Chile, Supreme Court of Justice, 25 February 2022, Causa 5472-2922
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
Chilean law provides that persons who had entered the country without authorization before March 18, 2020, could apply for regularization of their immigration status.
The Claimant was a person who had lived in the country since 2018 but had to leave Chilean territory without being able to return before the indicated date of March 18, 2020, due to the pandemic. However, she requested her migratory regularization, but this was denied, so she filed an amparo action, considering that her right to free movement was being violated.
The Court considered that the government's omission to consider the circumstances of the pandemic in making a decision related to the regularization of people’s immigration status was a situation that violated the person's right to liberty.
Facts of the case
Before the government of Chile, a person requested her migratory status regularization under Law 21325, which provided that persons who had entered the country irregularly before March 18, 2020, could request the regularization of their migratory status by asking for a temporary visa without being administratively sanctioned.
Although this person had entered the country in 2018, she had to leave the country without being able to return due to the pandemic and could only return after the date stipulated in the law. Therefore, the Department of Immigration and Migration of the Ministry of the Interior and Public Security of Chile issued a resolution denying the Claimant’s request and ordered her to leave the country within a specified period.
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
First, the Court indicated that the challenged measure was neither reasonable nor proportional because it did not consider the Claimant's situation caused by the pandemic. Furthermore, it noted that this decision violated constitutional norms.
Consequently, the Court considered that the measure taken by the Department of Immigration and Migration of the Ministry of the Interior and Public Security through the challenged Resolution affected the Claimant's right to personal liberty.
Therefore, the Court ordered the annulment of this Resolution and determined that this public entity should consider the Claimant's request for regularization as if it had been filed under the terms of Law 21325. The administration should grant the Claimant a reasonable period to deliver all the necessary documentation to carry out this procedure.
Conclusions of the deciding body
The Court considered that the government's omission to consider the circumstances of the pandemic in making a decision related to the regularization of an individual's immigration status was a situation that violated the individual's right to liberty.
Fundamental Right(s) involved
- Freedom of movement of people, goods and capital
- Right to good administration
Fundamental Right(s) instruments (constitutional provisions, international conventions and treaties)
- Right to due process, Art. 19, Chilean Constitution
- 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
- Proportionality
- Reasonableness
Balancing techniques and principles (proportionality, reasonableness, others)
The Chilean Supreme Court indicated that the decision of the Department of Immigration and Migration of the Ministry of the Interior and Public Security was neither reasonable nor proportional because it violated constitutional rights and did not consider the Claimant's situation during the pandemic, which had made it impossible for her to return to Chile.
Other notes
On "type of measure challenged": the Claimant challenged the government’s lack of measures to regularize migrants’ legal status for those unable to re-enter Chilean territory due to the pandemic.
