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Thursday, September 24, 2015

Are There Limits to the Right to Change One's Nationality?


Just as there are no universally accepted standards for the attribution of nationality, there are no universal standards governing loss of nationality initiated by a citizen or subject.  The European Convention on Nationality, for example, does not have the same standards as US citizenship law.   States are jealous guardians of their sovereignty when it comes to deciding the conditions, rules, and procedures surrounding a citizen who wishes to change his or state allegiance.  States reserve the right to deny such a request under certain circumstances.

These circumstances are not consistent from one state to another.  Some states restrict the right to change one's nationality if an individual is trying to avoid military service or tax obligations. Kay Hailbronner writes that Austria will not release a citizen if  a criminal procedure or execution of a criminal sentence is pending.  German citizens, she says, who are "officials, judges, military personnel and other persons employed in a professional or official capacity" can also be denied the right to renounce.  Canada has six requirements, one of which concerns national security;  the individual cannot be "a threat to Canada’s security or part of a pattern of criminal activity."  US law permits a US citizen to renounce even if he or she becomes stateless as a result - something most states do not allow.   Luxembourg, the Netherlands and Portugal, according to Gerard-René de Groot and Maarten Peter Vink, do not even require residence outside the country in order to renounce as long as the renunciant has another citizenship.

What this cursory review reveals is while that most liberal democracies agree in principle with the right to expatriate, do not wish to be seen as keeping their citizens captive,  and have procedures and processes in place to allow their citizens/subjects to exercise that right, they do not see it as an absolute right under international law.  Serena Forlati sums up the state perspective well when she writes, "the role of the individual's choices needs to be balanced against the possibly competing interests of the state whose nationality is to be renounced..."

Finding that balance is not easy.  One might even say that it's a work in progress.  There are other more pressing citizenship topics on the international agenda;  statelessness, for example, or involuntary loss of nationality.

But there is one convention, The European Convention on Nationality (ECN),  that is a bit more explicit than the UNDHR about both conditions for voluntary loss of nationality and the limits on state power over renunciants.

The European Convention on Nationality Article 8 has two explicit limitations on the right to renounce one's nationality:

"Each State Party shall permit the renunciation of its nationality provided the persons concerned do not thereby become stateless.
However, a State Party may provide in its internal law that renunciation may be effected only by nationals who are habitually resident abroad."

In the Explanatory Report  of the ECN they directly address the question of renunciation and outstanding citizenship obligations and say:   "It is not acceptable under Article 8 to deny the renunciation of nationality merely because persons habitually resident in another State still have military obligations in the country of origin or because civil or penal proceedings may be pending against a person in that country of origin. Civil or penal proceedings are independent of nationality and can proceed normally even if the person renounces his or her nationality of origin."

And finally in Chapter IV the ECN places boundaries around European states' nationality procedures and processes:

"Each State Party shall ensure that:

1.   applications relating to the acquisition, retention, loss, recovery or certification of its nationality be processed within a reasonable time;

2.   decisions relating to the acquisition, retention, loss, recovery or certification of its nationality contain reasons in writing;

3. decisions relating to the acquisition, retention, loss, recovery or certification of its nationality be open to an administrative or judicial review in conformity with its internal law;

4. the fees for the acquisition, retention, loss, recovery or certification of its nationality be reasonable;

5. the fees for an administrative or judicial review be not an obstacle for applicants."

A reasonable balancing of states' versus citizens' rights?  I thought so, but I note that some European countries have not signed it and quite a few that did, did so with reservations.   

A convention is one thing, how it is implemented in law  and interpreted and applied by the courts is another.  In the next post let's look at one case I saw cited in numerous places: Riener v. Bulgaria  (European Court of Human Rights).  This is a case where a dual citizen, was 1.  denied the right to leave a country of citizenship and 2. refused renunciation. And yes, citizenship obligations (taxes) were an issue in this case.

Friday, September 18, 2015

US State Department Confirms the New Consular Fee for Expatriation

The US State Department has finally responded to those of us who took exception to the rather extraordinary rise in the fee to renounce US citizenship.  It now costs $2,350 USD for an American citizen to exercise his or right under international law to expatriate.

Does this fee constitute a barrier to exercising that right?  The State Department doesn't think so.  I disagree and it's not just the fee that's the problem, it's the entire process which is cumbersome, time-consuming and, yes, costly for everyone - renunciants and State Department alike.

A US citizen wishing to renounce or relinquish citizenship must travel to the nearest US consulate which may be in a city far from where he or she actually lives.  There can be more than one interview required which means multiple trips.   Some of the paperwork is complex enough it would be wise to consult a lawyer before filling them out and filing the tax and bank account declarations.   All of these things taken together make that high consular fee another burden laid on top of the others that already exist.  The onus should be on the State Department to show that these burdens are legitimate and necessary.

In the State Department response they offer their justifications for the fee raise and answer those of us who sent comments.  For this they have my thanks.  I and others have answered other agencies' requests for comments on matters concerning Americans abroad, and never received the dignity of a reply.  I may not like the answers but I appreciate that they took the time.

State argues that there is no burden, no restrictions on the right to expatriate and there is nothing punitive about the fee raise.   It is, they say, a matter of money.

"Rather, the fee is a cost-based user fee for consular services. Conforming to guidance from the Office of Management and Budget (OMB), federal agencies make every effort to ensure that each service provided to specific recipients is self-sustaining, charging fees that are sufficient to recover the full cost to the government."

A perfectly reasonable argument if we were talking about something like, say, camping in a national park.  Not so reasonable when it concerns a fundamental human right guaranteed by national or international law.  It certainly costs money for US civilians and military to vote from abroad, but could we really argue that the FVAP and the local consulates should start charging overseas voters for providing services like the Federal Write-in Absentee Ballot?

That analogy is not perfect but the underlying principle is the same.  There are things that government does for which it has both a monopoly and a duty to provide services to its citizens in the exercise of their rights.  Voting is not just another service , and neither is expatriation.

 My take on this is that there should be no fee for renunciations, relinquishments or requests for CLNs.  The first two concern a fundamental human right for which I contend cost should never be an issue.  As for the last, the CLN, this is a necessary document, the only one that exists to prove that one is no longer a US citizen and is often required by states that do not allow dual citizenship. 

If that's not possible then I'd propose an option to waive the fee if the renunciant can demonstrate that it would be a financial hardship to pay it.  That would be a very reasonable compromise and one that would be more consistent with what State claims is their goal:  protecting a US citizen's right to expatriate.

Thursday, September 17, 2015

Some Statistics on Foreigners Entering Japan

"Everyone is entitled to his own opinion, but not his own facts."

Daniel Patrick Moynihan

What a delight to find the website for the Statistics Bureau of the Japan Ministry of Internal Affairs and Communication which has an entire webpage with links to easy to read Excel spreadsheets in Japanese and English with information about Japan's population including the foreign population in Japan and the number of Japanese living abroad.

Why was I so happy to find this?  Because I made an assertion about the diversity of the foreign population here in Japan a few posts back.  That was an opinion (also known as a guess or a feeling) because when I was writing I had no data on hand  to back up my argument. So allow me to stop being lazy and let's look at some facts.

At the bottom of the Statistics Bureau webpage is the spreadsheet Foreigners Who Entered Japan by Status of Residence in 2013.

Most of the foreigners who entered were (no surprise here) temporary visitors or tourists.  But there are 27 other visa categories, which gives you a pretty good idea of why these migrant/expats came to Japan.  The data is broken down by region (not country) so you can see things like how many Asian diplomats versus European or South American diplomats, how many professors from Africa versus Oceania, and how many inter company transfers from all regions-

I will let you peruse the spreadsheet at your leisure, but here are a few things I found noteworthy:

Asia:  11 million foreigners entering Japan and most arrived from other parts of Asia:  nearly 9 million people from China, Korea and other parts of Asia of which over 7 million were temporary visitors.  That is 8 times the number of foreigners entering from North America and Europe (both at about 1 million).  

What are the top 5 visa categories (excluding temporary visitors and long-term/permanent residents) for Asian nationals coming to Japan?

College Students (246,853)
Exceptional Permanent Residents (134,506)
Spouses or Children of Japanese (131,814)
Specialist in Humanities (126,441)
Dependents (107,884)

North America:  Slightly over a million people from Canada, Mexico and the US of which 800,000 were temporary visitors.

What are the top 5 visa categories (excluding temporary visitors and long-term/ permanent residents) for North American nationals?

Specialist in Humanities (15,756)
Spouses or Children of Japanese (14,410)
Instructors (10,304)
Dependents (9,226)
Entertainers (7,863)

Europe:  A little under a million of which 820,000 were temporary visitors.

What are the top 5 visa categories (excluding temporary visitors and long-term/permanent residents) for European nationals?

Entertainers (16,409)
Specialist in Humanities (14,700)
Spouses or Children of Japanese (12,762)
College students (11,456)
Dependents (9,909)

Three categories make the top 5 for each region:  Children and spouses of Japanese, Specialist in Humanities, and Dependents (spouse and children of a resident with a working or student visa).  A lot of marriage migration/family reunification from all regions. 

What is a Specialist in Humanities/International Services?  It's a very broad category.  This site has these definitions:  "working in legal, economic, social fields or in the human science" and it requires a university degree or 10 years experience and "working in translation, interpretation, language instruction, public relations, international trade, fashion design, interior design, product development." This category excludes engineers, lawyers, interns, professors and doctors, 

What is an Instructor?  That was a category that made the top 5 only for North Americans. This is the category for "Instruction of foreign languages or other education at elementary schools, junior high schools, high schools, etc."  So these are language  and school teachers.  But interestingly enough there were more North American language instructors  (10,304) than there were college students (6,846).  There was one category, however, where North Americans made a greater contribution of human talent compared to the other regions:  Legal and Accounting Services (615 and no other region came close to that number).

Why so many Entertainers from Europe and North America?    I have no idea and could not find any answers on the Net.  Does anyone know what that's all about?

And last but not least what about those company expats?  Here are the numbers of Intra-company Transfer visas for each region:

Asia:  34,423
North America:  6,726
Europe:  9,351

Wednesday, September 16, 2015

Gay Marriage and Advertising

A family member in the US sent me a link to this video - an advertisement for Tide.  I thought it was well done and is gently funny, too. Who would of thought just a few years ago that gay marriage in America would be so mainstream that it could be used as a setting to sell laundry detergent?


Birthright Citizenship: Anchor Babies and Accidental Americans

The concept of citizenship never fails to fascinate me.  There are so many ways to think about it and so many different angles from which to approach it.

Lately, the always simmering national debate over the finer details of birthright citizenship moved to a slow boil after one of the US presidential candidates chose to share his views about one kind of birthright citizenship, jus soli or citizenship by place of birth.

Donald Trump is not, as far as I can tell, in favor of completely overturning the 14th amendment to the US Constitution which says:

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. "

This has been  interpreted by the US courts to mean anyone born on US soil (with the exception of children of diplomats) is a US citizen.   Nothing more is required - not even the consent of the child or his parents.

What Trump is against is this unconditional granting of US citizenship to people he feels should not have it:  children of illegal immigrants and children whose mothers come to the US for the sole purpose, he says, of giving birth on US soil so that their children are US citizens.  He used a rather nasty term for the latter -  anchor babies - one that is also used in the Canadian national citizenship debates which have a distressingly similar tone.

Trump would put conditions on the transmission of US citizenship by jus soli and, frankly, he's not proposing anything that other countries (and there are many) haven't considered or implemented.  Jus soli is not unusual or uncommon in the world, but many countries do require a bit more than just an accident of geography before they call a person a citizen.  In France, for example, residency is required; a child born in France to a short-term foreign expatriate who takes the infant back to the home country is not a French citizen.

There are advantages and disadvantages to the unconditional nature of US jus soli laws.  One advantage is that it is very very practical.  It is easy to administer and absurdly simple to prove one's status. One document, a birth certificate which can be ordered on-line can be presented today and be accepted as an almost 100% positive proof of an individual's birthright citizenship status.

Let's consider what would happen if it was no longer true that a US birth certificate is proof of citizenship.  There would be a doubt attached to every child born in the US which could only be cleared by some agency charged with doing that detective work and issuing that certificate of citizenship after investigating the status of the parents (or even grandparents).

The disadvantages of unconditional jus soli go beyond the minor number of children born to "birth tourists" or even the larger number of children born to undocumented residents.  Every year the US, like many countries, welcomes short-term residents from all over the world:  students, businessmen/women, au pairs, entertainers, IT workers.

In 2014 alone the US State Department issued 467,370 immigrant visas, the majority of which were in two categories:  Immediate Relatives and Family Sponsored Preference.  That number is a mere fraction of the number of non-immigrant visas issued:  10 million.  While these short-term, non-immigrant residents are in the United States many will do a very human thing - they will have children.  When they leave the US they will take their offspring with them and the children  grow up as citizens of their parent's country.  It has been a huge surprise to many of these "Accidental Americans" to discover that they are US citizens by birth and that there are obligations as well as rights that come along with that status.

This is a consequence of the current interpretation of the 14th amendment that I would argue is a hundred times worse than the alleged "birth tourists" having "anchor babies" or undocumented aliens having children in the US.

Because by their actions the parents of these so called "anchor babies" are saying something positive about the United States that should warm every American's heart:  that American citizenship is valuable and desirable.  There are people in the world that want it so much that they are willing to travel thousands of miles and cross oceans to have their children be born in the US.  Others are willing to brave border guards and risk jail and deportation to stay in the US, raise a family there and live out their years celebrating Thanksgiving and the 4th of July with their American children and grandchildren .

But the parents of an "Accidental American" born on a short-term stay in the US who return permanently to their home country do not want to stay in the US and have little or no interest in becoming American citizens. I would not go so far as to say that they don't value US citizenship at all, but they don't want it for themselves  and at best, if it comes with no attachments or obligations, they are only mildly interested in the possibility some day in a distant future of a second passport for that child of he or she wants one.

And when that child reaches his majority and does not inquire at the US consulate, apply for a US passport, or show any interest whatsoever in spending any time in the US, what does that say?  That he doesn't value US citizenship and has no intention or desire to be an American.  A perfectly reasonable point of view for someone who already has another citizenship that he does value above and beyond the one he got by an accident of birth.  If confronted with some of the less desirable obligations of US citizenship, he may prefer to renounce it.  Though, for some reason  (one that defies all rationality)  the United States actually makes it difficult for him to do so:  two interviews at the nearest US consulate, a mass of paperwork, tax filings, and fee of 2,450 USD.

With all that in mind here is another way of looking at US  jus soli birthright citizenship.  On one hand Americans like Trump want to prevent people who think US citizenship is valuable and desirable, and who actually want to be US citizens (or for their children to be US citizens) from being eligible for it.   And on the other the US Constitution confers citizenship automatically on people who don't value it and who wish to get rid of it, and the US government holds them hostage until they jump through some significant bureaucratic hoops and cough up a few thousand dollars.

Does this situation make any sense whatsoever?  Of course it doesn't.

And yet, I don't really know of an ideal solution.  Fixing the 14th Amendment is unlikely and I suspect the motives of those in the US who wish to do so.  Look at the examples Trump and company give of people they feel are undesirable:  Mexicans or Asians.  It reeks of exclusion by race.  As a practical matter putting conditions on jus soli transmission citizenship will create a lot more government bureaucracy and make a simple matter more complicated.

As for those "Accidental Americans" who want to renounce US citizenship, how about we take a complicated matter and make it simple:

Just let them go.

Tuesday, September 15, 2015

Asia Expats Before and After the Great Recession

The first time our little Franco-American family headed off for Asia back in 2006 the French multinational my spouse worked for built us a golden bridge.  We were seduced with a package that included a job for me in Tokyo, Japanese language lessons, a great international school for the Frenchlings, and business class plane tickets "home" so when we returned to France on vacation we did so in style.

As we settled in that first year in Tokyo we learned that our package was not unique at all.  The office were we both worked was filled with other French expatriates and those higher on the food chain had even better packages.  The Grand Poobah himself, a product of France's finest schools, travelled in a car with a driver, lived in a huge apartment, and was given a French tri-lingual secretary whom he treated with great respect.  She was a necessity because even after 10 years in Japan, he spoke very little Japanese and preferred to conduct business in French or English.

Sounds positively colonial, doesn't it?

In 2015 all that is gone, gone, gone.  Most of the French expatriates who worked with us years ago went home.  It was simply too costly, we heard, to support so many in the style to which they had happily become accustomed.  And so the French company  gave them two choices:  repatriation or local contracts.  Most left.

As for the company (a different one) that sent us to Osaka earlier this year, this package is nothing compared to what we had the last time.  During the negotiations prior to leaving France, the company did everything they could to keep the costs down.  They succeeded;  it is only costing the company slightly more to have us in Osaka, Japan as opposed to France, my spouse's home country.

Personal experience is not proof of a trend.  And yet a recent Wall Street Journal article analyzing the state of the traditional business expat in Asia argues that, yes, post-financial crisis. the business expat experience in this part of the world is very different.

In Singapore, China and Hong Kong, says writes Rashmi Dalai, the packages are slimmer, the salaries are lower, and the profiles are different:  more expats from other parts of Asia and fewer from Europe and North America.  Younger, too, and willing to stay long-term even if it means less money and living in less desirable locations.

Very interesting article and well worth the read.  If you are a Flophouse reader in any of these Asian countries, I would to have your take on what she says.  Dalai was based in Shanghai, a city I worked in temporarily a few times, but don't know it well.  All I can offer here is my perspective from Japan, and I have a few questions about her argument.

Writing about three countries on this vast continent and implying that this is representative of Asia is a bit hard to swallow.  Yes, over the years the action (so to speak) is centered on Asian countries with growing power and influence, and strong economies.   I am old enough to remember when Japan was booming and was the place to be.  Some of the expatriates I've met here who stayed through the busts and the natural disasters have a certain nostalgia for that period when even a foreign language teacher could make decent money.  

Last time I looked Japan was still part of Asia as is Korea or Thailand or Vietnam or Cambodia.  There are business expats in those places, too.  So I would argue that she would have to look at a more diverse selection of places before she can dub this an Asian trend. For that matter it would be interesting to know if the trend was not regional at all, but international in scope with business expatriates in South America, Africa or Europe having similar experiences. 

I was also a bit dubious of this assertion:  "Five years ago, the majority of expats in Asia were Westerners on short-term assignments with multinational corporations that offered generous housing, schooling and travel packages."

I really doubt that is true.  Yes, there are cities in Asia with a high number of business expats like Tokyo and probably Hong Kong or Shanghai.  But however large that population, there is almost always a greater population of  Western foreign language teachers, academics, translators, small business owners, spouses, students and missionaries.

They are far less sexy (and probably of little interest to WSJ readers) than the entrepreneurs or company transfers and reflect a much wider socio-economic spectrum than the businessmen and women.  These Westerners are not drawn to Asia by the expat packages because they don't have them and never did.  For that matter, some arrived without any job at all and did what was necessary to get one.

Whatever is going on with the traditional business expats in Asia or elsewhere, a far more interesting question (to me at least) is the relationship between the foreign company transfers, the floating group of short to medium-term expats with more mundane jobs, and the more or less permanent Western communities in Asian countries.  If what Dalai says is true about their being fewer Western expats with money to burn and the power to hire, and there are more local people who have the qualifications and the profiles to take over those positions, what is the impact on all the other Western expatriates or permanent residents?

Will there be fewer opportunities for Westerners overall?  Will it be harder for the permanent foreign residents to survive even with their language and culture skills?  What happens to the infrastructure (schools, churches, societies) if there are no longer enough well-heeled foreign nationals to support them?  Or the small businesses built around "translating" the local culture and language for short to medium-term expats?

Last word.  It is a real pity that we have such a loose definition of expat and that so much energy is expended avoiding the word migrant for people from Western countries.  Why?  Because the surface interpretation of this article would be that one type of expat is simply being replaced by another type of expat.  Another, and I think a truer interpretation, would be that the expats are being replaced by economic or opportunity migrants who just happen to be from Western countries like Europe or North America.  And once we've opened our minds to that, we can look to migration experts for theories and answers.

Monday, September 14, 2015

Two Banks, Two Countries, Hassles All Around

Last week we had had enough and we went looking for another bank in Japan. It wasn't one thing that had us gnashing our teeth and wondering why the much vaunted Japanese "service" did not seem to apply to banking sector, it was many things that made us feel  unwelcome and made very simple things very complicated.  Over the last year we have made every excuse, searched for all other explanations and finally (and with great reluctance) came to the conclusion that this bank simply does not want to deal with foreigners.  A few choice examples:
  • Having to fill out the applications for debit cards multiple times and having them rejected because they did not like the way we wrote our names in Japanese characters.
  • Using a translator for direct meetings and over the phone with bank personnel for the first few months until they decided that this was not acceptable.  From now on, they said, all discussions with bank personnel must be in Japanese (no French, English or any other language) and for most things we could no longer use a translator.  Since my spouse and I have been here for less than a year our Japanese simply is not good enough to have direct discussions with their staff about financial matters.
But the final blow came last week when my spouse went to our bank to transfer money to France.  We have taxes to pay there and our daughter who's is at university in Canada has a tuition payment due.  As transfers go this one was pretty modest - thousands of Euros and not hundreds of thousands (or millions).  Before the bank would consent to do this, they wanted copies of the tuition and tax bills.  They said that we had to prove that the money would be used for these things and for no other purpose.  Which led my spouse to ask about what will happen when we left Japan in a year or so.  Ah, they said, same rules.  You must give us a reason (and proof) before we will close your account and let you take that money back to France.

And the last struck fear in the heart of my French spouse.  What he heard was: If we choose, we can confiscate your money.  You, sir, can leave, but we decide if your money can follow you back to your home country or not.   That was it and enough to send us off a day later to a more international bank (American) where he opened what he had at MUFG:  a simple checking account.  The new bank's policy in international transfers?  No problem whatsoever for the modest amounts we require.

And so ends our experience with banking locally here in Japan.  And on a very sour note.  Given the very different policies between the local Japanese bank and the international one, the only conclusion we can come to is that the Japanese bank simply doesn't want to deal with foreigners and they will be delighted to see us go.

All this reminded me  that I have some equally perturbing issues on the other side of the world with our French bank.  In their case it's not discrimination on the basis of national origin or immigration status, it's pure sexism on the part of our customer representative: a Frenchwoman, a decade or so younger than me.  In spite of numerous emails, phone calls, face to face meetings and a complaint to her manager, this woman persists with a "the man must be in charge" mentality.

All correspondence about our accounts is sent exclusively to my spouse.  Even when my spouse sends her email and puts me on copy, she refuses to hit "reply to all" so I can have a copy of her reply.  Everything she does demonstrates that the only person who counts here (and the only person she informs or takes directions from) is the man of the house.  And she simply ignores all requests to change this.  Pretty amazing, isn't it?  That in 21st century France this kind of 1950's mentality still exists.

That this is a woman treating another woman with open contempt with her employer allowing that behavior to continue just goes to show that feminism is still necessary because even where laws mandate equality, mentalities are still a few steps behind.

As for the Japanese bank, that experience was a disappointment.  We had certainly heard quite a lot from other expatriates/migrants that national origin discrimination was alive and well here.  But part of encountering a new country and culture is listening to the stories of the more experienced residents, and then setting those tales aside and coming to your own conclusions based on actual experience.  We set out on our latest migration journey months ago prepared for them to be proved wrong.

And what a shame it is that they turned out to be right.