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Chile, Supreme Court of Justice, 25 February 2022, Causa 5472-2922

Case overview

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Country
Chile
Case ID
Causa 5472-2922
Decision date
25 February 2022
Deciding body (English)
Supreme Court of Justice
Deciding body (Original)
Corte Suprema de Justicia
Type of body
Court
Type of Court (material scope)
Administrative Court
Type of jurisdiction
Single jurisdiction system
Type of Court (territorial scope)
State Court
Instance
Amparo (protective action) decision
Area
Immigration and asylum
Further areas addressed
Procedural law
Vulnerability groups
Immigrants
Outcome of the decision
Claim upheld

Case analisys

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
National government measure
Measures, actions, remedies claimed
Annulment of the decision denying the regularization of her migrant legal status
Individual / collective enforcement
Individual action brought by one or more individuals or legal persons exclusively in their own interest.
Nature of the parties
  • Claimant(s)
    Private individual
  • Defendant(s)
    Public
Type of procedure
Expedited procedures
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.

Balancing Fundamental Rights and Fundamental Freedoms

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.

Additional notes

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.

Author of the case note
Laura González Rozo, Researcher, Externado University of Colombia
Published by Laura Piva on 23 November 2022

More cases from Chile

  • Chile, Supreme Court of Justice, 17 October 2020, Rol No. 134.251-2020
    Area: Industrial relations / Labor law
    Outcome: Claim inadmissible or rejected
  • Chile, Supreme Court of Chile, 27 September 2022, Rol No. 77.522-2021
    Area: Freedom of movement of people
    Fundamentals rights involved: Freedom of movement of people, goods and capital
    Outcome: Claim upheld
  • Chile, La Serena Appeals Court. First Chamber, 27 September 2022, Rol No. 6079-2022
    Area: Vaccination
    Fundamentals rights involved: Right to bodily integrity; Right to data protection; Right to health (inc. right to vaccination, right to access to reproductive health)
    Outcome: Claim inadmissible or rejected
  • Chile, Supreme Court, Third Chamber, 28 February 2022, No. 95.899-2021
    Area: Industrial relations / Labor law
    Fundamentals rights involved: Right to health (inc. right to vaccination, right to access to reproductive health); Other (Right to life)
    Outcome: Claim upheld
  • Chile, Supreme Court, First Chamber, 28 July 2022, No. 85.755-2021
    Area: Freedom to conduct a business
    Fundamentals rights involved: Other (Tenant Rights)
    Outcome: Claim upheld
  • Chile, Supreme Court of Justice, 21 April 2022, Causa No. 10516-2022
    Area: Vaccination
    Fundamentals rights involved: Freedom of movement of people, goods and capital; Right to health (inc. right to vaccination, right to access to reproductive health)
    Outcome: Claim inadmissible or rejected
  • Load 6 more
List all available cases from Chile

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