Argentine Citizenship 

 

 

 

 

What makes unique the Argentine´s legal system from the rest of the world is its very old rules where citizenship is an upgraded refugee status for fugitive conscripts, slaves and serfs (subject) who were all of them attached to the land, to a king or to an army being this the explanation on why in a 170 years Argentina never repatriated  a deserter of an army during a world war and, instead, granted with the letter of citizenship that includes a 10 years exception from military service.

 

On the other hand, immigration law in Argentina follows old patterns for military settlers designed for the local "far west" that existed until 1994 when Tierra del Fuego Province was provincialized creating a huge confusion on immigration agents, paralegals, lawyers and even judges because migration law is enforceable in the frontiers with other countries and with the National (wild) Territories only.

On the other hand, the political struggles during the last 100 years between republicans democrats against monarchist was between the straight citizenship law 346 and the legal resident who is the subject of a successful dictatorship called monarchy.

 

The lack of an overwelming defeat of the local national socialism known as Peronism first and Macrismo later whom resurrected the Colonial system described before, created a complex scenario where fugitive slaves (those who do border runs), serfs (legal residents) and free nobility (citizenship) coexist, competes and struggles on a daily basis at Federal Courts because a Democratic Republic only recognizes freedom. When the Constitution mentions freedom this means citizenship and for this reason it is possible to enforce citizenship as the natural defense to deportation in the same way and with the same goal it was created 2,500 years ago in Roman Law: to abolish immigration law that is the constitutional act of a monarchy. This is to say, the Republic born with straight citizenship that is a manumission act (full enfranchisement) from the social structure of a monarchy where people was attached to rigid cast as foreigners (slaves), national serfs (legal residents that are second class citizens) and nobility (full citizens).

 

In short words, the Immigration Law grants a second class citizenship for local elites defined by nationality (Mercosus Vsus. Extra Mercosur), by a working contract ("white slavery"), native family (legit causes of manumission of roman law) and wealth (to be a landlord or rentista) while at Federal Courts you get full citizenship for commoners by domicile (tenants) because the ownership or land (legal residency) defines the nobility in Middle Ages.

 

Our innovative strategy consists of litigating directly at Federal Civil Courts the recognition of your Argentine citizenship by passing the Immigration Office, regardless of how long you have been in Argentina, your legal status (whether you have a student or tourist visa, have stayed as a perma-tourist, entered the country illegally, or have received a deportation order or even an arrest order for deportation, for example).  We take advantage of the fact that residency and citizenship, as described above, comprise two parallel citizenship systems governed on the basis of two different laws (Law 25.871 (regarding nationality) and Law 346 (regarding citizenship)  and offices (Immigration Office at the Capital City and Federal Courts all around the country, respectively). Article 20 of the National Constitution prohibits coercive citizenship. This means that you can choose between legal residency, as described above, comprising a second class form of citizenship referred to as ”nationality” which is based on race, ideology and religion (Mercosur / Extra Mercosur) or to be a rentista or retired (landlord), and first class citizenship which is based on living in Argentina as a tenant predjudice free.   

Using our highly specialized knowledge of Roman Law, International Private Law also known as Federal Law, and 150 years of precedents of the Supreme Court and Federal Chambers all around the country, we put together the strongest case possible for each individual to obtain the recognition of his status of a free born person: a citizen.  As a result of far-reaching experience, since 2010, in advocating on behalf of a large number of clients all around the country at all levels of the legal system, including the Supreme Court, our firm is able to represent each unique situation very effectively in the courts. We work as specialists, customizing our knowledge in order to provide you with the best legal advice and litigation strategy for your particular situation and, if there is no previous precedent, we develop a new, leading precedent allowing us to ”push the envelope” in order to enforce the law, cleaning up the judicial practices which are  based on totalitarian traditions and doctrines originated in Germany after WWI that resurrected the Medieval Legal Residency or, in German, serfdom.  We can achieve this as the Preamble of the Argentine Bill or Rights and its art. 20 are a simple continuation of the Edict of Caralla of 212 (also known as the Constitutio Antoniniana) with granted roman citizenship to all the free men of the world: "We, the representatives of the people of the Argentine Nation, gathered in General Constituent Assembly by the will and election of the Provinces which compose it, in fulfillment of pre-existing pacts, in order to form a national union, guarantee justice, secure domestic peace, provide for the common defense, promote the general welfare and secure the blessings of liberty to ourselves, to our posterity, and to all men of the world who wish to dwell on argentine soil: invoking the protection of God, source of all reason and justice: do ordain, decree, and establish this Constitution for the Argentine Nation"- Preamble to the Constitution of Argentina Because free people means any human being that step on the Argentine soil because art. 15 of the National Constitution emancipates any fugitive slave who arrive in any manner to our country, art. 14 entitles you to enter, stay, travel, leave and come back while art. 20 recognize those rights to foreigners.

However, romans faced an unexpected fact: many slaves preferred to continue being under servitude. This explains the simple 3 requirements for Argentina citizenship where the most important is to apply for it because it means you accept the donation of freedom, otherwise you have legal residency.

History of Immigration in Argentina

 

Argentina has the most open citizenship law in the world because the NC donates freedom & full citizenship.  When the National Constitution was enacted in 1860, the Argentine government faced an empty country with vast amounts of land, half of them in dispute with strong Native American tribes, but few population.  Our Constitution embodied the ideas of Alberdi (Expert in International Private law who wrote the Constitution that was 88 years ahead of the Universal Declaration of Human Rights) for whom prosperity would be achieved only if the nation had a sufficient citizens. Populating the land was such a high priority that several articles of the National Constitution were dedicated specifically to accomplishing this goal.  Articles 14, 16, and 20 set forth many benefits for all inhabitants, including according civil rights to all.  As regards the acquisition of Argentine citizenship, the National Constitution set a low threshold: the only requirements are to be 18 years old that is the legal age for civil law to be able to 2) accept the donation of freedom & citizenship through the application before a Federal judge and 3) 2 years of continuous possession of your domicile in the country (to be a tenant, not a landlord) that allows you in ancient Roman Law to become a legal owner of the land.

In the same vein, in 1869, Law 346, the “Citizenship Law,” was enacted with the objective of attracting 100 million immigrants.  The plan worked, but with an undesired political inconvenience for the conservative party: 40 years later the son of an unknown immigrant was elected President.  Since losing the Presidency, the conservatives have never been able to win another election until Macri´s Presidency who, in DNU 70/2017, ruled an aristocratic society based on legal requirements.  However, a couple of decades later the conservatives, once again gained, political ground by brute force.  From 1930 until 1983, a series of dictatorships systematically restricted access to Argentine citizenship and the rights of immigrants.  Jorge Rafael Videla enacted the last version of these xenophobic laws on citizenship, Law 21.795.  The law had 25 requirements for being eligible for citizenship, including to speak and read Spanish, to have legal residency, and to have legal work while DNU 70/2017 was presented as an acclamatory decree in favor of the validity of the militar abolished laws of nationality and citizenship that were buried by the French Revolution and resurrected in the Nuremberg racial laws.

 

When democracy was restored, the original Law 346 was reinstated by Law 23.059 in 1984 with its original philosophy: the assimilation of foreigners into Argentine society.  Argentina is, after all, a nation of immigrants.  This liberal law and its accompanying presidential decree 3.213/84 remain in effect today.

 

Legal Residency (CABA 2nd class citizenship) v. the full Federal Citizenship of a republican democracy

Why, then, is it generally known within the expat community that dealing with immigration bureaucracy at Migraciones is a nightmare?  The explanation for this paradox is three-fold.

 

First, Argentina has two separate systems available to foreigners: residency and citizenship.  Residency involves an administrative procedure at Migraciones.  Citizenship involves a pre-judicial procedure at Civil Federal Courts.

 

Second, both systems suffer from the effects of the series of brutal dictatorships and social unrest, during which foreigners and immigrants were unwelcome.  Xenophobic policies were the norm for more than half a century until democracy was restored.  Although the xenophobic laws for both residency and citizenship have since been repealed (in 1995 and 1984), the burdensome bureaucracy still exists at both Migraciones and the courts today as an unfortunate remnant of these dark periods of Argentine history.  Because the process can be undertaken without  a lawyer, most applicants have continued to face the same bureaucratic roadblocks without seeking enforcement of the currently valid laws.

 

Third, for citizenship one can seek legal recourse at court against bureaucratic inefficiency leftover from the Videla dictatorship.  When faced with a denial of residency from Migraciones, it is possible to contest this administrative discretion, but appellants face a negative presumption in favor of the State under a Court Martial. On the other hand, when dealing with federal courts for citizenship, applicates face federal judges who understand that the spirit of the law is to protect and integrate immigrants into Argentine society.

Law 346, the National Constitution, and the doctrine of the Supreme Court all clearly dictate that citizenship should be granted to immigrants even though they may be facing “irregular” immigration situations (perma-tourists, illegal entry, expired visas, etc.) because this is what to be an inhabitant means, a tenant not a landlord. Armed with the law, one can appeal when met with resistance at lower levels of the court. This is why citizenship is a much more attractive option than residency for many foreigners because it was created 2500 years ago to by pass immigration laws.

Obtaining the Right to the Letter of Citizenship

The valid law governing citizenship (Law 346) set forth very simple requirements for accepting the donation of freedom & citizenship:

(1) to be 18 years old;

 

(2) to have been living in Argentina for 2 years; and

 

(3) to apply for citizenship before a federal judge.

Furthermore, if you have an Argentine spouse or child, then citizenship is available immediately. The only other requirements of note are an “honest way of living” and a clean criminal record.  In fact, the citizenship procedure can be undertaken without a lawyer and is free of fees. Nonetheless, it is not easy to obtain citizenship when one is “irregular,” such as having been to Uruguay many times as a perma-tourist because there are old precedents from WWII that assimilate this practices to spying activities.

 

As explained above, for historic reasons, federal courts are still reluctant to recognize the rights of ¨irregular¨ immigrants, They usually request the following administrative requirements of medieval law for applying for an upgrade in the nobility status:

(1) Legal residency

(2) Legal work

(3) That you speak, read and write Spanish

(4) That you renounce your native citizenship

(5) DNI with permanent residency

(6) Birth certificate apostilled and translated by public notary

(7) Certificate of a clean criminal record from your home country

(8) Certificate of a clean criminal record in Argentina

(9) CUIT or CUIL number

 

In order to overcome this discrepancy between the formalities requested by the courts and the actual requirements in the law, legal expertise is needed to assert one’s constitutional rights.

 

Dr. Rubilar contested the application of this requirement for obtaining citizenship, and met with success on 12 appeals during 2011, changing the precedents that have existed since 1978. Since then Dr. Rubilar had developed over 250 leading precedents and he has achieved over 120 declarations of unconstitutionality of DNU 70/2017 that required 2 previous years of legal residency before applying to citizenship.

Our law firm specializes in enforcing constitutional rights using Roman Law, International Law, laws and precedents from the Supreme Court and lower courts.   First, regarding the relevant laws, the National Constitution is the supreme law in this country in equal hierarchy with roman private law (International Private Law).  It works as a catalog of guarantees to protect your freedom against the abuse of power of the government. Argentina is unique because every single judge, regardless of his position in the judicial hierarchy, is responsible for protecting and enforcing the National Constitution and the rights it guarantees.  The relevant articles in the Constitution clearly favor grants of citizenship because art. 20 of the National Constitution recognized Human Rights 88 years before the Universal Declaration of Human Rights.

 

Second, regarding precedents from the courts, we have worked to accumulate a large body of positive case law.  Due to the fact that the citizenship law has existed unchanged since 1869 in its present form that is a continuation of roman law with 2500 years of history, the courts have issued many precedents on which we can rely on to provide a solution to almost every immigration situation we might face.  Issued from the Supreme Court alone are over 100 years of jurisprudence enforcing the rights of inhabitants to live in this country.  Citizenship has been granted to immigrants who lacked legal residency or entered the country illegally, or even to immigrants with criminal records in exceptional cases because this is what to be an inhabitant means because Kingdoms are networks of legality.

Dr. Rubilar has extensive experience dealing with Constitutional guarantees, both from a theoretical standpoint as a professor of law, and as a practical matter as a litigant enforcing Constitutional rights at Court.  On 2011 he won 7 leading cases at the Federal Chamber that changed precedents of the last 32 years to allow applications for citizenship regardless of legal status, with “irregular”work (“trabajo en negro” or “working under the table”), and reducing to minimum the requirements (birth certificate or DNI or passport or CI instead of birth certificate plus DNI plus passport plus CI).  Furthermore, the 2-year requirement should be fulfilled at the time of the sentence intead of at the beginning of the process, meaning that you can apply the day after you arrived because this protects you from deportation because you are a citizen since the day you apply before the Federal judge and there is only a matter of evidence until you have the letter of citizenship.

 

 

Strategic Benefits of Citizenship

 

In contrast to the Constitutional guarantees protecting the rights of immigrants to stay as citizens in Argentina, the policies governing residency are subject to the shifts of political winds.   Since September 9, 2010,  immigration policies have become more restrictive. Decree 616/2010 raised the requirements for rentista and inversionista visas up to USD2000/month and USD470,000 respectively.  The process of obtaining a work visa through employment at a company is complex. Rather then seeking a form of residency that is hard to obtain and is governed by policies subject to change, we invite you to rely on our innovative strategy to provide legal status for immigrants who do not fit the new immigration requirements set forth in Decree 616/2010.  If you have encountered difficulty with bureaucracy at Migraciones or at court, you can turn to the law firm that is litigating precedent-setting cases in this body of law.

 

The Citizenship Procedure

 

The procedure for obtaining citizenship is comprised of presenting your application before a Federal Judge.  Under Ley 346, the requirements are simple, but to put together the strongest case possible, we request that you provide us with various types of evidence.  This includes, for example, evidence of your work, even if you”work under the table”, it means, without legal permission, in order to demonstrate to the judge that you have an “honest way of living” as required by the practice contra legem (against the law).  Evidence varies from case to case, and we work creatively with each client’s situation to put together evidence showing that you merit citizenship.   After we have gathered your documents and information, we accompany you to present the application at the court.

After the judge receives your application, the judge investigates your background by submitting requests for information about you to 6 agencies, including the immigration office, the police, Interpol, and RENAPER (Registro Nacional de las Personas).  After about 7 months, responses to the reports are received. An edict is published in a newspaper, after which the judge makes the final decision.  If he/she approves your case, then you swear an oath and are granted the “Carta de Ciudadanía.”  The Carta is the official document that probes you are an Argentinian.  With this document, you can apply for your Argentine passport, DNI, and other documents.

However, the pandemic changed the rules and Dr. Rubilar used this challenge that frozen most cases for 2 years to develope a new strategy taking in his shoulders the work of Courts achieving to reduce the standard delay of 18 months to just 4 month to have the file ready for the decision of the judge.

Note that the procedure is free.  There is no filing fee at court.  The only expenditure is the cost of publishing the “edict” in a newspaper for two days, announcing that you are to be granted citizenship.

 

Note also that you can apply for citizenship without a lawyer.  However, unless you have permanent legal residency, work legally, speak and read Spanish and have basic knoledge of the National Constitution, among other requirements, you need specialized legal assistance to file your application successfully in court.   For example, your application might be rejected at the courts if you do not already have a DNI, or cannot prove that you have been working legally in Argentina.  For these cases, a lawyer who understands the legal precedents governing citizenship is crucial for success at court.

 

 

FAQS

What does 2 years of “continuous residence” in Argentina mean?

 

According to Roman Law, Supreme Court and the Federal Chambers:

1) You need to have been in Argentina for 2 years by the time your citizenship is granted.  This means that you can apply the day after you arrived because citizenship is a donation and they are complete with the acceptance. This means you are an undocumented citizen since you apply before the judge but the evidence is going to be given after the 2 years are full filled.

 

2) Residency means that you live (are present most of the time in the country) in Argentina as a matter of fact, regardless of your legal status because every time we talk about the legal status we are debating if you are considered a slave or not, even if you do not realize it.

3) Continuous means that you did not change your address to another country. You can prove that your address has been in Argentina by demonstrating that you had the “will” to keep it in Argentina.  Travelling abroad does not interrupt continuity.

 

Is there a requirement of permanent residency as a pre-requisite for citizenship?

 

This requirement was abolished in 1984 for citizenship because the legal resident is the second class citizen of a dictatorship.  Citizenship and residency are governed by two legal systems that work in parallel. You can choose between the two because citizenship based on possession rights is secular while legal residency has an historical religious background.

 

Does working “under the table” fulfil the “honest way of living” requirement of the citizenship law?

 

Yes. This may seem surprising because it is one of the most frustrating problems that foreigners face when obtaining residency.  Similar to Migraciones, federal judges request that you work legally (trabajo en blanco), as proven by a salary receipt, a CUIT or CUIL number, or a receipt of payment of taxes as a freelancer, for example.  However, this is impossible to show if you do not already have legal residency.  Dr. Rubilar contested the application of this requirement for obtaining citizenship, and met with success on appeal on March 1st at the Federal Chamber of Capital Federal, Buenos Aires.  The judges determined that working “under the table” qualifies as an “honest way of living” as required by Ley 346.  The applicant only has to show proof of income and that the work is honest, or that one is studying.

 

What documentation do I need?

 

It depends. If you apply based on staying in Argentina for 2 continuous years (rather than an Argentine spouse or children), you will need:

 

a) any one of a DNI, CI, passport, or birth certificate;

b) certificate of your address (obtained from the police) is optional; and

c) evidence of your honest way of living (varies widely from case to case).

 

The source of information provided in this website is Dr. Christian Rubilar.