The current Article 11 of the Nationality Law of the Republic of China, which covers the right of nationals to voluntarily give up their nationality, gives parents the right to decide their children’s nationality. (If a child disagrees with the parents’ decision, he or she can personally apply for restoration of citizenship under Article 15 at at any time following majority.) The Ma administration’s draft nationality law amendments first floated in March 2012 include a proposal to extend this principle to all persons without legal capacity, including adults. (Brockers have long expressed concern about the lack of a corresponding right in U.S. nationality law.)
Specifically, the administration’s amendment would add the below-underlined Subparagraph 1 to Article 11, Paragraph 1 of the Nationality Law:
|中華民國國民有下列各款情形之一者，經內政部許可，喪失中華民國國籍：||A person who is a national of the Republic of China to whom any one of the below subparagraphs is applicable may, upon approval by the Ministry of the Interior, lose the nationality of the Republic of China:|
|一、由外國籍父、母、養父或養母行使負擔權利義務或監護之無行為能力人或限制行為能力人，為取得同一國籍且隨同至中華民國領域外生活。||1. A person who does not have legal capacity or has limited legal capacity, for whom legal responsibility or guardianship is exercised by a father, mother, adoptive father, or adoptive mother of foreign nationality, in order to acquire the same nationality and to accompany [that person] in living outside the territory of the Republic of China.|
|二、為外國人之配偶。||2. Is the spouse of a foreigner.|
|三、年滿二十歲，依中華民國法律有行為能力，自願取得外國國籍。||3. Has reached the age of 20 years, has legal capacity under the laws of the Republic of China, and voluntarily acquires the nationality of a foreign country.|
|依前項規定喪失中華民國國籍者，其未婚未成年子女，經內政部許可，隨同喪失中華民國國籍。||The unmarried minor children of a person who loses the nationality of the Republic of the China under the preceding subparagraphs, upon approval by the Ministry of the Interior, concurrently lose the nationality of the Republic of China.|
This has not yet been brought up for a vote in the Legislative Yuan (the unicameral legislature), due to controversy over other parts of the Nationality Law. In particular, protests continued to be held as recently as last week over the ill-defined “good conduct” requirement for naturalisation in Article 3. So far, the proposed amendments to Article 11 have received little attention either in Sinophone or Anglophone newspapers; most attention has been focused on other provisions relating to naturalisation & dual citizenship.
In Taiwan, “legal capacity” is defined in Articles 13 through 16 of the Civil Code. Children under age 7 have no legal capacity, while a court can make a finding of lack of legal capacity for a person with a mental disability. Additionally, children between the ages of 7 and 19 (inclusive) are defined as having “limited legal capacity”, though if they marry they are thenceforth considered to have full legal capacity. (Article 972 imposes a minimum age of marriage of 18 for boys and 16 for girls.)
Under the original version of Article 11 of the Nationality Law, passed way back in 1929 when the Republic of China still controlled the mainland, a person applying to lose nationality had to be at least 20 years old and have full legal capacity. In 1952, a few years after the ROC government relocated to Taiwan, the Judicial Yuan issued a ruling (台電參字第383號) that the law as it stood then did not allow a parent or other legal agent to apply for loss of nationality on behalf of a child or other person without legal capacity.
This remained the situation until the 2000 nationality law reforms, when Article 11 was updated to provide that if a parent applied for loss of nationality, the children could also concurrently lose nationality. However, the present law does not cover adults who lack legal capacity; the proposed amendment would fix this situation. The Ministry of the Interior’s statement of reasons for introducing this provision makes clear (well, as clear as bureaucratese can be) the link to human rights and the best interests of the person.
|一、現行實務上，如父或母一方為外國人，因離婚或我國籍配偶死亡致婚姻關係消滅，其未成年子女為取得外國籍之父或母之國籍須先喪失我國國籍時，因父或母本係外國人，因此無法依現行第二項規定隨同父或母喪失我國國籍，又不符合現行第一項第一款及第二款得申請喪失國籍之規定，僅得俟成年後，符合第一項第五款規定始得申請喪失我國國籍。已成年子女受監護宣告如由其外國籍父或母監護，欲申請喪失我國國籍隨同其外國籍父或母生活，依現行規定，亦有無法喪失中華民國國籍之困擾，另現行第一項第四款為外國人之養子女得喪失中華民國國籍之規定，未考量無行為能力人或限制行為能力人為外國人收養者之最佳利益，均有待解決。||1. In current practice, if either the father or mother is a foreigner, and the marital relation is dissolved by divorce or the death of the spouse who has the nationality of our country, the underage child may wish to lose the nationality of our country in order to obtain the foreign nationality of the foreign-national father or mother. However, because the father or mother is already a foreigner, [the child] cannot lose the nationality of our country concurrently with their mother or father under ¶2 of the current law. [The child] also does not meet the provisions of ¶2.1 or 2 to apply for the loss of our country’s nationality. [The child] can only wait until he has become of age to meet the requirements of ¶1.5 to apply for the loss of our country’s nationality. Under the current provisions, adult children who are under a declaration of guardianship such as guardianship by the foreign national father or mother, and wish to apply to lose the nationality of our country in order to live with their foreign-national mother or father, also face difficulty because they are unable to apply for loss of the nationality of the Republic of China either. Aside from that, the current ¶1.4, providing for the adoptive children of foreigners to lose the nationality of the Republic of China, does not consider the best interests of persons without legal capacity or with limited legal capacity who have been adopted by foreigners. All of these [situations] are awaiting resolution.|
|二、目前國人與外國人通婚頻繁，亦有為外國人收養情形，基於人權保障宜尊重其子女選擇國籍之自由，並考量無行為能力或限制行為能力之子女或養子女與外國籍父、母、養父或養母隨同生活之最佳利益，解決子女或養子女與外國籍父、母、養父或養母不同國籍困擾，爰將現行條文第一項第一款、第二款及第四款之情事予以合併，列為修正條文第一項第一款，凡由外國籍父、母、養父或養母行使負擔權利義務或監護之無行為能力人或限制行為能力人，為取得同一國籍且隨同至中華民國領域外生活，得申請喪失國籍。現行第一項第三款、第五款移列為修正條文第一項第二款、第三款。||2. At present, many nationals have intermarried with foreigners, and there are also cases of [nationals] being adopted by foreigners. On the basis of guaranteeing and respecting the freedom of the children to choose their nationality, and considering the best interests of children or adoptive children without legal capacity or who have limited legal capacity and their lives together with their father, mother, adoptive father, or adoptive mother, in order to resolve the difficulties which arise when children or adoptive children and their father, mother, adoptive father, or adoptive mother have different nationalities. [the proposed amendment] would merge the cases in ¶1.1, 2, and 4 of the current text, so that all people without legal capacity or who have limited legal capacity and for whom legal responsibility or guardianship is exercised by a father, mother, adoptive father, or adoptive mother of foreign nationality, may apply to lose the nationality of the Republic of China in order to acquire the same nationality [as that person] and to accompany [that person] in living outside the territory of the Republic of China. The current ¶1.3 and 5 are moved to ¶1.2 and 3 of the amended text.|
When the Legislative Yuan first debated the various Nationality Law amendment proposals back in April 2013, the proposed amendment to Article 11 was apparently regarded as non-controversial, and wasn’t even mentioned. In the most recent committee meeting in December 2014, Article 11 was barely mentioned either — it got a grand total of one line in the minutes (at page 4), saying only that the committee had decided to approve the administration’s proposal on that article (“第十一條，照行政院提案通過”).
Similar provisions in other countries
Germany’s Nationality Act provides (according to the translation on the website of the Federal Ministry of the Interior):
Section 19 [Release from citizenship of a person in parental custody or in the care of a guardian]
(1) Application for the release from citizenship of a person in parental custody or in the care of a guardian may be filed by the legal representative only and shall require approval from the German family court.
(2) The approval of the family court shall not be required where the father or mother applies for release from citizenship for himself or herself and for a child at the same time by virtue of the right of custody and the applicant is entitled to custody for the child concerned.
In the United Kingdom, the Immigration, Asylum and Nationality Act 2006 added the following section to the British Nationality Act 1981:
44A Waiver of requirement for full capacity
Where a provision of this Act requires an applicant to be of full capacity, the Secretary of State may waive the requirement in respect of a specified applicant if he thinks it in the applicant’s best interests.
Child’s right to decide nationality upon adulthood
In countries which offer diaspora visas or allow former citizens to apply for restoration of citizenship through a simplified procedure, the right of an adult to relinquish citizenship on behalf of children generally does not conflict with the right of the children to determine their own nationality & residence upon reaching adulthood. Even if the parents relinquish the citizenship on the child’s behalf during minority, the child can move back to the country of former citizenship and/or apply for restoration of citizenship. Similarly, if a guardian relinquishes citizenship on behalf of a legally-incapacitated adult who later regains legal capacity (e.g. emerges from a long-term coma and regains full brain function), the adult can obtain residence or citizenship again the same way.
For example, Germany’s nationality law provides (same translation as above):
Section 8 [Discretionary naturalization]
(1) A foreigner who is legally ordinarily resident in Germany may be naturalized upon application provided that he or she
1. possesses legal capacity pursuant to Section 80, sub-section 1 of the Residence Act or has a legal representative,
2. has not been sentenced for an unlawful act and is not subject to any court order imposing a measure of reform and prevention due to a lack of criminal capacity …
Section 13 [Discretionary naturalization of former Germans abroad]
A former German and his or her minor children who are ordinarily resident abroad may be naturalized on application if they meet the requirements of Section 8, sub-section 1, nos. 1 and 2.
Taiwan’s nationality law has analogous provisions, though they are more restrictive:
|外國人或無國籍人，現於中華民國領域內有住所，並具備下列各款要件者，得申請歸化：||A foreigner or stateless person who now has a domicile within the territory of the Republic of China, and possesses each of the following prerequisites, may apply for naturalisation:|
|三、品行端正，無犯罪紀錄。||3. Is of upright conduct, and does not have a criminal record.|
|四、有相當之財產或專業技能，足以自立，或生活保障無虞。||4. Has enough property or professional skills to suffice for self-reliance or to guarantee a secure livelihood.|
|依第十一條規定喪失中華民國國籍者，現於中華民國領域內有住所，並具備第三條第一項第三款、第四款要件，得申請回復中華民國國籍。歸化人及隨同歸化之子女喪失國籍者，不適用前項規定。||A person who has lost the nationality of the Republic of China under article 11, and now has a domicile within the territory of the Republic of China, and possesses the prerequisites of Article 3, Paragraph 1, Subparagraph 3 and Subparagraph 4, may apply for restoration of the nationality of the Republic of China. The preceding provision does not apply to naturalised persons or their concurrently-naturalised children who lost nationality.|
The U.S. also has provisions on restoration of citizenship (8 USC § 1483(b)), although they’re even narrower: a minor who lost U.S. citizenship can apply to regain it only within six months of turning 18. Furthermore, the State Department has basically made this section of law into a dead letter by refusing to let minors give up citizenship in the first place, as Phil Hodgen has previously described. Precisely because of the link between citizenship and taxation (and the associated extraterritorial asset reporting & its associated fines), the public and the government would likely be unwilling to expand the existing provisions on restoration of citizenship, since they perceive that the diaspora would “abuse” these provisions in order to avoid the “duties of citizenship”.
As a result, under the U.S. system, the only way to ensure some children’s right to retain U.S. nationality is to disallow the parents from relinquishing it on the child’s behalf. This prevents other children from exercising their own rights, such as obtaining the nationality of their country of ordinary residence (if that country forbids dual citizenship and doesn’t allow minors applying for naturalisation to wait until adulthood to give up their other citizenships — this is currently the case in Taiwan, though the above-mentioned administration proposal would change this as well). It also imposes extra burdens on the parent and thus the exercise of the right to family life.
In short, the U.S.’ need to enforce diaspora taxation and punish ex-citizens leads to this inferior legal kludge, whereas other countries can simply use their procedures for restoration of citizenship to ex-citizens in order to ensure that parents can decide the nationality of their children in their minority while the children themselves can make their own decisions on those same matters in their majority. And then, the treatment of children extends to other people without legal capacity as well.