While attempting to enter Chile irregularly during the pandemic, a man was arrested and subsequently arrested by the border administration. Earlier in 2022, the Iquique Court of Appeal annulled the decision by its judgment was subsequently challenged by the administration.
Following the appeal, by decision Rol no. 121.940-2022 of 13 October 2022, the Supreme Court of Justice confirmed the decision issued by the Court of Iquique. The Court first considered that the decision to expel a foreign citizen from the country must be the result of rigorous administrative proceedings, governed by the principles of due process, the adversarial principle, transparency, and impartiality, as enshrined in article 4 of Law no. 19.880. In the case at hand, the Court first found that such principles were not observed, and that the individual was expelled following administrative proceedings which lacked sufficient guarantees. In particular, the Court found that the individual was not offered the opportunity to file his submissions and that he was not heard from the authority before the expulsion was issued.
In addition, the Court found that – while issuing the expulsion – the administration had not adequately considered the occurrence of the COVID-19 pandemic. In this regard, the Court noted that, in addition to the political, economic and health distress that immigrants face in their respective countries of origin, at the time of the expulsion the pandemic had not been averted yet, thus posing an additional risk to the health of the immigrant. Unsurprisingly, several countries had already issued special temporary visas to immigrants during the pandemic in order to preserve the physical, mental, and personal security of individuals. According to the Court, such conclusion is coherent with the substantive provisions of the 1984 Cartagena Declaration, according to which all such persons who have fled their country due to actual threat to their life, security and freedom should be considered refugees, regardless of whether they have been formally granted such status or not in the receiving state.