Chile, Supreme Court of Justice, 18 February 2022, Causa 4905-2022
Case overview
Country
Case ID
Decision date
Deciding body (English)
Deciding body (Original)
Type of body
Type of Court (material scope)
Type of jurisdiction
Type of Court (territorial scope)
Instance
Area
Further areas addressed
Vulnerability groups
Outcome of the decision
General Summary
An elderly Venezuelan woman was granted a visa to work in Chile, conditioned to her contract period. She had to leave the country while the document was still valid. While she was outside of Chilean territory, there was a border closure due to the pandemic, so she could not re-enter the country. Her visa expired while she was still abroad. However, she still had an open-ended contract, and her son had permanent residence in Chile.
The woman had problems returning to the Chile due to the expiration of her visa. Therefore, she requested that her immigration status be regularized and that she be allowed to enter the country.
The Court upheld the claim, as it found that the special conditions of the Claimant's country of origin should be considered as well as that she had not been able to return to the country during the validity of her visa due to the pandemic, a force majeure.
Facts of the case
A work visa was granted to an elderly Venezuelan woman, conditioned to her contract status. She had to leave the country while the document was still valid. While outside of Chilean territory, there was a border closure due to the pandemic, so she could not re-enter Chile. Her visa expired while she was still abroad. However, she still had an open-ended contract, and her son had permanent residency in Chile.
The woman had problems returning to the country due to the expiration of her visa. Therefore, she requested that her immigration status be regularized and that she be allowed to enter the country.
Type of measure challenged
Measures, actions, remedies claimed
Individual / collective enforcement
Nature of the parties
Claimant(s)
Private individualDefendant(s)
Public
Type of procedure
Reasoning of the deciding body
Firstly, the Court found that by the international obligations acquired by Chile, the State had certain obligations regarding migrants and particularly refugees. In this context, it pointed out that the Cartagena Declaration (1984) and the San José Declaration (1994) included in the concept of refugees those who had fled their countries because their life, safety, or freedom had been threatened by massive violations of human rights or other circumstances that had seriously disturbed public order.
This is important considering that the Claimant came from Venezuela, a country undergoing complicated political and human rights circumstances.
Therefore, the Court found that the International Humanitarian Law principles of non-refoulment, non-rejection at the border, review of the measure, and prior judicial decision were applicable in this case, regardless of whether the refugee status of a person was recognized or whether the person regularly entered Chilean territory. This is per the 1951 Convention, the 1967 Protocol, and the Mexico Declaration and Plan of Action.
Thus, the Court indicated that according to the norms of public international law and Chilean legislation, it was irrelevant whether the entry into the territory had been made with authorizaiton, considering that the departure from the country of origin of the Claimant, Venezuela, had been urgent and precarious.
Finally, the Court pointed out that it was important for the immigration authorities to consider that the Claimant had not been able to return to the country during the validity of her visa because of the closing of the borders due to the pandemic, which was not an event imputable to her.
Conclusions of the deciding body
The Court upheld the claim, as it decided that the special conditions of the Claimant's country of origin should be considered and that she had not been able to return to the country during the validity of her visa due to the pandemic, a force majeure, but that she still had an employment contract and family in Chile.
Fundamental Right(s) involved
- Freedom of movement of people, goods and capital
- Right to asylum
Fundamental Right(s) instruments (constitutional provisions, international conventions and treaties)
- Refugees' rights, Cartagena Declaration, San José Declaration, 1951 Convention, 1967 Protocol and Mexico Declaration
- Right to freedom of movement, Art. 19.9, Chilean Constitution
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
- Health v. freedom of movement of persons
- Health v. immigrants’ fundamental rights
General principle applied
Balancing techniques and principles (proportionality, reasonableness, others)
The Court mentioned that under International Humanitarian Law and the international treaty obligations undertaken by Chile, the principles of non-refoulment, non-rejection at the border, review of the measure, and a prior judicial decision should be applied, regardless of whether the Claimant's refugee status had been recognized or not, and irrespective of whether she had entered Chilean territory with authorization. The Court did not elaborate on how these principles should be applied.
Other notes
On "type of measure challenged": the Claimant challenged the government's measure that prevented her from returning to Chile with an expired visa, arguing that she still had a work contract and that she had not been able to return to the country earlier, while her documents were still valid, because of the border closure caused by the pandemic.
