Dr. Darío Burstin Explains Problems with Uruguayan Nationality Interpretation on Radio Sarandí

I thank Radio Sarandí (Informativo Sarandí) for providing a forum for the topic of Uruguayan nationality and citizenship policies and fostering discourse in Uruguay on this crucial matter. I also thank Dr. Burstin for his accurate and insightful analysis of the issue. Dr. Burstin, as a legislative advisor for the Frente Amplio, addresses the topic with depth, understanding, and historical context.

An unofficial transcript, translated into English, is provided below.

The complete interview in Spanish is available at Radio Sarandí at the following link.

http://audios.sarandi690.com.uy/sarandi/diariosarandi/DiarioSarandi_240103.mp3

Unofficial Transcript

Informativo Sarandí

Interviewer: We greet Dr. Darío Burstin this morning here at Informativo Sarandí. Darío, welcome.

Dr. Darío Burstin: Thank you very much. It's a pleasure to be here this morning.

Interviewer: Well, Dr. Darío Burstin represents foreigners with Uruguayan citizenship who have been complaining for a long time now that their passports are not recognized as Uruguayan citizens despite having citizenship, and as a result, they face several problems. Among those problems, for example, are difficulties in entering other countries.

Dr. Darío Burstin: Exactly.

Interviewer: What is this situation about? How can a person who has obtained Uruguayan citizenship not be recognized as a Uruguayan? What’s happening here?

Dr. Darío Burstin: Good morning; thank you very much. First, a brief statement. I address this issue as a legislative advisor for the Frente Amplio. I do not represent the organizations advocating for this matter, but I have an excellent relationship with them and believe their claim is absolutely fair. Two law projects are currently underway to try to solve this issue. I did not work directly in their original drafting. I was not aware of the issue, but when I became aware of it, as it relates to issues I have studied, it became a topic of interest to me.

The situation is as follows.

In Uruguay, as most of the listeners probably know, our Constitution provides for two types of citizens. Natural citizens, who are basically those born in Uruguay and children of Uruguayans born abroad. Plus, there is a law that extends this to grandchildren, a somewhat more recent law. And legal citizens, who are basically immigrants, people born abroad (not as children of Uruguayans, who come to live in Uruguay) spend a certain number of years, meet requirements, apply for citizenship, and are granted it. I am the grandson of four legal citizens, now deceased. Surely, many of us in Uruguay also have this background.

Interviewer: Exactly.

Dr. Darío Burstin: That's why, at one time, legal citizens represented a very significant proportion of the Uruguayan population. What is the issue? Until 1994, Uruguayan passports stated that the holder of that passport was a natural citizen or a legal Uruguayan citizen. And with that, Uruguayan legal citizens had no problem entering other countries. Starting in 1994, Uruguay began a process of changing the format of passports to a standardized format. You see, before 1994, the Uruguayan passport had some unique aspects, but such differences were more acceptable. There was minimal international standardization of passports, and they were not all the same for all nations. From 1994 onwards, the format began to change.

Interviewer: And what happens then?

Dr. Darío Burstin: The international format of passports does not have a field that says “citizenship,” as our historical passports did, but the field says “nationality,” using another word. So why should that matter? Here in Uruguay, in the world of constitutional law, there is a historical position, a peculiar historical interpretation of the Constitution, that says that Uruguay distinguishes between nationals and citizens. And this is a topic that, if we were to delve into it, becomes very complex and abstract. But broadly speaking, the issue is as follows. Historically, some countries have classified two different types of “links” to a nation, one called national and one called citizen. In some cases, the nationals were those born in the country, or the historical descendants of people born in the country. We might call this a category of people belonging to a particular ethnicity. And then there were citizens — these are people who could participate in the political life of the country, they had the right to vote, to be elected, etc.

Here in Uruguay, what did we do at our founding? Our Constitution never made that distinction. It only speaks of citizens. So how did this change into what it is now? A very respected historical constitutional law professor (a very lucid man as well) believed that since the Constitution did not define which citizens were nationals or who were nationals at all, we, as interpreters, had to fix that omission of the Constitution. He then interprets, at least initially, that natural citizens (those born in Uruguay and children of Uruguayans born abroad) are the nationals of Uruguay, and he states that legal citizens are not nationals; they are only citizens.

According to this interpretation of the Constitution, Uruguay would be, to this day, the only country in the world that does not naturalize immigrants. That is, Uruguay is the one and only nation with this situation. I have not been able to find any other country that does not provide for what is called naturalization, which is the act of nationalizing a foreigner and considering them a national, a member of their national community. It would take a long time to get into the legal discussions of why ...

Interviewer: OK, but I have to ask, how does this play out in real life? What problems does this interpretation generate for legal citizens?

Dr. Darío Burstin: It became more of an issue with the chip in the passport, and it has been almost ten years since that happened. Legal citizens obtain citizenship, they vote, and they are involved. In past times, this distinction between nationality and citizenship was an issue at play in the interpretation of the constitutional law professors, probably the majority of those professors. But, for all intents and purposes, it was a historical practice. For me, before the passport issue, it didn’t generate any visible problems. It was a theoretical, abstract, national matter.

According to this interpretation of the Constitution I mentioned, which I myself do not share, though it is widely accepted in constitutional legal circles, Uruguay has an idiosyncrasy, or a quirk, in its policy and law. This quirk is that for the Uruguayan state, the foreigner who comes and obtains citizenship will always be a foreigner, according to this interpretation of the Constitution.

But the Constitution does not expressly say this in its text. The interpretation of what the Constitution “left out” did not generate any problems and did not go beyond legal discussion for many years. So you might ask, “What happened to change that?”

When Uruguay adapted to emerging international passport formats, and particularly since 2015, when passports started to be exclusively issued with a chip, the passport did not contain any useful location in which to clarify and explain whether the person with the passport was a legal or natural Uruguayan citizen. There wasn’t a place or area that an immigration officer would actually look at to read this. The passport can only say “nationality.” The civil identification division of the Ministry of the Interior and the Ministry of Foreign Affairs interpreted — I mean, reading the constitutional law treatises— they interpreted that if the passport asks for nationality, we cannot say legal citizens are “Uruguayan.” That was the ministries’ interpretation. And through internal manuals, apparently, they came to the conclusion that in that field, Uruguay must put the country of birth. By the way, conceptually, putting the country of birth in this field is also a mistake.

Interviewer: Sure, but I, obviously, from ignorance, but those of us who have, for example, obtained foreign citizenship, if an Uruguayan natural citizen takes an Italian passport, he or she has to apply for citizenship to be granted a passport. How does Uruguay issue a passport to a foreigner? How do you issue a passport to a citizen who is not from your country? Because they have citizenship. Even this is something that is under discussion. It's already wrong from the start.

Dr. Darío Burstin: Exactly, I understand that what is happening here is that we have a confusion between these two concepts.

Interviewer: Now I think I’m understanding all the initial information, right?

Dr. Darío Burstin: Exactly. But we come to something completely … It's significant, I mean, if they are not nationals, if the foreigners, even my grandparents, were not nationals.

Interviewer: But how many Uruguayans travel and spend time in the European Union with their Italian or Spanish passports, right? What happens in practice for legal citizens that is different?

Dr. Darío Burstin: In practice, what happens is that legal Uruguayan citizens, immigrants who obtained citizenship in Uruguay, try to travel the world, but they are somewhat at the mercy of immigration officers, as they may or may not be allowed entry into the countries they want to visit depending on the interpretation of the immigration officer. I understand that a foreign immigration officer, when they see a Uruguayan passport that states it's issued by Uruguay, with nationality from Venezuela, Brazil, Spain, or anywhere else, has every right to be confused and not understand what they are dealing with.

With good intentions, as many legal citizens in this situation have explained to me, they sometimes talk to the officers, get delayed, and face an additional problem because nowadays, in many international airports, they go through the standardized machine for “reading.”

What happens when Uruguayan passports are passed through automated systems? These airport machines immediately flag all Uruguayan legal citizen passports as errors, as the machines, and officers, expect the "country of emission" field (that is, the nation issuing a passport) and the nationality field to match. So, legal citizens are left at the discretion of the immigration officer. We have cases of Uruguayans who can't enter countries.

Imagine the scenario of an immigration officer accustomed to automatic processing, the machine gives an error, and they have to go to the counter to explain and understand why the machine gave an error, and they see this Uruguayan passport.

Many officers do not understand, and as I've been told, many Uruguayans have been sent back from trips, legal citizens. In many cases, what they tell me happens is that the airlines, if they allow a person to travel without proper documentation, become responsible for the “illegal entry.” If the person is not allowed to enter the country at immigration after getting off the plane, the airline is responsible for bringing the person back. So, in many cases, the airlines no longer allow them to travel. Passengers about whom the airline employees have any doubts do not get to board the plane. I have seen and even shown cases of legal Uruguayan citizens who tried to enter Brazil, and the immigration officer suspected the passport was fake, denied entry, and invalidated it, placing a cancellation notice.

Interviewer: Ah, that's harsh.

Dr. Darío Burstin: Exactly.

Interviewer: Is there an estimate of how many people might be exposed to this type of situation?

Dr. Darío Burstin: From what I've been told, the legal citizens currently living in these circumstances, well, in the previous generation, there were many more, but now I believe the majority are relatively recent immigrants. According to what I've been told, there are around 35,000 people, and the problems vary greatly. For example, a person who doesn't travel today obviously doesn't have this problem. People who travel to certain countries where immigration authorities, like Argentina, for instance, understand what a Uruguayan passport looks like don't encounter significant issues. Countries that already require a visa for Uruguay, such as the case of the United States, also don't cause problems because they have to apply for the visa, and that document is what matters to them.

Interviewer: Exactly.

Dr. Darío Burstin: So, there is no problem in those cases. However, some people have significant issues, and Uruguay may even be violating international agreements. You see, there are legal Uruguayan citizens who come from countries that do not allow dual nationality.

Interviewer: For example?

Dr. Darío Burstin: For example, India. There's also a case that has been in the news, a person from Tajikistan. However, there are many countries that do not allow dual nationality. It's not something unusual.

Interviewer: What is the problem with other countries' denial of dual nationality?

Dr. Darío Burstin: If a person obtains legal citizenship in Uruguay, Uruguay believes it hasn't granted them nationality. However, the country of origin generally sees Uruguayan legal citizenship as a form of nationality. Because that's how it is in almost the entire world today. Being a citizen and being a national of a country are usually the same thing. Almost everywhere. So, what happens? By losing their original nationality and Uruguay saying it doesn't grant them nationality, that person is left without any nation that recognizes them as a national. They become someone without nationality.

Interviewer: Dr. Burstin, what is the solution to this issue? Is it a legislative matter at the parliamentary level? You've mentioned a couple of projects are underway.

Dr. Darío Burstin: Exactly, there are bills. However, I believe this issue can also be resolved administratively through a simple decision by the Ministry of the Interior, the DNIC (Dirección Nacional de Identificación Civil). It can be solved this way because the theoretical construction that denies legal citizens their nationality is an interpretation of the Constitution.

In my opinion, it's a flawed interpretation despite its origins with a highly respected professor whose legal treatises are fundamental in the field of constitutional law in Uruguay. That's why this interpretation has had such influence. In reality, it's an interpretation based on omission. The professor argued that since the Constitution doesn't distinguish or define who are the nationals of Uruguay, he had to make a distinction. He concluded that natural citizens are nationals, and legal citizens are foreigners.

That's an interpretation. And I believe it even goes against the spirit of the framers of the Constitution.

When the drafters of the original Constitution addressed citizenship, their intention was precisely to be as inclusive as possible. They said, "We don't need to make distinctions like other countries did, where someone might be born or reside in that country and never be granted nationality." Uruguay had a broad commitment to granting nationality to anyone, so they didn't bother making that distinction. Therefore, it's almost paradoxical that we went from an intention by the drafters of the Constitution to be inclusive to a later interpretation of the Constitution that ends up reading it as opposed to inclusion.

If the DNIC in the Ministry of the Interior interprets legal Uruguayan citizenship as a form of naturalization, in other words, a form of nationality, the problem is resolved because that means the passports for legal citizens should state "Uruguayan" under nationality. And if the passport says "Uruguayan," the problem is solved.

There's another option to solve this whole thing that is even simpler. One can argue that the distinction between national and citizen is theoretical and shouldn't be so important in day-to-day administrative practice. We can decide administratively that, for identification purposes, at least, nationality is the same as citizenship.

So, regardless of what the Constitution does or doesn't say, we can decide administratively to label legal citizens as nationals on their passports.

Interviewer: And what resources have been thrown behind this to achieve this result?

Dr. Darío Burstin: Well, since the DNIC and the Ministry of Foreign Affairs haven't made this administrative or practical decision, there are two bills that aim to, let's say, push for this. In one case legislators seek to push this to reality through interpreting the Constitution, and, in a second project, the push comes through the path of defining what it means to be a “national” on a passport. The project from the Frente Amplio, presented by Verónica Mato, is the more comprehensive one because, apart from wanting to solve the passport issue, the proposed law also aims to address other problems faced by immigrants, those who apply for citizenship. I know that’s another topic we discussed when we were considering this interview, right? Something immigrants facing legal citizenship already face, the difficulty of diploma validation, their situation when they first arrive, and so on. These are issues that immigrants find much more challenging in their daily lives.

Interviewer: Yes, exactly.

Dr. Darío Burstin: And yet Uruguay is, according to what they say, I don't have direct knowledge, but according to what they say, one of the countries with the most cumbersome procedures and requirements to obtain legal citizenship. The specific problem that the project presented by Verónica Mato tries to tackle is what happens with the citizenship/nationality of immigrant children. Why does this happen? If an immigrant arrives in Uruguay with their family, all born abroad, the immigrant, being of legal age, can apply for legal citizenship. But Uruguay requires legal adulthood to apply for legal citizenship. So, they can apply for it, but their children cannot. In other words, they cannot apply for their children. To become legal Uruguayan citizens, the children will have to wait until they turn 18, and only then can they begin the process. This means, of course, that settled families have children who lack an national identity.

Interviewer: That doesn't mean they don't have an identity.

Dr. Darío Burstin: Well, of course they do as legal residents, but not as citizens. Uruguay is otherwise a country that is quite open and quite inclusive, especially for education.

But the inability to be a citizen, let alone a national, creates identity issues for children, right? Let's say, especially for kids who have grown up here from the age of 3. They feel like they've been part of this country. Here in Uruguay, they feel more Uruguayan than any other “nationality,” and yet, we in Uruguay currently don't recognize them as Uruguayan.

I’ve even heard that some of these children have been denied the chance to carry the national flag at school events because they are not considered nationals. And there are other issues that may seem less important, but they should matter to Uruguayans, such as the possibility of representing us in sports competitions.

A very good friend of mine is a sports journalist, and he mentioned that many immigrant children have great potential to compete and yet this policy denies them the chance or the possibility to represent the nation of Uruguay.