Juan Pablo Ramaciotti (University of Edinburgh) and Jo Shaw (University of Edinburgh)
Introduction
Chile’s new Immigration Law (No. 21,325) was promulgated and published in April 2021, and will enter into force once the necessary administrative regulations have been put in place. This new law has been discussed at length in the Chilean Congress. It took around seven years from the date of the presentation of the Bill by the Government until the date of approval.
The new law replaces the current regulatory and institutional framework for immigration in Chile. In addition, it has substantial ramifications for issues of citizenship and statelessness. This blog identifies three important elements. First, we will explore considerations relating to the prevention and elimination of statelessness. Second, then we will look at elements that facilitate the nationalisation[i] of foreigners residing in the country. Finally, we turn to the legal establishment of the criteria relating to the right to vote for foreigners residing in Chile.
Provisions Relating to the Prevention of Statelessness
Since 1995 Chile has experienced challenges regarding statelessness. To understand why this is so, we need to explain a little more about the country’s approach to the regulation of nationality acquisition by ius soli. Unlike most Latin American countries, which apply absolute ius soli, Chile is one of a minority of countries that establishes nationality by birth based on a limited ius soli. The Chilean Constitution of 1925 introduced a limitation that remains in force today: those who are the children of “transient foreigners” or foreigners who are in the country in service of their government will not acquire nationality by birth in Chilean territory (Article 10 of Chilean Constitution).
The lack of definition of the concept of transient foreigner at the constitutional and legal level has generated problems for the children of migrants in an irregular situation born in Chile. Generally, tourists or crew members, who did not have a continuous stay in the country, were considered transient foreigners. However, in 1995 the Chilean Government established through an administrative circular that any person who did not have a residence permit in the country would be considered a transient foreigner, including irregular migrants. As a result of this measure, the Chilean Civil Registry registered the children of foreigners in an irregular situation born in Chile as “child of a transient foreigner”. This triggered a problem of statelessness when the children of irregular foreigners were not recognised as Chilean, in circumstances where they were not registered in the consulates of their parents’ country of origin (e.g. because in occasions it was impossible for the parents to prove their nationality in remote regions, or because the parents were not willing to have contact with the administration of the country of origin).
In 2014, the Government changed its interpretation of “transient foreigner”, recognising the statelessness problem. On repeated occasions, based on legal actions promoted by legal clinics and civil society organisations, the Supreme Court had already ordered that the children of foreigners in an irregular situation born in Chile should be registered as Chileans. The main rationale for this is that a person in an irregular situation is not someone who is passing through the country if they live and show the intention of staying there. By 2014, the Civil Registry had a record of 2,843 “children of a transient foreigner”. Because of this, the Government modified the administrative interpretation, establishing again that only tourists and crew members would be considered transient foreigners. Additionally, in 2016 the Government launched a campaign for children registered as “child of a transient foreigner” to request the modification of their registration and be recognised as Chilean. In 2018, Chile acceded to both the 1954 Convention Relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness.
Law 21,325 places the definition of transient foreigner on a legislative basis and establishes criteria for the prevention of statelessness. The law defines a transient foreigner as a person who is passing through the national territory, with no intention of settling in it and entering as the holder of a transitory stay permit (articles 1 and 47). The subcategories of transitory stay established in the law (article 53) are: (i) those who enter the country for recreation, sports, health, business, or other similar purposes; (ii) crew of cargo or transportation vehicles; (iii) those contemplated in international treaties signed by Chile and currently in force; and (iv) foreigners living in border areas. Introducing this into the law is positive as it places the concept at the level of primary law, making it more difficult for administrative criteria or administrative practice once more to put the children of irregular foreigners at risk of statelessness.
Additionally, the Law specifically addresses the prevention of statelessness. Article 173 repeats the criteria for defining a transient foreigner and also establishes that a child of a transient foreigner will be considered Chilean by birth if they would otherwise be stateless. For its part, article 155 states that the Undersecretariat of the Interior will be charged with the task of determining the stateless status of foreigners who request it, based on a report prepared by the Council for the Determination of Statelessness. This Council, also created by Law 21,325, will be composed of three members. These members will be Government representatives of the National Immigration Service, the Ministry of the Interior, and the Ministry of Foreign Affairs.
The new provisions limit the definition of a transient foreigner and establish access to Chilean nationality in cases of statelessness, although the law does not explicitly rule out that the child of irregular migrants born in Chile can be regarded as the child of a transient foreigner. Law 21,325 introduces two criteria that must be met together to consider someone as a transient foreigner: he or she must be passing through the country with no intention to remain in it and he or she must be holding a transitory stay permit. If a future government were to claim that a foreigner with an expired tourism permit is a “transient foreigner”, it would thereby both be contradicting the legislator’s intention and the Supreme Court’s rulings that already changed the administrative interpretation in the past. As has happened before in Chile, that may result in thousands of stateless children. And it is a problem from which, under current regulations, Chile is still not exempt. According to data from the Chilean Civil Registry[ii], until September 2021, 1,789 children were registered in the country as “child of a transient foreigner”.
Elements that facilitate the nationalisation of foreigners
The Chilean Constitution allows the nationalisation of foreigners in Chile, complying with requirements established by law. Decree 5,142 of 1960 regulates the nationalisation of foreigners, essentially establishing three requirements for this: the person must have (i) reached 18 years of age and (ii) resided for more than five years in the national territory; in addition, he or she (iii) must be the holder of a permanent residence permit. However, foreigners who are at least 14 years old can request nationalisation if those in charge of their care have permanent residence and authorise the nationalisation request. In addition, minors under 18 years of age whose father or mother has been recognised as a refugee in Chile are also authorised to apply for nationalisation if one of their parents has obtained the nationalisation letter. Like many Latin American countries, Chile does not present high nationalisation numbers. However, these numbers have shown moderate growth through the last years. In 2021, the Chilean Government has granted 1,350 nationalisation cards.
The new Immigration Law establishes a new category of “qualified nationalisation”, facilitating the nationality acquisition for those with family ties with Chileans. Article 85 establishes that foreigners who have only two years of continuous residence in the country can opt for nationalisation if they meet any of the following requirements: (i) he or she has been married to a Chilean for at least two years and they share a common home; or (ii) he or she is related by consanguinity up to the second degree inclusive with a Chilean or has been adopted by Chileans; or (iii) he or she is the child of a Chilean who lost nationality before the birth of the child.
Furthermore, the Law reduces some of the barriers which foreigners face when seeking to nationalise in Chile. Currently, Decree 5,142 indicates that those who have been convicted of or are currently being prosecuted for crimes or “simple felonies” (minor crimes) cannot be nationalised as long as the accusations are not dismissed. Nor can those unable to earn a living nationalise. The new Immigration Law will replace these impediments, eliminating those related to means of subsistence and attenuating those linked to criminal records. The new norm (Article 86) establishes, first, that those who have been convicted in the last ten years of crimes that in Chile trigger an “afflictive penalty” (penalties of more than three years of deprivation of liberty) may not nationalise. Second, it indicates that those who have been convicted in the last five years of crimes that in Chile deserve the classification of a simple felony and “when there are precedents that so advise” will not be able to request the nationality card. Although this last sentence opens space to discretion for the authority to deny nationalisation, it should be understood in a restrictive sense, referring exclusively to compliance with legal requirements to access nationalisation.
The “avecindamiento” (settlement) as a requirement for suffrage
Like most Latin American constitutions, the Chilean Constitution differentiates citizens (holders of political rights) from nationals (people who belong to the nation). This differentiation dates back to the Cadiz Constitution of 1812, which significantly influenced Latin American constitutional texts at the time and ever since. At the same time, this separation made it possible to grant political rights to foreigners without requiring them to apply for nationalisation, as happened in Chile from 1925 onwards.
Currently, in Chile, only nationals who have reached the age of eighteen and who have not been sentenced to “afflictive” penalties are citizens. However, Article 14 of the Constitution recognises the right to vote of foreigners under certain conditions. Foreigners “avecindados” (settled) for more than five years in Chile, who have reached 18 years of age, and who have not been sentenced to afflictive penalties, may exercise the right to vote in the cases and forms determined by law. Although this legal provision refers to the exercise of the right to vote and not to the constitutional concept of citizenship itself, it is linked to a broader concept of citizenship, understood as belonging to a political community and the exercise of rights within it.
Law 21,325 in its article 174 establishes the moment from which the settlement period will be counted to comply with the constitutional requirement. Chilean electoral law states that the Electoral Service (Servel) must register in the electoral roll foreigners who meet the requirements established in Article 14 of the Constitution. However, there was no rule establishing how or from which date the settlement should be registered. In practice, the Immigration Department has informed the Servel before elections to update the register, and the period of five years has been calculated considering both temporary and permanent residence permits. The new Immigration Law indicates that the authorities must count the settlement period from the moment the foreigner obtains a temporary residence permit, giving legal certainty to the criteria administratively applied by the authorities.
However, the bill approved by Congress established additional limitations that the Chilean Constitutional Court rejected. Article 174 stated that the loss of the residence permit would cause the loss of the entire settlement period, and its computation would have to restart if the foreigner obtained a new permit. However, the Constitutional Court declared this requirement unconstitutional, on the grounds that it altered the public electoral system, obstructed the right to vote with immigration criteria and added more requirements than those authorised by the Constitution.
Conclusion
The elements introduced by Law 21,325 regarding citizenship and statelessness speak to providing greater protection and legal certainty for access to nationality, political participation, and inclusion within the national community. The provisions on statelessness, nationalisation and the right to vote speak to the inclusion of foreigners, and the children of foreigners, within the sphere of Chilean citizenship. These advances largely respond to the work carried out by civil society organisations, which led to judicial decisions and administrative changes that have now been placed on a legislative basis. They are also the result of an extensive legislative process where a wider range of actors than has often been the case were given the opportunity to contribute to the strengthening the Law as drafted.
Within the current constitutional process in Chile, the foundations of citizenship will be reviewed and eventually modified. The constitutional debate is expected to confirm and deepen the protection of international and human rights standards regarding access to nationality and the inclusion in the country’s political community of those who already are part of the Chilean society.
Select bibliography
Acosta, D. (2018). The National versus the Foreigner in South America: 200 Years of Migration and Citizenship Law. Cambridge University Press. https://doi.org/10.1017/9781108594110
Escobar, C. (2015). Immigrant enfranchisement in Latin America: From strongmen to universal citizenship. Democratisation, 22(5), 927–950. https://doi.org/10.1080/13510347.2014.979322
Lawson, D., & Rodríguez, M. (2017). Addressing the Risk of Statelessness in Chile: From Strategic Litigation to #Chilereconoce. Institute on Statelessness and Inclusion. Statelessness Working Paper Series., No. 2017/03. https://namati.org/resources/addressing-the-risk-of-statelessness-in-chile-from-strategic-litigation-to-chilereconoce/
[i] We use the term ‘nationalisation’ instead of ‘naturalisation’ on the basis that the Chilean Constitution distinguishes nationality from citizenship and refers to the acquisition of nationality by foreigners as nacionalización (‘nationalisation’).
[ii] Information obtained through a request for public information made to the Civil Registry Service, by virtue of Law 20,285 on Access to Public Information and held on file by the authors.
The support of the Leverhulme Trust under the grant Major Research Fellowship MRF-2016-190 is acknowledged with thanks.
Featured image: Congreso Nacional de Chile (CC-BY-SA-3.0-CL)