Chapter 2 The Right to Nationality and Judgment TC/0168/13 of the Constitutional Court | 71 147. Even though the position of the IAHRS has consistently been that any discrimination in access to nationality based on the parents’ migratory situation is strictly prohibited, the Dominican State maintains that from the time the principle of jus soli was first introduced in the Dominican Constitution, it did not apply to children of persons in an irregular migratory situation because such immigrants fell within the category of persons “in transit,” which was an exception under every Dominican Constitution. Thus, in order to understand how judgment TC/0168/13 reinterprets the concept of person “in transit” so as to retroactively deny Dominicans of Haitian descent their right to nationality, one must turn to immigration regulations to understand the categories under which foreign nationals are admitted into Dominican territory. 148. When discussing foreign nationals, Article 3 of Immigration Law No. 95 of April 14, 1939 provided that foreign nationals seeking to be admitted into Dominican territory would be classified as immigrants or non-immigrants. Foreign nationals applying to be admitted would be regarded as immigrants unless they fit into one of the following classes of non-immigrants: 1. Visitors on business or for study, recreation or diversion; 2. Persons in transit through Dominican territory while traveling abroad; 3. Persons working in some capacity on board ships or aircraft; 4. Temporary workers and their families. The foreign nationals admitted as Immigrants may reside in the Republic indefinitely. Non-immigrants will be granted only temporary entry, and such entry shall be subject to the terms prescribed in Immigration Regulation No. 279 of May 12, 1939, unless a foreign national admitted as a non-immigrant can subsequently qualify to be classified as an immigrant by meeting all the requirements that immigrants must meet. The 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 Interior and Police prescribe in order to fill those businesses’ needs and to oversee their entry, temporary stay and return to the country from whence they came. 149. When elaborating upon the provisions set forth in the 1939 Immigration Law, Immigration Regulation No. 279, approved on May 12, 1939, stipulated that foreign nationals trying to enter the Republic, primarily to travel through it and bound for comment: “This Committee felt it was best for the country to adopt the system of jus soli in the Constitution, given the fact that our Republic is small in size and in population and hence a country best served by immigration, not emigration. The number of Dominicans residing or born abroad is small by comparison to the number of foreign nationals residing or born in this country, with the result that the number of Dominicans is increased more by adopting the jus soli system than by adopting the jus sanguinis system. The draft adopts the jus soli system as a general rule, and makes an exception for the legitimate children of foreign nationals living in the Republic in diplomatic representation or in transit in the country.” See, Constitutional Court, Judgment TC/0168/13. pp. 51-52. Inter-American Commission on Human Rights | IACHR