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Constitutional Court: Children of foreigners ‘in transit’ are not Dominicans
Sentence -The Constitutional Court (Tribunal Constitucional) decided in the sentence TC/0168/13, issued on September 23, 2013, declared that children born of foreigners ‘in transit’ in Dominican Republic are not entitled to the Dominican nationality.
A statement from TC explains that this criteria was used during an appeal review filed before it by Juliana Deguis Pierre against the Central Electoral Board, about a judgment rendered by the Civil Court, Commercial and Labor Court First Instance of the Judicial District of Monte Plata, who denied the issuance of identity cards and electoral ID.
The High Court considered in its judgment that, in accordance with article 11.1 of the 1966 Constitution (at the date of birth of the Lady Deguis Pierre), her Dominican nationality, does not belong to her, therefore, neither the identity card and electoral ID, since she did not show "that at least one of her parents had legal residency in the Dominican Republic at the time of her birth April 1, 1984.
It was indicated that according to this provision, the Dominican nationality can be acquired by, "all the people that born in the territory of the Republic, with the Exception of the legitimate children of foreigners residing in the country in diplomatic representation or those who are ‘in transit’. In this sense, the TC estimated "that the case of the appellant corresponds to the course set by, and indicated constitutional exception, since she was only born in the territory, but, in addition, is the daughter of foreign nationals (Haitian) who at the time of birth were ‘in transit’ in the country".
As for the concept of "alien in transit", the High Court said that this category of persons is contained in all the Dominican constitutions, without exception, from the Magna Carta of June 20th, 1929.
They said that as it is inferred from the old Act No.95, from 1939, on immigration, and their Regulation No.279, similar to the jurisprudence of the Supreme Court of Justice has said it for several decades; "foreigners in transit" are those who do not have legal residence in the Dominican Republic for lack of residence permit.
In addition, the High Court reiterated “in transit" should not be confused with "non-resident", which refers to a person "who is passing by and does not reside in the territory" as it would be the case of a visitor, passenger, traveller or tourist.
In the same decision, in relation to the issue of the nationality of children born in the country of foreign parents, TC warns the existence of different situations regarding foreigners "in transit", which include four categories of different persons, namely: "visitors (business, study, recreation or curiosity), passersby, employees of air or maritime ships, and temporary workers and their families".
They noted that children born in the national territory of parents coming from those four groups "are excluded, as an exception, of the aforementioned constitutional standard for acquiring Dominican nationality by application of the criteria of"jus solis", as it is the case of Juliana Deguis Pierre, whose father was a temporary laborer of Haitian nationality.
However, the High Court notes that "foreigners in transit" can modify their immigration status by obtaining a legal residence permit, which would lead to their children born in the territory to acquire Dominican nationality by "jus solis" or "Right of Soil". At the opposite end, when foreigners are in an irregular migratory situation, violating national laws, they cannot invoke that their children born in the country are entitled to obtain Dominican nationality, since "it is legally inadmissible to establish an entitlement from an unlawful situation in fact".
Concerning the situation of the claimant Juliana Deguis Pierre, who does not have the Dominican nationality, but Haitian nationality of her parents, the TC also ordered the Central Electoral Board to replace her certificate of birth within a period of 10 days, and to submit that document to the corresponding competent court, as soon as possible, so this would determines its validity or invalidity; also, that new cases should be treated in the same way henceforth, expanding the indicated deadline when the circumstances so require.
The High Court determined in addition to the General Directorate of immigration to give Ms. Julienne Deguis Pierre a "special permission for temporary stay in the country" until the National Plan of regularization of illegal aliens living in the country, provided for in article 151 of the existing law of migration No.285-04, determines the conditions of regularization in such cases.
It should be also noted that the TC also decided, inter alia, the Central Electoral Board to perform a thorough audit of the books records of births in the Civil Register of the Republic, from June 21, 1929, to date, to identify and integrate in a documentary or digital list all foreigners registered in the Civil Registry of the country. Other list are specifically set out for foreigners who are irregularly registered to integrate them administratively in new annual ‘libros-registros’ of births of foreigners, that should be created from 1929 until 2007; and that, in accordance with the law, the national migration Council develop the National Plan of regularization of illegal aliens living in the country, so that the Executive branch can proceed to implement it.
The decision was signed by judges Milton Ray Guevara, Leyda pineapple Medrano, Lino Vasquez Samuel Hermogenes Acosta of the Saints, Justo Pedro Castellanos Khoury, Víctor Joaquín Castellanos Pizano, David Cury Jottin, Víctor Gómez Bergés, Rafael Díaz Filpo, Wilson Gomez and Idelfonso Kings. The magistrates Ana Isabel Bonilla and Katia Miguelina Jimenez Martinez filed two dissenting votes.