How to Navigate the New (June 2024), Tougher Immigration Rules for Residency
About the Author
Herman Duarte, founder of Simple Legal Consulting, is an immigrant from El Salvador who, after living in Costa Rica for 13 years, is now a proud Costa Rican. He holds master's degrees from Stockholm University and the London School of Economics and Political Science. Passionate about writing and research, Herman is widely recognized as one of the top lawyers in the region and a leading expert in investment and immigration law in Costa Rica. Drawing from his personal experience as an immigrant, Herman uniquely understands the challenges of navigating the immigration system and is dedicated to helping others successfully transition to life in Costa Rica.
The "RESOLUTION Nº D. JUR-220-05-2024-JM-ABM," issued by the Dirección General de Migración y Extranjería (DGME) and published in La Gaceta this past 12th of June 2024, introduces several provisions that eliminate the possibility of preventive measures and appeals in immigration and foreign residency procedures. These measures undermine fundamental principles of due process and defense, enshrined in the Political Constitution of Costa Rica and international human rights treaties. This article outlines the main arguments supporting this assertion and examines the resolution's retroactivity and its implications for established legal situations.
Elimination of Preventive Measures and Appeals
The resolution identifies at least 16 situations where the right to defense and due process, as established in Articles 39 and 41 of the Constitution, are violated. Preventive measures in administrative procedures are a crucial aspect of due process and procedural economy, allowing individuals to correct errors or provide additional documentation needed to complete an application. This practice ensures that individuals have a fair opportunity to meet requirements and defend their rights, promoting transparency and efficiency in procedures.
However, the resolution eliminates the possibility of preventive measures and appeals at various points, opening the door to potential arbitrariness. For instance, issues with document signatures, the lack of apostille on documents, passport legibility problems, and translation errors will result in outright rejection without recourse. This removal of correction and appeal mechanisms means applicants cannot rectify minor errors or adequately defend themselves against adverse decisions. Which translates in more attention to detail in the initial application stage, as there will be no room for mistakes.
Numeral Cuarto.B (Page 7): States that any issue with document signatures will result in outright rejection with no recourse. This prevents applicants from correcting minor signature errors, exposing them to arbitrary decisions.
Numeral Cuarto.C (Page 8): Specifies that any issue with power of attorney signatures will result in outright rejection with no recourse. This allows an official to reject an application based on a subjective assessment of the signature's authenticity.
Numeral Cuarto.D (Page 9): The lack of an apostille on documents will result in outright rejection with no recourse. This provision imposes an excessive burden on applicants, not allowing them to correct the lack of an apostille.
Numeral Cuarto.F (Page 10): Any issue with birth certificates will result in outright rejection with no recourse. This affects applicants who may have minor errors in their birth certificates.
Numeral Cuarto.G (Page 10): Issues with passport legibility will result in outright rejection with no recourse. This provision allows rejections based on subjective assessments of document legibility.
Numeral Cuarto.H (Page 12): Issues with document translations will result in outright rejection with no recourse. Applicants cannot correct translation errors, which can be an unfair burden.
Numeral Cuarto.K (Page 13): Issues with the legitimization of minors will result in outright rejection with no recourse. This particularly affects minors who need to regularize their immigration status.
Numeral Cuarto.L.2 (Page 14): The lack of employer information for internal verifications will result in outright rejection with no recourse. This penalizes applicants for minor errors in presenting employment information.
Numeral Cuarto.L.7 (Page 18): The lack of stamps on physical procedures will result in outright rejection with no recourse. Applicants cannot correct the lack of stamps, which is an excessive measure.
Numeral Quinto.A.2 (Pages 19-21): The failure to attach fine payments will result in outright rejection with no recourse. This imposes a significant burden on applicants, with no opportunity for correction.
Numeral Quinto.A.2 (Pages 19-21): The obligation to submit complete applications in form and substance, with rejection for inadmissibility, irrelevance, or impropriety, with no recourse, severely affects due process and allows for arbitrary rejections.
Numeral Quinto.B.2.1.2 (Page 23): Only omissions will be prevented, not errors, resulting in outright rejection with no recourse. This unjustly limits applicants' opportunities to correct errors.
Numeral Quinto.C.4 (Page 27): Errors in applying for the immigration category will result in outright rejection with no recourse. This prevents the correction of errors in selecting immigration categories.
Numeral Quinto.C.10 (Page 31): The lack of documents, lack of correspondence, and formalities such as apostille and translation will result in outright rejection with no recourse. Applicants have no opportunity to correct these errors.
Numeral Quinto.D.1 (Page 35): The failure to deliver enrollment documents will result in outright rejection with no recourse. This particularly affects students who may have difficulties obtaining the required documents.
Numeral Quinto.D.2 (Page 35): The failure to attend the spouse interview appointment will result in outright rejection with no recourse. This penalizes applicants for situations that may be beyond their control.
Subjective Rejection Criteria
By eliminating the possibility of correcting errors and the obligation to provide appeals, the resolution grants officials broad discretionary power to reject applications based on subjective assessments. This excessive discretion can lead to unequal and unjust decisions, undermining the fairness of the administrative process and eroding confidence in the impartiality and transparency of the immigration and foreign residency system. The inability to appeal decisions considered unjust or erroneous leaves applicants defenseless, contravening the principle of due process. Although no guarantees can be made as each case has its own implications and particularities, Simple Legal Consulting can help overcome this challenge through our rigorous protocols and strict mechanisms, ensuring that every application is meticulously prepared and reviewed to minimize errors and maximize compliance with the new guidelines.
Violation of Due Process
Due process, enshrined in the Political Constitution of Costa Rica and international human rights treaties, guarantees that every person has the opportunity to be heard, present evidence, and appeal decisions that may affect their rights. The elimination of ordinary remedies and the possibility of preventive measures directly violates these principles, denying applicants the chance to correct errors and appeal unjust decisions. This affects the fairness of the administrative process and can lead to disproportionate and arbitrary outcomes.
Increased Economic Burden
The lack of preventive measures and the need to resubmit complete applications significantly increase the economic burden on applicants. They must incur additional costs to obtain, translate, and authenticate documents again, as well as pay government fees anew. This can be particularly burdensome for individuals with limited resources, creating a disproportionate barrier to accessing immigration procedures.
Principle of Reasonableness and Proportionality
The provisions of the resolution must align with the principles of reasonableness and proportionality that guide public administration. Imposing automatic rejections without the possibility of correction or appeal is disproportionate compared to the objective of ensuring compliance with formal requirements. Less restrictive measures, such as allowing the correction of errors, would achieve the administrative objective without infringing on fundamental rights, promoting a fairer and more equitable process.
Retroactivity of the Resolution Detrimental to Established Legal Situations
The resolution's tenth clause states that legal residency applications from foreigners, which have been duly prevented but do not meet all legal or regulatory requirements, will be automatically rejected as inadmissible, with no recourse. This clause means that all previous applications that failed to meet requirements will be automatically rejected, regardless of the circumstances under which the preventions were issued.
The principle of non-retroactivity, enshrined in Article 34 of the Political Constitution of Costa Rica, guarantees that no law will have retroactive effects to the detriment of any person. Applying the resolution retroactively to automatically reject previously prevented applications is a direct violation of this principle, undermining legal certainty and the legitimate trust of citizens in the stability of legal norms and administrative decisions.
Moreover, the retroactive application of this clause without allowing for correction or appeal results in a disproportionate and arbitrary measure. Applicants do not have the opportunity to defend their rights or correct errors that may have been made under a different normative framework, contravening the principles of due process and administrative justice.
Conclusion
The provisions of "RESOLUTION Nº D. JUR-220-05-2024-JM-ABM," issued by the Dirección General de Migración y Extranjería, which eliminate the possibility of preventive measures and appeals, expose applicants to arbitrary and disproportionate decisions, violating fundamental principles of due process and defense. To ensure a fair and equitable process, it is essential to reintroduce mechanisms that allow applicants to correct errors and appeal administrative decisions, thereby strengthening the protection of their rights and promoting a more efficient and transparent administration.
The clause of automatic rejection of resolutions previously prevented by the current resolution is contrary to the principle of non-retroactivity enshrined in the Political Constitution of Costa Rica. The retroactive application of this provision harms applicants by not respecting their acquired rights and legitimate trust in previous norms, in addition to violating principles of due process and administrative justice. Therefore, it is crucial to review and amend this clause to align it with constitutional principles and ensure fair and equitable treatment for all applicants.
Given these changes, it will now be more challenging to obtain residency, requiring more thorough analysis and preparation before submitting applications. This new reality necessitates greater diligence to ensure compliance with all requirements and avoid automatic rejections. No matter how big is the challenge, Simple Legal Consulting can help overcome this challenge through our rigorous protocols and strict mechanisms, ensuring that every application is meticulously prepared and reviewed to minimize errors and maximize compliance with the new guidelines. We are here for you, contact us today.