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Fighting the good fight, the conclussion

A few days back we wrote about our experience with a Resident who arrived in a repatriation flight from Houston and was not allowed to enter the country since Immigration claimed that he had an

Fighting the good fight, the conclussion

A few days back we wrote about our experience with a Resident who arrived in a repatriation flight from Houston and was not allowed to enter the country since Immigration claimed that he had an active entry ban.

This was before the August 15th Decree was issued, stating that Residents are now free to enter the country if they comply with the entry rules established here.

At that time, at the beginning of August, all we had was a poorly written Decree full of contradictions that stated that Residents who had exited the country after March 25th, 2020 and needed to return to Costa Rica could proceed, as long as they arrived via air. However, a few paragraphs later the same Decree stated something else. It was, for lack of a better word, a complete and utter mess.

When this Resident came in and was denied entry, we immediately filed an habeas corpus to protect his rights, based on the fact that the Decree stated that Residents returning after March 25th, 2020 were free to enter. We argued that Immigration could not apply an ambiguous rule in a harmful way.

On August 19th, 2020 we were notified that we won the habeas corpus. The Constitutional Authority sided with us. After reviewing the facts and receiving notification from Immigration, they concluded that holding this Resident from 11:30AM until 22:27PM, time when he was allowed to exit the airport, was a disproportionate and illegitimate detention not supported by law nor reason.

The Constitutional Authority stated that what occurred was an arbitrary detention that affected this Resident’s fundamental rights.

But perhaps what we enjoyed even more than the result, were the comments added by Justice Hernández López. Justice Hernández states that she believes it is detrimental to the fundamental rights of Residents (she specifically mentions Permanent Residents, as this case was about a Permanent Resident) to be prevented or restricted from entering the country. She states that during the pandemic, matters of immigration law “must be exercised without violating the fundamental rights that the Political Constitution grants to foreign nationals, those who, in principle, have the same rights and obligations than Costa Rican nationals per article 19 of our Constitution, with the exceptions that the Constitution and the Law may establish.”

Justice Hernández states that whist the Constitutional Authority does not design the sanitary measures the country may take to deal with the COVID19 crisis, it is its duty to analyse the proportionality of these measures to ensure that people’s fundamental rights are guarded.

She makes an excellent point: Residents, just as nationals, have established their lives in Costa Rica. Many have homes, jobs, businesses, and families to tend to. Unlike people who are temporarily in Costa Rica for matters such as tourism, for whom she believes measures should apply, Permanent Residents as she puts it (we believe this extends to all Residents), should have the freedom of departing and entering just like a Costa Rican national does.

She concludes by saying:

“In this specific case, the Resident has seen his fundamental rights affected, precisely because these should never have been suspended, since the emergency that is experienced as a result of the pandemic, has not repealed, nor could it repeal the current Political Constitution […].”

Luckily, the new Decree issued on August 15th, 2020 no longer treats Residents in a disproportionate matter. Residents may now depart and re-enter if they comply with the entry requirements, such as a valid DIMEX and an up to date CAJA. It is, therefore, impossible for us to separate what occurred on August 6th, 2020 with this Resident and the Decree issued on August 15th, 2020.

We can only conclude that the habeas corpus that were filed, the arguments that were presented, the evident damage Immigration’s horrible measures was causing, resulted in the August 15th Decree. A Decree that whilst not perfect, does protect the rights of Residents. Perhaps our arguments were finally heard, perhaps the words of Justice Hernández resonated within the walls of an Immigration Department that, when responding to the habeas corpus, simply stated that no harm had been done since the Resident was finally allowed to enter. As if spending almost 12 hours at the airport, in absolute despair had been fun.

The result of this habeas corpus is something we cherish. It gives us a boost of energy to continue fighting the good fight.

This is a copy of the Resolution.

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ibrenes@outlierlegal.com

Attorney with more than 10 years of experience in customer service, team management and team building at an international level. Has worked immigration cases in various countries, including Costa Rica, Colombia and Panama.

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