An essay jumped out at me in the new collection Migrations and Mobilities , edited by Seyla Benhabib and Judith Resnik (whom I know). It’s by Jacqueline Bhabha, and it made me think in a new way about a rule I’d taken for granted: Children can’t confer citizenship on their parents. Bhabha points out that this makes children “constructively deportable.” They can’t really stay, whatever their citizenship by birthright, if no one can take care of them.
Bhabha takes us on a tour of some fascinating cases. In an important one from 1988, the European Court of Human Rights ruled that a Moroccan father who’d been stripped of his residency permit to live in the Netherlands, after his marriage to a Dutch citzen ended, could stay based on his “right to respect for family life.” The man had a long track record of seeing his daughter several times a week and helping to pay for her upbringing and education. The court honored this evidence of his involved fatherhood. By contrast, a different body, the European Commission, ruled against a Kuwaiti father who had to leave the U.K. after his divorce from a British citizen. He, too, had a child he would leave behind, and with whom a court welfare report said he had a “strong and affectionate bond.” But because he had a minor criminal conviction, was unemployed, and hadn’t consistently been in contact with his son, the commission decided that his right to respect for family life wasn’t violated by his removal from the country. Bhabha writes, “The decision has strong moral overtones about the father’s less than exemplary conduct; the rights of the citizen child to continue his strong and affectionate bond with his father were not addressed.”
Ruth Padawer’s NYT magazine piece on fatherhood and DNA wrestles with the significance of the genetic tie v. the best interests of the child, as KJ and Amanda have already pointed out. This is another part of the picture - a corner in which courts tend to care a lot less about what’s best for the child than about protecting the borders. Bhabha describes an American case in which a U.S. district court judge ruled on behalf of a Trinidadian father who challenged his deportation order based on his strong relationship with his 6-year-old daughter, who was a cititzen. The decision was reversed on appeal.