Trump plans to deny pregnant women visas to prevent ‘birth tourism’ – but are his plans legal?

Trump plans to deny pregnant women visas to prevent 'birth tourism' – but are his plans legal?

The United States of America has today begun implementing a new policy aimed at restricting the granting of visas to women travelling to the US “primarily to give birth” in order that their children can be entitled to a US passport. The US is one of a relatively small number of countries that grants citizenship to individuals born in the US (commonly referred to as birthright citizenship or jus soli). Most states link the citizenship of babies to that of their parents (jus sanguinis) or they confer citizenship later in life through processes of naturalization, including through citizenship by investment.

President Donald Trump has long criticised the concept of birthright citizenship and the related practice of “birth tourism” which the new policy is intended to prevent. Trump originally sought completely to remove birthright citizenship but faced challenges insofar as the right was established as far back as 1868 by virtue of the Fourteenth Amendment to the US constitution.

Changing a provision of the constitution is not an easy task, and requires endorsement by each of the individual States of the Union. Furthermore, the symbolic importance of birthright citizenship in the US cannot be underestimated, given its connection to the abolition of slavery, which was affirmed by the Thirteenth Amendment in 1865, and the associated requirement of granting nationality to the children of African-American slaves.

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On the other hand, as noted above, there are only a few other states in the world (35 in total) that recognise the right to citizenship based on place of birth. Importantly, all of these states, excluding Cuba, are members either of the Organisation of American States or of the Commonwealth. Jus soli is enshrined in Article 20(2) of the OAS American Convention of Human Rights, which states that “every person has the right to the nationality of the state in whose territory he was born if he does not have the right to any other nationality”. Other than the US, the only other major Western state that recognises jus soli is Canada, but Canada is a member of both the OAS and the Commonwealth, although not party to the ACHR. It is interesting to note also that several of the states that recognise jus soli, Including Canada, also operate citizenship by investment programmes indicating their openness to mobility and empowering global citizenship.

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1/50 10 February 2020

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20/50 22 January 2020

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28/50 14 January 2020

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29/50 13 January 2020

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42/50 31 December 2019

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44/50 29 December 2019

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45/50 28 December 2019

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50/50 23 December 2019

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1/50 10 February 2020

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2/50 9 February 2020

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3/50 8 February 2020

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4/50 7 February 2020

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5/50 6 February 2020

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6/50 5 February 2020

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Anadolu Agency via Getty

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8/50 3 February 2020

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9/50 2 February 2020

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10/50 1 February 2020

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Getty

11/50 31 January 2020

Stefan Kraft soars through the air during a qualifying session for the men’s large hill individual competition at the FIS Ski Jumping World Cup event in Sapporo, Japan

EPA

12/50 30 January 2020

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AFP via Getty

13/50 29 January 2020

An Israeli soldier fires teargas towards Palestinian protestors during a demonstration in al-Aroub Palestinian refugee camp, between the West Bank towns of Hebron and Bethlehem

AFP via Getty

14/50 28 January 2020

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15/50 27 January 2020

Flowers outside Bryant Gymnasium at Lower Merion High School, in Philadelphia, as people pay their respects after basketball legend Kobe Bryant died in a helicopter crash

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16/50 26 January 2020

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AFP via Getty

17/50 25 January 2020

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AFP via Getty

18/50 24 January 2020

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AFP via Getty

19/50 23 January 2020

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Getty

20/50 22 January 2020

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21/50 21 January 2020

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22/50 20 January 2020

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23/50 19 January 2020

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AFP via Getty

24/50 18 January 2020

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AFP via Getty

25/50 17 January 2020

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AFP via Getty

26/50 16 January 2020

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AFP via Getty

27/50 15 January 2020

Taiwanese soldiers operate a CM-11 battle tank during an exercise at a military base in Kaohsiung, southern Taiwan

AFP via Getty

28/50 14 January 2020

A resident who briefly returned home to retrieve belongings carries figurines of Jesus Christ and Mother Mary in Laurel, Batangas province, Philippines. The Philippine Institute of Volcanology and Seismology raised the alert level to four out of five, warning that a hazardous eruption could take place anytime, as authorities have evacuated tens of thousands of people from the area

Getty

29/50 13 January 2020

Mini’s driver Jakub Przygonski and his co-driver Timo Gottschalk compete in Stage 8 of the Dakar 2020 around Wadi Ad-Dawasir

AFP via Getty

30/50 12 January 2020

People take photos of a phreatic explosion from the Taal volcano from the town of Tagaytay in Cavite province, southwest of Manila

AFP via Getty

31/50 11 January 2020

An injured Syrian child cries after being transported to a clinic for treatment following an air strike by pro-regime forces on the nothwestern city of Idlib

AFP via Getty

32/50 10 January 2020

Vets and volunteers treat koalas at Kangaroo Island Wildlife Park, southwest of Adelaide, Australia

AAP Image/Reuters

33/50 9 January 2020

Devotees follow the carriage transporting the statue of the Black Nazarene during an annual religious procession in its honour in Manila. Thousands of barefoot devotees joined the religious procession hoping to touch a centuries-old icon of Jesus Christ, called the Black Nazarene, which is believed to have miraculous powers

AFP via Getty

34/50 8 January 2020

People stand near the wreckage after a Ukrainian plane carrying 176 passengers crashed near Imam Khomeini airport in Tehran

ISNA/AFP via Getty

35/50 7 January 2020

Mourners gather around a vehicle carrying the coffin of Iranian top general Qasem Soleimani during the final stage of funeral processions, in his hometown Kerman. Soleimani was killed outside Baghdad airport Friday in a drone strike ordered by US President Donald Trump, ratcheting up tensions with Iran which has vowed “severe revenge”. The assassination of the 62-year-old heightened international concern about a new war in the Middle East and rattled financial markets

AFP via Getty

36/50 6 January 2020

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AP

37/50 5 January 2020

Mourners march behind a vehicle carrying the coffins of slain major general Qassem Soleimani and others as they pay homage in the Iranian city of Mashhad

Tasnim News/AFP/Getty

38/50 4 January 2020

Rescue personnel search for bodies among mud and debris following a landslide caused by heavy rain in West Java, Indonesia

EPA

39/50 3 January 2020

A burning vehicle at the Baghdad International Airport is seen following an airstrike in Baghdad, Iraq. The Pentagon said Thursday that the US military has killed Gen. Qassem Soleimani, the head of Iran’s elite Quds Force, at the direction of President Donald Trump

AP

40/50 2 January 2020

Boats are pulled ashore as smoke and wildfires rage behind Lake Conjola, Australia. Thousands of tourists fled Australia’s wildfire-ravaged eastern coast ahead of worsening conditions as the military started to evacuate people trapped on the shore further south

Robert Oerlemans via AP

41/50 1 January 2020

Photographer Matt Roberts reacts to seeing his sister’s house destroyed by a bushfire in Quaama, New South Wales, Australia

EPA

42/50 31 December 2019

A man rides a donkey cart against the last setting sun of 2019 in Lahore, Pakistan

Reuters

43/50 30 December 2019

A Skycrane drops water on a bushfire in Bundoora, Melbourne, Australia. According to local media reports, thousands of residents and tourists were forced to evacuate in the state of Victoria as soaring temperatures and winds fanned several bushfires around the state

EPA

44/50 29 December 2019

A jumper soars through the air during a trial jump at the first stage of the 68th four hills ski jumping tournament in Oberstdorf, Germany

AP

45/50 28 December 2019

Revellers dressed in mock military garb throw eggs as they take part in the “Els Enfarinats” battle in the southeastern Spanish town of Ibi on December 28, 2019. – During this 200-year-old traditional festival participants known as Els Enfarinats (those covered in flour) dress in military clothes and stage a mock coup d’etat as they battle using flour, eggs and firecrackers outside the city town hall as part of the celebrations of the Day of the Innocents, a traditional day in Spain for pulling pranks.

AFP via Getty

46/50 27 December 2019

The Panamanian-flag cargo ship “Zelek Star” is pictured after being washed up on a beach in the southern Israeli coastal city of Ashdod during a storm

AFP via Getty

47/50 26 December 2019

Monks wearing solar filter glasses watch the “ring of fire” solar eclipse at the Gaden monastery in a Tibetan colony in Teginkoppa, India

AFP via Getty

48/50 25 December 2019

A participant in a Darth Vader costume jumps into the water during the 110th edition of the ‘Copa Nadal’ (Christmas Cup) swimming competition in Barcelona’s Port Vell. The traditional 200-meter Christmas swimming race included more than 300 participants on Barcelona’s old harbour

AFP/Getty

49/50 24 December 2019

Children dressed as Santa Claus during celebrations on Christmas Eve at a school in Amritsar

AFP via Getty

50/50 23 December 2019

Palestinians wearing Christmas costumes distribute gifts to children seated atop the rubble of a house demolished by Israel, reportedly for not being built with official licensing in the village of al-Khader, west of of Bethlehem in the occupied West Bank

AFP via Getty

The US, under Donald Trump, has a strategy of restricting immigration, and this new policy is undoubtedly part of that strategy. It is unlikely, however, that President Trump will be able to do away with birthright citizenship – and he certainly cannot do it by Presidential decree. Nevertheless, the policy will undoubtedly reduce the number of babies born in the US simply for the purpose of securing a US passport. That having been said, it remains to be seen how the policy will be enforced, with customs officials having to assess whether a woman is pregnant on entry to the US and whether her intention is only to come to give birth there.

J. Craig Barker is Dean of the School of Law and Social Sciences at London South Bank University and Member of the Advisory Board at Arton Capital

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