“Everyone has the right to a nationality”

Clash of Constitutional Courts on addressing statelessness: Dominican Republic and Colombia

3 April 2020 | Paola Pelletier, LLM. Dominican Law Professor of International Private Law and Human Rights at PUCMM University, and Member of Reconocido Movement (Statelessness Movement)

Dominican Republic and Colombia have taken very different approaches to the recognition of the right to a nationality for children born on their territory to migrants with irregular migratory status. This blog will look at recent judgements by their respective Constitutional Courts and compare the countries’ approaches concerning in situ stateless populations.

Since the 1920s the Dominican Republic has allowed, either by state-control or private contracts, the arrival of Haitian workers, who were subjected to poverty and marginalization derived from their irregular status. In 2013 the Constitutional Court of the Dominican Republic arbitrarily deprived of nationality thousands of Dominicans of Haitian descent born in the country. The judgment restricted the jus solis to all children born to parents with irregular migratory status before 2010 (stretching back for generations).

In contrast, in 2020 the Constitutional Court of Colombia recognized the nationality of children born to Venezuelan migrants with irregular migratory status, following the large and recent influx of migrants from Venezuela. The judgment was issued in consideration of the best interest of the child as the children were considered at risk of statelessness.

Constitutional Court of the Dominican Republic: arbitrary deprivation of nationality

In the Dominican Republic nationality can be acquired at birth either by jus sanguinis or jus soli. Back in 1920s the Dominican Republic lacked a workforce, so migrant workers were brought from Haiti to the Dominican Republic to work on sugar plantations. They lived in unfavorable conditions in small and invisible communities called “bateyes”. Approximately 61,000 children born to these workers were registered in civil registry offices with a “ficha”, a document issued by the sugar cane industry and the State. However this document is not legally recognised as a residence permit.

In the last decades the government introduced different discriminatory practices creating barriers to the registration of children with Haitian origin. This culminated in 2007 when the National Civil Registry System adopted administrative measures which affected Dominicans of Haitian descent registered in the civil registry. The State began arbitrarily cancelling their birth certificates, IDs and passports without their knowledge. The people affected were those with French sounding last names, coming from plantations and sugar cane fields, considered to be “black Haitian” and registered at birth with a “ficha”.  Court decisions impacting on this population were also annulled and the State did not comply with judgments in their favour. Those that were no longer listed in the civil registry were registered into a “foreigners book” adopted after 2007.

These discriminatory measures were challenged through different strategic litigation efforts, one of them resulting in a 2013 Constitutional Court ruling (Dominican Constitutional Court ruling No. 168-13 issued on 23 September 2013). The judgment stated that those born on the territory between 1929 and 2010 to parents with irregular migratory status are considered migrants or foreigners and not Dominicans. The Court decided to apply the new criteria retroactively to 1929 and concluded that several generations of Dominicans of Haitian descent, many officially registered as Dominican citizens at birth, no longer met the criteria for Dominican nationality. As a result, approximately 210,000 Dominicans were stripped of their nationality in violation of the principle of non-retroactivity.

The Court stated that the individuals were “in transit” since their parents did not have residence at the time of birth. The Court also claimed that they had never been stateless and were Haitians in light of the jus sanguinis provision in the Haitian Constitution. However, the Court never analysed Haitian nationality laws and failed to consider the additional obstacles faced by descendants of Haitians born to parents without Haitian IDs and their deplorable economic conditions, as well as issues with accessing documents, the civil registry and contacting the Haitian consulate. Furthermore, the Haitian Consulate did not register those born before 2010 nor those who are registered in the foreigners book and hold a birth certificate issued by the Dominican Republic.

In 2010 the Constitution changed to expressly state that those born from “illegal” parents are not Dominicans, which also impacts on people born after 2010 to parents with irregular migratory status, who are only registered in the “foreigners book” without nationality.

As a result of local and international pressure, in 2014 a law was adopted ordering the restoration of documents to those registered in the civil registry (Law 164-14), however to date almost 52% of the people covered by this provision have not received their documentation back. The new law also implemented a new route for the registration of those that had been born on the territory to parents with irregular migratory status and had not been registered, to facilitate naturalization. The application process was open for only six months and due to obstacles only 8,700 people applied. The State did not recognize their statelessness and issued a permanent residence card stating “Haitian nationality”, and to date has not granted them Dominican nationality through naturalisation.

In Dominicans and Haitians Expelled vs. Dominican Republic (2014), the Inter-American Court of Human Rights considered that the Constitutional Court ruling of 2013 and Law 164-14 are contrary to international standards as the migratory status of the parents cannot be transmitted to their descendants, the interpretation of being “in transit” was applied unreasonably and the measures adopted by the State were discriminatory. However, after almost 7 years on this Constitutional Court judgement is still in force and Law 169-14 did not resolve the statelessness situation.

Constitutional Court of Colombia: ending childhood statelessness

By 2019 approximately 1.6 million Venezuelans were living in Colombia, almost 50% of whom had an irregular migratory status. Between August 2015 and June 2019 the State identified almost 24,000 stateless children born in Colombia to Venezuelan parents. 

At the time birth registration at the Venezuelan consulate in Colombia was difficult due to material obstacles and in January 2019 Colombia broke diplomatic relations with Maduro’s government. Therefore, although the children were entitled to a Venezuelan nationality according to the Venezuelan Constitution, their birth registration through the Consulate or their return to Venezuela were not materially possible.

The Colombian Constitutional Court issued the ruling T-006/20 on 17 January 2020, which concerned two children born in Colombia in 2018 to Venezuelan parents whose birth could not be registered at the Venezuelan consulate. While the two children were registered in Colombia, their birth certificate indicated that they were without a nationality. Article 96 of the Colombian Constitution recognizes the right to nationality under jus soli when one of the parents has their “domicile” in Colombia at the time of the child’s birth.

According to the Constitutional Court, the authorities made an incorrect interpretation and application of the laws on nationality by placing a burden of proof on the claimants, who had to present either a valid visa or residence permit from one of their parents at the time of birth or a certification from the Venezuelan Consulate stating the children were not nationals of Venezuela. 

In its judgement the Constitutional Court stated that “domicile” means the intention to “remain” in the territory and is evidenced as a matter of fact. The evidence to show that the parents’ domicile in Colombia must therefore be flexible and can be demonstrated through school registration, payment of rent, employment or any official document such as a hospital birth certificate. If there is a lack of evidence proving domicile, a statelessness determination procedure would be conducted and the corresponding Consulate or State would be contacted, but only if reasonably possible, as for example in the case of Venezuela, for the Court, this requirement would not apply given the political and material context.

The Court also applied international standards, including the two landmark cases against the Dominican Republic (Girls Yean and Bosico in 2005 and Dominicans and Haitians Expelled in 2014) issued by the Inter-American Court of Human Rights. According to these judgments, States shall grant nationality to a person who would otherwise be stateless and the migration status of the parents cannot be transmitted to children. The Court also noted that “statelessness not only occurs in case of lack or conflict of laws, but also as a result of complex and costly procedures, bureaucratic requisites to confirm nationality and to issue the correspondent documentation”, which includes cases like this one where children cannot effectively enjoy the nationality they would be entitled to at birth and are according to the Court “de facto stateless”.

Colombia modified the law again in 2019, establishing a presumption that Venezuelans in Colombia, including asylum seekers, “have residence and intention to remain” in Colombia regardless of their migratory status. This law also grants nationality at birth to children born in Colombian territory between 1 January 2015 and 16 September 2021 from Venezuelan parents.    

Final reflections

These provisions adopted by Colombia in 2019 only apply to children of Venezuelan parents and not to other nationalities. It is unclear what will happen to children born before 1 January 2015 and after 16 September 2021.

After the Constitutional Court judgments, both countries adopted new legislation (see comparative table). However, while Colombia recognized the issue and sought to reduce statelessness, the Dominican Republic refused to address the issue, does not recognize the existence of statelessness population, and introduced law and practice, including constitutional amendments, designed to further restrict birthright citizenship (jus soli) and thus exacerbating childhood statelessness.  

Overcoming structural and historical discrimination and racism as a root cause of statelessness in the Dominican Republic will take years, and there are no public policies or initiatives addressing this issue. It is important that the international community is aware that statelessness in the Dominican Republic has not been resolved after almost 7 years since the Constitutional Court ruling in 2013. In the context of UNHCR #IBelong campaign to end statelessness by 2024, the United Nations should consider marking 23 September - the date of the Dominican Constitutional Court ruling – to raise awareness of an affected population who cannot access “the privileges” we enjoy and needs us to act on their behalf.

Photo Credit: Lorena Espinoza (Instagram)

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