Right to Nationality of Children Born in Colombia

Arbitrary denial of Colombian nationality to children born to Venezuelan migrants

Colombia is a standout exception, to most countries in continental Americas, as it conditions nationality by birth in the territory to parents being Colombian nationals or holding proof of domicile. This case relates to the arbitrary denial of Colombian nationality to children born in Colombia to Venezuelan parents with regular status (holders of the Special Permit for Permanence “PEP,” a humanitarian measure that allows migrants to reside in Colombia and access basic rights such as education, health and work). Colombian authorities (Foreign Ministry and Civil Registry) do not consider the PEP a valid proof of “domicile” (unlike many other non-resident visas). “Domicile” is a prerequisite for acquisition of nationality for children born in Colombia to foreign parents. Children born in Colombia to Venezuelan parents are unable to be registered as Venezuelans (due to practical or legal obstacles), placing these children at risk of statelessness, and/or leaves them unable to prove/confirm their nationality, potentially indefinitely. It is estimated that at least 8,000 children are similarly situated to the children at the center of these cases.

The cases subject to review by the Constitutional Court demonstrate the challenge that Colombia, like other countries, face in updating the interpretation of foundational norms of when they were constituted as States, such as the right to nationality to the tendencies of the human mobility and the evolution of international standards. The migratory and humanitarian crisis that Venezuela is going through unveiled in Colombia a new dimension of what until recently was a reality that only affected a limited number of children born in the territory. However, the crisis itself, and the case of these two minors, presents the Court with the important opportunity to address in a clear and accurate manner the gap that exists between domestic legal provisions and the framework of protection of children’s right to nationality, as provided by regional and international standards.

Facts

On 27 May 2017 a national of Venezuela (father of one the claimants) formally entered Colombia with his Venezuelan passport. On 5 August 2017 the migratory authorities provided him with a PEP, thus regularizing his residence in Colombia. On 14 January 2018 the plaintiff starts working as a carpenter in the city of Medellin. On 18 April 2018, the plaintiff’s partner, also a national of Venezuela, gives birth to their child in Medellin, Colombia. The plaintiff’s partner had moved a couple of months earlier from Venezuela as the health crisis faced in that country drove them to decide that Colombia was a safer place for their child to be born and also in the interest of the family being together. On 20 April 2018 the plaintiff and his partner registered their child’s birth but the Colombian Civil Registry failed to clarify in the registration whether the child’s birth certificate served as proof of Colombian nationality.

The constitutional revision jointly addresses a case with a similar fact pattern to the highlighted above. On that case, a girl born in Bogotá to Venezuelan parents on 19 June 2018 received an annotation in her civil registry specifying that it is not valid proof if Colombian nationality. At the time of the girl’s birth her father resided in Colombia, had a formal job accredited by labor certificate, and held a PEP issued on 6 February 2018, demonstrating his intention to remain in the country. The Sixty-Three Municipal Criminal Court in Bogotá, exercising its function of control of guarantees, in the first and only instance, denied the protection, considering that there was no violation of fundamental rights.

Open Society Justice Initiative Involvement

The Open Society Justice Initiative submitted an amicus brief before the Colombian Constitutional Court focusing in the international legal framework and obligations of states with respect to children’s right to nationality.  

Arguments

The fundamental right to the nationality of children born in Colombia, as guaranteed by international law. In a country where the right to nationality is acquired by virtue of birth in the territory, domestic laws that govern this right must reflect binding regional and international standards that protect the right to nationality of children born in the territory, including the safeguard against statelessness.

The deficiencies in the interpretation of the domestic legal framework, have resulted in the breach of international guarantees with respect to the right to nationality. The adjustments that have been made to the right to nationality in Colombia, in response to international norms and patterns of migration, have been made through a series of administrative acts, setting a highly complex structure that has little to no legal certainty, and is vulnerable to change.

The process of naturalization on grounds of statelessness is discriminatory. The distinction made between children of foreigners born in the territory under regular migratory status, but under different migratory categories, is arbitrary and discriminatory and subjecting the statelessness safeguard to a naturalization process deepens this discrimination.

The importance of reviewing and unifying jurisprudence regarding the right to nationality to address the existing shortcomings of prior case law by Colombian high courts. To date, the jurisprudence of the high courts has focused on a formalistic vision that is erroneously concerned with not extending Colombian nationality when the applicant in question lacks certain documentation, without taking into account the obstacles faced by applicants to access means of proof; releasing Government authorities from their duty to ensure access to this fundamental right. Colombian Constitutional and Supreme Courts’ case law on the right to nationality has privileged a restrictive interpretation of domestic provisions over the principle best interests of the child and other international standards.

The importance of ensuring, through the right to nationality, a sense of belonging to an entire generation of children born in the territory. Ensuring access to Colombian nationality upon birth, to children born in Colombia to Venezuelan parents, who have regular status proven by the PEP, will ensure that this entire generation of children is actively, fully, and positively integrated in the society of the country of their birth.