Access to legal identity and to nationality: why inclusive procedures depend on political will

Luicy Pedroza (German Institute of Global and Regional Studies)

Arendt’s remarks on the right to have rights and the right to belong to an organised community in chapter IX of The Origins of Totalitarianism are famous and echo the spirit of the Bronwen Manby’s kick-off contribution to this forum. Moving from continent to continent amid a pandemic, it took me long to be able to finish a response, but finding another passage in that chapter brought me back to it: “we are not equal, we come to be equals as a member of a group through our decision of conceding each other equal rights”. What is a legal identity without membership? What is membership without civic equality?

This GLOBALCIT forum shows why it is high time we begin to answer these questions collecting experiences from different world regions. Bronwen Manby’s kick-off urges us to find an end to the plight of millions of stateless, undocumented people who find no entry into citizenship especially in regions where naturalisation is rare and ius soli is weak. Sujata Ramachandran’s and Erin Aeran Chung’s contributions report practices which compel us to take the pains to observe the formal and informal ways in which naturalisation operates in practice. The works of these scholars invite us to leave our comfort zone as academics and get ready to sharpen our analytical tools to understand the very institution of citizenship in its numerous varieties.

Manby’s proposed solution of decentralised naturalisation combines a pragmatic legal solution with careful attention to procedures. She is aware of the risk that decentralisation might lead to arbitrariness. Some authors in this forum think that such risk is too high. Irene Bloemraad and Barbara van der Ruette present empirical evidence of decentralised naturalisation having led to more inequality among groups in the United States and Switzerland. Christine Hobden worries that decentralised naturalisation will violate the principle of political equality. More than the risk of unequal processes across localities, I worry that decentralised processes may produce unequal citizens and thus I want to warn that a broader debate on equal citizenship is unavoidable, just as is a more basic effort to strengthen civil registries. Considering that Manby herself gives as much importance to decentralising naturalisation as to making conditions of naturalisation transparent and their implementation predictable and subject to appeal, my contribution here will try to delineate some political contours for her proposal.

Manby’s kick-off contribution illustrates how the imposition of arbitrary state borders by empires affected peoples across different world regions and keeps having consequences to this day. Colonialism subjugated those not considered to “belong” to the colonising power for many years under systems of legally unequal citizenship that cast a long shadow even after independence. Spanish colonial practice extended to Latin America the Iberian system of local social recognition of citizenship to residents: “The question was always whether the person was integrated and thus loyal”. So far so good. The problem is that while this system seemed to work out in Spanish practice so flexibly that “both natives and foreigners could acquire nativeness, lose it, and obtain it again” (ibid.), the colonial practice excluded some entire groups (above all, persons of African origin and other foreigners) from the chance of ever becoming citizens. Citizenship historians concur that after independence, weak state administrations allowed clientelist and corporatist structures which had been the basis for political life in colonial times (Zarza Rondón 2010, Escalante 2012) to extend their control, despite the early declaration of equal citizenship between males across the young independent republics (Sabato 1999, 2012). To this day, in Latin America the tension between the institution of a citizenship understood to be equal between autonomous, independent individuals and a mistrust on individuals’ ability to overcome primordial group loyalties is very much alive.

The lack of legal identity as the first problem to solve

Erin Aerean Chung and Christine Hobden recognise that Manby’s exposition of motives to propose decentralised naturalisation outlines two closely intertwined problems: one is that (native or not) populations may lack citizenship due to lacking official documentation; the other is the low rates of naturalisation among long-term foreign residents.

I want to caution against conflating these procedures as a solution. When Manby proposes that a legal framework is created for the local authorities that attest legal identification and, on top of that, they have the power to make a foreign person a citizen (with the same status as any other citizen) these are still two different competencies. Admittedly, the lines are thin: getting papers that accredit one’s personal identity usually implies linking us, as persons, to a larger community. For persons whose status as natives or foreigners is not clear, Manby’s pragmatic proposal would be immensely helpful. However, I think that devising systems of issuing identification documents that are universally accessible and just is a first, fundamental step. Access to a legal identification implies a process of recognition of a person’s existence. An equally important but different endeavour is to establish a legal path of access to naturalisation for foreign and stateless persons. This process involves asserting that a foreigner has ceased to be so and has undergone a change of his/her main (“original” or “natural”) membership.

A recent example of implementing both solutions can be found in Costa Rica. For many years, the Costa Rican state –otherwise exemplary in terms of democratic government within Latin America – faced accusations that it denied nationality to Ngäbe-Buglé people, who historically (that is, before the imposition of a border in their homeland) lived in what today is a transborder area with Panama (Gamboa et al 2014). Generations of Ngäbe-Buglé people born in their ancestral homeland were never registered by either of the two states that established a border there; thousands of them moved every year across the border in one or another direction to work in the harvest of crops, without documentation and, consequently, without access to social services and citizen rights. In 2018, after years of political agitation over this issue, the Costa Rican state started a civil registry campaign, with the collaboration of UNHCR, to give permanent residence to “indigenous migrants” of the Ngäbe-Buglé community. At the same time, Costa Rica started in 2017 to regulate the access of stateless persons to nationality via naturalisation after two years of residence. In this process the two variants proposed by Manby are visible: migrants were recognised as migrants with a right to permanent residence, and, on the other hand, authorities aimed to increase naturalisations by reducing the residence period required to apply for naturalisation. The reform to naturalisation was extended on a general basis, for the whole territory, and not only for the Ngäbe-Buglé.

Can other regions replicate this simultaneous undertaking? Simply waiting until strong civil registries have been established across entire world regions might take too long and I sympathise with Manby’s impatience to find a solution, but still think that providing a clear national direction with a reform that asserts the general principles and conditions for naturalisation is unavoidable, and also key, for political reasons. My caution about conflating procedures too quickly, despite our urge to solve both problems, stems from the larger political preoccupation that unless there is a general debate providing the frame for local practices, these will not only be disparate, but will not face upfront the challenge to combat xenophobia.

Nothing wrong with local adaptations, but political debates are needed

In contrast to the opinion of others in this forum debate that the principle of political equality could be violated by decentralised and very likely unequal naturalisation processes, I see less of a problem with variation and local discretion if their scope and direction are clearly limited by national guidelines. Decentralising the naturalisation process could help to increase naturalisations if national authorities allow for the adaptation of documentation requirements to, or substitution by other, locally ascertained conditions when it is in favour of the applicant. To reiterate my point: the condition is that a universal, accessible, transparent process is set to apply nationwide, and that discretion to meet specific requirements in the local processing of applications is allowed but limited in direction and degree. In Germany, for instance, discretion exists but it must work in favour of the applicant – i.e. to waive conditions of providing documentation when it would be burdensome to present those documents, as long as there is another way to demonstrate that the condition is fulfilled. Interviews or the presentation of witnesses, for instance, are some possibilities.

But my point is that this is not merely a procedural matter (hopefully embedded in a general development of stronger local authorities and bureaucracies). For nation-states to allow such room for local adaptations in the hope of increasing naturalisations there must first be a political will to increase naturalisations. As a legal scholar, Manby seems to be wary of executives’ use and abuse of naturalisation reforms. Her higher trust in courts is validated by the evidence from across South America in Acosta’s response. Yet, if the issue is redefining nationhood, then debates on the general principles of access to nationality are unavoidable.

A debate on open access to naturalisation procedures ought to lead to accepting that foreigners can apply after a certain time of residence; that any person that meets this condition should have access to naturalisation regardless of gender, race, ethnicity or religion; and that the cost of the process be commensurate with administrative costs of a procedure of verification, registration and issuing of documents (and not the price of a commodity). Debating this baseline is going to prove difficult and controversial in some countries, but if we are looking for ideal proposals to reform migrants’ access to nationality it is worth having a clear goal. I think there is no way around these discussions. For any society, getting there requires reflecting seriously on its own xenophobic baggage. In each country and region debates can start with matters of principle but can be enriched with many other arguments (local traditions, for instance). They can include comparative citizenship practice (for which GLOBALCIT provides a wealth of evidence to draw on). Once a political community has made it a goal to increase naturalisations, incentives can be put into place to encourage subnational levels to adapt their local procedures of naturalisation so as to enable more people to overcome obstacles.

The reforms in Costa Rica (a relatively stable and orderly democracy in its region) mentioned above illustrate that these are never-ending debates. We better get armed with patience but ready to set them into motion. Another example are the current and very heated controversies about the rights of naturalised persons in Mexico. Even in this country with inclusive ius soli, relatively generous immigration policies and pride in its historical practice of refuge, there is a hierarchical citizenship that until today impedes naturalised citizens from ever having the same civic status as Mexicans by origin. This is common feature also in other Central American countries.

Debates on fair access to naturalisation as a process leading to one and the same status for all members of a national community are worth having because they comprise both issues of principle and procedure. If the compass in those debates is equal citizenship they will give a solid base to decentralised naturalisation.

References

Cansanello, Oreste Carlos (2003): De súbditos a ciudadanos: Ensayo sobre las libertades en los orígenes republicanos, Buenos Aires, 1810 – 1852, Colección Bitácora argentina. Buenos Aires: Ed. Imago Mundi.

Chiaramonte, José Carlos (1995): “Vieja y nueva representación: los procesos electorales en Buenos Aires, 1810-1820”, en: Antonio Annino et al. (eds.),  Historia de las elecciones en Iberoamérica, siglo XIX: De la formación del espacio político nacional, Buenos Aires: Fondo de Cultura Económica, Sección de Obras de Historia.

Morales Gamboa, Abelardo, Diego Lobo Montoya, and Jacqueline Jiménez Herrera. La travesía laboral de la población ngäbe y buglé de Costa Rica a Panamá: características y desafíos. San José, Costa Rica: FLCASO, 2014;

Sabato, Hilda (coord.), 1999. Ciudadanía política y formación de las naciones. Perspectivas históricas de América Latina,México, El Colegio de México, Fideicomiso de Historia de las Américas y Fondo de Cultura Económica, 1999.

——-, 2012: “Political Citizenship, Equality, and Inequalities in the Formation of the Spanish American Republics“, desiguALdades.net Working Paper Series, No. 16, Berlin: desiguALdades.netResearch Network on Interdependent Inequalities in Latin America.

Zarza Rondón Gloria de los Ángeles. El largo camino hacia la ciudadanía: la población indígena enla Constitución de 1812. XIV Encuentro de Latinoamericanistas Españoles: congreso internacional,Sep 2010, Santiago de Compostela, España. P