Month: August 2023

FATCA is Found Illegal by Belgium government –

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The press release of the Belgian Protection Authority from May 24, 2023 provides:

The Belgian Data protection authority today declared unlawful, and decided to prohibit, the transfers of personal data of Belgian “Accidental Americans” by the Belgian Federal Public Service Finance (FPS Finance) to the US tax authorities under the intergovernmental FATCA agreement. According to the Belgian DPA, the data processing carried out under this agreement does not comply with all the principles of the GDPR, including the rules on data transfers outside the EU. It also asks the FPS Finance to alert the competent legislator of the shortcomings identified by the DPA.

Belgian DPA prohibits the transfer of tax data of Belgian “Accidental Americans” to the USA

It is interesting that the term “Accidental Americans” is used in the release. The individual who filed the complaint is a dual Belgian and American citizenship and from the “Accidental Americans Association of Belgium.” The official website of the DBA provides the summary in part as follows:

Conclusions of the Litigation Chamber

The Litigation Chamber concludes that the transfers of data of Americans residing in Belgium to an authority located in a country outside the EU (which cannot offer an adequate level of data protection) are unlawful. For this reason, the Belgian DPA prohibits the FPS Finance from processing the complainants’ data and asks it to alert the competent legislator of this prohibition and of the shortcomings found.

The Belgian DPA also orders the FPS Finance to inform in a complete and accessible manner the data subjects of the data processing carried out as part of the FATCA agreement and of its modalities. It also asks to carry out a “DPIA” which is an analysis of the risks associated with this data processing.

The parties can appeal this decision.

Hielke Hijmans, Chairman of the Litigation Chamber, concludes: “Ordering the cessation of data flows to the United States under the FATCA agreement may seem harsh, but once we find that they do not comply with the applicable law, we are obliged to stop these data flows. This principle has been confirmed in the rulings known as the “Schrems rulings”.

The full decision in French can be reviewed here

A “National” versus a “Citizen” – A difference without a distinction?

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There are terms used throughout the law of immigration and citizenship; indeed including the term “citizen” as found in the U.S. Constitution, which can seem ambiguous. The term “citizen” is found throughout the U.S. Constitution (e.g., in Articles I, II, III, IV and various Amendments). Nowhere is the term “national” used in the constitution.

A legal scholar wrote about the term citizen and national in an article several decades ago:

“Under the Immigration and Nationality Act 1952, a distinction is drawn between a national and a citizen of the U.S.A. Nationality is a broader concept than citizenship being based on permanent allegiance, and a national of the U.S.A. includes both an United States citizen and a non-U.S. citizen who owes permanent allegiance to the United States.”

Meher K. Master, United States Citizenship, 5 Int’l L. 324 (1971)

The example this author uses is of a British subject citizen of the U.K. and Colonies who becomes a naturalized United States citizen; thereby creating a person with dual citizenship (and dual nationality). In contrast, the author goes on to take the nearly identical example, except of a British subject, citizen of no country, may become a naturalized U.S. citizen. He would have dual nationality but not dual citizenship, as only a citizen of the United States.

To this author, this explanation leaves the distinction between a (i) “citizen” and (ii) “national” as clear as mud. A difference without a distinction? The example does not explain, what is the distinction between a national and a citizen of the United States? What makes them different? The statement only references a “U.K. subject” who is not a citizen of the U.K.

The D.C. Circuit Court opined on a narrow issue tied to this distinction asking these questions:

In our constitutional republic, Justice Brandeis observed, the title of citizen is superior to the title of President. Thus, the questions “[w]ho is the citizen[?]” and “what is the meaning of the term?” Aristotle, Politics bk. 3, reprinted in part in Readings In Political Philosophy 55, 61 (Francis W. Coker ed., 1938), are no less than the questions of “who constitutes the sovereign state?” and “what is the meaning of statehood as an association?” We are called upon to resolve one narrow circumstance implicating these weighty inquiries. 

Tuaua v. United States (788 F.3d 300, D.C. Cir., 2015)

The 1986 Immigration and Nationality Act (INA) was adopted with section 101(a)(22) that provides

“the term ‘national of the United States’ means (A) a citizen of the United States, or (B) a person who, though not a citizen of the United States, owes permanent allegiance to the United States.” 

That still does not answer the question of who is a national of the United States? It just provides that there is a category of persons who are nationals who are not necessarily also citizens. See the definition in (B).

The US Department of State has its own comments on this language and they state (based upon the statutory language of the INA – Section 101(a)(22) that “U.S. citizens are also [necessarily] U.S. nationals.”

Therefore, it must follow that not all U.S. nationals are necessarily U.S. citizens. But who then is a national and not also a citizen? The answer in part is found in Section 101(a)(20) of the INA that defines an “outlying possession” as American Samoa and Swains Island.

There are historical reasons related to the creation of American Samoa. Footnote 1. See,  Tuaua Id., for a discussion by the D.C. Circuit concluding that individuals born in America Samoa are nationals, but do not have “birthright citizenship”. This with reference to Section 101(a)(20) of the INA.

Hence, the statement by the US Department of State that – “Non-citizen nationality status refers only to individuals who were born either in American Samoa or on Swains Island to parents who are not citizens of the United States. ” See, FAM 308.2 – Acquisition by Birth in American Samoa and Swains Island.

This provides context for the statement that only individuals born in these two islands are nationals but not U.S. citizens of the U.S. Can someone who is not a citizen of the U.S., but a national (i.e., from American Samoa or Swains Island) become a dual national? Presumably yes – and the U.S. Department of State will also issue U.S. passports to these non-citizens (instead of a Certificate of Non Citizen Nationality).

For a more detailed discussion generally about dual nationals see, the US Department of State’s discussion regarding Dual Nationality which are consistent with the SCOTUS decision in Afroyim v. Rusk,  387 U.S. 253 (1967) discussed in a prior post:

U.S. law does not impede its citizens’ acquisition of foreign citizenship whether by birth, descent, naturalization or other form of acquisition, by imposing requirements of permission from U.S. courts or any governmental agency. If a foreign country’s law permits parents to apply for citizenship on behalf of minor children, nothing in U.S. law impedes U.S. citizen parents from doing so.

See, Dual Nationality has Been Permitted in the U.S.A. since 1967: U.S. Supreme Court Confirmed Constitutional Rights of Citizenship (Afroyim v. Rusk,  387 U.S. 253 (1967))

As a final note, the “U.K. subject” discussion explains how other countries might have different legal definitions of a “citizen” versus a “national” versus a “subject”? At least in the U.S. the distinction between a citizen and a national of the United States seems more clear.

Footnote 1. See, Villazor, Rose Cuison (March 2017). “American Nationals and Interstitial Citizenship”Fordham Law Review. New York, New York: Fordham University School of Law. 85 (4): 1673–1724.