Legal considerations in times of pandemics.
Traveling abroad versus losing your immigration status, is it legal?
The measures declared by the Government of Costa Rica today brought to my mind some memories about my Law school days as of what are the limits the Public Administration should have when it comes to restricting fundamental rights.
If there is something history has taught us, is that Governments can take abusive steps in order to maintain the law and order in times of crisis. Nevertheless, in a State of Law, Governments must avoid such measures at any cost as there is a thin line between keeping order and affecting rights of the people.
For starters, human rights are inherent to all human beings regardless of their cultural background. Governments go beyond this concept and create regulations to guarantee what is known as “Fundamental Rights” (those guaranteed by the Constitution of each country). Despite of this, fundamental or constitutional rights can be restricted under certain conditions, as long as those circumstances stick to the principles of law.
But, is the legal immigration status of a person a fundamental right? The answer is no. Legal statuses of foreigners can be seen as “licenses” that a Government provides to foreigners to live and stay for long periods of time within a territory.
So, what does this have to do with the latest measures announced by the Costa Rican Government?
We will try to keep it simple while connecting the dots of the puzzle.
Is it legal for them to do this?
We don’t think so, and there is a reason why: laws are supported by principles. When lawmakers create a law, they part from principles they will look to protect or restrict.
Some of these principles you might have heard of are good faith, principle of innocence in criminal law, equality against the law, due process of law, the rule of law, accuracy, legal certainty, and many, many others.
What does this have to do with losing a status?
Constitutional or fundamental rights can also be broken when a principle is disregarded or ignored.
Principles of equality before the law, reasonability, and proportionality do not seem to have been considered in this measure. Foreigners who have already obtained a valid status and people who have lived in Costa Rica for years could be seriously harmed by these methods.
But, there is a State of Emergency declared. How does it affect the scenario?
They say that desperate times call for desperate measures. Still, restrictions and extreme measures could be valid as long as rights are honored.
The Constitution of Costa Rica prevents circumstances like this and establishes the correct procedure to follow in such delicate scenarios in a way to ensure the principles of law are not overlooked, principles that have been developed by the Supreme Court in Costa Rica among plenty of rulings for decades.
So, can this be reverted?
The moment you acquire a legal immigration status, you have acquired a right. There is an “invisible” legal condition that has been consolidated by the Government, so from that moment on, the Administration also acquires obligations toward you as you have been already recognized as a citizen.
Restraining a right, can only be done by balancing the measure with the situation, it should be reasonable, it should be equal, it should be proportional, and provided with the certainty that only a law can deliver.
To understand this, you could ask yourself the following questions:
- Can this affect foreign residents in other areas such as family, businesses, work?
- What if I am required to travel for work purposes, or due to an emergency?
- Do you find it reasonable to rip off an acquired right for leaving the country?
- Wouldn’t it be more reasonable to set up a fine or restriction to enter back?
- Is any possible affected individual being treated equally compared to other people?
- Is the government discriminating foreigners from nationals? If not, why can nationals exit and enter without being, at least, fined?
Unless all the answers for those questions have a positive outcome in favor to foreign residents, the principles are not being followed.
What about the Constitutional rights?
There is a second, and maybe more important issue with the proposed procedures, as it could be the breaking point that brings down the government plan: the order is unconstitutional.
Article 129 of the Immigration Act in Costa Rica defines the possible circumstances that could lead to the cancelation of residency. Any other cause outside this closed list, cannot be called to proceed with such an excessive decision.
But the issue only starts here.
Section 121, the Costa Rican Constitution provides the Legislative Branch the exclusive authority to create law. The rule goes beyond in its clause 7, as it establishes that restrictions to certain rights (including freedom of transit) can only be restrained by lawmakers, not by the president.
This last thesis must be considered in conjunction with article 19 of the Constitution that establishes all foreign nationals have the same individual and social rights that a national has (with certain exceptions we are not addressing here) and article 33, which states any person is equal before the law.
None of these Constitutional precepts seem to have being considered. Instead, it looks like a clumsy fast track to contain the number of transmissions by affected people due to the COVID-19.
In a nutshell.
The announcement to remove legal status from foreign nationals is not reasonable nor proportional as is directly affecting acquired rights of people. It also creates an environment of legal uncertainty to a legal system that has been known internationally to be among the strongest and more trustful within Latin America.
Leaving aside the technical considerations of the un-constitutionality, this ambiguity should not be tolerated in a State of Law, not only because it goes against law principles, the law itself by violating the rule of law, but also because it is causing a severe damage to a consolidated legal situation as it is an acquired right.
Even though we strongly encourage you to stay home and not travel, we are commited to take all measures required to ensure the correct application of the law from our front. We will not rest until the rights of our clients are being recognized without any harm or compromise.