowledge-based test into a morality test. The few paragraphs in the government paper that summarize the new integration requirements are littered with the word “strengthen,” which is a code word for restricting.

For a critic, the stipulation of “virtuous behavior” and other integration requirements as precondition for citizenship was “copying Europe” [Askola Reference Askola2020]. The 2017 Australian citizenship bill was eventually struck down in the Senate because of strong opposition to the new English language requirement. However, the fact that all other new integration requirements were apparently uncontroversial, suggests a convergence of restrictive naturalization trends in Europe and the New World.

In an influential mid-1990s’ survey on the “return of the citizen” in political theory and in public policy, Will Kymlicka and Wayne Norman [Reference Kymlicka and Norman1994: 353] warned against conflating “citizenship-as-legal-status” and “citizenship-as-desirable-activity”: “(W)e should expect a theory of the good citizen to be relatively independent of the legal question of what it is to be a citizen.” As our brief survey of more restrictive naturalization rules across Western states shows, this distinction no longer holds. To an alarming degree, at least to a liberal eye, being a “good citizen” has become a prerequisite for becoming a citizen.

Nationalism

With respect to nationalism, to associate citizenship with loyalty, of course, is no invention of the new nationalists, but it goes back to the historical origins of citizenship, marking the latter as a deeply illiberal institution. This is because loyalty logically requires that partiality trumps universalist commitments. In Calvin’s Case (1608), the legal decision that founded jus soli birthright citizenship in early modern England, “allegiance” connoted a “true and faithful obedience of the subject due to his Sovereign” [quoted by Orgad Reference Orgad2013: 11], which was reciprocated with the Sovereign’s protection. Well into the mid-19th century, “allegiance” was held to be “perpetual.” Importantly, even when the feudal subject became the democratic citizen, and the latter could change her allegiance, loyalty persisted as the quintessential citizen virtue, shifting from the person of the king to the impersonal state as representative of the citizenry.

Loyalty and obligation obviously conflict with the universalist ethic of liberalism. Because they are still held necessary for political order, even a liberal one, they have been an enduring concern of normative political theory. Indeed, citizenship figures in liberal political theory, unless it is addressed in the context of immigration, precisely with respect to the problem of “political obligation” [Schutter and Ypi Reference Schutter and Ypi2015: 235]. Contrasting it with “exit,” George Fletcher [Reference Fletcher1993: 5] took “loyalty” as nothing less than the “beginning of political life.” To the degree that citizenship is connoted with loyalty, it inherits from the latter its “relational and partial” nature, which makes citizenship opposed to liberalism with its “impartial morality” [ibid.: 8]. Loyalty, and hence citizenship, is in conflict with liberalism, because it “takes relationships as logically prior to the individual” [ibid.: 15]. The loyal citizen is “an historical self,” who has a “duty to stand by those who have become a critical part of one’s biography” [ibid.: 39].

For loyalty to be compatible with liberalism, George Fletcher importantly notes, it can only be “minimalist,” a “quiet, passive virtue,” in the sense of “not betraying,” of “not fighting for the enemy” [Reference Fletcher1993: 40]—an expectation that incidentally not only citizens but immigrants also are subject to. Surely, there is an “enthusiastic dimension” to loyalty [ibid.: 61], which in the citizen realm goes under the name of patriotism. However, it is tempered in the liberal-constitutional state by the privatization of loyalty, according to which “the state should not force people to betray their commitments to their friends, lovers, family, community, or God” [ibid.: 79]. Even in the early 1940s, a high moment of nationalism because the world was at war, the US Supreme Court, in its historical Barnette decision,Footnote ¹⁴ sided with the Jehovah Witnesses’ refusal to salute the American flag, as a matter of free speech protection. As Justice Stevens solemnly declared for the court, “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.”Footnote ¹⁵

When the conservative British think-tank, Policy Exchange, in a report published in 2018, sought to revive the moribund 1351 English Treason Act to prosecute returning jihadists and terrorists, incidentally as an alternative to citizenship stripping, it operated with a liberally thin understanding of loyalty. The “duty of non-betrayal,” it argued, whose violation a reformed Treason Act should punish with life imprisonment, was only to be “a narrow one;” “it does not require ‘total loyalty’ or for the citizen’s first loyalty to be to their country rather than to their religion or to some other country or cause” [Ekins et al. Reference Ekins2018: 16].

Recent citizenship stripping laws rely on the 1961 UN Convention on the Reduction of Statelessness that in principle denounces citizenship stripping as “unjust and cruel,” yet still permits it in case of a breach of the “duty of loyalty to the Contracting State.” These laws abstain from definitions or discussions of what loyalty is, thin or thick, apart from laying down which acts or affiliations constitute loyalty breaches that trigger denationalization. However, the fact that all of these laws, even the British, limit their range to dual nationals, suggests that a latent hostility to dual nationality, and the divided loyalties that traditionally have been attributed to it, is never far from the surface [see Lenard Reference Lenard2017: 9]. That is, the message is that loyalty proper, and thus citizenship, is undivided. This notion, which in an era of increasingly accepted dual citizenship seemed to have become anachronistic, is recovering ground lately. “Undivided allegiance has never been absent from the concept and discourse of citizenship,” finds Helen Irving [Reference Irving2019: 383], with an eye on Australia, which has also recently hardened its stance on dual nationality.

Neoliberalism

One can detect the neoliberal prong of citizenship stripping in the fact that the latter operates with a contractarian understanding of citizenship. A remarkable feature of recent laws is the legal fiction that not the state, but the individual herself, through her disloyal action, abdicates her nationality. “(The terrorists) will have, in effect, withdrawn their allegiance to Canada by these very acts,” declared Canadian Immigration Minister Chris Alexander when presenting the 2014 Strengthening Canadian Citizenship Act in parliament.Footnote ¹⁶ Similarly, the 2010 Dutch citizenship stripping provision states that “the irrevocably convicted person has demonstrated that he has renounced his bond with the Kingdom” [quoted by Lenard Reference Lenard2016: 76]. In a similar German law passed in 2019, which merely extended already existing grounds for citizenship deprivation from serving in a foreign army to joining a non-state “terror militia” (Terrormiliz), the latter “brings to the expression that (the respective person) has turned away from Germany and her foundational values and has turned toward a foreign power in form of a Terrormiliz” [quoted in Gärlitz and Wallrabenstein Reference Gärditz Klaus and Wallrabenstein2019: 2]. In the 2015 Allegiance to Australia Act, where under certain conditions the loss of citizenship is automatic, without any ministerial discretion, there is “the legal fiction that there is no decision-maker” [Thwaites Reference Thwaites2017: 26], at least not on the part of the citizenship-cancelling state: “(C)itizens may, through certain conduct incompatible with the shared values of the Australian community, demonstrate that they have severed (the common bond) and repudiated their allegiance to Australia” [quoted in Irving Reference Irving2019: 375].

In the United States, the Patriot II Act (that never reached Congress) included a provision that material support to a terrorist organization constitutes “prima facie evidence that the act was done with the intention of relinquishing U.S. nationality” [quoted in Spiro Reference Spiro2014: 2176]. And a likewise unsuccessful “Expatriate Terrorists Act,” proposed in 2014 by Republican Senator Ted Cruz, stipulated that “any American that takes up arms with ISIS has, in doing so, constructively renounced his or her American citizenship” [quoted in Sykes Reference Sykes2016: 755]. The ultra-voluntarist language in the US law proposals reflects an unusually liberal citizenship regime, in which not the state but “the citizens themselves are sovereign.”Footnote ¹⁷ Indeed, as a result of US Supreme Court jurisdiction in the late 1960s, nothing short of the verbally expressed intent on the part of the citizen can bring about her loss of American citizenship. Accordingly, even more visibly in the American than in the other cases, liberal language, which revolves around the individual’s actions and intentions, is used to impose behavioral conditions on citizenship, which is, at best, a neoliberal and by any means disciplining and restrictive measure.

Right or Privilege?

More than any other recent legal-political development surrounding citizenship, the debate on denationalization raises the question of what citizenship is: “right” or “privilege.” That citizenship is “privilege” has been the uniform battle cry of the proponents of denationalization, from Britain—where the notion of citizenship as privilege is coeval with the invention of “earned citizenship” in the early millennium—Footnote ¹⁸ to Canada, where Immigration Minister Chris Alexander’s attempt to “strengthen” and “protect” citizenship by making it easier to deprive certain people of it, went along with the reminder that “citizenship is not a right; it is a privilege” [quoted in Pillai and Williams Reference Pillai and Williams2017: 21]. Even in the US, where the opposite notion that citizenship is the “right to have rights” was famously enunciated by the Supreme Court in the late 1950s, the “citizenship is privilege” discourse has taken hold, at least in the sphere of politics. “United States citizenship is a privilege. It is not a right. People who are serving foreign powers… or… terrorists… are clearly in violation… of that oath which they swore when they became citizens,” declared US Secretary of State Hillary Clinton, in support of Democratic Senator Joseph Lieberman’s 2010 proposal of a Terrorist Expatriation Act.Footnote ¹⁹

When commenting on the UK Government’s position that “citizenship is privilege, not a right,” one observer gasped that this “seems to emerge from nowhere…, with no acknowledged sources” [Sykes Reference Sykes2016: 754]. In fact, it can be traced back to pre-democratic times, when “citizens” were “subjects” [Kingston Reference Kingston2005]. Its more contemporary source is the fact that under international law––even under European Union law––the determination of citizenship remains a sovereign state prerogative. This is even more true for naturalization, which is by definition conditional, today more than ever because of the growing list of behavioral and character requirements discussed above; its strong and recently stronger contractual element allows the state to always say “no.” The legal meaning of what a “privilege” as distinct from a “right” is, and why states qua states have an interest in favoring the “privilege” line, has been crisply expressed by Audrey Macklin [Reference Macklin2014: 53]: “A privilege in law belongs not to the recipient, but to the patron who bestows it. A right belongs to the one who bears it. When members of the executive declare that citizenship is a privilege and not a right, what they are asserting is their own power to take it away.”

Conversely, when opponents of citizenship stripping have asserted that “(c)itizenship is not a ‘privilege,’ but a protected legal status” [Goodwin-Gill Reference Goodwin-Gill2014: 1], they are no less nebulous about the sources of their claim. Taking denationalization as a hub for reflection on “what kind of right the right to citizenship is,” Patti Lenard [Reference Lenard2017: 1] grounded it, domestically, in “the very strong interests that individuals have in security of residence,” and, internationally, in protecting the individual “from the harms of statelessness.” In consideration of both, she concludes that citizenship must be “permanently irrevocable” [ibid.: 12]. The domestic part of her argument echoes Carens’ case for “social membership” [Reference Carens2013], and both are ultimately normative statements of what citizenship ought to be, rather than what it legally or institutionally is. In this respect, the international part of Lenard’s argument seems to be on firmer ground. The UN Universal Declaration of Human Rights, in its Article 15, provides a “right to a nationality” and that “(n)o one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.” However, this is pointedly the right to “a” nationality, not the right to any particular nationality. And the 1961 UN Convention explicitly devoted to the “reduction of statelessness,” as mentioned, does allow citizenship stripping for loyalty breaches and “misrepresentation or fraud,” even if this may result in statelessness, but the thresholds are set very high.

The most solid and developed case for considering citizenship a right can be found in American constitutional jurisprudence, and precisely in the context of citizenship deprivation. In its landmark decision Afroyim v. Rusk [1967], the US Supreme Court decreed that the government lacked the power to revoke citizenship from a Jewish American who had voted in an Israeli election. As the court argued, this decision did “no more than to give to this citizen that which is his own, a constitutional right to remain a citizen in a free country unless he voluntarily relinquishes that citizenship.”Footnote ²⁰ This theory had first been laid out in the famous dissent of Chief Justice Earl Warren in the Supreme Court’s Perez v. Brownell (1958) decision, which was overruled in Afroyim. As in most of the 22,000 cases of denaturalization in the United States between 1907 and 1967 [Weil Reference Weil2013: 197], the citizenship stripping in Perez was motivated by a smallish digression, voting in a foreign election, which was declared nil nine years later in Afroyim, but which the court majority in Perez deemed to be in contravention of US foreign policy interests. Against the court majority in the Perez decision, Warren held that a “(g)overnment… born of its citizens,” and whose function is to “secure the inalienable rights of the individual,” is “without power to sever the relationship that gives rise to its existence.”Footnote ²¹ Citizenship, he famously continued, in an obvious (but not acknowledged) borrowing of the term and reasoning from Hannah Arendt, is “the right to have rights. Remove this priceless possession and there remains a stateless person, disgraced and degraded in the eyes of his countrymen.”Footnote ²²

Interestingly, Warren left intact the official doctrine that underlies America’s licentious citizenship stripping practices at the time, which is that “conduct of a citizen showing a voluntary transfer of allegiance is an abandonment of citizenship”Footnote ²³; and that in this case there was no stripping at all but “giving formal recognition to the inevitable consequence of the citizen’s own voluntary surrender of his citizenship.”Footnote ²⁴ Only the threshold for what counts as “voluntarily relinquished”Footnote ²⁵ had to be set higher, Warren argued in Perez, the “mere act of voting in a foreign election… is not sufficient”Footnote ²⁶. When Warren’s minority opinion in Perez became constitutional law in Afroyim, Justice Hugo Black (arguing for the court majority) added little to the substance of Warren’s rights-focused theory of citizenship, except laying out in more detail that the 14th Amendment’s citizenship clause had to be “read as defining a citizenship which a citizen keeps unless he voluntarily relinquishes it.”Footnote ²⁷ Black added the observation, criticized as “essentially arcane” by the dissenting Justice John Marshall Harlan,Footnote ²⁸ that the “citizenry is the country and the country is its citizenry.”Footnote ²⁹

In a brilliant commentary, Alex Aleinikoff [Reference Aleinikoff1986] concluded from Black’s “arcane” statement that the theory of citizenship underlying the Supreme Court’s Afroyim jurisprudence is not liberal-rights based at all but “communitarian.” One could also call it a nationalist perspective, according to which citizenship is “not a right held against the state,” but “a relationship with the state or, perhaps, a relationship among persons in the state. It is membership in a common venture” [ibid.: 1488]. Incidentally, Margaret Somers’ [Reference Somers2008] and Joseph Carens’ [Reference Carens2013] liberally capacious understandings of citizenship, discussed in the beginning of this paper, had exactly the same thrust, grounding liberal citizenship on an unacknowledged national if not nationalist fundament. The disavowal of denationalization, in the Supreme Court’s Trop v. Dulles decision (1958), because of its “total destruction of the individual’s status in organized society,” its being “punishment more primitive than torture,” and its similarity to medieval “banishment, a fate universally decried by civilized people,”Footnote ³⁰ certainly articulates a nationalist-communitarian understanding of citizenship, as providing a home in a homeless world. Today’s critics of “banishment,” for whom “citizenship revocation inflicts an intrinsically grave harm” [Macklin Reference Macklin2014: 3], while professedly taking a liberal position, implicitly liken the state to a family. Aleinikoff [Reference Aleinikoff1986: 1496] has put it well: “In much the same way that the parent is responsible for the child, so the state is responsible for the citizen. Under this reasoning the state—like the family—could punish, but it could not banish.” However, much as “violated, naked” a citizenship-deprived individual may feel [ibid.], this does not provide an argument against citizenship deprivation on allegiance or loyalty grounds: “(W)here the citizen has, in effect, declared war on society, the claim that denationalization destroys one’s concept of self is much less persuasive. The citizen’s actions may be the best signal that the individual’s conception of self does not include attachment to the core principles of society. In such a case, denationalization may simply ratify an unfortunate social fact; it would not sever the self. Thus, denationalization could be a justifiable response to treason or subversion…” [ibid.: 1497]. Or to Islamist terrorism, which is the driver of denationalization’s contemporary revival.