The following country profiles exemplify some of the challenges faced by countries in the region, as well as legislative reform, advances in jurisprudence, and some emerging good practices.
The law of the Bahamas does not allow Bahamian women to confer nationality to their foreign-born children, whereas the same does not apply to Bahamian men. Gender-based discrimination in the nationality laws of the Bahamas is likely to remain unaltered in the foreseeable future, despite the consistent international call for change. A referendum which took place on 7 June 2016 on whether to amend the discriminatory nationality provisions (among other questions) resulted in a ‘no’ vote. The negative outcome to the referendum is believed to have been the result of insufficient efforts to properly inform the general public of the extent, content and effects of the discriminatory laws, and the urgent need for reform. Limited resources and advocacy capacity by human rights defenders, civil society groups, and government leaders promoting the gender-equality reform in nationality law in the face of an opposition campaign, together with inaccurate and inflammatory rhetoric regarding the intent of the referendum, led to the outcome. The Bahamas remains one of only twenty-seven countries worldwide— one of two in the Western Hemisphere— that denies mothers the right to confer nationality to their children on an equal basis with men.
Following the worrying global trend to expand grounds for deprivation of nationality based on national security criteria and to create further restrictions to citizenship conferral, Bill C-24 was proposed in Canada in February 2014. This Bill created two changes in Canadian nationality provisions, a restriction on the generational passing of Canadian nationality to children born abroad, and an expansion on the grounds on which dual nationals can have their citizenship stripped, to include suspicion of crimes such as terrorism and high treason in Canada or abroad. This Bill’s constitutionality was challenged by measures such as the lawsuit filed by the BC Civil Liberties Association (BCCLA) and the Canadian Association of Refugee Lawyers (CARL). In 2016, the Bill was reconsidered through the introduction of the Act to Amend the Citizenship Act repealing the extension of the deprivation powers to permit denationalisation of Canadian dual citizens born abroad for acts against “the national interests of Canada.” More recently there has been a push to amend the new Bill, upon second hearing, to include the issue of revocation of nationality on grounds of misrepresentation.
Colombia, due to is geographic location, is a strategic route for migrants travelling from South America to Central and North America. Currently, as its laws and practice stand, births occurring in the territory may result in statelessness due to human mobility . Unlike most countries in the region, acquisition of nationality by birth on the territory is not automatically available for all children born in Colombia. In order to be automatically granted Colombian nationality by birth in the territory, the child must have either a Colombian parent, or a parent domiciled in Colombia at the time of birth. Under Colombian law, domicile is understood as physical presence in the territory with the real or presumptive intention to permanently reside in the country. This has been restrictively interpreted by the Courts, and in the past the only valid proof of domicile was a resident visa. Under this interpretation, anyone born in the territory of Colombia would only be considered Colombian if at least one of his parents was a national of Colombia or a legally authorised resident, at the time of birth.
In 2014 the Ministry of Foreign Affairs, the authority in charge of nationality matters, extended the means of proof to demonstrate domicile to include other non-resident visas, such as student refugee visas and temporary work visas. This change in policy though promising and positive, falls short to fully covering the contexts under which children born in the territory could be placed at a risk of statelessness. A case that remains unaddressed is that of births that occur prior to one of the parents obtaining a visa that serves as proof of domicile. Children born in Colombia might be protected under the statelessness safeguard if they can prove they have no claim to another nationality and would otherwise be stateless. In such cases, they are eligible to naturalise as Colombians. But children who do not fall under the statelessness safeguard, and with no parent who has a visa that serves as proof of nationality, are at a heightened risk of becoming stateless if they are unable to access and secure the nationality of any other state.
The Dominican Republic
The statelessness of Dominicans of Haitian descent in the DR remains to be the gravest problem in the region. Despite some advances in rectifying the nationality of a number of Dominicans of Haitian descent, the country continues to have the largest stateless population in the Americas. It has yet to fully address the unprecedented stripping of nationality of tens of thousands, as it struggles to come to terms with a troubling history of racial discrimination towards this group and rectify past injustices.
The 2013 judgment of the Constitutional Court of the DR and subsequent legal reforms marked a critical turning point in the arbitrary denationalisation of Dominicans of Haitian descent. Responding to international pressure and outcry over this mass denationalisation, the Government enacted Law 169 of 2014 which establishes two distinct procedures, one of rectification and one of naturalisation. The implementation of Law 169 procedures have led to strong criticism. In particular, the restrictive timeline for registration (90 days) and the limited availability of offices to register, are of significant concern. These procedures divide the affected population in two different groups:
- - Children of foreign parents in an irregular migratory situation born in the Dominican territory who had been registered.
- - Those who had not been registered.
They offer specific administrative nationality procedures for each. These documentary regularisation and naturalisation procedures have been considered contrary to the American Convention on Human Rights, as directing persons to a naturalisation process is treating Dominican nationals as foreigners, in violation of their right to nationality. Furthermore, Law 169 is contrary to the rights to judicial personality, name and nationality. According to information provided by the Dominican government to the Inter-American Commission of Human Rights, in late May 2015, 53,000 persons have had their birth registration validated, and in consequence their nationality and documents of identity will be restored.
The Inter-American Commission has recognised the partial outcomes of the implementation of Law 169, but remains deeply concerned about the situation in the DR; where many cases remain to be unaddressed, and thousands of Dominicans of Haitian descent remain in a legal limbo, amidst continuous reports of widespread discrimination and attacks towards this population.
The United States
The United States is a country with a liberal citizenship tradition under which the conferral of citizenship by birth in the territory has remained unaltered in the law. However, this has been affected in practice by administrative restrictions in the conferral of birth certificates. In 2015 a case was brought in the State of Texas against the State Department of Health Services in an effort to put a halt into the administration’s practice to deny the issuance birth certificates to children born in the U.S. to undocumented immigrants, on the basis of restrictive policies on the type of documents of identity that were acceptable for migrant parents to prove their identity. The case was settled by the State, in which it agreed to expand the types of documents parents can present, allowing those without legal immigration status to obtain birth certificates for their children. Under the settlement, parents from three Central American countries — El Salvador, Guatemala and Honduras — will be able to present documents certified by their consulates. Texas has also set up a review process for parents whose applications were rejected, as well as training for more than 450 county officials who issue birth certificates.
A second case, related to conferral of U.S citizenship to foreign born children on grounds of descent, will be heard by the Supreme Court of the United States. The case is an appeal over the grant of U.S citizenship to a man born in the Dominican Republic to an unwed U.S. citizen father and noncitizen mother. The case exemplifies gender discrimination in U.S law. Under the current legalisation it is more difficult for citizen fathers to confer citizenship, than it is for citizen mothers.