IACHR refers case on Argentina to the Inter-American Court

February 23, 2021

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Washington, D.C. - On February 3, 2021, the Inter-American Commission on Human Rights (IACHR) referred the case of Raghda Habbal and sons, regarding Argentina, before the Inter-American Court of Human Rights. The case refers to the arbitrary deprivation of Raghda Habbal's Argentine nationality acquired by naturalization and of the permanent residency of her three children, as well as the violations of judicial guarantees that took place in the context of both processes.

Mrs. Raghda Habbal and her three minor children, all Syrian nationals, obtained permanent Argentine residency on July 4, 1990 through Mrs. Habbal's husband, who had obtained a residency permit. On April 3, 1992, Mrs. Habbal obtained Argentine nationality by naturalization, after taking an oath and renouncing her original nationality. However, the following month the National Director of Population and Migration issued Resolution No. 1088 which declared the residency of Mrs. Habbal and her three children null and void, because a previous resolution had annulled the residency of her husband. On October 27, 1994, the decision that granted Mrs. Habbal Argentine citizenship was declared null and void by a judicial decision, due to evidence of fraudulent actions to obtain it. Mrs. Habbal filed an appeal and nullity action alleging that she had not been notified of the process in accordance with the legal requirements, that there was no proof of the alleged ideological falsity of the documents or of her bad faith, and that the Federal Judge should have waited for the decision in the criminal proceeding to determine whether there was fraud in the granting of citizenship. This appeal, as well as all subsequent appeals, were denied.

In its Report on the Merits, the Commission noted that the National Directorate of Migration did not make any consideration of Mrs. Habbal's status as a national and completely omitted her citizenship status. The Commission stated that, although there is no evidence that the expulsion and precautionary detention orders had been executed, it is necessary to analyze whether they were compatible with the American Convention since, not having been annulled, they had an impact on the situation and rights of such persons. In this regard, the Commission concluded that the absence of verification of national status, as well as the expulsion order, implied that a decision incompatible with the right to freedom of movement and residence was issued.

Additionally, the Commission noted that Resolution No. 1088 was issued ex officio, without the participation of the affected parties in the process, before the Resolution affecting their rights was issued. The Commission concluded that there was no evidence that Mrs. Habbal had received any communication about the charges against her, nor that she had participated in order to be heard in the process, nor that she had been allowed to defend herself, including legal representation at a time when she could state that she was a national and her expulsion was not allowed, nor that there was any possibility to challenge the decision before a hierarchical authority. With respect to the children, the IACHR established that, given that their Argentine nationality has not been proven, they should be considered migrants in Argentine territory. In this regard, it noted that Resolution No. 1088 was issued without complying with the minimum guarantees that must be provided in this type of process according to the standards of inter-American jurisprudence. It concluded that there was no record that Mrs. Habbal or her husband, as mother and father of the children, received any communication about the proceedings, nor that they were heard in the process or allowed to have legal representation.

Regarding the detention order against Mrs. Habbal and her children, the IACHR considered that it was not motivated, since it was based solely on the fact that the four persons involved in the proceedings were considered to be irregular migrants. It concluded that the precautionary detention measure did not identify the legitimate purpose it pursued, nor why it was necessary, appropriate and proportional. In the case of Mrs. Habbal, the IACHR also observed that the order was not appropriate because she was an Argentine citizen, and in the case of the children it established that the principle of non-immigrant detention of children was not respected because the State did not explain the existence of exceptional and legally foreseen circumstances that could justify preventive detention. In addition, the Commission noted that the authorities did not take into account that Mrs. Habbal had had a child in Argentina.

Finally, the Commission considered that the Argentine authorities failed to take into account that Mrs. Habbal could have been in a situation of statelessness because she was required to renounce her original nationality in order to obtain Argentine nationality and was subsequently deprived of the latter. The Commission also concluded that the violations of judicial guarantees occurred both within the framework of the administrative process that led to her being deprived of her Argentinean nationality and in the context of the administrative process that led to her being deprived of her Argentinean nationality.

In view of the foregoing, the Commission concluded that the State of Argentina is responsible for the violation of the rights to judicial guarantees, the principle of presumption of innocence, the principle of legality, the rights of children, the right to nationality, to freedom of movement and residence and to judicial protection, set forth in Articles 8(1), 8(2)(b), (c), (d) and (h), 9, 20, 22(1), 22(5), 22(6) and 25(1) of the American Convention, in relation to Article 1(1) thereof.

In its Merits Report, the Commission recommended that the State:

1. Make full reparation for the human rights violations declared in the Merits Report in both material and non-material aspects. The State should adopt measures of economic compensation and satisfaction.
2. Annul Resolution No. 1088 of the National Directorate of Population and Migration that annulled the victims' residency.
3. If the victim wishes, to reopen the judicial process that culminated in the annulment of Mrs. Raghda Habbal's Argentine nationality and to carry it forward in accordance with the principles of the Inter-American system set forth in the report and with respect for the principle of innocence, legality, the duty to prevent statelessness and due process.
4. Adopt a training policy for the competent national authorities in migration and nationality matters, in order to ensure their training in the standards of the inter-American system in relation to the migrant population and the limits of the state authorities when issuing orders of cancellation of residence, citizenship, as well as precautionary detention and expulsion of persons from a territory. In particular, to emphasize the limits of the authorities when adopting such decisions with respect to children.

A principal, autonomous body of the Organization of American States (OAS), the IACHR derives its mandate from the OAS Charter and the American Convention on Human Rights. The Inter-American Commission has a mandate to promote respect for and to defend human rights in the region and acts as a consultative body to the OAS in this area. The Commission is composed of seven independent members who are elected in an individual capacity by the OAS General Assembly and who do not represent their countries of origin or residence.

No. 039/21