Journal of Research and Development in Comparative Law

Journal of Research and Development in Comparative Law

A Comparative Study of the Effect of Foreign Passport on Citizenship by Birth in Common Law and Iranian Law with a Judicial Precedent Approach

Document Type : scientific research paper

Authors
Abdolazim Khoroushi 1
omid tavakolikia 2
1 Assistant Professor, Department of Law, Hakim Sabzevari University, Sabzevar, Iran
2 Judge, PhD Scholar in Private Law, Postgraduate Education Center, Payam Noor University, Tehran, Iran
10.22034/law.2025.2053287.1611
Abstract
International cooperation and voluntary or compulsory human movements across international borders raise numerous issues, one of the most important of which is the issue of birth and citizenship in the destination country. Citizenship by birth, especially in cases where citizenship is disputed due to the residency status of foreign parents or the use of travel documents from other countries, is an important legal challenge that has recently been the subject of many lawsuits in Iran. This study examines the issue as to whether having a passport of a country means having the citizenship of that country. Given that citizenship by birth, based on the territorial system, is either imposed or elective, if a person born in the destination country obtains a passport of the country of origin or a third country, does this act mean renouncing the citizenship of the country of birth or not. The present study uses a descriptive-analytical method on a comparative analysis level to study this issue in the common law system and Iranian law and subjects the existing approaches to critique and examination. The research findings indicate the existence of two different approaches to this issue; an approach that considers the passport as evidence for citizenship of the country of issue or a renunciation of citizenship of the country of birth, and an approach that considers the passport as merely only indicating a presumption of citizenship. This study indicates that the approach that considers the passport only a rebuttable presumption of citizenship and is more consistent with the nature of the passport and with numerous other legal principles.  In comparative law and the judicial practice of courts, there are two prevailing views on this matter: one view holds that possessing a passport constitutes evidence or an indication of renunciation of nationality, with one of the main reasons being the creation of dual nationality for the individual; the other view maintains that holding a foreign passport does not imply renunciation of nationality. The main reasons supporting this second view include: the passport being primarily a travel document, the necessity of proving the intention to accept foreign nationality, effective nationality, de facto nationality, lack of legal capacity, the non-application of nationality rules to individuals under 18 years holding a passport, principles of acquired rights and legitimate expectations, the ineffectiveness of acquiring nationality after the legal deadline, non-abandonment of nationality, the prohibition of revocation of nationality, and the fact that a passport is a condition for legal residence and the exercise of civil rights. Given these reasons and supporting evidence, it appears that the second view—namely, that merely possessing a foreign passport does not indicate renunciation of Iranian nationality—is more consistent with the legal principles of Iran, other countries, and international instruments.
Keywords
Citizenship
territorial system
passport
immigration
paragraphs 4 and 5 of Article 976 of the Civil Code

Subjects

  1. Akbari, M., Gheliji, M., & Taheri Moghadam, S. M. (2024). Investigating the effects of deportation of Iranians living in Iraq in the city of Ilam. A Scientific Journal of Ilam Culture, 25(82–83), 51–71. https://www.farhangeilam.ir/article_207319.html  (in Persian)

    Arfania, B. (2001). Private international law (Vol. 1). Behtab Publications. (in Persian)

    Arnell, P. D. (1998). International jurisdiction and crime: A substantive and contextual examination of jurisdiction in international law (Doctoral dissertation, University of Hull).

    Balakrishnan, P. (2018). Rare and most valuable historical passports in the world. Citizenship by Investment Journal. https://citizenshipbyinvestment.news/index.php/2018/10/17/rare-and-most-valuable-passports-in-the-world/

    Benoit, C. (2014). Force and effect: A look at the passport in the context of citizenship. Fordham Law Review, 82, 3307.

    Bixby, P. (2022). License to travel: A cultural history of the passport. University of California Press.

    Bourlai, T., Ross, A., & Jain, A. (2009, September). On matching digital face images against scanned passport photos. In Proceedings of the First IEEE International Conference on Biometrics, Identity and Security (BIDS).

    Convention relating to the Status of Refugees. (1951). Adopted July 28, 1951.

    Dehm, S. (2018). The passport. In International law's objects. Oxford University Press. https://doi.org/10.1093/oso/9780198798200.003.0029

    Ehrlich, T. (1966). Passports. Stanford Law Review, 129–149.

    European Asylum Support Office. (2021). EASO practical guide on the application of cessation clauses. Publications Office of the European Union.

    Flanagan, R. (2011). Legitimate expectation and applications: An outdated and unneeded distinction. Canterbury Law Review, 17, 283.

    Germany. (1913/2024). Staatsangehörigkeitsgesetz (StAG). BGBl. I Nr. 104.

    Global Legal Research Directorate. (2018). Birthright citizenship around the world. Law Library of Congress.

    Hashemi, M. (2000). Constitutional law of the Islamic Republic of Iran (Vol. 2). Dadgostar Publications. (in Persian)

    Hodgson, D. C. (1983). The current status of the legitimate expectation in administrative law. Melbourne University Law Review, 14, 686.

    International Court of Justice. (1955). Nottebohm Case (Liechtenstein v. Guatemala). https://www.icj-cij.org/sites/default/files/case-related/18/018-19550406-JUD-01-00-EN.pdf

    Judiciary of Iran. (2019). Judicial security document (Approved July 16, 2019). (in Persian)

    Khoroushi, A. (2024). Judicial security. In Encyclopedia of Human Rights (Vol. 1). Mizan Publishing House. (in Persian)

    Kosta, V. (2019). The principle of proportionality in EU law: An interest-based taxonomy. In J. Mendes (Ed.), EU executive discretion and the limits of law. Oxford University Press. https://ssrn.com/abstract=3368867

    Mazzeschi, M. (2014). Citizenship by investment: Is it really a good deal? The 1955 Nottebohm case of International Court of Justice.

    McKeown, A. M. (2008). Melancholy order: Asian migration and the globalization of borders. Columbia University Press.

    MKN. (1961). Is passport conclusive proof of voluntary acquisition of citizenship? Journal of the Indian Law Institute, 87–99.

    Muchmore, A. I. (2004). Passports and nationality in international law. University of California, Davis Journal of International Law and Policy, 10, 301.

    Najafi, M. (2000). Jawaher al-Kalam (Vol. 19). Institute of Islamic Jurisprudence Encyclopedia on the Doctrine of the Ahl al-Bayt. (in Arabic)

    Netherlands. (1985). Rijkswet op het Nederlanderschap. https://wetten.overheid.nl/BWBR0003738/2023-10-01 (Accessed Jan. 18, 2025)

    Seljuqi, M., & Amini, Y. (n.d.). Collection of advisory opinions of the legal department of the Ministry of Justice before 1979. Research and Studies Office of the Ministry of Justice. (in Persian)

    Tavakoli, O. (2022). Bangalore principles on judicial behavior from the perspective of Islamic law. Journal of Research and Development in Comparative Law, 4(13), 13–50. https://doi.org/

    10.22034/law.2022.538727.1112

    (in Persian)

    Thym, D. (2014). Residence as de facto citizenship? Protection of long-term residence under Article 8 ECHR. In Human rights and immigration (pp. 106–144). Oxford University Press.

    United States Code. (1934). U.S. laws in effect on 2025. Office of the Law Revision Counsel. https://uscode.house.gov/

    Vakil, A., & Asgari, P. (2004). Constitutional law in the current legal system. Majd Scientific and Cultural Association. (in Persian)

    van Eijken, H. (2019). Tjebbes in Wonderland: On European citizenship, nationality and fundamental rights. European Constitutional Law Review, 15(4), 714–730.

    World Population Review. (2025). Pennsylvania, USA. https://worldpopulationreview.com/country-rankings/countries-with-birthright-citizenship (Accessed Jan. 18, 2025)

    Zandiyeh, H., & Zargari, B. (2018). Passport under in Qajar era and its impact on international relations. Foreign Relations History, 19(74), 109–135. https://www.hfrjournal.ir/article_82182.html (in Persian)

    Ziaei, R., Nowrozi, Q., & Jahanbin, E. (2015). A reflection on the acquired right in light of the decisions of the Administrative Court of Justice. Administrative Law, 2(8), 143–162. http://qjal.smtc.ac.ir/article-1-88-fa.html (in Persian)