Right of return

This article is about the Right of return. For the Israeli right of return, see Law of Return. For the concept in the context of the Arab–Israeli conflict, see Palestinian right of return.

The term right of return refers to the principle in international law that members of an ethnic or national group have a right to immigration and naturalization into the country that they, the destination country, or both consider to be that group's homeland, independent of prior personal citizenship in that country. This belief is sometimes reflected in special consideration in a country's immigration laws (called "repatriation") which facilitate or encourage the reunion of a diaspora or dispersed ethnic population.

Background

The Universal Declaration of Human Rights (UDHR) article 13 states that "[e]veryone has the right to freedom of movement and residence within the borders of each State. Everyone has the right to leave any country, including his own, and to return to his country." (emphasis added). There is disagreement as to what this actually means in practice as well as whether country refers to a state or a specific area of land. In addition, the change from State to country from the first sentence to the second clouds the issue.

Much of the controversy surrounding such a right, however, derives from disagreement surrounding what in UDHR article 13 is referred to as "his own". Because many countries are nation-states predicated on the right to national self-determination, such countries often identify a special link between them and persons identified with the nation, or people, whose self-determination that country enables. National laws implementing a "right of return" tend to be predicated on that link. Because they give people of a certain background preferential immigration, however, such laws are controversial, especially where they are perceived to be at the expense of other people who want to immigrate.

Some countries, such as the Philippines, have devised means to "reacquire" or retain former citizens who lost their citizenship upon accession to another country, particularly to recover the contributions and potential investment opportunities of former citizens abroad. Schemes such as these bear some resemblance to right of return plans, because they highlight how a homeland's motivation to build links of citizenship with diasporas may draw from potential investment, not just the nation-state's perceived cultural duty towards one or more particular peoples. Such schemes do not necessarily constitute rights of return, however, particularly where they target former citizenship-holders rather than members of an ethnic group who may never have held citizenship, or whose diaspora location even predates state formation.

Choice of a former-citizen scheme, such as the Philippines' Republic Act 9925 ("Citizenship Retention and Re-Acquisition Act of 2003"), rather than a right of return such as those listed below, may be more closely associated with the historic circumstances of a people's dispersion and of nation-state formation, respectively, than with principled choices between them. Use of a right of return is therefore more likely in nation-states constituted more recently or whose diasporas are long-standing, and less likely nation-states constituted earlier and/or whose diasporas were constituted more recently.

Armenia

Article 14 of the Constitution of the Republic of Armenia (1995) provides that "[i]Individuals of Armenian origin shall acquire citizenship of the Republic of Armenia through a simplified procedure." This provision is consistent with the Declaration on Independence of Armenia, issued by the Supreme Soviet of the Republic of Armenia in 1989, which declared at article 4 that "Armenians living abroad are entitled to the citizenship of the Republic of Armenia".

Belarus

Citizenship act of the Republic of Belarus (2002) states that permanent residence term requirements may be waived for ethnic Belarusians and descendants of ethnic Belarusians born abroad.

Bulgaria

According to the Constitution of Bulgaria, Article 25(2): "A person of Bulgarian origin shall acquire Bulgarian citizenship through a facilitated procedure."

Chapter Two of the Bulgarian Citizenship Act is entitled "Acquisition of Bulgarian Citizenship". The first section of that chapter is entitled "Acquisition of Bulgarian Citizenship by Origin", and provides at article 9 that "[a]ny person ... whose descent from a Bulgarian citizen has been established by way of a court ruling shall be a Bulgarian citizen by origin." Separately, article 15 of the Act provides that "[a]ny person who is not a Bulgarian citizen may acquire Bulgarian citizenship ... if he/she ... is of a Bulgarian origin".

Ethnic Turks who were born to refugees or immigrants from Bulgarian lands (and thus have Bulgarian origin) also have a right of return.

People's Republic of China

Chinese immigration law gives priority to returning Overseas Chinese — ethnic Chinese who were living abroad. As a result, practically all immigrants to China are ethnic Chinese, including many whose families lived outside of China for generations.

The mainland Chinese government encourages the return of Overseas Chinese with various incentives not available to others, such as "tax breaks, high salaries and exemptions from the one-child policy if they had two children while living abroad".[1]

The "rights and interests of returned overseas Chinese" are afforded special protection according to Articles 50 and 89(12) of the Chinese Constitution.[2]

The term Overseas Chinese may be defined narrowly to refer only to people of Han ethnicity, or more broadly to refer to members of other Chinese ethnic groups. As a result of this ambiguity, people who are not Han Chinese but were born in China and subsequently left, including refugees, are not necessarily eligible for the same preferential treatment.

Republic of China (Taiwan)

The immigration law of the Republic of China on Taiwan gives priority to returning overseas Chinese who are not citizens of the People's Republic of China (mainland Chinese), Chinese who were living abroad, and encourages their return. Technically, people living in mainland China are also Republic of China citizens as Republic of China (Taiwan) has never formally withdrawn its claim for the mainland. They are not subject to the Taiwanese immigration law, but the "Act Governing Relations between Peoples of the Taiwan Area and the Mainland Area", which is however stricter than the immigration law due to the current relationship between the two governments of the Chinese nation.

Croatia

The Croatian law on citizenship ([Zakon o hrvatskom državljanstvu] Error: {{Lang}}: text has italic markup (help)), article 11, defines emigrants ([iseljenik] Error: {{Lang}}: text has italic markup (help)) and gives them privileges by excluding them from certain conditions imposed on others.

The Croatian diaspora makes use of this to obtain dual citizenship or to return to Croatia.

Czech Republic

In 1995 the Czech Republic amended its Citizenship Law to provide the Interior Ministry with the discretion to waive the usual five-year residency requirement for foreigners that had been resettled in the Czech Republic by 31 December 1994. This amendment was aimed particularly at several hundred ethnic Czechs which had been brought by the Czech government from the Ukrainian region of Volhynia, and was of a limited duration.[3]

The amendment was consistent with what the Czech Ministry of Labor and Social Affairs has identified as "the Czech government's policy principles regarding the resettlement of foreigners of Czech origin living abroad."[4] A private fund, the People In Need Czech TV Foundation, worked with government authorities between 1995 and 2001 to effect this resettlement in the specific instance of Russian and Kazakh citizens of Czech origin, and had resettled approximately 750 such persons as of 2000.[5] The strength or prominence of this policy within the Czech government may be uneven, however, and the state appears to have rebuffed dual citizenship overtures from ethnic Czechs living in the comparatively large diaspora of former Czechs in Western countries.

Diego Garcia

Depopulation of Diego Garcia

The Chagossians, an ethnic group residing on the island of Diego Garcia in the Indian Ocean, were expelled to Mauritius in the 1960s, in connection with the erection of an American strategic military installation on the island. Ever since, the Chagossians have been conducting a persistent political and legal struggle to return to Diego Garcia. As of 2007, their right to return was recognised by several British courts but the UK government failed to actually implement it (see Chagossians, Depopulation of Diego Garcia, Order-in-Council#United Kingdom).

Finland

The Finnish Aliens Act provides for persons who are of Finnish origin to receive permanent residence. It is usually Ingrian Finns from the former Soviet Union who exercise this right, but United States, Canadian or Swedish nationals with Finnish ancestry are eligible.

The Finnish Directorate of Immigration website states on its Returnees page that;

• Certain aliens, who have Finnish ancestry or otherwise a close connection with Finland, may be granted a residence permit on this basis. No other reason, such as work or study, is required in order to receive the permit.
• Receiving a residence permit depends on the directness and closeness of Finnish ancestry. If the ancestry dates back several generations, a residence permit cannot be granted on this basis.
• People who may be granted a residence permit based on Finnish ancestry or close connections with Finland can be divided into the following three groups:
  • former Finnish citizens: [6]
  • persons of other Finnish origin. This group includes the persons who have at least one parent or grandparent who has been a native Finnish citizen. [7]
  • persons from areas of the former Soviet Union. The group includes persons who have been determined to be of Finnish nationality by Soviet or post-Soviet authorities or who have at least one parent or two grandparents who have been determined to be of Finnish nationality in official documents, e.g. in their internal passports). Also all persons who were transferred between years 1943–1943 to Finland from areas occupied by Germany and were subsequently returned to Soviet Union or who served in the Finnish Defence Forces during the Second World War qualify. To qualify for permanent residence permit, the persons in this group must have a basic knowledge of spoken and written Finnish. The knowledge is tested in pre-immigration training and in a subsequent language test. In addition, they must have a pre-arranged permanent residence in Finland, but the labour authorities assist in finding an apartment. [8].

France

What might be historically the first law recognising a Right of Return was enacted in France in 1790, as part of the French Revolution putting a decisive end to the centuries-long persecution and discrimination of Huguenots (French Protestants).

Concurrently with making all Protestants resident in France into full-fledged citizens, the law enacted on December 15, 1790 stated that : 'All persons born in a foreign country and descending in any degree of a French man or woman expatriated for religious reason are declared French nationals (naturels français) and will benefit to rights attached to that quality if they come back to France, establish their domicile there and take the civic oath.'

As the expulsion of the Huguenots had taken place more than a century earlier and there were extensive Huguenot diasporas in many countries, where they often intermarried with the population of the host country, the law potentially conferred French citizenship on numerous Britons, Germans, South Africans and others - though only a fraction actually took advantage of it.

Article 4 of the June 26, 1889 Nationality Law stated that: 'Descendants of families proscribed by the revocation of the Edict of Nantes will continue to benefit from the benefit of the December 15, 1790 Law, but on the condition that a nominal decree [i.e., a decree stating the name of the specific applicant for citizenship] should be issued for every petitioner. That decree will only produce its effects for the future'.

Foreign descendants of Huguenots lost the automatic right to French citizenship in 1945 (by force of the ordonnance du 19 octobre 1945, revoking the 1889 Nationality Law). Many descendants of Huguenots had lived assimilated in Nazi Germany.

See Huguenot#End of persecution and restoration of French Citizenship.

Germany

German law allows persons of German descent living in Eastern Europe (Aussiedler/Spätaussiedler ("late emigrants"; de:Aussiedler), see History of German settlement in Eastern Europe) to return to Germany and claim German citizenship. As with many legal implementations of the Right of Return, the "return" to Germany of individuals who may never have lived in Germany based on their ethnic origin has been controversial. The law is codified in Article 116 of the Basic Law for the Federal Republic of Germany, which provides access to German citizenship for anyone "who has been admitted to the territory of the German Reich within the boundaries of December 31, 1937 as a refugee or expellee of German ethnic origin or as the spouse or descendant of such person".[9]

The historic context for Article 116 was the eviction, following World War II, of an estimated 9 million ethnic Germans from other countries in Central and Eastern Europe. Another 9 million Germans from former eastern German provinces, over which Stalin and eastern neighbour states extended military hegemony in 1945, were expelled as well. These expellees and refugees (known as Heimatvertriebene) were given refugee status and documents and resettled by Germany; discussion of possible compensation is ongoing. Some German expellees desire to resettle in their territories of birth, youth and early life, but legal procedures often make remigration difficult, even after Poland and the Czech Republic joined the European Union.

Greece

Various phenomena throughout Greek history (the extensive colonization by classical Greek city states, the vast expansion of Greek culture in Hellenistic times, the large domnions at times held by the Greek-speaking Byzantine Empire, and the energetic trading activitiy by Greeks under the Ottomans) all tended to create Greek communities far beyond the boundaries of modern Greece.

Rcognising this situation, Greece grants citizenship to broad categories of people of alleged ethnic Greek ancestry who are members of the Greek diaspora, including individuals and families whose ancestors have been resident in diaspora communities outside the modern state of Greece for centuries or millennia.(http://athens.usembassy.gov/uploads/7z/Z4/7zZ4A6EyE4dMjph5dNxFew/citizenship_code.pdf)

"Foreign persons of Greek origin", who neither live in Greece nor hold Greek citizenship nor were necessarily born there, may become Greek citizens by enlisting in Greece's military forces, under article 4 of the Code of Greek Citizenship, as amended by the Acquisition of Greek Nationality by Aliens of Greek Origin Law (Law 2130/1993). Anyone wishing to do so must present a number of documents, including "[a]vailable written records ... proving the Greek origin of the interested person and his ancestors."

India

A Person of Indian Origin (PIO) is a person living outside of India and without Indian citizenship, but of Indian origin up to four generations removed. It is available to persons of Indian origin anywhere in the world as long as they have never been citizens of Pakistan or of Bangladesh. This unusual type of citizenship by descent is an intermediate form of citizenship in that it does not grant the full portfolio of rights enjoyed by Indian citizens.

The Citizenship (Amendment) Act 2003 and Citizenship (Amendment) Ordinance 2005 make provision for an even newer form of Indian nationality, the holders of which are to be known as Overseas Citizens of India (OCI). Overseas citizenship is not substantially different than PIO rights.

Holding either PIO or OCI status does, however, facilitate access to full Indian citizenship. An OCI who has been registered for five years, for instance, need be resident for only one year in India before becoming a full citizen.

Iraqi Kurdistan

During the years Saddam Hussein controlled Iraq, he instituted a program of "Arabization" in the northern part of the country, that area inhabited by ethnic Kurds. This included moving Arabs from the south and replacing the Kurdish population, in particular the city of Kirkuk. Now that Saddam is gone, there have been calls by the Kurdish Regional Government, which administers the autonomous region, for the return of Kurds to the areas from which they were removed, especially this city.

Ireland

Irish nationality law provides for Irish citizenship to be acquired on the basis of at least one Irish grandparent. If a person outside of Ireland who is entitled to claim Irish citizenship elects not to, that person may nonetheless pass that right on to her or his own children, even if the basis for the entitlement being passed on is a single Irish grandparent. To do so, that person must register her or his birth in Ireland's Foreign Births Register.

Separately from this right, the Irish minister responsible for immigration may dispense with conditions of naturalisation to grant citizenship to an applicant who "is of Irish descent or Irish associations", under section 15 of the Irish Nationality and Citizenship Act, 1986.

Israel

The Law of Return is Israeli legislation, enacted in 1950, that gives Jews the right to migrate to and settle in Israel and gain citizenship. A 1970 amendment stated that the rights "are also vested in a child and a grandchild of a Jew, the spouse of a Jew, the spouse of a child of a Jew and the spouse of a grandchild of a Jew".

Palestinian Refugee issue

Main article: Palestinian right of return

A.N.S.W.E.R. Protester with "Right of Return" poster, Washington, DC 2009

Supporters of a Palestinian right of return argue that both first-generation refugees and their descendants have a right to return to the homes and villages they left or were forced to leave in the former British Mandate of Palestine (currently Israel and Occupied Palestinian territories), as result of the 1948 Arab–Israeli War and the 1967 Six-Day war. Article 11 of the United Nations General Assembly Resolution 194 (III) is often cited in support of this claim:

11. Resolves that the refugees wishing to return to their homes and live at peace with their neighbours should be permitted to do so at the earliest practicable date, and that compensation should be paid for the property of those choosing not to return and for loss of or damage to property which, under principles of international law or in equity, should be made good by the Governments or authorities responsible;

Instructs the Conciliation Commission to facilitate the repatriation, resettlement and economic and social rehabilitation of the refugees and the payment of compensation, and to maintain close relations with the Director of the United Nations Relief for Palestine Refugees and, through him, with the appropriate organs and agencies of the United Nations;

Japan

A special visa category exists exclusively for foreign descendants of Japanese emigrates (Nikkeijin) up to the third generation, which provides for long-term residence, unrestricted by occupation, but most Nikkeijin cannot automatically acquire Japanese citizenship.

Lithuania

From the Constitution of Lithuania, Article 32(4): "Every Lithuanian person may settle in Lithuania."[10]

Norway

The Kola Norwegians were Norwegians who settled along the coastline of the Russian Kola Peninsula from approximately 1850 to the closure of the border in the 1920s. It is estimated that around 1000 Norwegians lived on the Kola peninsula in 1917. The Kola Norwegians were deported to or put in camps in other parts of Russia during the course of World War II.

It was only after 1990 that many of the Kola Norwegians again dared to emphasize their background. Only a few had been able to maintain a rusty knowledge of Norwegian. Some of them have migrated back to Norway. There are special provisions in the Norwegian rules of immigration and citizenship which eases this process for many Kola Norwegians. These provisions are in general stricter than in some other countries giving "Right of return". In order to obtain a permit to immigrate and work in Norway a Kola Norwegian will have to prove an adequate connection to Norway such as having at least two grandparents from Norway. Citizenship will then be awarded according to regular rules. As of 2004 approximately 200 Kola Norwegians had moved back to Norway.

Poland

From the Constitution of Poland, Article 52(5): "Anyone whose Polish origin has been confirmed in accordance with statute may settle permanently in Poland."[11]

Russia

Russia offers citizenship to individuals descended from Russian ancestors who can demonstrate an affinity for Russian culture and, preferably, speak Russian. Concern about Russia's shrinking population prompted the program. Officials estimate that 25 million members of the Russian diaspora are eligible for citizenship. The Foreign Ministry has sent emissaries to countries around the world to urge the descendants of Russian emigrants to return home.

Serbia

Main article: Serbian nationality law

Article 23 of the 2004 citizenship law provides that the descendants of emigrants from Serbia, or ethnic Serbs residing abroad, may take up citizenship upon written declaration.

Spain

There are three categories of Spanish citizenship: de origen (original citizenship) which is [almost exclusively] acquired at the moment of birth, mainly to a Spanish parent, and which can never be lost; and that which is acquired through a predetermined period of legal residency in Spain, known as por residencia. The distinction is important because Spanish nationality laws primarily follow iure sanguinis, including those relating to the right of return. The third category is por opción (by choice), this is given to some people of Spanish origins that, though not complying with the requisites to attain the original citizenship, are able to prove close ties to Spain; this option is given mainly to the children of people that have attained or recovered Spanish citizenship after their birth, but it has age limits and one must exercise this choice prior turning 20 (in some countries, like Argentina, prior turning 23, as majority of age is attained at 21 there). Most of the por opción clauses do not confer original status (except those included in the Historical Memory Law), thus it can be lost, and, in case one possesses nationality other than those described below as historically related to Spain (eg. United States), renounce their current nationality in front of Spanish consular officials.

In practice this renounce has little practical effect, and in some cases null effect, as only renounces made to one's own country's officials has effect to the linked nationality.

The Historical Memory Law (Spanish: Ley de Memoria Histórica), which will take effect in December 2008, introduces temporary (two-year) changes to current Spanish nationality laws. Those whose father or mother were born original Spaniards (regardless of their place of birth, whether they are still living, or whether they currently hold Spanish nationality) and those whose grandparents emigrated due to political or economic reasons will have the right to de origen Spanish nationality. Until and while the Law of Historic Memory takes effect, the following laws will also apply:

1. Spanish-born emigrants (mainly exiles from the Spanish Civil War and economic migrants) and their children are eligible to recover their de origen Spanish nationality without the requirement of residence in Spain. They also have the right to maintain any current nationality they possess.

2. Regardless of their place of birth, the adult children and grandchildren of original Spaniards (original Spaniards are those who, at the moment of their birth, were born to people who possessed Spanish citizenship) can also access Spanish nationality on softer terms than other foreigners: they require just 1 year of legal residence, and they are exempted from work restrictions. This law in practice also benefits the great-grandchildren of emigrant Spaniards as long as their grandparents (born outside of Spain) are/were original Spaniards.

3. Ibero-Americans and citizens of other countries historically related to Spain (Portugal, Andorra, Philippines, and Equatorial Guinea) also have a Right of Return: They can apply to Spanish nationality after 2 years of Legal residence (the usual time is 10 years for most foreigners) and they have the right to keep their birth nationality.

4. Those of Sephardic Jewish origin also have the right to apply for nationality after a year of legal residency in Spain. Upon the rediscovery of Sephardi Jews during the campaigns of General Juan Prim in Northern Africa, the Spanish governments have taken friendly measures towards the descendants of the Jews expelled from Spain in 1492 during the Spanish Inquisition. The motivation for these measures was a desire to repair a perceived injustice, the need of a collaborative base of natives in Spanish Morocco, and an attempt to attract the sympathy of wealthy European Sephardis like the Pereiras of France. The Alhambra Decree was revoked.

Spanish diplomacy exercised protection over Sephardis of the Ottoman Empire and the independent Balkanic states succeeding it. The government of Miguel Primo de Rivera decreed in 1924 that every Sephardi could claim Spanish citizenship. This right was used by some refugees during the Second World War, including the Hungarian Jews saved by Ángel Sanz Briz and Giorgio Perlasca. This decree was again put to use to receive some Jews from Sarajevo during the Bosnian War.

Despite some calls to the effect no similar right of return has ever been recognised for those of Morisco origin.

Ukraine

see Citizenship law of Ukraine

United Kingdom

The British Nationality Act of 1948 conferred full and equal citizenship and settlement rights in Britain on all 800 million subjects of the worldwide British Empire. The Commonwealth Immigration Act 1968, amending legislation passed in 1962, removed the right of entry from 200,000 south Asians long resident in British East Africa who had become the victims of the Africanization drive in newly independent Kenya and wished to move to Britain. The act required "substantial connection" to Britain, defined as (a) birth or the birth of a parent or grandparent in the United Kingdom, (b) a parent or Grandparent who was Naturalised in the United Kingdom, (c) a parent or grandparent who became a citizen of the United Kingdom or it's colonies by adoption (d) had acquired British Nationality under legislation passed in 1948 or 1964. Further provisions extended rights to step-children. The wording of this legislation refers to 'Citizenship', 'Naturalisation' and 'Residence', and at no point refers to any specific ethnicity or ethnic group. The act was intended to protect the right of return of the Britons, (Scottish, Welsh, and English)who had gone out to the colonies over the generations, and of their descendents . Announcing his support for right of return legislation in Britain, MP Quintin McGarel Hogg stated that, "All the great nations of the earth have what the Jews call a Diaspora," and affirmed that nations "special and residual obligation(s) toward them," which include recognizing their right to citizenship.

The Immigration Act of 1971 affirmed the principles of the 1968 legislation, giving the right of immigration to the grandchildren of Britons born in the Commonwealth nations. It was in effect long enough to enable the descendents of ethnic Britons to return to Britain from the former colonies.

The British Nationality Act of 1981 differentiated between British Citizenship, British Overseas Citizenship, and British Dependent Territory Citizenship, recognizing the right of settlement only for British citizens. It is notable that it was enacted after the contraction of the Empire was completed, and haven had been offered to all substantial populations of descendents of ethnic Britons in the former colonies.

Other

A non-exhaustive list of other countries believed to have similar laws is South Korea, Hungary, Moldova, Slovakia, Slovenia and Ukraine. Similarly, the Liberian constitution (currently defunct and being rewritten) allows only people "of Negro descent" (regardless of ethno-national affiliation) to become citizens. As with other laws enacting rights of return, many of the laws in these countries appear to reflect a desire by governments to guarantee a safe haven to diaspora populations, particularly those assumed to be living under precarious conditions.

External links

• Let Them Return - The Chagos People's Homeland Campaign
• Law of Return, 1950—Government of the State of Israel
• The Right of Return in International Law by Eyal Benvenisti
• The problem is how to become Israeli - Amon Rubenstein, Ha'aretz
• Do Palestinian Refugees Have a Right to Return to Israel? by Ruth Lapidoth
• International Law and the Arab-Israeli Conflict by Julius Stone
• The Feasibility of the Right of Return by Salman Abu-Sittah
• Palestinian Refugees and the Right of Return: An International Law Analysis by Gail J. Boling
• Website of Al-Awda: The Palestine Right To Return Coalition
• The Palestinian Refugees and the non-existence of the Right of Return, by Ben Dror Yemini

Further reading

• Wall Street Journal, August 11, 2004. War Echo: Ousted by Poland in 1945, Germans Want Homes Back

See also

• Jus sanguinis
• Canadians of convenience
• Oriundo, a sportsman born in Latin America, whose ancestors emigrated from Italy, and who then immigrates "back" to Italy.