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Argentine nationality law

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Argentine Citizenship Act
Parliament of Argentina
  • An Act relating to Argentine citizenship
Enacted byGovernment of Argentina
Status: Current legislation

Argentine nationality law regulates the manner in which one acquires, or is eligible to acquire, Argentine nationality. Nationality, as used in international law, describes the legal methods in which a person obtains a national identity and formal membership in a nation. Citizenship refers to the relationship between a nation and a national, after membership has been attained.[1][2] Argentina recognizes a dual system accepting Jus soli and Jus sanguinis for acquisition of nationality by birth and allows foreign persons to naturalize.

Birth in Argentina

Any person born in Argentine territory acquires Argentine nationality at birth, excepting children of persons in the service of a foreign government such as foreign diplomats. This can be also applied to people born in the Falkland Islands, a disputed territory between Argentina and the United Kingdom.[3]

Nationality by descent

Argentina accepts jus sanguinis, meaning that the child of at least one native Argentine parent can acquire Argentine nationality. If the child is born in a foreign territory, the Argentine parent must present the child's birth certificate before the local Argentine embassy. Else, the child can later opt to become an Argentina national after his or her 18th birthday.[3]

Naturalization

The current laws governing naturalization (Ley 346, Ley 23.059, and Decreto 3.213/84) set forth very simple requirements:

  • be 18 years old or older;
  • have been living in Argentina for 2 years; and
  • apply for naturalization before a federal judge.

Naturalization can be denied if applicants:

  • have been in jail for more than 3 years in the last 5 years;
  • are under criminal prosecution;
  • have an illegitimate source of income. To work without a legal permit is considered an illegitimate source of income for most of the chamber of appeals.

As the naturalization law has existed essentially unchanged since 1869 (with modifications by laws 16.801, 20.835, 24.533 and 24951),[3] there are many precedents based on which the Supreme Court is able to resolve almost any immigration-related problem. Nationality has been granted to immigrants who were not legally resident, worked without a legal permit, or entered the country illegally and, in exceptional cases, even to immigrants with criminal records.

The continuous 2-year residency requirement means that applicants need to make Argentina their home. However, since applicants enjoy the same civil rights as Argentines, including the right to travel, they may leave the country.

For historical reasons, federal courts are still reluctant to recognize the rights of "irregular" immigrants. They usually request the following requirements related to the abolished law 21.795:

  • Legal residency
  • Legal work
  • Spanish-language ability
  • Birth certificate apostilled and translated by public notary
  • Certificate of a clean criminal record from home country
  • Certificate of a clean criminal record in Argentina
  • CUIT or CUIL number

Dual nationality

Dual nationality is accepted by Argentina. However, dual nationals are recognised only as Argentine nationals within Argentine territory, and must enter Argentina using an Argentine passport, except when visiting with a passport of nations with which Argentina has a reciprocity agreement.[4] They must present the identity card to prove the Argentine nationality. In case the country does not have an agreement they can enter up to 180 days, after that time, they must leave with the Argentine Passport.

Deprivation of nationality

Unlike most other countries, Argentine nationality cannot be renounced and can only be revoked if it was obtained through criminal means, such as fraudulent documentation.

Consequently an Argentine national may not be able to acquire the nationality of a country that requires renunciation of other national identities; however, many countries waive this requirement if renouncing the other nationality is impossible.

History

The first successful attempt to adopt an Argentine Constitution occurred in 1853.[5][6][Notes 1] It established in Article 15 that slavery was abolished, in Article 16 that all inhabitants were equal under the law, and in Article 20 that foreigners living in the country should have the same civil rights as citizens and were eligible for naturalization after residing in Argentina for two years.[6][11] The constitution established that nationality could be gained or lost, as was described in civil law.[12] As early as 1867, the Supreme Court confirmed that a married woman shared her husband's nationality. In a case involving Elena Eyras, an Argentine, and her husband Manuel Pedro de la Peña, a Paraguayan, the husband argued their separate nationalities warranted a decision in federal court. The court refused to hear their marital dispute denying federal jurisdiction on the grounds that married women were required to have a unified identity and share the same domicile as their husbands.[13]

Law 346, the first Argentine nationality law of 8 October 1869, established in Article 1 that birth in Argentina was the basis for nationality of a child regardless of its parents' nationality, unless the parents were foreign ministers or diplomats residing in the country.[14][15] The law also stated that a child born abroad to a national of the country of either sex had the ability to derive nationality from its parent by following procedures for the declaration of Argentine nationality.[15] It contained no specific provisions relating to the loss of citizenship,[14] but the Supreme Court ruled in eleven separate cases between 1867 and 1902 that an Argentine woman who married a foreigner lost her nationality.[16] Likewise, a foreign woman married to an Argentine man, gained his nationality.[17] The Argentine Civil Code, adopted in 1869, followed Catholic canon law, establishing a husband's authority over his family and incapacitating married women.[18] A ruling in 1902 from the Supreme Court found that the act of marriage was not responsible for either acquisition or loss of nationality for a woman, but that it could expatriate her for jurisdictional purposes in legal matters, reinforcing that a wife was required to follow her husband's authority.[15][17]

From 1914, a married woman, foreign or Argentine, did not derive nationality from her husband's.[15][19] In that year, the Minister of Foreign Affairs instructed consuls abroad to register Argentine women living abroad and married to foreigners as Argentine nationals and to enter foreign wives of Argentine men into the consulate registries without stating they had Argentine nationality.[20] From 1918, the Ministry of Foreign Affairs instructed that foreign wives could receive Argentine passports, though they were not technically nationals, but had the same civil status as the husband.[21] In 1926, Argentina revised its Civil Code through Law 11.357 removing the marital authority provision for husbands and expanding women's civil rights. According to the Federal Chamber in Buenos Aires, until the code revision a married woman had technically lost her nationality, but after the change, she was independent from her husband's nationality.[22] In 1933, the Argentine delegation to the Pan-American Union's Montevideo conference, signed the Inter-American Convention on the Nationality of Women, which became effective in 1934, without legal reservations.[23] In 1947, the Minister of Foreign Affairs issued another circular reiterating that marriage neither bestowed nor relinquished nationalization for a spouse, but that foreign wives could be issued Argentine passports.[20]

Notes

  1. ^ During the Argentine War of Independence, delegates met in 1813 to draft a constitution based upon the model of the Constitution of Cadiz for the United Provinces of the Río de la Plata, granting citizenship to free men born and living in the provinces.[7] It did not create a central authority, having granted the various provinces autonomy, and had no real authority outside of Buenos Aires Province.[8] A failed Constitution of 1819 was rejected by the provinces.[9] Numerous attempts by various Constituent Assemblies were unable to resolve whether the Provinces would follow a monarchical or republican form of government, which proved to be the downfall of the 1826 Constitution, as well.[10]

References

  1. ^ Honohan & Rougier 2018, p. 338.
  2. ^ Habib 2016, pp. 1, 5.
  3. ^ a b c CIUDADANIA Y NATURALIZACION – LEY 346 Y NORMAS REGLAMENTARIAS Y COMPLEMENTARIAS [Citizenship and naturalisation – Law 346 and complementary rules] (PDF) (in Spanish), Cámara de Diputados de la Nación, 23 November 2004
  4. ^ (IN SPANISH). "Argentina Convenio de Doble Nacionalidad".
  5. ^ Criscenti 1961, p. 402.
  6. ^ a b Habib 2016, p. 2.
  7. ^ Criscenti 1961, pp. 374–375.
  8. ^ Criscenti 1961, p. 378.
  9. ^ Criscenti 1961, p. 383.
  10. ^ Criscenti 1961, pp. 385, 399.
  11. ^ Miller & Liao 2020, pp. 5–6.
  12. ^ Vetancourt Aristeguieta 1959, p. 128.
  13. ^ Augustine-Adams 2002, pp. 8–9.
  14. ^ a b Habib 2016, p. 3.
  15. ^ a b c d Stevens 1933, p. 1, Part II.
  16. ^ Augustine-Adams 2002, p. 10.
  17. ^ a b Augustine-Adams 2002, pp. 12–13.
  18. ^ Pérez-Perdomo 2006, p. 66.
  19. ^ Augustine-Adams 2002, p. 15.
  20. ^ a b Augustine-Adams 2002, p. 15-16.
  21. ^ Augustine-Adams 2002, p. 16.
  22. ^ Augustine-Adams 2002, p. 23.
  23. ^ Avalon Project 1933.

Bibliography

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