Responses to Information Requests

Research Directorate, Immigration and Refugee Board of Canada

1. Overview

Amnesty International reports that in April 2021, a new migration law came into force "that severely restricts the ability of migrants and individuals seeking protection to regulate their status once in Chile" (Amnesty International 29 Mar. 2022, 124).

In correspondence with the Research Directorate, representatives of the Research Division of the Jesuit Migrant Service (Servicio Jesuita a Migrantes – SJM), a Chilean Jesuit organization that promotes the dignity and rights of migrants and refugees in Chile (SJM n.d.), speaking on their own behalf, indicated that on 12 February 2022, a new immigration law came into effect, "which has generated a set of residence permits" and "a new institutional framework" (Research Division 15 July 2022). An article by the Chile office of Ernst & Young (EY), a global company that specializes in assurance, consultation, strategy and transactions, and tax services (EY n.d.), similarly indicates that on 12 February 2022 a new immigration law, Law No. 21,325, was approved and came into effect (EY Chile 15 Feb. 2022). The same source notes that valid residence and work permits that were issued before the new law came into effect "are assimilated into the benefits" it establishes and "ongoing immigration processes" and benefits granted before the law came into force "will not be affected" (EY Chile 15 Feb. 2022). The SJM Research Division noted that migration in Chile is managed by the National Immigration Service (Servicio Nacional de Migraciones) which is under the Ministry of the Interior and Public Security (Ministerio del Interior y Seguridad Pública) (Research Division 15 July 2022). The EY Chile article indicates that the National Immigration Service was created by the new law and is "the only" public service with the authority to "deny the entrance, stay and departure of foreigners, as well as grant, extend, reject, or revoke immigration benefits" (EY Chile 15 Feb. 2022).

Sources indicate that since the new law came into effect, foreign nationals entering Chile as tourists can no longer apply for residence status in Chile, which they had been previously able to do (IUS Laboris 31 May 2022; Fragomen 14 Feb. 2022). However, an article on the new law by Fragomen, an immigration-focused international law firm (Fragomen n.d.), also notes that there are exceptions to this restriction (Fragomen 14 Feb. 2022). According to Fragomen, these exceptions apply for foreign nationals with family ties to a Chilean citizen or permanent resident and "other specific exceptions under the national immigration policy or approved by the Ministry of Interior" (Fragomen 14 Feb. 2022). Fragomen also notes that visa and residence applications submitted prior to 12 February 2022 are not impacted by this change (Fragomen 14 Feb. 2022).

The Fragomen article also indicates that the new law introduces "[s]tricter eligibility criteria for permanent residence," including a reduction in the number of days that visa or temporary permit holders can remain outside of Chile in the previous year of residence, from 180 days to 60 days (Fragomen 14 Feb. 2022).

2. Requirements and Procedures for Foreign Nationals to Obtain and Maintain Permanent Residence

Decree No. 296 Approving the Regulations Pursuant to New Law No. 21,325 on Immigration and Foreigners' Affairs (Decreto N° 296 que aprueba el Reglamento de la Nueva Ley de Migración y Extranjería N° 21.325) provides the following on requirements to obtain permanent residence:

[translation]

Article 62.- Individuals with temporary residency may only apply for permanent residency if the immigration subcategory under which they fall so allows, which circumstance shall be defined in accordance with the terms of Article 70 of Law No. 21,325. In such cases, they may apply for and obtain the permanent residency permit even while their temporary residency permit is still valid, provided that they have completed the period for eligibility as defined for their respective subcategory.

However, the application for a change of category must be made prior to the deadline for applying for an extension to the residency permit; i.e., no more than ninety and no less than ten days prior to expiration of the current residency permit.

Article 63.- A foreigner who, having complied with the requirements indicated in the previous article, has applied for a permanent residency permit and proves that he/she has a permanent residency certificate currently in process, shall not be limited with respect to the number of entries into and exits from the national territory, even if the temporary residency permit that he/she held is no longer valid.

Article 64.- Holders of a permanent residency permit will not require prior authorization or a visa to enter the country.

Article 65.- Without prejudice to the requirements set out in the supreme decree that establishes the immigration subcategories for temporary residency, to apply for permanent residency, holders of temporary residency permits must have resided in the country with such status for at least twenty-four months. Applications for permanent residency will require a longer period of residency than that referred to in the preceding paragraph, based on the personal background of the interested party, in the following cases:

1. Insufficient financial means for supporting the party concerned and his/her family group, according to the indicators estimated by the Ministry of Social Development and Family, which is understood to refer to the status of households whose income is below the minimum set income for meeting the basic needs of its members. The Service must take the necessary coordinated actions to obtain updated information on this subject in a timely manner, which information will be disclosed through the Service's communication channels. If, at the time of the application, the income of the party concerned does not exceed the aforementioned minimum standard that is required to apply, residency of at least thirty-six months in the country must be demonstrated.
2. Stable employment of the applicant during his/her period of residency, which is understood to mean the performance of any lawful economic activity as a dependent or self-employed worker that allows income to be demonstrated for at least half of the months of temporary residency in the country. The party concerned must demonstrate, through background information determined by the Service by means of a resolution, the existence of such income during at least the aforementioned period. However, the documents to be requested must always include, as a minimum:
   
   1. In the case of dependent workers: payslips and historical record of mandatory social security contributions, the latter issued by the corresponding Pension Fund Administrator, and current employment contract.
   2. In the case of self-employed workers, pensioners, retirees, among others, when applicable:
      
      • Tax file of the taxpayer issued by the Internal Revenue Service.
      • Contributions letter issued by the pertinent Pension Fund Administrator in the case of a self-employed worker who contributes to that social security system.
      • Proof of payment of retirement, disability or other pensions. Where the applicant provides documentation to the effect that he/she has had stable employment for more than twelve months in a temporary residency period of twenty-four months, whether continuous or discontinuous, the latter period will be the term required for the application for permanent residency. Where there are intervals totaling more than twelve months in which no income has been received, whether continuous or discontinuous, an application may only be submitted once thirty-six months of residency have been completed. In case of conflict in the application of numbers 1) and 2) above, the requirements of 2) will be applied.
3. Absences from the country and their duration, according to the following table.
   
   

   Range of months of absence	Number of months of residency
   Two months of absence or less, continuous or discontinuous	At least 24 months of residency
   Over two months up to six months of absence, continuous or discontinuous	At least thirty months of residency
   Over six months up to twelve months of absence, continuous or discontinuous	At least thirty-six months of residency
   Over twelve months of absence, continuous or discontinuous	Forty-eight months of residency

   
   
4. Commission of immigration violations from amongst those indicated in Title VII of Law No. 21,325, and their seriousness. Regarding this criterion, the set period of residency will be required in accordance with the following ranges:
   
   1. In the case of a violation applied by means of a final and fully processed administrative act from amongst those included in Paragraph I of the aforementioned Title VII, referring to less serious violations, a residency period of at least thirty months shall be required.
   2. In the event of a repeated violation of the sort indicated in the preceding paragraph or, in general, the commission of two or more less serious violations, a residency period of at least thirty-six months shall be required.
   3. In the case of any violation applied by means of a final and fully processed administrative act from amongst those included in Paragraph II of the aforementioned Title VII, referring to serious immigration violations, a residency period of forty-two months shall be required.
   4. In the event of a repeat violation as indicated in the preceding paragraph or, in general, the commission of two or more serious immigration violations, a residency period of at least forty-eight months shall be required.
   5. When an equal number of less serious and serious violations are verified, the residency period shall be determined in accordance with the latter.
5. Commission of labour, social security, environmental, health, tax, customs or other violations of the Chilean legal system, and their seriousness. When the existence of any of the aforementioned violations, whether administrative or jurisdictional, is formally established, and provided that they are final and enforceable, the Service shall, upon request of the party concerned to whom these circumstances apply, issue a well-founded ruling on the residency period that the party concerned must demonstrate in order to apply for permanent residency, which shall in no case be less than thirty-six months. (Chile 2021, bold in original)

The information in the remainder of this section was provided by the SJM Research Division:

To obtain a permanent residence permit, an application must be sent "within the last 90 days of validity of the authorized temporary residence visa." Tourist visas do not permit a change of "migratory categories," "a situation that was previously possible," and as a result tourist visas are "not affected by the procedure to obtain permanent residence."

Any foreigner who has proof of any of the following relationships with a Chilean citizen or a foreign holder of a definitive residence permit may access a temporary residence permit for family reunification:

• Spouse "or other analogous figure that, in accordance with the applicable law, produces effects equivalent to marriage"
• Father or mother
• Child under the age of 18
• Child with a disability
• Unmarried son under the age of 24 who is a student
• Minor "who is under your personal care or guardianship."

Holders of a temporary residence permit for family reunification may carry out paid legal work "without prejudice to the limitations established by the Labor Code regarding the employment of minors." A foreigner wishing to request an extension of this type of residence permit "must prove that they maintain a current relationship with the person of Chilean nationality or holder of current residence."

Foreigners may alter the subcategory of temporary residence, if they meet the requirements relating to the subcategory for which they apply as well as established deadlines.

While the process of applying for residence permits is governed by Law No. 19,880, which establishes principles, rights, and administrative procedures, officials have "wide margins of discretion" and mechanisms for appealing a sanction or barrier to entry are managed within the same institution, resulting in "a series of practices that arbitrarily hinder access to residence permits, which has generated a process of irregularity through the abuse of powers" permitted by the law. For example, a report by Chile's Comptroller General found that border officials "were illegally demanding additional documentation in order to hinder access to … residence permits" (Research Division 15 July 2022). Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

2.1 Requirements and Procedures for Haitian Nationals to Obtain and Maintain Permanent Residence

Information on requirements and procedures specific to Haitian nationals to obtain and maintain permanent residence in Chile could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

3. Circumstances Leading to the Loss of Permanent Residence

Information on circumstances leading to loss of permanent residence was scarce among the sources consulted by the Research Directorate within the time constraints of this Response.

Decree No. 296 provides the following on revocation of permanent residence:

[translation]

Article 69.- Permanent residency shall be tacitly revoked when the holder is absent from the country for a continuous period of more than two years, unless the party concerned requests an extension to that period from the respective Chilean consulate within the sixty days prior to expiry of that period. Such an extension shall be granted once only and shall be valid for two years. The Consulate shall inform the Service, through the Ministry of Foreign Affairs, within a maximum of thirty working days, of the fact that this extension has been requested, in order that such action might be recorded in the National Foreigners' Register. Foreign spouses of members of the Chilean diplomatic or consular service who have permanent residency, as well as their minor children, shall not be subject to the tacit revocation referred to in the preceding paragraph for the duration of the respective mission. If the mission has ended, the marital relationship has been dissolved, or the age of majority has been reached, as applicable, the general rule shall apply. However, notwithstanding the tacit nature of this revocation, the result of which is that the mere passage of the period indicated in the preceding paragraph is sufficient to deem the permanent residency permit terminated by the sole authority of the law, the Service must, as promptly as possible, issue a resolution confirming such revocation, which must be included in the National Foreigners' Register, without prejudice to the appropriate referral to the Ministry of Foreign Affairs and the Investigative Police of Chile. (Chile 2021, bold in original)

The same source provides the following on expulsion of foreigners who hold a residence permit:

[translation]

Article 136.- Expulsions of foreigners holding a residency permit may only take place when any of the following grounds are verified:

1. Entry into the country when any of the prohibitions against entry is in effect with respect to them:
   
   1. They have been convicted [of or] are on trial, charged, accused or judicially prosecuted abroad for belonging to or financing terrorist movements or groups, or are registered with the International Criminal Police Organization (INTERPOL) or such organization as replaces or succeeds it, for any of the aforementioned acts. This also applies to persons who execute or have executed acts that Chilean laws classify as offences against foreign security, national sovereignty or domestic security.
   2. They do not comply with the entry requirements established in Law No. 21,325 and these regulations, and in the respective decrees establishing the immigration categories.
      On an exceptional basis, the authority may validly refrain from initiating expulsion proceedings in cases in which the circumstances governed by paragraph two of Title Two of these regulations are in effect.
2. Any of the situations contained in paragraphs a) and b) of number 1) above apply to them during their residency in the country; or in the case of foreigners who have been convicted in Chile or abroad, or who have judicial proceedings pending abroad reported by the International Criminal Police Organization (INTERPOL) or by the judicial bodies with which Chile has agreements, for the offences of illicit drug or arms trafficking, money laundering, illicit trafficking of migrants, human trafficking as provided in Article 411 quater paragraph two of the Criminal Code; crimes against humanity; genocide; torture; terrorism; homicide; femicide; parricide; infanticide; kidnapping, abduction or kidnapping of minors as provided for in Article 141, paragraph five and last paragraph, of the Criminal Code; robbery with intimidation or violence, robbery with homicide, and robbery with rape; marketing, production, importation, exportation, distribution, dissemination, acquisition, storage or exhibition of pornographic material, whatever its medium, in which minors are used; or those contemplated in paragraphs V and VI of Title Seven and in Articles 395, 396 and 397, number 1, all of Volume II of the Criminal Code.
3. Failure to comply with an order to leave the country, as indicated in Paragraph Six of Title Three of these regulations, within the term established by resolution of the National Director of the Service.
4. Remaining in Chile despite expiration of his/her residency permit without having applied for its renewal within nine months of such expiration. Thus, if nine months have transpired since expiration of the residency permit and the party concerned has not applied for its renewal, expulsion from the national territory may be ordered, unless such omission of the renewal process is a direct consequence of a situation of fortuitous event or force majeure, which must be asserted at the time of filing the arguments referred to in Article 132 of Law No. 21,325, and in the special challenge provided for in Article 142 of the same legal text.

...

Article 140.- The measure of administrative expulsion shall be applied by means of a substantiated ruling by the National Director of the Service, or by the regional directors who have been expressly authorized to do so by the National Director. However, this authorization may only take place under the terms provided for in Article 132 of Law No. 21,325. The foregoing is without prejudice to the provisions of paragraph three of this title.

Article 141.- When initiating the process of expelling a foreign citizen, the Service shall issue an administrative act notifying the party concerned that he/she has ten working days from notification to present his/her arguments regarding the grounds for expulsion invoked.

This notification must be given in person and must contain, in addition to indicating the grounds for the possible expulsion, the factual and legal background supporting it, as appropriate in each case.

This notification procedure shall not be necessary when the procedure contained in Articles 87 or 89 of these regulations has taken place with respect to the person in question.

Regardless of the manner in which the foreigner in question is notified, he/she must be informed at the same time that, if the expulsion measure is applied, he/she may, in accordance with the applicable legislation, appoint a representative to represent him/her in the national territory for defence of his/her labour and social security rights, as well as for the fulfillment of his/her outstanding obligations.

Article 142.- Upon expiration of the term granted to the affected party to present his/her arguments, the National or Regional Director, as applicable, shall proceed to issue the substantiated ruling referred to in Article 140 of these Regulations. The appeals governed by paragraph two of Title Seven of these Regulations may be filed against such administrative act.

Article 143.- If the aforementioned appeals are not filed, or if they have been filed and dismissed, the ruling that provides for the expulsion shall be considered final and enforceable. From that moment on, the party concerned may be subjected to restrictions and deprivation of liberty, with the sole purpose of enforcing the expulsion.

Deprivation of liberty may not exceed a maximum period of forty-eight hours, and may only be carried out in the home of the person concerned or in police premises specially equipped for this purpose, with separation between men and women and with separation from facilities for persons detained for other legal reasons. [Such premises] must comply with health, hygiene and habitability standards that ensure dignified treatment and that guarantee their physical and psychological integrity, such that these premises for temporary deprivation of liberty have adequate and decent conditions.

The supervisory authority may retain any travel document of foreigner for the purpose of enforcing an expulsion order against him/her.

In no case shall these restrictions and deprivation of liberty be applied to children or adolescents. (Chile 2021, bold in original)

The SJM Research Division noted that in the case of the revocation of a residence or permanence permit, "the reasons and grounds on which said decision is based will be communicated to the affected party" through the email address registered with the National Immigration Service or, in cases of technical difficulty with email, through a certified letter sent to the last address on file with the National Immigration Service (Research Division 15 July 2022). The same source noted that the notification "will contain a full copy" of the act with the grounds indicated and the revocation "will be understood" to be effective as of the third day after the email was sent or the third day from the date of the receipt of the letter at the post office (Research Division 15 July 2022). The Research Division further noted that, once notified, the affected individual has a period of ten business days to "submit their defenses regarding the cause" that was invoked for the revocation, after which the National Immigration Service will resolve the case in the manner indicated in article 86 of Law No. 21,325 (Research Division 15 July 2022).

4. Possibility of Extending or Reacquiring Status If Lost or Expired

Information on the possibility of extending or reacquiring status if lost or expired was scarce among the sources consulted by the Research Directorate within the time constraints of this Response.

Decree No. 296 provides the following on the extension of residence permits:

[translation]

Article 70.- Requests to extend a residency permit shall be made to the Service no more than ninety and no fewer than ten days prior to expiration of the current residency permit held by the interested party. The request for extension of the residency permit is subject to the payment of fees, without prejudice to the exceptional authority of the National Director of the Service to order the reduction of such fees, as provided for in Article 48 of these regulations.

Article 71.- Residents whose permits have already expired may also request their extension within the nine months following their expiration, and must in all cases pay the corresponding fines and adhere to the following rules:

1. If the request for extension is made within 180 calendar days after expiration of the residency permit, the interested party shall be fined between 0.25 and 5 Unidades Tributarias Mensuales [Monthly Tax Units] [1].
2. If the request for extension is filed more than 180 calendar days after expiration of the residency permit and before nine months have elapsed, the party concerned shall be fined between 5 and 10 Monthly Tax Units (MTUs).
3. Notwithstanding the provisions of letters a) and b) above, residents who leave the country within thirty calendar days following the expiration date of their respective permits shall not be penalized.
4. The fine referred to in paragraphs a) and b) of this article shall be administratively ordered by the Service when the extension request is accepted for processing. Failure by the party concerned to comply with this financial penalty will prevent the Service from favourably ruling on the request for extension of the residency permit.
5. If nine months have elapsed following expiration of the residency permit and the party concerned has not applied for its renewal, expulsion from the national territory may be ordered, unless the failure to conduct the renewal procedure is a direct consequence of a fortuitous event or force majeure, which must be asserted at the time of filing the arguments provided for in Article 132 of Law No. 21,325.

Article 72.- The Service may order application of the written warning penalty at any time, with respect to the extensions requested in accordance with the preceding article by persons with insufficient financial means for supporting themselves and their family group, as determined in accordance with the provisions of No. 1 of paragraph two of Article 79 of Law No. 21,325. (Chile 2021, bold in original)

In correspondence with the Research Directorate, a representative of the Consulate of Chile in Vancouver indicated that in accordance with the new immigration law, "within sixty days prior to the expiration of two years from the date of the last departure from Chile," an individual can renew the validity of a permanent residence certificate one time through their consulate (Chile 1 July 2022). The same source indicated that to renew the validity of a permanent residence certificate, the following documents must be submitted to the consulate by express post:

• An application form
• A copy of the applicant's passport (identification page and the page with a stamp of their last departure from Chile)
• Copies of the applicant's Chilean identity card
• A copy of the applicant's certificate of "definitive permanence"
• A copy of the previous extension, if applicable
• A brief letter, addressed to the Consulate General of Chile in Vancouver, requesting an extension for reasons related to work, family, health, etc.
• A bank draft to the order of the Consulate General of Chile, for $US75
• An express post envelope from Canada Post with the applicant's name and address on it to send back the renewal certificate (Chile 1 July 2022).

The same source indicated that if the documents arrive after the date of the permanent residence revalidation, the application will not be processed (Chile 1 July 2022).

The SJM Research Division indicated that "[a]ll temporary residence permits can be extended; however, tourism permits do not allow a change of immigration category" (Research Division 15 July 2022). The same source noted that if a residence permit was lost due to a sanction, this can be appealed through the mechanisms provided in Law No. 19,880 and through mechanisms specified in Law No. 21,325 (Research Division 15 July 2022).

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.

Note

[1] A monthly tax unit (Unidad Tributaria Mensual, UTM) [translation] "corresponds to an amount of money expressed in pesos and determined by law, which is permanently updated by the consumer price index (Índice de Precios al Consumidor, IPC) and is used as a tax measure" (Chile n.d.). The UTM for September 2022 was 59.595 [Chilean] pesos (CLP) [C$0.09] (Chile [2022]).

References

Amnesty International. 29 March 2022. "Chile." Amnesty International Report 2021/2022: The State of the World's Human Rights. [Accessed 29 June 2022]

Chile. 1 July 2022. Consulate General of Chile in Vancouver. Correspondence from an official to the Research Directorate.

Chile. [2022]. Servicio de Impuestos Internos (SII). "UTM – UTA – IPC 2022." [Accessed 14 Sept. 2022]

Chile. 2021. Decreto N° 296 que Aprueba Reglamento de la Ley Nº21.325, de Migración y Extranjería. Excerpts translated by the Translation Bureau, Public Services and Procurement Canada. [Accessed 18 July 2022]

Chile. N.d. Servicio de Impuestos Internos (SII). "Diccionario Básico Tributario Contable: Unidad Tributaria Mensual (UTM)." [Accessed 14 Sept. 2022]

Ernst & Young (EY). N.d. "Our Locations." [Accessed 21 July 2022]

Ernst & Young Chile (EY Chile). 15 February 2022. "Publication of the Regulation of the New Immigration Law." [Accessed 21 July 2022]

Fragomen. 14 February 2022. "Chile: Published Regulation Creates Key Changes Through New Immigration Law." [Accessed 21 July 2022]

Fragomen. N.d. "About Fragomen. [Accessed 21 Feb. 2022]

Ius Laboris. 31 May 2022. "A Guide to the New Chilean Immigration Law." [Accessed 21 July 2022]

Research Division, Servicio Jesuita a Migrantes (SJM). 15 July 2022. Correspondence with the Research Directorate.

Servicio Jesuita a Migrantes (SJM). N.d. "Quiénes somos." [Accessed 18 July 2022]

Additional Sources Consulted

Oral sources: Chile – Consulate General of Chile in Montreal, Consulate General of Chile in Toronto, Embassy of Chile in Haiti, Embassy of Chile in Ottawa, Embassy of Chile in Washington, DC, Servicio Nacional de Migraciones; Comisión Chilena de Derechos Humanos; Haitian Lawyers Association; UN – International Organization for Migration Haiti Country Office.

Internet sites, including: Associated Press; Austrian Red Cross – ecoi.net; BBC; Chile – Ministerio de Desarrollo Social y Familia, Ministerio del Interior y Seguridad Pública, Ministerio de Relaciones Exteriores; Défenseurs plus; Haitian Bridge Alliance; Haïti Progrès; Human Rights Watch; Immigration Chile; Institute for Justice and Democracy in Haiti; Instituto Nacional de Derechos Humanos; International Crisis Group; LatinAmerican Post; Los Angeles Times; Migration Policy Institute; La Nación; The New York Times; Le Nouvelliste; Observatorio Ciudadano; Organization of American States – Inter-American Commission on Human Rights; PricewaterhouseCoopers; La Tercera; UN – International Organization for Migration, Refworld; University of California Hastings College of the Law – Center for Gender and Refugee Studies; The Washington Post.