Chapter 2 The Right to Nationality and Judgment TC/0168/13 of the Constitutional Court | 99 the Dominican Republic to parents with irregular migratory situation, the Commission concludes that the judgment is incompatible with the American Convention as it involves a violation of the rights to nationality, recognition as a person before the law and name, recognized in Convention articles 20, 3 and 18, and in relation to such rights, the right to identity and the right to equal protection before the law, recognized in Article 24 of the American Convention, all as a function of the failure to comply with the obligations established in Article 1(1) and the duty to adopt domestic legislative measures established in Article 2 of the Convention. 1. The arbitrary and retroactive deprivation of the right to nationality of Dominicans of Haitian descent 228. Persons affected by judgment TC/0168/13 and civil society organizations told the Commission that the judgment meant that children and descendants of migrants with an irregular migratory situation, the majority of whom have historically been of Haitian descent, were arbitrarily deprived of their nationality by virtue of the fact that the judgment classified persons who have lived in the Dominican Republic for decades as “foreigners in transit.” The judgment retroactively applied the criterion established by the Supreme Court in its December 14, 2005 judgment in which it declared the 2004 General Immigration Law constitutional. That law had equated the expression “foreigners in transit” with foreigners with an irregular migratory situation. 235 The retroactive effect of this judgment lead to the mass denationalization of more than 200,000 Dominicans of Haitian descent who, because they have no other nationality, have been left stateless. Furthermore, this judgment sanctioned the violations that these individuals suffer in the effective enjoyment of their civil, political, economic, social and cultural rights. 229. With regard to judgment TC/0168/13, the Commission observes that the crux of the Constitutional Court’s reasoning is based on the provision that applies in this case, which is Article 11(1) of the 1966 Constitution of the Dominican Republic, which defines Dominicans as “[a]ll persons born in the territory of the Republic with the exception of the legitimate children of foreigners resident in the country in diplomatic representation or in transit.” In its interpretation of this provision, the Court brings up the problem of how the expression “or in transit” should be interpreted. To resolve that problem, the Court harkens back to the 1939 Immigration Law, which draws a distinction between immigrant foreigners and nonimmigrant foreigners. Under the latter group, the 1939 law distinguishes four different groups, one of which was that of “temporary day workers and their families”. This is an important classification, since immigrant foreigners “may reside in the Republic indefinitely,” whereas those classified as nonimmigrants under the law “will be granted only temporary entry.” The 1939 law provides that in the case of this last category of nonimmigrants, “temporary workers will be admitted into Dominican territory only when farm businesses request that they be brought in, and then only in the number and under the conditions that the Secretariat of State of the 235 In this regard, see also, JORGE PRATS, Eduardo, Derecho Constitucional. Volume I. Santo Domingo: Ius Novum, 2013, p. 624. Inter-American Commission on Human Rights | IACHR