Chile, Supreme Court of Justice, 1 June 2022, Causa No. 17721-2022

Case overview

Country
Chile
Case ID
Causa No. 17721-2022
Decision date
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
Vulnerability groups
Immigrants
Outcome of the decision
Claim upheld
General Summary

During the pandemic, two foreigners, both Venezuelan nationals, entered Chilean territory without authorization, with their families, claiming that they had done so to safeguard their families. However, the public authorities ordered by administrative means their expulsion through Exempt Resolution 4371 of 2020 and 4281 of 2020, issued by the Regional Intendencia of Tarapacá.

These individuals filed an amparo action as they considered the expulsion decision arbitrary and in violation of the principle of family reunification. They requested that they not be expelled from the country.

The Court granted the Claimants' requests and annulled the resolutions ordering their expulsion from Chilean territory, considering the context of their irregular entry into the country, the pandemic together with the conditions in their countries of origin, the separation that this would imply for their family nucleus and the insufficient administrative process that preceded the resolutions in question.

Facts of the case

During the pandemic, two foreigners, both Venezuelan nationals entered Chilean territory without authorization, with their families, claiming that they had done so to safeguard their families.

Therefore, the public authorities denounced them for the crime committed, clandestinely entering the country, and although they subsequently withdrew the criminal action which has the effect of extinguishing criminal liability, they ordered the expulsion of the two persons administratively, through Exempt Resolution 4371 of 2020 and 4281 of 2020, issued by the Regional Intendencia of Tarapacá.

Due to the above, the Claimants filed an amparo action since they considered this expulsion decision arbitrary and violated the principle of family reunification.

Type of measure challenged
National government measure
Measures, actions, remedies claimed
The Claimants requested that they may not be expelled from the country
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

Firstly, the Court indicated that in this case, the pandemic should be considered, regarding how COVID-19 was a disease that threatened the life and health of the entire world population. Additionally, the Court pointed out that the irregular political persecution, economic hardship, and health shortages suffered by migrants entering the country should be considered. Therefore, the Court said that to decree the expulsion of a foreigner from the national territory under these circumstances implied an affectation of his physical and psychological integrity and safety.

The Court concluded that, for the reasons above, it was factually and legally irrelevant whether the entry into the national territory had been made with or without permission, considering that the departure from the country of origin of the migrants was made urgently and precariously.

The Court emphasized that in this case, the clandestine entry into the country was done to safeguard the Claimants' families. In this regard, it indicated that they, the Claimants, had family members in the national territory. Therefore, to decree their expulsion from the country would cause a family separation. Consequently, this would be a measure that would violate the principle of family reunification and the Political Constitution, which establishes that the family is the fundamental nucleus of society, which implies the duty of the State to protect it.

Additionally, the Court indicated that the decision to expel a foreign citizen was a decision that should be preceded by an administrative litigation process that respected the due process. In this case, the Court considered the procedure insufficient because none of the Claimants were heard during it, nor were 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 was an arbitrary measure, because it disregarded the personal and family circumstances of the migrants. The Court said the Claimants' freedom of movement had been violated by the resolutions ordering their expulsion from Chilean territory.

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 entry without authorization into the country, the pandemic and the conditions in their countries of origin, the violation that this would imply for their family nucleus and the insufficient administrative process that preceded the challenged resolutions.

Fundamental Right(s) involved
  • Freedom of movement of people, goods and capital
  • Right to asylum
  • Right to private and family life
  • 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
  • Refugees' rights, Cartagena Declaration, San José Declaration, 1951 Convention, 1967 Protocol and Mexico Declaration
  • Right to family, Art. 1, 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
  • Family reunion principle
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' particular circumstances. In addition, the Court pointed out a flawed administrative process, which made the decision illegal as it was neither reasonable nor proportional and violated the Claimants' freedom of movement.

The Court said that the measure of the expulsion of the Claimants from Chilean territory was contrary to the principle of family reunification and the Political Constitution, which establishes that the family is the fundamental nucleus of society because it would imply the separation of the Claimants from their family.

Other notes

On "type of measure challenged": the Claimants challenged the decision of the administrative authority to expel them from the country (Exempt Resolution 4371 of 2020 and 4281 of 2020) and the government's failure to consider humanitarian reasons for not ordering their expulsion from the country in cases in which the persons irregularly entered the national territory.

The Claimants requested that they not be expelled from the country, considering that this was an arbitrary and disproportionate measure, especially in the context of the pandemic, especially when it would result in the separation of their families.

Author of the case note
Laura González Rozo, Researcher, Externado University of Colombia