Through its case law, the Supreme Court has demonstrated a willingness to look
at the facts of each individual case to assess whether a child of undocumented parents
falls within the transient foreigners exception. An example of this is a 1989 decision
in which the court established that even if the parents of a child born in Chile are not
legally residing in the country, the length of their stay could qualify them as in residence, not in transit, entitling their child to Chilean nationality. 228
The court has also considered that ordinary activities, such as leasing property
or obtaining income in Chile, demonstrate parents’ intent to reside and remain in the
territory, which serves as proof of domicile and leads to the conclusion that the child’s
parents are not in transit, regardless of their immigration status. In these judgments,
the Supreme Court has also used international human rights law to support its rulings,229 particularly Article 20 of the ACHR.230
These decisions by the Supreme Court, however, hardly result in a comprehensive
safeguard to guarantee the right to a nationality. A combination of factors—including
economic hardship, geographic location, restricted access to legal services, and lack of
awareness about the effects of the “in transit” designation—have limited petitions to the
Supreme Court: in 2008–2014, only 11 claims of nationality were decided.231
Populations at Risk of Statelessness
As in Brazil, Colombia, and other countries in the Americas, the groups in Chile that
are most vulnerable to statelessness are the children of unauthorized migrants and
children belonging to indigenous groups, particularly those residing in border regions.
The work of UDP’s and UAH’s migrants’ rights clinics have exposed the risks children
of undocumented migrants face.
Chile’s resident migrant population is predominantly Peruvian, but Bolivians,
Colombians, and Ecuadorians represent the majority of immigrants who have crossed
the northern border of Chile in the last five years.232 Most Colombian and Ecuadoran
migrants are of African descent, while most Bolivians and Peruvians are either members or descendants of indigenous groups, and they have encountered racial discrimination in Chile.233 All of these sending countries provide for nationality under jus sanguinis
as well as jus soli. Thus the children nationals from these states should have access
to their parents’ nationality. However, all four require registration of birth before a
national consulate or diplomatic representative and the meeting of certain evidentiary
requirements, such as proof of the parents’ nationality. Meeting these requirements is
virtually impossible in remote regions.234 Furthermore, these children are entitled to
Chilean citizenship under jus soli and should be able to access documents establishing
BORN IN THE AMERICAS
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