Chile: Whether a permanent resident automatically loses their resident status if they are absent from the country for a period of over one year; recourse available to challenge the vacation of permanent resident status (2015-August 2018)
1. Loss of Permanent Resident Status
Article 84 of Chile’s Decree No. 597 of 1984, which establishes the regulations on aliens, provides the following:
Article 84. - Permanent residence [permanencia definitiva] shall be tacitly revoked when its holder has continuously remained outside the country for over one year.
Foreign Service officials may extend the validity of the permanent residence of aliens who, due to education or illness or another justifiable reason, are unable to return to Chile within the year, and must append the relevant proof to the permanent residence certificate. The extension request must be made within 60 days prior to the expiration of permanent residence.
A maximum of 4 extensions to the permanent residence permit may be granted successively, with each extension being valid for one year calculated from the initial expiration date of the permit.
Once an extension has expired and if another extension has not been granted, permanent residence shall be tacitly revoked if the alien continues to remain outside the country.
In all cases, if the alien has the validity of their permanent residence extended, the permanent residence permit shall remain fully valid under such an extension for a full year from the date they left the country.
Revocation referred to in the first paragraph shall not apply to alien spouses of Chilean Foreign Service officials. (Chile 1984)
In a telephone interview with the Research Directorate, a lawyer based in Santiago noted that the reasons justifying absences from Chile are reasons that are “beneficial to Chile,” such as education (Lawyer 16 Aug. 2018). According to sources, other reasons, besides illness and education, are left to the discretion of the consulate (Lawyer 16 Aug. 2018) or the competent ministry in Chile (Lawyer and professor 17 Aug. 2018). Similarly, in a telephone interview with the Research Directorate, a lawyer and professor at the Legal Clinic for Migrants and Refugees (Clínica jurídica de migrantes y refugiados) in Santiago stated that the law was [translation] “vague” in terms of the justifiable reasons for being absent from Chile for over one year (Lawyer and professor 17 Aug. 2018).
2. Recourse Available to Challenge Vacation
Sources indicate that there is no formal or specific process in terms of legal recourse for challenging the loss of permanent residence (Lawyer and professor 17 Aug. 2018; Lawyer 16 Aug. 2018). The same sources state that the vacation of permanent resident status following a continued absence from Chile of over one year is a “tacit sanction” (Lawyer 16 Aug. 2018) or a “tacit process” (Lawyer and professor 21 Aug. 2018). In correspondence with the Research Directorate, the lawyer and professor explained that this makes it difficult to challenge the vacation of the status: according to the general procedures set out in Law 19,880 [of 22 May 2003, on the administrative procedures governing the acts of state administrative bodies (Chile 2003)], the government or the court generally requires a document in order for an appeal to be filed, and as the loss of permanent residence is tacit, there is no document that an individual can provide (Lawyer and professor 21 Aug. 2018).
The information in the following paragraph was provided by the lawyer based in Santiago in a telephone interview with the Research Directorate:
Generally, any decision rendered in response to an administrative act is subject to a legal “reconsideration”; “it all depends on what the interested individual says, and the documents presented.” When an individual enters Chile, an investigative police officer (policía de investigaciones), who is not specialized in immigration, examines the passport and notes that the individual has been outside of Chile for over one year; the officer will allow them entry into Chile on a tourist visa or will deny them entry if they are from a country whose nationals require an entry visa for Chile. If the individual is denied entry, they cannot avail themselves of a “reconsideration.” The individual may still contact a lawyer to have them file a habeas corpus with Chile’s supreme court, but this is “impracticable” (Lawyer 16 Aug. 2018). Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.
This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim for refugee protection. Please find below the list of sources consulted in researching this Information Request.
Lawyer. 16 August 2018. Telephone interview with the Research Directorate.
Lawyer and professor. 21 August 2018. Correspondence with the Research Directorate.
Lawyer and professor. 17 August 2018. Telephone interview with the Research Directorate.
Chile. 2003. Ley 19880. Establece bases de los procedimientos administrativos que rigen los actos de los organos de la administracion del estado. [Accessed 23 Aug. 2018]
Chile. 1984 (amended 2015). Decreto 597. Aprueba nuevo reglamento de extranjeria. [Accessed 20 Aug. 2018]
Additional Sources Consulted
Oral sources: 4 legal professionals specialized in immigration law; 5 immigration law firms with offices in Chile; Chile – consulates in Montreal and Toronto.
Internet sites, including: Chile – Biblioteca del Congreso Nacional, consulates in Montreal and Toronto, embassies in Ottawa and Port-au-Prince, Ministerio del Interior y Seguridad Pública; ecoi.net; European Union – European Asylum Support Office; UN – Refworld.