Abstract
Formal citizenship often excludes migrants who were not born in the national territory in which they reside and/or were born to parents of foreign nationality. In this article, I explore how the domicile principle of citizenship can better accommodate migrants. Although this principle has a long history, it has only recently received significant attention among scholars. I examine the tensions between formal citizenship, mobility and territoriality, while developing a practical argument in support of domicile as an alternative configuration of territorial formal citizenship. Moreover, I highlight the capacity of domicile to include migrants at local and urban scales.
I Introduction
The concept of citizenship has enjoyed widespread attention in the recent geographical literature in light of increasing international migration and transnational mobility (e.g. Ehrkamp and Leitner, 2006; Ho, 2011). This literature has illustrated the complexity of citizenship (e.g. Staeheli, 2011). For example, researchers have not only noted that citizenship entails the possession of formal rights and entitlements, but they have also demonstrated how citizenship is claimed through social practices and political action, is embedded in the ordinary and the everyday, and is enacted for the purpose of social reproduction (Bauder, 2006; Isin and Nielsen, 2008; Ong, 1999; Staeheli et al., 2012; Torpey, 2000). My concern in this article rests mostly with the principle according to which formal citizenship (i.e. legal equality in respect to rights and entitlements) is granted to people. With increasing global mobility, the populations of most nation states are not only becoming more diverse and transnationally connected (Glick Schiller et al., 2006; Vertovec and Cohen, 1999), but migrants also often lack access to formal citizenship in their adopted political communities, although they may factually be members of these communities (Shachar, 2009, 2011). The lack of access to citizenship and the associated rights has been a major source of the illegalization, criminalization and exploitation of migrants (Aliverti, 2012; Bauder, 2006; De Giorgi, 2010; Goldring and Landolt, 2011). For example, the lack of citizenship is an underlying reason for temporary foreign workers and foreign live-in-caregivers to be separated from their families who are forced to stay behind, to be exposed to abuse by their employers, and to be denied many of the social and economic rights other workers can take for granted, including the right to stay (e.g. Johnston and Pratt, 2010).
In this article, I focus, in particular, on the citizenship principle of domicile. ‘Principle’ refers to the mechanism based on which individuals acquire formal citizenship and become formal members of the polity. 1 The term ‘domicile’ has its roots in the Latin noun domicilium, which can be translated as household, habitation, home, or residence. Correspondingly, the principle of domicile refers to citizenship based on ‘effective residence’ (Hammar, 1990: 76). In other words, a person is a citizen of the polity in which she or he resides, independent of ancestry or location of birth. When legal and citizenship scholars discuss this principle of citizenship, they sometimes use the Latin translation of ‘law of residence’, i.e. jus domiciliī. 2 In the scholarly literature on citizenship, comprehensive discussions of the domicile principle of citizenship are rare. Yet, commentators have noted that it is ‘gaining momentum’ (Levanon and Lewin-Epstein, 2010: 421) and ‘growing in significance’ (Castles and Davidson, 2000: 85; see also Samers, 2010: 295).
The relatively narrow focus on the citizenship principle of domicile enables me to provide a rigorous and comprehensive review of the literature and present an overview of the current state of research on this citizenship principle. Moreover, I develop a practical argument for framing the relationship between citizenship, mobility and territoriality. By ‘practical’ I mean that I assume for the sake of this argument the continuation of prevalent structural conditions that exist today, in particular the territorial configuration of political communities, formal citizenship as the legal mechanism of association with a political community, and the framing of formal citizenship in universal terms. While the wider literature, including critical and radical scholarship, has questioned the association between citizenship and the territorial nation-state (e.g. Bosniak, 2000; Isin, 2012; Urry, 2000) and critiqued the decontextualized liberal view of rights and citizenship as universal (e.g. Cresswell, 2006: 147-174), my ‘practical’ argument does not seek to challenge the territorial nation-state, the territoriality of formal citizenship or the existence of international borders (e.g. Austin and Bauder, 2012). 3 Rather, I suggest that domicile can serve as a citizenship principle to include migrants under the assumption that their residency is defined by a bounded territorial political community. This approach to inclusion recognizes, on the one hand, the material condition that contemporary structures of governance are territorial in nature, that political communities are defined through territorial boundaries and ‘that territorialized forms of citizenship are the most feasible way to regulate citizens for particular ends and to create institutional forms that citizens can access to make claims’ (Staeheli et al., 2012: 637). On the other hand, this approach also addresses the material fact that societies are increasingly mobile and transnational in character. Domicile-based citizenship is a practical response to these material circumstances and aims to provide a tool for contemporary real-politics that complements more critical and radical perspectives (Anderson et al., 2009; Bauder, 2013a; Mountz and Hyndman, 2006).
In recent decades, advances in transportation and communication technologies, political developments (including the lifting of the Iron Curtain), global economic and demographic changes, and the evolution of immigration policies and migration management practices have resulted in an increased volume of human mobility, a diversification of migration flows and a transformation in the nature and temporality of migration (e.g. Castles and Miller, 2009; Samers, 2010). As a result, some geographers and social scientists have centred ‘mobility’ in how they theorize society and social life (e.g. Cresswell, 2006; Urry, 2000). It is not my intention in this article strictly to follow this line of scholarship and propose, for example, to deterritorialize citizenship to accommodate mobility (e.g. Bauböck, 1994; Bosniak, 2000; Falk, 1993; Ho, 2011; Isin, 2012; Urry, 2000). Given my assumption of the prevailing territoriality of citizenship, there is a tension between domicile-based citizenship and human mobility: citizenship that is associated with bounded territory seems ill-equipped to accommodate populations that are mobile and transcend the geographical boundaries of these territories. While this apparent contradiction between territorially fixed membership and mobile populations may be conceptually impossible to resolve within the framework of political territoriality, the domicile principle presents a practical alternative for reconfiguring formal citizenship to include populations that are mobile across borders. Due to the centrality of territory and geographical mobility, the discussion of this practical alternative below will be of special interest to human geographers. In addition, the contribution of this article lies in exploring the applicability of the domicile principle to vulnerable migrant populations and the spatial scale at which this principle could be enacted.
In the sections below, I first situate the domicile principle of citizenship in the context of other formal citizenship principles. Second, I focus on the relationship between the domicile principle and mobility. Third, I examine the territoriality and scale of domicile-based citizenship. In the final section, I discuss domicile in the context of related recent developments in the literature on citizenship and expand on the practicality and spatiality of this citizenship principle.
II Principles of Citizenship
The most frequent reference to the domicile principle in the literature occurs in relation to jus sanguinis and jus solī 4 (e.g. Ceobanu and Escandell, 2011; Choe, 2006; Dong-Hoon, 2005; Faist, 2001; Isin, 2009; Zincone, 2000). Jus sanguinis refers to the acquisition of citizenship through ancestry (i.e. blood). This principle has its roots in ancient Greece and Roman law (e.g. Bauböck, 1994; Shachar, 2009: 113–120). Jus sanguinis has been presented as suitable for emigration countries because it enables emigrant communities to remain connected to the nation of origin (Castles and Davidson, 2000: 85). It served this purpose, for example, in post-war West Germany where the descendants of German nationals who lived in Eastern Europe under oppressive communist regimes retained their nationality and thus their membership in the German nation.
Conversely, jus solī grants citizenship based on place of birth (i.e. soil). Like jus domiciliī, jus solī is a territorial principle; that is, citizenship is tied to the territory, which defines the polity in geographical terms (Bauböck, 1994: 31–38; Kostakopoulou, 2008). For example, jus solī was applied under European Feudalism when feudal lords reigned over populations tied to land (Bauböck, 1994: 35: Shachar, 2009: 113–120). Jus solī has been adopted in modern immigration countries such as Canada and the USA that seek to integrate the descendants of newcomers.
In relation to jus sanguinis and jus solī, domicile has been called the ‘missing link’ (Gosewinkel, 2001: 29) that ‘could be an alternative premise for citizenship’ (Kostakopoulou, 2008: 112). While jus sanguinis and jus solī are based on birth, rendering citizenship inaccessible to persons born to the ‘wrong’ parents or in the ‘wrong’ territory, jus domiciliī accommodates the mobility of people between communities and territories. Domicile-based citizenship is granted to people independently of the place and community of birth, and applies to migrants after they entered a territory and established residence in this territory (e.g. Gibney, 2009).
Empirical research has outlined how these three citizenship principles combine in practice. For example, France, Italy, Belgium and the Netherlands grant citizenship to children born on national territory, provided that the parents fulfill certain residency requirements (Castles and Davidson, 2000: 92). In this case jus solī applies under the condition of jus domiciliī of the parents. A similar law exists in Germany. Examining the cases of Norway, Sweden, Estonia, the UK, Italy, France and Spain, Fangen et al. (2007) conclude that European countries have moved towards a mixed type of citizenship regimes. In particular, countries with a jus sanguinis tradition have in recent decades incorporated jus domiciliī and jus solī elements into their citizenship legislation, with the aim to include newcomers and their children.
Drawing on data from the 2003 International Social Survey Program, a series of recent studies have empirically examined public attitudes towards jus sanguinis, jus solī and jus domiciliī in different countries. Levanon and Lewin-Epstein (2010) find that a positive attitude towards jus domiciliī is not dominant in any country, but rather ‘complements jus sanguinis, jus soli, or a combination of the two’ (p. 421, footnote 2). Raijman et al. (2008) draw a similar conclusion based on a study investigating attitudes towards jus solī, jus sanguinis and jus domiciliī in countries that represent different traditions of nationhood and frameworks of national belonging. They find that support for jus domiciliī is generally low in all countries compared to support for jus solī and jus sanguinis. Apparently, in all examined countries citizens are ‘resistant to accept foreigners as equal members in their societies’ (Rajjman et al., 2008: 210). In another study on public opinion about extending rights to immigrants in 20 European countries, Ceobanu and Escandell (2011) reveal that attitudes towards jus domiciliī are, paradoxically, positively correlated with countries that require longer residency periods as a condition of naturalization. 5 They suggest that native-born citizens of countries requiring longer residency periods feel ‘more confident’ that migrants have adapted to the country (Ceobanu and Escandell, 2011: 235). Generally, support for domicile-based citizenship vis-a-vis other citizenship principles seems to be related to circumstances of migration.
My aim in this section was to illustrate how references to jus domiciliī occur in the scholarly literature often in juxtaposition to or combination with other principles of citizenship. Rarely do scholars focus exclusively on the domicile principle as a way to explore the relationships between citizenship, human mobility and territoriality. Below, I examine these relationships in greater detail.
III Domicile and Mobility
In this section, I first discuss a historical perspective on the literature that has linked domicile to mobility. Thereafter I examine domicile as a contemporary alternative in light of mobile populations.
1 Domicile as Historical Practice
Historical research has investigated the way in which the domicile principle was enacted in the past. Apparently, legal practice has long followed the domicile principle. Although the literature does not offer a comprehensive genealogy of the domicile principle, it illustrates how this principle has historically served to accommodate migrants.
In feudal Europe, for example, the domicile principle permitted bonding people to territory if they were not born on that territory but moved there. Accordingly, legal documents from the 16th to 19th centuries used various Latin terms related to domicilium to articulate the territorial belonging of subjects (Grawert, 1973). As feudalism came to an end, the domicile principle persisted and became an important citizenship principle in the wake of the French Revolution. Bauböck (1994: 32) suggests that the following passage taken from the 1793 French Constitution could be ‘the most radical formulation of jus domicili in history’: every foreigner who has completed his [sic] 21st year of age and has been resident in France for one year and lives from his labour or acquires a property or marries a French spouse or adopts a child or nourishes an aged person…is admitted to the exercise of French citizenship. (translated by Bauböck, 1994: 50)
The domicile principle has also been a topic of legal debate in more recent times. In 1972, the UK’s Committee of Ministers of the Council of Europe discussed the ‘concept of domicile’ as a legal relationship between a person and a country that: is inferred from the fact that a person voluntarily establishes or retains his [sic] sole or principal residence within that country or at a place with the intention of making and retaining that country or place the centre of his [sic] personal, social and economic interests. (cited in Hammar, 1990: 193).
When the literature discusses how the domicile principle was historically applied, it draws attention to the fact that it was enacted by territorial political entities to include mobile populations. This function is also emphasized when the domicile principle is presented as a contemporary alternative to existing citizenship practices and policies.
2 Domicile as Contemporary Alternative
From a normative liberal perspective, the domicile principle of citizenship is very appealing because it rejects birth privilege. In the words of Blank (2007: 425), the principle of residence is ‘supremely liberal: voluntary, rational, and justifiable; one elects in which locality to live, contributes to it through her taxes and/or activities, is granted membership in this community, and is given equal rights that follow this membership status’. From this liberal standpoint, the domicile principle is equitable because it extends membership to all residents subjected to the rules of the territorial state and recognizes people’s right to mobility and choice of community (Gibney, 2009).
In a thought experiment, Austin and I (2012) have applied the domicile principle to temporary foreign workers in Canada. In this case, implementing domicile would address labour exploitation and the unfair treatment of foreign workers, who participate in local and national economies, and in civic society. In addition, enacting domicile-based citizenship would have positive practical implications by offering foreign workers an alternative to going underground after their temporary status expires.
Other research has explored the practical circumstances under which domicile could be implemented to accommodate mobile populations. Kostakopoulou (2008: 114) argues that citizenship should be extended to immigrants if they intend ‘to reside in a country indefinitely’. This does not mean that a person would be bonded for life to a particular territory. Rather, what counts is the intention to stay permanently. If this intention changes, then citizenship would expire. This position, however, can be challenged by the argument that temporary residents, too, have a moral claim to citizenship based on their contributions to the communities in which they reside (Austin and Bauder, 2012: Bauder, 2012).
One problem with domicile is that this principle cannot determine the citizenship of children, who typically have not voluntarily chosen a place of residence but rather have usually acquired residency through birth or through migration while dependent on someone else. One solution to this problem would be to combine jus domiciliī with jus solī acquired at birth (Bauböck, 1994: 34). Another solution would be a tripartite typology of domicile-based citizenship (Kostakopoulou, 2008: 119–122): first, domicile at birth would prevent children from being born stateless; second, domicile of choice would be extended on the basis of a person’s chosen permanent residence; third domicile of association would apply to persons legally dependent on a citizen, such as children. A person would only be able to possess one of these types of citizenships at the same time. For example, when children become adults, their citizenship would transfer from domicile at birth or domicile of association to domicile of choice.
Another problem is that if migrants retained the domicile-based citizenships of all places in which they ever resided, they would accumulate multiple citizenships. This situation would be problematic because citizenship would no longer be associated with territorial belonging. In fact, maintaining the citizenship of a territory in which one no longer resides defies the very logic of the domicile principle. Therefore, ‘[i]f citizenship rested completely on a principle of residence a state might be entitled or even obliged to denaturalize anybody who has left the country for good’ (Bauböck, 1994: 49; see also Bauböck, 2003: 150; Gibney, 2009). Kostakopoulou (2008: 127) concurs: ‘A change of residence must be accompanied by the termination of an intention to reside in the country indefinitely’ and would therefore result in a loss of domicile-based citizenship. A negative consequence of denaturalization could be that people become stateless and thus denied the protection of their rights by a state (Arendt, 1985[1948]). Bauböck (1994: 49) proposes to alleviate this problem by expatriating persons only under the condition that they left voluntarily and are assuming another citizenship.
Denaturalization could furthermore lead to a situation in which former citizens are denied the right to return. At the practical level, this issue could be alleviated by granting special re-entry permission to former citizens. Another practical solution would be to permit emigrants to maintain citizenship if they have legitimate stakes in the political territory (Bauböck, 2008). A more radical solution would combine the domicile principle with open-border practices, in which case former citizens would possess – like everyone else – a right to enter a political territory. This combination would also address the exclusion of migrants without status or with precarious or temporary status through selective immigration policies and settlement restrictions (Bauder, 2012).
IV Domicile and Territoriality
Kostakopoulou (2008) draws attention to the tension between the territorial nature of the domicile principle and the fact that individuals are increasingly mobile, transient and non-committal to one particular locality. It seems paradoxical that a territorial citizenship principle should be applied to accommodate human mobility across territories. One response to address this paradox is that the domicile principle accommodates all residents, independently of whether they are newcomers or have lived in this territory since birth. The community of citizens is thus not defined through place of birth, ancestry or mobility, but rather only through residence in a particular territory.
Another response to address the paradox between mobility and territoriality is that contemporary states and political organizations are territorial. The territoriality of the nation state is not only a historical and material fact but also a normalized assumption in scientific and political discourse (Wimmer and Glick Schiller, 2002). Given these circumstances, territorial citizenship remains important in today’s world to realize ‘redistributive politics’ (Kostakopoulou, 2008: 125). In particular, vulnerable migrants who have not been able to accumulate locally relevant social, cultural and other forms of capital benefit from the protection that a territorial state can offer (Bauder, 2006). In the next section, I explore in greater detail the implications of the territorial nature of domicile.
1 Territorial Belonging as a Right
Hammar (1990: 76) suggests that naturalization practices in industrialized states emulate the domicile principle, i.e. long-term residents are often given the opportunity to acquire formal citizenship. However: [n]aturalization is a discretionary act by the state, one usually carried out by the executive in the form of the head of state, a government minister or a bureaucracy.…Apart from certain exceptional circumstances, immigrants have no entitlement to naturalization and are mere objects of decisions from above. (Castles and Davidson, 2000: 86, emphasis in original).
Faist (1995) made a similar observation when he examined the degree to which immigrants and denizens 6 in Germany and the USA possess access to economic welfare, security and social well-being (i.e. what he calls ‘social citizenship’). He distinguishes between legal status and physical presence of a person in the country and refers ‘to the physical presence as the territory principle and to the legal status as the jus domicili principle’ (p. 182). Faist demonstrates how access to social entitlements varies for people who are present in a territory depending on their status as illegalized immigrants, refugees, temporary residents or permanent residents. In other words, domicile-based entitlements are enacted as a territorial principle only through legal status.
A problem with contemporary state practices of citizenship is precisely that legal status rather than territorial presence tends to define migrants’ access to citizenship. The domicile principle of citizenship, however, implies that citizenship is a right for everyone who is a de facto resident in a political territory, independent of status. Following Bosswick’s (2008: 118–119) interpretation, this understanding of domicile-based citizenship has partially been implemented in the German citizenship legislation of 1991, which introduced jus domiciliī: ‘For the first time, foreigners resident in Germany for fifteen years got the right to naturalize, and not under the discretion of the foreigners’ authorities.’ This interpretation, however, should be qualified by pointing out that territorial presence is still highly regulated by visa and residency permits before a foreigner is entitled to domicile-based citizenship.
In fact, to circumvent the possibility that migrants acquire residency-based rights and become eligible for citizenship, many states impose visa and immigration restrictions limiting the period that foreigners are permitted to stay in state-territory. For example, the time limits of Canada’s temporary foreign workers programs are designed precisely to deny foreign workers the possibility to claim domicile citizenship based on period of residency (Austin and Bauder, 2012; Bauder, 2010). The domicile principle of citizenship, however, entails that foreigners should be able to remain residents and are not forced to leave (Kostakopoulou 2008). In the context of the discriminatory allocation of migrants to temporary or permanent immigration programs by the Canadian state, Austin and Bauder (2012: 31) conclude that jus domiciliī must apply universally: it constitutes a right that ‘spans ethnic, social, and class divisions…and cannot be conferred selectively on some residents and denied to others’. According to this interpretation, the domicile principle articulates territorial citizenship as a right beyond state arbitrariness and based on de facto residence, independent of status or discriminatory immigrant selection procedures and settlement restrictions.
2 Domicile and scale
Contemporary formal citizenship tends to be tied to the nation-state. In particular in scientific and political discourses related to migration, framing territorial belonging through the nation-state has become normalized convention (Bauder, 2013a; Wimmer and Glick Schiller, 2002). Residency, however, is often associated with geographical scales other than the nation. For example, a person can be a resident of a neighbourhood, electoral riding, municipality, city, state/province/department and supranational region. Likewise, the territory of domicile-based citizenship should not be conceived as necessarily fixed at the scale of the nation-state. In fact, the nation-state may not be the most intuitive scale at which the a-national principle of domicile should be enacted.
Blank (2007) observes that citizenship follows different ‘logics’ at global, national and local scales. Global citizenship is defined by universal humanity, national citizenship by birth (jus solī and jus sanguinis), and local citizenship by domicile. Similarly, the notion of nested citizenship frames membership in a political community in terms of a hierarchy defined by an inner circle based on nationality and an outer circle based on residency (Brubaker, 1992; Kivisto and Faist, 2007). Inner and outer circles can function at different scales, including a locality in which domicile-based citizenship is enacted.
In the same vein, Bauböck (2003: 150) remarks that, unlike nation-states, ‘provinces and municipalities have only a single rule of automatic jus domicili’. For nationals of western democracies, local residence effectively amounts to local citizenship because residents share citizenship rights, including the right to vote in local elections. A problem is that national citizenship (or supranational citizenship in the case of the European Union) tends to be a prerequisite for local citizenship (Bhuyan and Smith-Carrier, 2012). Thus, national citizens can take for granted that they will obtain local citizenship when they move to a different city or state/province/department. Conversely, foreign citizens are often denied local citizenship. 7 A consistent application of the domicile principle would extend local citizenship to foreign nationals.
The concept of ‘urban citizenship’ offers the possibility of citizenship at the local scale based on domicile that is de-coupled from membership in the nation-state (e.g. Isin, 2000; Varanyi, 2006). In Bauböck’s opinion: restricting urban citizenship to nationals of the state is unjustifiable whether it is imposed by national constitutions or is adopted by the local government itself. Cities should fully emancipate themselves from the rules of membership that apply to the larger state. (Bauböck, 2003: 150) After all, formal membership in a city’s polity, or ‘urban citizenship,’ is established under jus domicili standards in the US.…[T]here are no immigration policies governing who can move into a city. City officials cannot decide who they will admit for residence and membership in their jurisdiction, and as such, formal membership in the local community (which, for instance, gives citizens the right to vote in local elections) is simply a de facto designation. These are jus domicili standards: if you live in the city, you’re a citizen of that city. (Varsanyi, 2007: 312)
Bauböck (2003) makes a pragmatic suggestion from a constitutional-politics perspective of how this decoupling of local and regional citizenship from national citizenship could occur: he proposes to strengthen the autonomy of city regions (i.e. cities and their geographical hinterland) and enable them to extend local and regional citizenship to all of their residents. Thus, domicile-based urban and regional citizenship would still be territorial, albeit at the non-national scale.
V Discussion
Recent scholarship on citizenship has explored principles and developed concepts other than domicile that also address the accommodation of migrants in the territorial polity and that could, like domicile, be enacted at various scales. First, postnational citizenship refers to civil and other rights granted to migrants who inhabit a territory but do not possess formal citizenship. Soysal (1994) observed in a European context how foreign residents accumulate postnational rights through participation in the labour market and in civic life, independent of their historical or cultural connections to the community. In particular, the obligation to uphold international human rights law has led to the extension of domicile-based postnational rights to formal non-citizens (Oger, 2003; Spiro, 2008). Similar to domicile, postnational citizenship embodies the tension between mobility and territoriality: human rights that apply universally (a-territorially) are enforced by granting migrants rights and entitlements within a given territory (Arendt, 1985[1945]). Second, the citizenship principle jus nexi, according to Shachar (2011: 116), is based on ‘connection, rootedness, or linkage’. In particular, it requires a ‘grounded connection that stems from being a participant in the relevant bounded membership community’ (Shachar, 2009: 112) and from an ‘actual, real, everyday, and meaningful web of relations and human interaction’ (Shachar, 2009: 167). Shachar (2009: 166–167, 2011: 129–132) makes a practical case for jus nexi by illustrating that the International Court of Justice has already supported this principle. 8 Advocacy groups – even conservative ones in the USA – have employed jus nexi in an effort to frame the debate around undocumented immigration and non-status members of their communities (e.g. Sutherland Institute, 2011). Unlike domicile, jus nexi applies to persons who are absent from or inconsistently present in a territorial polity. Finally, stakeholder citizenship involves all people with a stake in the future of the polity. The stakeholder principle includes immigrants who have an interest in their place of destination as well as emigrants who maintain ties to their place of departure (Bauböck, 2008).
The discussion of postnational citizenship, jus nexi and stakeholder citizenship reinforces my point that migrants can be accommodated through territorial citizenship. Yet postnational citizenship, jus nexi and stakeholder citizenship are based on criteria (i.e. participation, connections and interests) that are a matter of degree and interpretation, and ones that states can easily manipulate to exclude persons residing within state boundaries. For example, state policies often prevent migrants without status or with precarious status from making connections and from becoming stakeholders by excluding them from participation in public and civic life, keeping them from acquiring property and/or forcing them to work and live underground. Similarly, many non-citizen migrants experience tight controls on participating in the labour market and contributing to the welfare system in countries like Germany and the USA (Bosniak, 2007; Soysal, 1994). Thus, postnational citizenship, jus nexi and stakeholder citizenship lack an important feature which domicile citizenship possesses: the inclusion of all residents independent of arbitrary criteria. Domicile-based citizenship ‘makes territorial presence the all-or-nothing criterion’ (Shachar, 2009: 179), while other concepts and principles of citizenship rely on the step-by-step and probationary accumulation of entitlements through participation (postnational citizenship), connections to the local polity (jus nexi) or the formal acquisition of interest (stakeholder citizenship). This centrality of residence is important because it includes all residents, independent of status and the state’s efforts to prevent temporary and undocumented residents from making contributions, establishing connections or accumulating interests. 9
One could argue that territorial presence does not equate with residence. For example, Kostakopoulou (2008: 115) suggests that residency in the context of citizenship acquisition should not be simply a matter of formal presence, but rather ‘the connections and bonds of association that one establishes by living and participating in the life and work of the community’. This suggestion, however, mirrors jus nexi rather than jus domiciliī. To use another example, Carens (2010) recently argued that the length of time a person is present in a political territory should define whether undocumented migrants acquire access to citizenship. Bosniak (2010: 90), however, counters Carens’ argument by pointing to the liberal constitutional norms based on which ‘all persons within the state’s jurisdiction are to be accorded fundamental rights, security, and recognition. For purposes of this commitment, length of stay is irrelevant; what counts is being territorially present and subject to law’. Bosniak’s reasoning mirrors the domicile principle of citizenship as a matter of territorial presence rather than other criteria.
The domicile principle offers the possibility to reconfigure formal territorial citizenship in a way that is just and equitable to migrants (Bauder, 2003). It would address many of the problems associated with formal political exclusion and marginalization that migrants often face – in particular those without status, with precarious status or with temporary status (Lenard and Straehle, 2012; Nevins, 2002; Piore, 1979; Samers, 2010). The testimonial theatre project ‘Nanay’ vividly illustrates how Canada’s Live-In-Caregiver Program produces a vulnerable and exploitable workforce of Filipina migrants by separating these migrants from their families and children, ‘entrapping’ them within rigid program requirements 10 and threatening deportation in the case of non-compliance with these requirements (Johnston and Pratt, 2010; http://www.urban-crawl.com/nanay). If these de facto residents were entitled to domicile-based citizenship, a root-cause of their vulnerability would be eradicated. Granted, migrants may still be in vulnerable positions, for example, due to practices of racialization and other forms of ‘cultural’ distinction, unequal access to social welfare benefits that must be accumulated over time, or the personal and financial costs of migration and settlement (e.g. Bauder, 2006). However, the lack of formal citizenship would no longer be a source of criminalization, political and social marginalization, and economic exploitation.
From a social-justice perspective, the domicile principle holds all residents – migrant or not – accountable to contribute fairly to the community in which they live. Residence is already a key factor for determining where mobile and transnational populations pay their taxes (Hammar, 1990). An argument frequently raised against illegalized immigrants is that they do not pay income taxes and some other taxes. If these migrants received domicile-based citizenship, then they would be able and required to pay taxes. The same situation applies to privileged workers and transnational elites who sometimes seek to evade taxes in the place where they live by shifting capital and their legal status abroad. For example, for tax purposes, the UK distinguishes between residence and domicile, exempting some ‘non-domiciled’ persons from taxes on their foreign incomes. In addition, countries like Austria, Antigua and Barbuda, Cyprus, and St Kitts and Nevis offer ‘economic citizenship’ in return for a significant monetary investment or charitable donation, which many investors accept in exchange for favourable tax rates in these countries. Domicile-based citizenship challenges these practices. While migrants acquire domicile-based citizenship by taking up residence in a political territory, they would be unable to do so if they resided elsewhere. At the same time, citizenship would terminate when a person emigrates from a territory. In this way, domicile-based citizenship is responsive to people’s migration trajectories and applies to mobile elites, migrant workers, refugees and migrants seeking to reunite with family and/or striving for a better life.
If jus domiciliī were adopted globally, then migrants would always and only possess the citizenship of the jurisdiction in which they currently reside. However, this scenario of identically formulated citizenship criteria is unlikely, as nation-states insist on their sovereignty. As a result, mobile elites will be able to continue strategically to acquire citizenships and residencies, and exploit the regulatory differences between jurisdictions (Ley, 2010; Ong, 1999). Likewise, states strategically manipulate their own citizenship policies to capitalize, for example, on expatriate and diaspora populations that reside outside of the state’s territory. This extension of ‘extraterritorial citizenship’ (Ho, 2011) to non-residents runs counter to domicile-based citizenship. In practice, the implementation of domicile-based citizenship by one or more jurisdictions may do little to solve geopolitical global inequalities, nor is it the aim of this article. Rather, this article focuses on the mechanism of granting citizenship to migrants within a jurisdiction.
In this context, domicile appeals to liberal universalism because it defines an a-national model of citizenship that rejects birth privilege, ancestry, ethnicity, ‘cultural’ markers of distinction and other constructions of nationhood and community (e.g. Anderson, 1991; Bauder, 2011; Sibley, 1995). It also embraces the liberal democratic principle of inclusion, which applies independently of a person’s birth privilege, ancestry, ethnicity or presumed ‘culture’ (Austin and Bauder, 2012: 30; Kostakopoulou, 2008: 122–126). This universal liberal perspective carries considerable practical weight in the contemporary world of politics, ranging from international relations to migration and refugee policy development and domestic labour politics (e.g. Forsythe, 2012: Milkman, 2011).
Furthermore, domicile offers an opportunity to rescale citizenship and delink it from the nation-state. Canadian provinces, for example, are already involved in the selection of immigrants through Provincial Nominee Programs. Although these programs stop short of empowering provinces to decide on citizenship criteria for its residents, they are validating the regional scale for policies that, in the past, were the sole domain of the nation-state. The possibility of enacting citizenship at non-national scales is affirmed by the sizeable literature related to urban citizenship, local belonging and functional regions (e.g. Bauböck, 2003; Holston, 1999; Isin, 2000; Isin and Nielsen, 2008; Price, 2012; Siemiatycki and Isin, 1997; Syssner, 2011; Veronis, 2006). Migrants without national citizenship, including on-status migrants, tend to assert and express their claims to political inclusion at the local scale, and cities throughout North America have subsequently implemented sanctuary and Don’t-Ask-Don’t-Tell policies (Nyers, 2010). These policies ensure, for example, that all residents and their children have access to city services, libraries, education, health care, social housing, and labour and safety protections without the fear that lack of status would result in detention and deportation. Here, again, the domicile principle does not challenge the territorial belonging of people but reconfigures the formal mechanism of belonging and rescales the territory to which migrants and non-migrants belong. With the prospect of rescaling citizenship, the debate of domicile resonates with ongoing geographical scholarship problematizing scale. However, unlike scholarship related to citizenship that challenges the containerized nature of scale and that follows ‘a broader trend within human geography shifting from scalar to network analyses’ (Ho, 2011: 766), domicile-based citizenship does not reject the territorial character of scale.
My practical argument for domicile-based citizenship is intended to complement more radical scholarship that centres mobility and problematizes territoriality (Bauder, 2013a; Bosniak, 2000; Cresswell, 2006; Urry, 2000). Rather than pursuing the deterritorialization of the contemporary political world, this argument seeks to provide an intermediate policy tool to address social injustices and inequalities experienced by migrants who cross political borders and then reside in bounded political territories. Isin (2012: 149) – who otherwise challenges containerized citizenship – acknowledges that a-territorial citizenship without borders is only possible beyond ‘the authoritative scripts of governments’. My treatment of domicile-based citizenship as a formal membership in a territorial political community does not challenge this script. Furthermore, it can be argued that the domicile principle of citizenship requires a territorial political community because it defines ‘residence’ (domicile) as the place where one lives and thus in containerized territorial terms. At this point, I cannot imagine how residence could be defined otherwise.
While domicile-based citizenship may remain a ‘thought experiment’ (Austin and Bauder, 2012), it can also be argued that domicile-based citizenship is already practised at the urban scale, in particular when migrants assert their belonging through political action, engagement in the politics of home, performances of resistance and participation in local communities (e.g. Blunt, 2005a, 2005b; Hage, 2002; Honig, 1994; Isin and Nielsen, 2008; Nyers, 2010; Staeheli and Nagel, 2006; Veronis, 2006; Walters, 2004). These urban domicile-based citizenship practices should be of particular interest to urban geographers. An agenda for future urban and other geographical research would be to expand the relatively narrow discussion of domicile as a formal citizenship principle, which I offered above, to a wider context of the practice and enactment of citizenship, the politics of belonging and home, and the dialectics of territory and identity formation.
Footnotes
Acknowledgements
I thank the Social Sciences and Humanities Research Council of Canada for support and Meaghan Symington for outstanding research assistance. In addition, I am grateful for comments by Peter Nyers, Sarah Elwood and three anonymous reviewers.