Argentine nationality law

Argentine Nationality Act
Parliament of Argentina
Long title An Act relating to Argentine Nationality
Enacted by	Government 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 by 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 the 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. A notable exception to this rule is for children of persons in the service of a foreign government, such as foreign diplomats. This rule can be also applied to people born in the Falkland Islands, a disputed territory between Argentina and the United Kingdom. ^[3]

Nationality by descent

Argentine nationality law follows jus sanguinis; any person over 18 with at least one Argentine parent can opt for Argentine citizenship, and needs only to establish their parentage in front of a federal judge. For a minor child born outside the country, the Argentine parent must present the child's birth certificate before the local Argentine embassy. ^[3]

Naturalization

Naturalization is governed by Law 346, modified by laws 16801, 20835, 24533, 24951, 26774 and decree 70/2017. ^[3] It sets forth very simple requirements:

• be 18 years old or older;
• have been living in Argentina for a minimum of 2 years; this requirement is waivered if the applicant is married to an Argentine citizen or has Argentine children.
• 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, subject to later modifications, ^[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 two-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:

• Proof of Legal residency
• Proof of undertaking Legal work
• Spanish-language ability
• Birth certificate apostilled and translated by a 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 in Argentina. Some countries have entered into a reciprocity agreement (Chile, Colombia, Ecuador, El Salvador, Spain, United States until 20 October 1981, Honduras, Italy, Nicaragua, Norway, Panama, and Sweden); Argentine citizens who have been naturalised as citizens of one of these countries enter Argentina with documents of and as citizens of their other nationality and are considered to be such, unless they intend to remain permanently in the country. ^[4]

Argentine citizens who are also citizens of non-reciprocity countries (e.g., by naturalisation to another citizenship) are recognised only as Argentine citizens within Argentine territory, and would normally enter and leave with their Argentine passport. They can enter, and leave within 180 days, using the travel documents of their other nationality, but if they invoke Argentine nationality they must present their Argentine identity document. After staying more than 180 days they can only leave using their Argentine passport. ^[4] It is also possible not to mention Argentine citizenship, and enter and leave as a foreign national so long as travel documents do not state place of birth or residence being Argentina.

Despite the rules, it is reported by travellers that there are often difficulties as immigration officials may not be familiar with the rules, and hostility. Two knowledgeable immigration officials have explained the rules as they apply them in a useful discussion. ^[5] In case of difficulty when travelling without an Argentine passport there is an express passport supply service (with long opening hours) available at airports at additional cost on presenting the Argentine identity document; the process is stated to take 15 minutes, and the passport to be ready in 2 to 6 hours. ^[6]

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. ^{[7] [8] [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. ^{[8] [13]} The constitution established that nationality could be gained or lost, as was described in civil law. ^[14] 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. ^[15]

Law 346 of 8 October 1869, ^[16] the first Argentine nationality law, 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. ^{[17] [18]} The law also established that a child born abroad to a national of the country of either sex could derive nationality from its parent by following procedures for the declaration of Argentine nationality. ^[18] It contained no specific provisions relating to the loss of citizenship, ^[17] but the Supreme Court ruled in eleven separate cases between 1867 and 1902 that an Argentine woman who married a foreigner lost her nationality. ^[19] Likewise, a foreign woman married to an Argentine man gained his nationality. ^[20] The Argentine Civil Code, adopted in 1869, followed Catholic canon law, establishing a husband's authority over his family and incapacitating married women. ^[21] 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. ^{[18] [20]}

From 1914, a married woman, foreign or Argentine, did not derive nationality from her husband's. ^{[18] [22]} 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. ^[23] 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. ^[24] 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 her nationality was independent of her husband's. ^[25] 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. ^[26] 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. ^[23]

Bibliography

• Augustine-Adams, Kif (Winter 2002). "'She Consents Implicitly': Women's Citizenship, Marriage, and Liberal Political Theory in Late-Nineteenth and Early-Twentieth-Century Argentina". Journal of Women's History . Baltimore, Maryland: Johns Hopkins University Press. 13 (4): 8–30. doi:10.1353/jowh.2002.0001. ISSN   1042-7961. OCLC   357514548. S2CID   145419401. – via  Project MUSE (subscription required)
• Criscenti, Joseph T. (August 1961). "Argentine Constitutional History, 1810-1852: A Re-examination". The Hispanic American Historical Review . Durham, North Carolina: Duke University Press. 41 (3): 367–412. doi:10.2307/2510269. ISSN   0018-2168. JSTOR   2510269. OCLC   8553876378 . Retrieved 26 December 2020.
• Habib, Javier I. (March 2016). "Report on Citizenship Law: Argentina" (PDF). cadmus.eui.eu. Badia Fiesolana: European University Institute. Archived (PDF) from the original on 2 April 2018. Retrieved 26 December 2020.
• Honohan, Iseult; Rougier, Nathalie (October 2018). "Global Birthright Citizenship Laws: How Inclusive?". Netherlands International Law Review. The Hague, Netherlands: Springer Science+Business Media, T.M.C. Asser Press. 65 (3): 337–357. doi:10.1007/s40802-018-0115-8. ISSN   1741-6191. OCLC   1189243655. S2CID   149761560 . Retrieved 16 March 2021.
• "Argentina's Constitution of 1853, Reinstated in 1983, with Amendments through 1994" (PDF). constituteproject.org. Translated by Miller, Jonathan M.; Liao, Fang-Lian. Oxford: Oxford University Press. 4 February 2020. Archived (PDF) from the original on 16 June 2020. Retrieved 26 December 2020.
• Pérez-Perdomo, Rogelio (2006). Latin American Lawyers: A Historical Introduction. Redwood City, California: Stanford University Press. ISBN   978-0-8047-6769-9.
• Stevens, Doris (28 November 1933). Report on the Nationality of Women (PDF). 7th Conference of American Republics, Montevideo, December 1933. Washington, D.C.: Inter-American Commission of Women – via Alexander Street Press: Women and Social Movements.
• Vetancourt Aristeguieta, Francisco (1959). "Nacionalidad, naturalización y ciudadania en Hispano-América: Argentina, Bolivia, Colombia" [Nationality, Naturalization and Citizenship in Hispanic America: Argentina, Bolivia, Colombia](PDF). Boletin de la Academia de Ciencias Políticas y Sociales (in Spanish). Caracas: Academia de Ciencias Políticas y Sociales (14): 106–148. ISSN   0798-1457. Archived from the original (PDF) on 11 January 2021. Retrieved 18 February 2021.
• "Convention on the Nationality of Women (Inter-American); December 26, 1933". Avalon Project . New Haven, Connecticut: Yale Law School. December 26, 1933. Archived from the original on 27 December 2020. Retrieved 27 December 2020.

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. ^[9] It did not create a central authority, having granted the various provinces autonomy, and had no real authority outside of Buenos Aires Province. ^[10] A failed Constitution of 1819 was rejected by the provinces. ^[11] 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. ^[12]

References

1. Honohan & Rougier 2018, p. 338.
2. Habib 2016, pp. 1, 5.
3. 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, retrieved 1 August 2022 Including law 346 with all modifications to 2017: laws 16801, 20835, 24533, 24951, 26774 and decree 70/2017
4. "Doble Nacionalidad" [Dual Nationality]. Government of Argentina (in Spanish). n.d. Retrieved 1 August 2022.
5. "ATENCIÓN! Sobre el uso de la Doble Ciudadanía + DNI" [WARNING! On the use of dual nationality + Argentine identity document]. El mundo de Floxie (in Spanish). 26 May 2015. Seek: LA YAPA | Las dos caras de la moneda - explanations by two Argentine immigration control officials.
6. "Tramitar el pasaporte al instante" [Instant passport]. Government of Argentina (in Spanish). Retrieved 2 August 2022.
7. Criscenti 1961, p. 402.
8. Habib 2016, p. 2.
9. Criscenti 1961, pp. 374–375.
10. Criscenti 1961, p. 378.
11. Criscenti 1961, p. 383.
12. Criscenti 1961, pp. 385, 399.
13. Miller & Liao 2020, pp. 5–6.
14. Vetancourt Aristeguieta 1959, p. 128.
15. Augustine-Adams 2002, pp. 8–9.
16. "Ley de Ciudadanía n° 346" (PDF). Government of Argentina. 8 October 1860.
17. Habib 2016, p. 3.
18. Stevens 1933, p. 1, Part II.
19. Augustine-Adams 2002, p. 10.
20. Augustine-Adams 2002, pp. 12–13.
21. Pérez-Perdomo 2006, p. 66.
22. Augustine-Adams 2002, p. 15.
23. Augustine-Adams 2002, p. 15-16.
24. Augustine-Adams 2002, p. 16.
25. Augustine-Adams 2002, p. 23.
26. Avalon Project 1933.

External links

• Ley n° 21.795 (abolished, promulgated May 1978) on Infoleg