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This Article basically pertains to the issue as to what does the dual citizenship
mean, what are the problems comes into picture with respect to the whole
concept of dual citizenship and what would its impact on the domicile of the
person. The general rule is that a person should have one domicile at a time but
if a person can be given citizenship of two countries at a time, cant he be given
dual domicile. In a way the paper highlights the attributes of domicile and
citizenship and the problems with respect to the same.
Some countries do not allow dual citizenship. For example, if you were born
South Korea and become a US citizen, you will most likely lose your Korean
citizenship if the Korean government finds out about it. But an increasing
number of these countries that prohibit dual citizenship are not enforcing their
laws regarding dual citizenship. So, you may informally have dual citizenship if
your native country does not take away your citizenship after you become a US
citizen.
(b) But conflicts are also possible between countries whose legislation is based
on the same principles, for instance, if their laws admit a combination of jus
sanguinis and jus soli. Thus, a child born in France to a British father and a
French mother will have dual nationality.
(c) Finally, conflicts may also occur where legislation and regulations are
identical. The Carlier Case of 1881 is an example of this kind. At that time both
French and Belgian law stipulated that a child acquires by birth his father's
nationality. But they also provided that, if the father were an alien, the child, if a
resident of the country of birth, could claim citizenship there. Carlier, born in
Belgium to French parents, was French in accordance with the provisions of the
French Civil Code. However, being born in Belgium he was allowed to opt for the
Belgian nationality according to Belgian law, without losing his French
citizenship by doing so. Had he been born in France to Belgian parents he might
have opted for French citizenship without losing Belgian nationality. The conflict
91was due neither to a difference in the two sets of legislation nor to conflicting
rules of application, but to the rigour with which both countries applied these
identical rules.
It was argued that Sonia Gandhi has qualified for citizenship under the existing
constitutional and statutory provisions and it is imperative to bring necessary
amendments, at least, to prevent such naturalised citizens i.e. those not born in
India and to Indian parent from becoming President or Prime Minister. However,
doubts have been cast on why Italian-born Sonia Gandhi chose to acquire Indian
citizenship in 1983 and not earlier (she has been residing in India since 1968, the
year she married Rajiv Gandhi).
The answer to this lies in the fact that Sonia Gandhi was qualified for citizenship
through naturalisation as laid down by the citizenship law and rules. But, she
could not have applied for citizenship by registration until 1986. However, for
this she might have had to wait until 1986 when Section 5 (c) was inserted in the
Citizenship Act, 1955, through an amendment. The inserted section enables a
foreign spouse marrying an Indian citizen to acquire Indian citizenship by
registration, if he or she has resided in India for five years at the time of applying.
Sonia Gandhi has fulfilled almost all the conditions including that a person must
have adequate knowledge of a language specified in the Eighth Schedule of the
Constitution, with her more than adequate working knowledge of Hindi.
Sonia Gandhi was enrolled as a voter in 1980 in the New Delhi Lok Sabha
constituency - three years before she acquired Indian citizenship - and following
an expose in the media, her name was deleted from the electoral rolls in 1982. It
would be absurd to suggest that Sonia Gandhi sought to be included in the
voters' list in order to secure her Indian citizenship, as being a voter is not a
condition for determining whether a person is a citizen.
But here a question emerges- just as a person can have dual citizenship cant he
have two domicile at one point of time? Some of the general rules in respect of
domicile are:
1. No person can be without a domicile. It is well established that everyone must
have a domicile.
3. No person can at the same time for the same purpose have more than one
domicile. However, in a federal or composite state consisting of a number of
different jurisdictions, there may be statutes creating one domicile for one
purpose and another domicile for other purposes. For example, section 39(3)(b)
of the Family Law Act 1975 (Commonwealth) in Australia creates an Australian
domicile (as distinct from a domicile in one of the various states, such as
Queensland) for the purpose of divorce jurisdiction. Therefore, a person can
have two domiciles in Australia: one for matrimonial causes and another for
other issues. This is just an instance of Australia, but the basic principle
regarding domicile cant be changed i.e. while a person can be stateless, or have
more than one nationality at the same time, he cannot be without a domicile, and
can only have a single domicile at any one time.
Moreover, the burden of proving a change of domicile rests with the person
alleging such a change. A domicile of origin is more tenacious and it is harder to
prove that a person has abandoned his domicile of origin than his domicile of
choice. Where the change is from a domicile of origin to a domicile of choice, the
older case law indicates that the standard of proof is more onerous than the
balance of probabilities applied in other civil cases, and the elements of
"residence" and "intention" must be shown with "perfect clearness and
satisfaction" or "beyond a mere balance of probabilities". Thus, we can see that if
dual domicile is allowed it may bring lot of complexities with respect to facts
such as what is the intention or residence (in case of domicile of choice) of the
person to make a particular place as their permanent home.
Conclusion
It may be inferred from the preceding analysis of various nationality laws that,
whatever the provisions are, whether they are based on jus sanguinis or jus soli
or a mixture of both, and whether or not the legislator has taken particular
precautions, the existence of dual nationality is unavoidable under the present
circumstances.
Present conditions would seem to indicate that States would wish to increase
rather than relax their hold on their citizens. But even if all States were to adopt
identical laws on nationality - it suffices to mention here the famous Carlier Case
dual nationality would not necessarily be limited. Dual Nationality is therefore,
in the main, the consequence of conflicts of laws.
Also when we see a larger issue of Dual Citizenship and its impact on the
Domicile of a person it can be said that while a person can be stateless, or have
more than one nationality at the same time, he cannot be without a domicile, and
can only have a single domicile at any one time. Thus, this preposition highlights
an unanswered question as to the fact that why cant there be two domicile just
as Dual Citizenship? Even if a person is presumed to have two domiciles as in
Australia: one for matrimonial causes and another for other issues, it will give
rise to large complex issues and more problems than what has been discussed in
this Project Paper with respect to Dual Citizenship.