Chile, Supreme Court of Justice, 11 March 2022, Causa 6661-2022
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
During the pandemic, two foreign women entered Chilean territory without authorization. As a result, the public authorities denounced them for the crime committed. Although they subsequently withdrew the criminal action, they ordered the expulsion of the two women through an administrative process. As a result, the Claimants filed an amparo action, as they considered the expulsion decision arbitrary.
The Court concluded that the Claimants' right to freedom of movement had been violated and that the decision had been arbitrary for not considering the context in which the unauthorized entry into the country took place as well as the pandemic together with the conditions in their countries of origin and said that the administrative process that preceded the challenged decision was insufficient.
Facts of the case
Two foreign women, one Ecuadorian and one Venezuelan, entered Chilean territory without authorization during the pandemic. As a result, the public authorities denounced them for the crime committed. Although they subsequently withdrew the criminal action, which had the effect of extinguishing criminal liability, they ordered the expulsion of the two women through administrative proceedings, arguing that Decree Law 1094 art. 69 imposed the measure of expulsion from the country for foreigners who entered the country clandestinely or through unauthorized passages.
For this reason, the Claimants filed an amparo action since they considered that the expulsion decision was arbitrary.
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 in this case, the pandemic and how COVID-19 had threatened the life and health of the entire world's population were factors that had to be considered. Additionally, the Court pointed out that the political persecution, economic hardship, and health shortages suffered by migrants entering the country without authorization had to be taken into account.
Therefore, the Court said that decreeing the expulsion of a foreigner from the national territory under these circumstances necessarily implied an affectation of their physical and psychological integrity and safety.
The Court added that that argument was supported by various instruments of international law that enshrine the rights of refugees, such as the 1984 Declaration of Cartagena, the 1994 Declaration of San José, the 1951 Convention, the 1967 Protocol, and the Mexico Declaration and Plan of Action.
The Court concluded that, for the reasons above, it was factually and legally irrelevant whether the entry into the national territory was done with or without authorization, considering that the departure from the country of origin of the migrants was made urgently and precariously, as this can sometimes lead to unauthorized entry into the country.
On the other hand, the Court indicated that the fact of having filed an injunction against the Claimants before the competent authority and then having withdrawn it but still insisting on the expulsion was a measure that required an argumentation that went beyond the formal, that is, beyond the mere application of the rule.
Furthermore, the Court indicated that the decision to expel a foreign citizen, since it implied the issuance of a terminal administrative act, was a decision that had to be preceded by an administrative litigation process that respected its principles. In this case, the Court considered that the process had been insufficient because none of the Claimants had been heard in the process, nor were they able to present evidence.
Finally, the Court noted that in similar cases, it has affirmed that this type of expulsion does not satisfy the requirements of reasonableness, proportionality, and justification. Therefore, it is arbitrary because it disregards the personal and family circumstances of the migrants. Lastly, the Court stated that the challenged decision had violated the Claimants' freedom of movement.
Conclusions of the deciding body
The Court granted the Claimants' petitions and annulled the resolutions ordering their expulsion from Chilean territory, considering the context of their unauthorized entry into the country, the pandemic and the conditions in their countries of origin, and the insufficient administrative process that preceded the challenged decision.
Fundamental Right(s) involved
- Freedom of movement of people, goods and capital
- Migrants' rights; Right to due process
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
- Health v. right to due process
General principle applied
Balancing techniques and principles (proportionality, reasonableness, others)
The Court indicated that the resolutions that had ordered the expulsion of the two foreigners from the national territory did not meet the requirements of reasonableness, proportionality, and substantiation of a non-arbitrary decision, as they disregarded the Claimants' circumstances.
In addition, the Court pointed out that there was an insufficient administrative process, which made the decision illegal as it was neither reasonable nor proportional and violated the Claimants' freedom of movement.
On "type of measure challenged": the Claimants challenged the administrative authority's decision to expel them from the country and the government's failure to consider humanitarian exceptions for not ordering expulsion from the country in cases where the individuals entered the national territory without authorization.
On "measures, actions, remedies claimed": the Claimants requested that they not be deported from the country, considering that this was an arbitrary and disproportionate measure, especially in the context of the pandemic and considering the conditions of the countries from which they came.