Deciding body (English)
Deciding body (Original)
Type of body
Type of Court (material scope)
Type of jurisdiction
Type of Court (territorial scope)
Further areas addressed
- Procedural law
- Freedom of movement of people
Outcome of the decision
A foreign woman applied for a democratic responsibility visa with the Chilean Consulate in Venezuela. The Claimant could not complete certain formalities during the process because the consulate was closed due to the pandemic. However, the corresponding administrative authority sent an e-mail to the Claimant indicating that the deadline to complete the process had expired. If the document was required, she should start the process again.
The Claimant filed an amparo action because she considered this decision arbitrary and in violation of her right to freedom of movement.
The Court concluded that the decision to end the Claimant's visa process without considering the pandemic situation was arbitrary and unlawful and jeopardized the Claimant's right to personal liberty and individual security.
Facts of the case
A foreign woman applied for a democratic responsibility visa with the Chilean Consulate in Venezuela. This document allows for the temporary residence of Venezuelans who, for humanitarian reasons, want to immigrate and live in Chile.
The corresponding administrative authority sent an e-mail to the Claimant indicating that the deadline to complete the process had expired. If she required the document, she should start the process again. The principle of celerity justified this.
However, the Claimant indicated that she had not been able to complete certain formalities because the Consulate had been closed due to the pandemic. Therefore, she considered this decision arbitrary and filed a writ of amparo, considering that this violated her right to freedom of movement.
Type of measure challenged
Measures, actions, remedies claimed
Individual / collective enforcement
Nature of the parties
Type of procedure
Reasoning of the deciding body
Firstly, the Court indicated that, according to Chilean law (Law 19880), applicable to the activity of the public administration, administrative procedures could not exceed six months between their initiation and the final decision, except in the case of an unforeseeable circumstance or force majeure. Therefore, it is clear that the latter's occurrence is admitted in administrative matters.
Additionally, the Court indicated that the deadlines of the administrative procedure for the application for a democratic visa could not be resolved generically for all persons because this would constitute a violation of the duties of the administration.
The Court pointed out that the reasons given by the administrative authority to justify its decision were arbitrary and impertinent since the principle of celerity, which must govern administrative proceedings, must be applied for the benefit of the administered party.
For this reason, the mere rejection of a petition based on the need to conclude a procedure damages the duty of substantiation that administrative acts must have.
On the other hand, the Court indicated that although the State has the power to determine who it admits into its territory and the immigration status of foreigners, this is a power that cannot limit the essence of the right to freedom of movement of persons.
In addition, the Court indicated that exceptions should be made only when necessary to protect substantial rights. Consequently, restrictions on the entry of persons into the country must be under the principle of proportionality to ensure that fundamental rights are respected.
Conclusions of the deciding body
The Court concluded that the decision to terminate the Claimant's visa processing without considering the pandemic situation was arbitrary and unlawful and threatened her right to personal liberty and individual security.
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 freedom of movement, Art. 19.7, Chilean Constitution
- Right to personal security Art. 19.7, 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
- Swiftness in public administration
Balancing techniques and principles (proportionality, reasonableness, others)
Regarding the principle of swiftness in public administration, the Court indicated that this must always be applied in favor of the administrator and not against him. Therefore, rejecting a petition based on the need to conclude a procedure violates the duty of substantiation that administrative acts must have.
Regarding the principle of proportionality, the Court indicated that restrictive immigration measures must be exceptional and proportional, to respect the fundamental rights of individuals.
On "type of measure challenged": the Claimant challenged the government's omission to consider the pandemic situation in computing the terms for obtaining a democratically accountable visa. The Claimant also questioned the government's decision to terminate her visa application process.
Indeed, she requested the annulment of the decision taken by the administrative authority to end her visa process due to the expiration of the deadline for this process, indicating that there had been delays in the process because of a force majeure, the pandemic.