Unblocking access to citizenship in South America: policy-makers, courts and other actors
By Diego Acosta (Professor European and Migration Law, University of Bristol)
In her kick-off, Bronwen Manby describes a problematic reality – the difficulty to naturalise in certain countries in the global South and the consequently low number of naturalisations – and advocates, bearing in mind the African context, a decentralisation through which local or regional authorities would have the right to grant nationality. Whilst I agree with the diagnosis, I beg to differ on the solution taking into account a different regional context, that of South America. The role of other actors such as courts, the Inter-American Commission and Court on Human Rights, UN Committees, academia and ombuds offices (Defensores del Pueblo) emerge as more important.
Ius soli in South America
In South America,[1] ius soli has been the preferred route of access to nationality in all ten countries since independence in the early 19th century. Unconditional ius soli, whilst far from perfect in its implementation in some cases, continues to be the norm in all of them, with two exceptions. In both of these cases, courts and other actors have played a major role in mitigating the limits established in the law.
First, Chile does not apply ius soliif the parents are ‘in transit’ (transeúnte). The previous administrative practice also denied nationality to those born to parents in irregular situation. However, in numerous cases the Supreme Court has confirmed that parents residing in the country without a regular permit could not be considered as being ‘in transit’, thus their offspring were entitled to Chilean nationality. This cases were the result of pressure by UN Committees on the elimination of racial discrimination, on the rights of children and on migrant workers, as well as academia (Lawson and Rodriguez 2017). Second, Colombia removed unconditional ius soli already in 1886 and requires parents to be domiciled, thus excluding children of undocumented migrants. The arrival of 1.8 million Venezuelans since 2015, more than a half of whom were undocumented, led to approximately 25,000 children becoming stateless, their parents not being able to avail themselves of the right documents to register them as Venezuelans through ius sanguinis. Faced with pressure from academia and a draft bill presented by the Ombudsman, the government adopted a provision in 2019 granting Colombian nationality to such children, a provision that was later expanded through a ruling by the Constitutional Tribunal.
Naturalisation in South America
In South America, most nationality laws can be characterised as moderately open to naturalisation in comparative perspective. Residence periods for those willing to naturalise are relatively short, ranging from two years in Argentina and Peru, three in Bolivia, Ecuador and Paraguay, four in Brazil and five in Chile, Colombia and Uruguay (in this last case to access a status of legal citizenship that is not equivalent to nationality, since naturalisation stricto sensu does not exist in Uruguay); the only exception is Venezuela, which requires ten years. The historical origins of this trend can be traced back to the years following independence, when waiting periods before naturalisation were considerably shortened as a way to attract settlers. In Argentina, the 1869 law continues to regulate naturalisation. Its Supreme Court had clearly established in 2009 that the residence period required did not refer to any particular legal category, thus migrants in irregular situations could also apply for nationality after proving two years of dwelling in the territory. However, the government amended that interpretation in 2017 through a controversial decree so that legal residence is required now. Dual citizenship is accepted everywhere except in Paraguay. Countries also demand requirements which are also common in other jurisdictions, such as a lack of criminal convictions (e.g. in Argentina, Bolivia, Brazil, Chile, Ecuador, Peru), an oath of loyalty (e.g. in Argentina, Colombia), civic knowledge including history, geography or constitutional law (e.g. in Bolivia, Colombia, Ecuador, Paraguay); language proficiency (e.g. in Brazil, Colombia, Ecuador, Paraguay), good behaviour or morals (e.g. in Brazil, Chile, Ecuador, Paraguay, Peru, Uruguay), not posing a danger to public interests or security (e.g. in Chile, Ecuador), as well as good health (e.g. in Brazil and Ecuador).
Despite what can be considered as conditions that are easy to fulfil on paper, the number of naturalisations – in countries where data is available – is extremely low. For example, in Uruguay, only 3770 obtained legal citizenship between 2006 and 2018. The number was 7800 in Chile (2006-14). Data for Peru show 13,254 naturalisations (2001-2017). Numbers are not higher in Colombia or Paraguay, with less than 220 (2010-11) in the former and 777 (1996-2013) in the latter. In Argentina, which has the largest number of non-nationals in the region with 2.2 million, an average of 5000 naturalised between 2015-18, amounting to only 0.2% of the total number.
Discussion
What explains such strikingly low numbers? As diagnosed by Manby in the African case, discretion is an important factor. In contrast to the examples raised by Manby, however, corruption scandals are rare. The 2004 Venezuelan process can be considered an exception. Ahead of a revocation referendum against the then President Hugo Chavez, Venezuela regularised and naturalised between 350,000 and 450,000 non-nationals (although the number is highly contested) in a process of dubious legality. Naturalisation even constitutes an entitlement in two countries: Argentina and Chile. In Uruguay it is also an entitlement, but there foreigners cannot naturalise and can only obtain legal citizenship as opposed to full nationality. In all the rest, it represents a discretionary power exercised by different authorities, including the executive (e.g. Bolivia, Ecuador, Peru) or the Ministry of Foreign Affairs (e.g. Colombia). In some cases, this discretion is used by a variety of actors (e.g. the police in Brazil) involved in the application process, thus leading to possible discrimination in practice.
Secondly, most immigration in South America is regional and in some cases, such as in Paraguay, this reaches 90% of the total. Regional integration processes, such as MERCOSUR and the Andean Community, have facilitated mobility, residence and access to rights for regional migrants thus possibly reducing incentives to naturalise. It is, however, striking to see the enormous appetite for naturalisation Latin Americans show in other parts of the world. Between 2010-2019, more than 654,000 South Americans naturalised in Spain through residence in the country. This does not include South Americans who might have naturalised in Spain through non-residency routes. For example, the largest number of the more than 150,000 applications that Spain has received from descendants of Sephardic Jews expelled in the late 15th century, for whom the country created a privileged restoration of citizenship, come from Latin America. Similarly, Italy has granted most naturalisations by ancestry in countries like Argentina and Brazil. This might have to do with what Yossi Harpaz has presented as the search for a compensatory citizenship.
Third, the question arises whether the emigration of around 4.5 million Venezuelans in the last five years, mostly to other countries in South America, would lead to an increase in the number of naturalisations. Unfortunately, the temporary residence permits granted to Venezuelans in the two countries with the largest numbers, Colombia and Peru, do not provide paths to citizenship. This clear lack of political will is problematic. Paradoxically, access to citizenship for Venezuelans would offer a strong incentive for their return to Venezuela once the situation improves. In Argentina, out of the circa 200,000 Venezuelans regularly residing there, only 561 had naturalised between 2015 and 2019, despite the short residence period needed of 2 years and the toleration of dual citizenship.
Would decentralisation improve the situation? Whilst the former major of Bogotá advocated for the automatic granting of citizenship to Venezuelans in 2018, I cannot really see how decentralisation would offer a solution. Rather, the combination of mobilisation by some actors, such as the Ombusdman, together with further academic interest can lead to changes, as in the Colombian case mentioned earlier. For example, the ombudsman in Ecuador expressed its concerns with the government’s decision to deprive Julian Assange of its Ecuadorian citizenship, and the Peruvian Ombudsman participated before the Inter-American Court of Human Rights in the famous case affecting the deprivation of citizenship of business tycoon Baruch Ivcher. The Inter-American system of human rights protection is also crucial in this task. Academics need to lead that process and look deeper to unveil the mechanisms through which foreigners remain foreigners in South America and the reasons behind strikingly low naturalisation numbers in the region in comparative perspective. Unfortunately, with very few exceptions (Courtis &Penchaszadeh 2015; Blanchette 2015), we lack research on this crucial issue. It could be argued that in countries with absolute ius soli, naturalisation remains less important. However, academics need to learn how naturalisation works in practice, how many years the individuals need to wait in reality before they access citizenship, as opposed to on paper, how many applications are rejected and why, what practices of discrimination occur in practice and on what grounds, and what sources of information are provided on the possibility to apply for nationality and the process. This could open a fascinating and collective line of research for the years to come.
References
Blanchette, T.G. (2015), ‘“Almost a Brazilian” Gringos, Immigration, and Irregularity in Brazil’, in D. Acosta & A. Wiesbrock (eds.), Global Migration: Old Assumptions, New Dynamics, 167-194. Santa Barbara: Praeger.
Courtis, C. and A.O. Penchaszadeh (2015). “El (im)posible ciudadano extranjero. Ciudadanía y nacionalidad en Argentina”. Revista SAAP (ISSN 1666-7883) Vol. 9, Nº 2, noviembre 2015, 375-394. redalyc.org/pdf/3871/387143598006.pdf
Lawson, D. and M. Rodriguez (2017). “Addressing the risk of statelessness in Chile: From strategic litigation to #Chilereconoce”. Statelessness Working Paper Series No. 2017/03. https://files.institutesi.org/WP2017_03.pdf
Notes
[1] This response includes as South America the following countries: Argentina, Bolivia, Brazil, Chile, Colombia, Ecuador, Paraguay, Peru, Uruguay and Venezuela. Guyana and Suriname are excluded due to their different colonial and legal tradition when it comes to nationality and citizenship. For more information see: Diego Acosta, The National versus the Foreigner in South America. 200 Years of Migration and Citizenship Law (CUP, 2018), notably chapters 2, 3, 5 and 6.