Responses to Information Requests

Research Directorate, Immigration and Refugee Board of Canada

This Response replaces Response to Information Request ZZZ201334 of February 2023.

1. Overview

EDN Abogados, a law firm in Santiago whose practice areas include immigration (EDN Abogados n.d.), indicates that a new law on immigration, Law No. 21,325 on Immigration and Foreigners (Ley 21,325 de Migración y Extranjería) was enacted on 11 April 2021 and entered into force on 12 February 2022 (2022-05-10). An article by the Chile office of Ernst & Young (EY Chile), 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 (2022-02-15). The same source adds that the decree to approve the regulations on Law No. 21,325, Decree No. 296 Approving the Regulations Pursuant to New Law No. 21,325 on Immigration and Foreigners (Decreto N° 296 que Aprueba el Reglamento de la Nueva Ley de Migración y Extranjería N° 21.325), was published and entered into force on 12 February 2022 (EY Chile 2022-02-15). EDN Abogados states that the government has yet to "issue the respective regulations and supreme decrees" that allow for the "full application of the regulations," as such "only the declarative parts and the transitory regulations of [Law No. 21,235] are in force," creating a "'legal vacuum'" (2022-05-10). Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

Amnesty International reports that the new migration law "severely restricts the ability of migrants and individuals seeking protection to regulate their status once in Chile" (2022-03-29, 124). Similarly, in an interview with CIVICUS, a "global alliance of civil society organisations and activists" seeking to strengthen "citizen action and civil society throughout the world" (CIVICUS n.d.), a migration legal advisor at the Chilean Catholic Migration Institute (Instituto Católico Chileno de Migración, INCAMI), an organization that "defend[s] the rights of migrants" in Chile, stated that the new migration law "discourages people from entering" Chile, and "driv[es] those in a regular situation to exhaustion due to eternal waits to obtain documents, lack of communication by migration authorities and bureaucratic centralisation in Santiago" (CIVICUS 2021-11-15).

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 2022-07-15). EY Chile 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 that the "ongoing immigration processes" and benefits granted before the law came into force "will not be affected" (2022-02-15).

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 2022-07-15). 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" (2022-02-15).

Sources report 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 2022-05-31; Fragomen 2022-02-14). 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 2022-02-14). 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" (2022-02-14). Fragomen also notes that visa and residence applications submitted prior to 12 February 2022 are not impacted by this change (2022-02-14).

The Fragomen article 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 (2022-02-14).

1.1 Haitian Nationals in Chile

According to Cristián Doña-Reveco, an associate professor of sociology and anthropology and director of the office of Latino/Latin American studies at the University of Nebraska Omaha who has conducted research on immigration in Chile (Doña-Reveco n.d.), before Law No. 21,325 was enacted, Chile's former president, Sebastián Piñera, introduced an executive decree effective April 2018, requiring Haitians to obtain temporary visas from the Chilean consulate in Port-au-Prince prior to entering Chile; either a three-month tourism visa, a family reunification visa, or a sponsored work visa (Doña-Reveco 2022-05-18). According to an article published by MercoPress, an Uruguay-based news agency focused on "South America, the South Atlantic and insular territories" (MercoPress n.d.), citing a local migrant's rights activist, the requirement of a consular visa from Haitian nationals [translation] "'is ridiculous, because the [Chilean] consulate [in Haiti] has not dealt with visas since the pandemic'" and "'is also closed due to the situation in Haiti'" (MercoPress 2022-01-24). Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

A Spanish-language article by the BBC notes that the purpose of the [translation] "'consular visa'" requirement is to "prevent foreigners from entering Chile as tourists and changing their immigration status to seek work" (2021-05-27). According to an article by the Associated Press (AP), "many" Haitians entered Chile with tourist visas prior to the 2018 decree (2021-10-14).

As a result of the 2018 measures, Doña-Reveco indicates that the number of temporary visas issued to Haitian nationals has decreased from "nearly" 126,000 in 2018 to 37,000 in 2019 and 33,000 in 2020; however, the same source explains that a portion of the number of visas granted in 2018 resulted from a "regularization process" from the same year that granted legal status to 210,000 immigrants, including "many" who had overstayed their visas (2022-05-18). Additionally, the New York Times reports that accessing legal residency in Chile under the administration of President Piñera, who took office in March 2018, "has become much harder," and that between January and July of 2021, 7 percent of all permanent residence permits issued by Chile were granted to Haitians, compared to 20 percent in 2020 (2021-09-30). The migration legal advisor interviewed by CIVICUS noted that testimonies obtained by INCAMI show "numerous rejections [of consular visas applications to Chile] for reasons beyond [the applicants'] control or due to requirements they are unable to comply with" (CIVICUS 2021-11-15).

Citing the Under-Secretary of the Interior, the Associated Press (AP) reports that "almost" 70,000 Haitian nationals were granted permanent residence [definitive residence (residencia definitiva)] status in Chile, while another 110,000 still do not have "official documents" (2021-10-14). According to figures provided by the government, the Los Angeles Times (LA Times) indicates that "only" 170 Haitians have obtained Chilean citizenship since 2010 (2021-10-01).

For information on the situation and treatment of Haitian nationals in Chile, including their access to employment, housing, and social services, see Response to Information Request ZZZ201307 of January 2023.

2. Eligibility for Permanent Residence

According to Immigration Chile, a law firm in Chile that provides consultancy services in fields relating to real estate and residency changes, including immigration and citizenship (Immigration Chile n.d.a), Chile grants permanent residency "exclusively as a follow-up permit" to the temporary residency permit (Immigration Chile n.d.b). The same source notes that holders of a valid temporary residency permit may apply for a permanent residence permit "in cases where the migratory subcategory allows it" (Immigration Chile n.d.b). Decree No. 296 Approving the Regulations Pursuant to New Law No. 21,325 on Immigration and Foreigners (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 meet the deadline 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 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:

…

3.- Absences from the country and their duration, according to the following table.

… (Chile 2021a, bold in original)

Article 70 of Law No. 21,325 provides the following:

[translation]

Article 70. Subcategories. A supreme decree issued through the Ministry of the Interior and Public Security, which must be signed by the ministers that make up the Council established in Article 159 and comply with the procedure for review by the General Accounting Office of the Republic [also translated as Government Accountability Office] (Contraloría General de la República), shall define the list of and set the criteria for subcategories of temporary residence. In no case may such supreme decree affect the rights already acquired by holders of temporary residence permits at the date of entry into force thereof. Any change in the conditions of a migratory subcategory that involves greater benefits for foreigners who were previously granted temporary residence will entitle those who meet the requirements established for such category to opt for such category.

In any case, such decree shall cover at least the following situations:

1. Foreigners who can prove that they have family ties with Chileans or permanent residents.
2. Foreigners who enter the country to carry out legal remunerated activities, on their own account or under a relationship of subordination and dependence.
3. Foreigners who settle in the country for the purpose of studying in educational establishments recognized by the State.
4. Seasonal workers who enter the country for limited periods, once or annually, in order to perform specific seasonal work.
5. Foreigners who apply to Chilean consulates abroad to seek employment opportunities, provided they are authorized in accordance with the objectives of the National Policy on Immigration and Foreigners, which must meet the requirements of paragraph 7 of Article 1 of this law.
6. Persons who are subject to the custody of the Gendarmería de Chile, such as those who are effectively serving their custodial sentence by final and enforceable judgment, including those who are on furlough as provided in the regulations of prisons; persons subject to preventive detention; those subject to probation and those who are serving their sentence in accordance with the provisions of Law No. 18,216, which establishes penalties as alternatives to sentences that involve deprivation or restriction of liberty.
7. Those who are in Chile by order of Chilean courts of justice, as long as it is necessary for the judicial proceedings to which they are a party.
8. Foreigners whose residence in Chile is justified for humanitarian reasons.
9. Foreigners granted temporary residence under international agreements ratified by Chile and that are in force.
10. Religious leaders of officially recognized religions.
11. Patients under medical treatment, as long as they can prove that they will pay for the costs of their medical treatment.
12. Retirees and annuitants.
13. Foreigners who are granted temporary residence by virtue of the principle of reciprocity, or who, by virtue of other international treaties, duly ratified by Chile and in force, are entitled to such residence.

The supreme decree mentioned in the first paragraph shall define, for each migratory subcategory, the admissibility of the application for permanent residence, being always admissible in the situations described in numbers 1, 2, 3, 5, 8, 9, 10 and 12 of this article. (Chile 2021b)

According to the National Immigration Service of Chile, any individual who was granted a residence permit [translation] "prior to the entry into force of the new migratory subcategories" introduced by Law No. 21,325 of 2021, will enjoy "the terms of the old legislation to apply for Permanent Residence (one year for Temporary Visa, two years for Visa Subject to an [Employment] Contract and two years for Student Visa)" (Chile n.d.a).

The SJM Research Division indicated that 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 "the mechanisms for appealing a sanction or impediment to entry are resolved 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 the powers" permitted by the law (Research Division 2022-07-15). The same source indicates that, 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 2022-07-15). Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

2.1 Eligibility for Residence Based on Family Reunification

According to the SJM Research Division, 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 [child] under the age of 24 who is a student
• Minor "who is under your personal care or guardianship" (Research Division 2022-07-15).

Decree No. 296 provides the following regarding conditions for individuals applying to obtain permanent residence under family reunification:

[translation]

Article 66.- The National Director of the Service [National Immigration Service] may, by well-founded decision or prior application of the interested party, reduce the term of residence required to apply for permanent residence, which in all cases cannot be less than 12 months.

Exercising the aforementioned authority may only occur in the following cases, in relation to the personal circumstances of the interested party.

1. If there are family ties to Chilean nationals or permanent residents. This tie must be proven with original documents, duly notarized or apostilled when appropriate.

In cases which do not involve a family relationship described in the final subsection of article 77 of law No. 21,325, the Service may consider information provided by the applicant referring to an actual tie.

… (Chile 2021a)

3. Requirements and Procedures to Obtain and Maintain Permanent Residence

To obtain a permanent residence permit, the SJM Research Division indicated that an application must be sent "within the last 90 days of validity of the authorized temporary residence visa" (Research Division 2022-07-15). According to the website of the National Immigration Service, the application must also be sent no later than 10 days prior to the expiry of the validity of the current residence permit (Chile n.d.a). The SJM Research Division noted that 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" (Research Division 2022-07-15).

The information in the following paragraphs was provided by Chile's National Immigration Service website:

Applications for the permanent residence permit, which is the type of permit [translation] "granted to foreigners who have Temporary Residence status in force," are submitted and may be thereafter monitored on "the website tramites.serviciomigraciones.cl, with a ClaveÚnica [1] or Login account." Within the online application process, requestors must digitally attach a "criminal and/or judicial record certificate from the country of origin" valid for "no more than 90 days from the date of issue." All documents issued abroad or by the country of origin's diplomatic mission in Chile "must be apostilled or duly legalised, as stipulated in article 345 and 345 bis of the Civil Code Procedure" and any other documents must be written in, or translated to, Spanish or English. All "erroneous or not applicable information" submitted as part of the online application will result in a notification made to the applicant, regarding "whether or not the application will go forward for analysis." The applicant will then have 60 calendar days from the date of notification to send a new application through the online platform. If they fail to do so, "their request shall be deemed withdrawn."

For all applicants, the following documents are required to be attached electronically in the online permanent residence application:

• "Criminal Record certificate from country of origin, apostilled or duly certified and translated, if applicable (compulsory for persons over 18 years of age)"
• "Scanned image of the identity page of the passport or identity document"
• "Scanned image of Identity Card (Mandatory for persons over 18 years of age)"
• "Electronic stamping of Temporary Residence permit or scanned image of Visa stamped in passport or Residence Permit."

For those applying on the basis of family ties to a Chilean citizen, the following documents are also required in attachment to the online application for permanent residence:

For applicants who are economically dependent on their spouse, parents, children or others, an "affidavit of expenses" is required as well as a document showing the income of the person financially supporting the applicant.

For those applying on the basis of an "activity carried out, income and/or economic support," the following documents are required:

Upon processing and submitting the online application, applicants will be redirected to complete the corresponding payment, followed by the final steps for submission on the National Immigration Service platform (Chile n.d.a).

3.1 Ability of Haitian Nationals to Comply with Requirements and Procedures in Practice

The LA Times indicates that, when applying for residence, Haitian nationals must submit "hard-to-get police clearances" proving that the applicant does not have a criminal record (2021-10-01). The AP reports that it would take "months at best" for Haitian nationals to obtain proof of a "Haitian government background check" (2021-10-14). According to the migration legal advisor at INCAMI, under the "current political, social and health context" in Haiti, obtaining a "criminal record certificate" from the Haitian government is "almost impossible," and as a result, "many people are unable to submit it within the established deadlines" (CIVICUS 2021-11-15). Additionally, an article by the Wall Street Journal (WSJ) reports that Haitians in Chile who lost their jobs during the COVID-19 pandemic were required to have an employment contract in order to be eligible for their visa renewal under the "more rigid" legal residency requirements put in place since 2018 (2021-12-17). Without a valid residency visa, the WSJ notes that "[m]any" cannot "renew their national identity cards, essential for everything from renting an apartment to opening a bank account" (2021-12-17).

According to an interview conducted by the AP of a Haitian national residing in Chile, whose child is a Chilean citizen and who was laid off in July 2021, it is "impossible to comply" with requirements for the regularization of their residency status under the latest requirements; the Haitian national has been trying to update their residency status for two years and is "only about halfway through the process" (AP 2021-10-14). The same interviewee said that this is due to both his inability to "get a new job without a valid identity card" and to "get his card renewed without an employment contract" (AP 2021-10-14).

According to data collected from the UN International Organization for Migration (IOM) and cited by Human Rights Watch (HRW), from 19 September 2021 to 14 February 2022, 2,300 children born abroad to Haitian parents, "about" 1,600 of which were born in Chile, were "returned" to Haiti by the US government (HRW 2022-03-24). Sources report that Haitians leaving Chile for the US indicated that they were motivated by the difficulties of "regulariz[ing] their immigration status" (Amnesty International 2021-10-28, 7) or to obtain "legal papers" (HRW 2022-03-24).

4. Rights and Obligations of Permanent Residents

Law No. 21,325 includes the following provisions regarding freedom from discrimination and additional protections for certain groups of migrants:

[translation]

Article 13. Equality of rights and obligations. The State shall guarantee, with respect to all foreigners, equality in the exercise of rights, without prejudice to the requirements and sanctions established by law for certain cases.

Likewise, the State shall promote due protection against discrimination and shall ensure compliance with the obligations enshrined in the Political Constitution of the Republic, in the human rights treaties ratified by Chile that are in force, and in legislation, regardless of ethnicity, nationality or language, in accordance with the provisions of Article 1, numeral 7.

All foreigners applying for entry or a residence permit in the country shall be assured a rational and fair procedure for the approval or rejection of their application, which shall be carried out under non-discriminatory admission criteria.

Foreigners who are affected by an action or omission that amounts to arbitrary discrimination may file the corresponding actions, according to the nature of the right affected.

The State shall promote respect for and protection of foreign women, regardless of their migratory status, so that at all stages of their migratory process they are not discriminated against or subject to abuse because of their gender. Migrant women shall have access to all institutions and mechanisms that protect their welfare. Pregnant women and victims of human trafficking, gender-based or domestic violence, or migrant smuggling will have special treatment by the State. By virtue of the foregoing, the National Migration Service may issue a visa to regulate their stay, according to well-founded background information requested from the competent agencies. (Chile 2021b)

The same law provides the following on migrants' access to labour, healthcare, social security, education, family reunification, and due process:

[translation]

Article 14. Labour rights. Foreigners shall enjoy the same labour rights as Chileans, without prejudice to the requirements and sanctions established by law for certain cases.

All employers must comply with their legal obligations in labour matters, notwithstanding the irregular migratory status of the foreigner hired. The above, notwithstanding the sanctions that, in any case, the Labour Inspectorate is authorized to impose.

Article 15. Right to access to health care. Resident foreigners or foreigners in irregular migratory condition, whether in their capacity as [status] holders or dependents, shall have access to health care in accordance with the requirements established by the health authority, under conditions equal to those for nationals.

All foreigners will be subject to health measures established under the Sanitary Code for the safeguarding of public health, the same as nationals.

Article 16. Access to social security and tax benefits. Foreigners may have access to social security benefits and tax benefits under the same conditions as nationals, provided that they comply with the requirements established by the laws regulating such matters, and with the provisions of the following paragraph.

With respect to those non-contributory social security allowances and benefits financed entirely with fiscal resources, involving direct monetary transfers, for which no access requirements involving a certain minimum stay in the country are established directly or indirectly, it will be understood that only those residents, whether [status] holders or dependents, who have been in Chile in such capacity for a minimum period of twenty-four months will be entitled to them.

Notwithstanding the provisions of the preceding paragraph, for well-founded humanitarian reasons or health emergencies decreed under Article 36 of the Sanitary Code, the twenty-four-month period indicated in the preceding paragraph may be omitted.

…

The restrictions established in this article do not apply to children and adolescents who are in the care of their father, mother, guardian or person in charge of the personal care of a minor under 18 years of age, who will have access to the same benefits, as soon as they enter the country, under the same conditions as nationals, regardless of the immigration status of the adults on whom they depend.

Article 17. Access to education. The State shall guarantee access to preschool, elementary and secondary education to foreign minors established in Chile, under the same conditions as nationals. Such right may not be denied or limited because of their irregular migratory status or that of either parent or of whoever has the care of the child or adolescent. The residency requirement established in the second paragraph of Article 16 does not apply to applicants for social security benefits financed entirely with fiscal resources, involving direct monetary transfers, in relation to scholarships or bonuses for students in primary and secondary education.

Foreigners may access higher education institutions under the same conditions as nationals. Likewise, they will be eligible for free university tuition, in accordance with the provisions of Article 103 (a) of Law No. 21,091, on Higher Education, and subject to compliance with the other legal requirements.

Educational institutions that receive state contributions must have available to interested parties the information necessary to exercise the rights established in the preceding paragraphs.

Article 18. Right of access to own housing. Foreigners holding permanent residency shall enjoy the same rights regarding their own housing as nationals, provided they meet the other legal requirements.

Article 19. Family reunification. Residents may apply for family reunification with their spouse or with a person with whom they maintain a relationship that, in accordance with applicable law, is effectively equivalent to marriage, with parents, minor children, children with disabilities, unmarried children under 24 years of age who are students and minors who are under their personal care or guardianship, and the State shall promote the protection of family unity.

Applications for family reunification of children and adolescents with resident aliens will be processed with priority.

Article 20. Sending and receiving remittances. Foreigners have the right to transfer their income and savings obtained in Chile to any other country, as well as to receive money or goods from abroad, in accordance with the conditions and procedures established in the applicable legislation and international agreements that are ratified by Chile and in force.

The State shall take appropriate measures to facilitate such transfers.

Article 21. Due process. The State shall ensure that foreigners have equal protection of the rights established by law, the Political Constitution of the Republic and the international treaties on Human Rights ratified by Chile and which are in force. In particular, it shall ensure a rational and fair procedure and investigation for the establishment of the sanctions contained in this law, in accordance with the rights and guarantees conferred by the Political Constitution of the Republic, with special consideration to the provisions of Article 19 number 3, and shall provide the necessary means to grant legal advice and defence to those foreigners who cannot procure them by themselves, and the international treaties subscribed by the State and that are in force. (Chile 2021b)

In the CIVICUS interview, INCAMI's migration legal advisor stated that Law No. 21,325 "enshrines some rights, such as the rights to health, education, family reunification and work" (CIVICUS 2022-11-15). Doña-Reveco indicates that the new law "guarantees equal access to social security and other benefits" to "immigrants who have resided in Chile for at least two years" (2022-05-18).

The SJM Research Division indicated that 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" (Research Division 2022-07-15). According to the same source, 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" (Research Division 2022-07-15).

A 2021 article by Doña-Reveco indicates that "only foreign-born people who are 'legally' within the Chilean territory have the right to freedom of movement and freedom of residency" under the new law (2021-05). The same article notes that "only those with a permanent residency permit have the same housing rights as nationals" (Doña-Reveco 2021-05).

Regarding the right to access healthcare, Chile's Under-Secretary of the Interior stated to the UN Committee on the Protection of the Rights of All Migrant Workers and Members of their Families, that "any person entering Chile, regardless of their migratory status, had a right to receive healthcare, including access to COVID-19 tests and care" (UN 2021-04-09).

In response to the question of the "status of children born to migrants who had entered irregularly or to transient visitors" posed by the same UN committee, Chile's Under-Secretary of the Interior further responded that "any child born in Chile was Chilean, including all children born to migrants" and that the "'transient' status" used by authorities in the past is no longer used, in addition to the "references to such status" having been "stricken from over 2,000 birth registries" (UN 2021-04-09).

Decree 296 includes the following provisions regarding migrants' rights to transparency and public information, and their ability to appeal decisions that violate those rights:

[translation]

Article 7.- Without prejudice to the general standards in transparency and access to public information, all foreign nationals who consider that their full, timely and effective access to information has been affected by the immigration authority, may file a complaint with the National Director of the National Immigration Service, within five working days, effective the day of the action or omission that deprived the party of the information requested in order to remedy the behaviour. If any public consular employee abroad fails in their duty to inform, the complaint must be filed at the respective consulate.

In order to be eligible, this complaint must comply with the requirements set out in article 30 of the law No. 19,880.

If the complaint is lodged by a legal representative, they must comply with the formalities set out under article 22 of the same legal text.

Once the complaint is declared eligible, the National Director of the Service, or the consul at the case may be, must make their reply within 10 working days. Failure to act can result in recourse as set out in the law No. 19,880.

If the situation at issue is an action or an omission by an agent of another public agency, the matter will be referred ex officio by the Service to the corresponding entity. (Chile 2021a, bold in original)

Regarding the right to enter and exit the county for residence permit holders, the same decree provides the following:

[translation]

Article 9.- Holders of a valid residence permit will not require prior authorization or a visa to enter the country.

…

Article 47.- There is no limit to the number of entries to and departures from the country by foreign national residents as long as they hold a valid residence permit, and all the requirements are satisfied as set out in law No. 21,325 and these regulations. (Chile 2021a, bold in original)

Regarding the obligation to obtain identity documents, Decree No. 296 provides the following:

[translation]

Article 49.- Temporary and permanent residents must apply for an identity card at the Civil Registry and Identification Service within thirty days of the entry-in-force date on their residence permit.

Any residence or stay permit will be implicitly revoked when the foreign national obtains a new immigration permit. Without prejudice to the implicit nature of the revocation, this shall be stated on the new permit and will also be noted at the National Foreigner Registry (Registro Nacional de Extranjeros). (Chile 2021a, bold in original)

5. 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 Foreigner Registry.

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 Foreigner Registry, without prejudice to the appropriate referral to the Ministry of Foreign Affairs and the Investigative Police of Chile. (Chile 2021a, 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 following 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 meet the entry requirements established in Law No. 21,325, these regulations, and in the respective decrees establishing the immigration categories.

…

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 their 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 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 141.- When initiating the process of expelling a foreign citizen, the Service shall issue an administrative act notifying the party concerned that they have ten working days from notification to present their 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, they must be informed at the same time that, if the expulsion measure is applied, they may, in accordance with the applicable legislation, appoint a representative to represent them in the national territory for defence of their labour and social security rights, as well as for the fulfillment of their outstanding obligations.

Article 142.- Upon expiration of the term granted to the affected party to present their 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 [individuals'] 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 a foreigner for the purpose of enforcing an expulsion order against them.

In no case shall these restrictions and deprivation of liberty be applied to children or adolescents. (Chile 2021a, 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 2022-07-15). The same source indicated 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 2022-07-15). The Research Division stated 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 2022-07-15). Chile's Under-Secretary of the Interior stated to the UN that possible grounds for appeal "taken into consideration by the State," include "family ties and being accompanied by children" as "Chile did not expel foreign nationals who had entered the country irregularly if they were accompanied by children or adolescents" (UN 2021-04-09).

5.1 Irregular Entries and Deportations

According to data obtained from SJM and modeled in the Spanish-language BBC article, the period from 2018 until January 2021 accounts for 79 percent of all [translation] "irregular entries" into Chile that have occurred since 2010 (BBC 2021-05-27). The same source adds that while in the past, only migrants who were subject to a criminal complaint faced [translation] "administrative expulsion" from Chile, starting on 20 April 2021, migrants entering Chile "illegally" also began to face expulsion (BBC 2021-05-27). Chile's Under-Secretary of the Interior explained to the UN that in total, there were now "three scenarios that led to expulsions," namely as a result of "court rulings, administrative proceedings, or when a foreign national had entered Chile through irregular border crossings" (UN 2021-04-09).

Sources report that beginning in 2018, the Chilean government, through a state program, "return[ed] mostly Haitian immigrants" to Haiti (Doña-Reveco 2022-05-18) or facilitated "voluntary return for Haitians" to Haiti (LA Times 2021-10-01). Doña-Reveco notes in their 2022 article that under the "Humanitarian Plan of Orderly Return" (Plan Humanitario de Retorno Ordenado), migrants were required to "sign affidavits that they would not come back to Chile for nine years," a requirement that was later struck down by the Chilean Supreme Court (Doña-Reveco 2022-05-18). However, according to sources, the program had already overseen the "voluntary repatriation of more than 1,200 Haitians" (US 2021-03-30, 8–9) or the "return" of 1,384 Haitians on nine flights to Haiti (LA Times 2021-10-01).

6. Possibility of Extending or Reacquiring Status if Lost or Expired

Information on the possibility of reacquiring permanent residency 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 [Monthly Tax Units] (Unidades Tributarias Mensuales) [3].
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 reprimand 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 2021a, 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 2022-07-01). The same source noted 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 2022-07-01).

The Consulate Representative stated that if the documents arrive after the date of the permanent residence revalidation, the application will not be processed (Chile 2022-07-01).

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 2022-07-15). 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 2022-07-15).

6.1 Instances of Successful Reacquisition of Residency Status by Haitian Nationals

The WSJ reports that Chile "declined for now to accept" deportation flights of Haitians turned away from the US, even though "[m]ost of those who made the trip [to the US] had been living in Chile or Brazil" previously, and although "[m]any hadn't lived in Haiti for years" (2021-12-17). A Reuters article features an interview with a Haitian national who has permanent residency in Chile and who migrated north to the US, from where he was subsequently deported to Haiti in 2021, and who upon re-entry into Chile, was "held at the [Santiago] airport six hours for COVID-19 tests and paperwork" along with his family, before eventually being allowed to re-enter and resettle in the country (2021-12-13). Reuters also reports that for "[o]ther" Haitians deported to Haiti from the US, their return to South America, including to Chile, has been "tricky," and that four of the Haitian nationals interviewed were "struggling" to "get visas in order" (2021-12-13).

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.

Notes

[1] According to the ClaveÚnica government website, ClaveÚnica is a [translation] "digital identity" that individuals may activate and use to "access state services" securely (Chile n.d.b).

[2] According to the website of Chile's Superintendence of Pensions' (Superintendencia de Pensiones), the "Pension Fund Managers (administradoras de fondos de pensiones, AFP)," are the "private institutions responsible for collecting social security contributions, managing Pension Funds and providing and administering the benefits set out in D[ecree] L[aw] 3.500, the body of law that regulates them" (Chile n.d.c).

[3] 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.d). The UTM for September 2022 was 59.595 [Chilean] pesos (CLP) [C$0.09] (Chile [2022]).

References

Amnesty International. 2022-03-29. "Chile." Amnesty International Report 2021/2022: The State of the World's Human Rights. [Accessed 2022-06-29]

Amnesty International. 2021-10-28. Not Safe Anywhere: Haitians on the Move Need Urgent International Protection. (AMR 36/4920/2021) [Accessed 2022-12-21]

Associated Press (AP). 2021-10-14. Eva Vergara. "In Chile, Haitians Grow Weary of Waiting, Eye Journey to US." [Accessed 2022-11-30]

British Broadcasting Corporation (BBC). 2021-05-27. Fernanda Paúl. "¿El fin del 'sueño chileno'?: los migrantes que luchan por permanecer en un país que les cierra las puertas." [Accessed 2022-12-13]

Chile. 2022-07-01. 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 2022-09-14]

Chile. 2021a. Decreto N° 296 que Aprueba Reglamento de la Ley Nº 21.325, de Migración y Extranjería. Excerpts translated by the Translation Bureau, Public Services and Procurement Canada. [Accessed 2022-07-18]

Chile. 2021b. Ley 21325 de Migración y Extranjería. Excerpts translated by the Translation Bureau, Public Services and Procurement Canada. [Accessed 2022-12-23]

Chile. N.d.a. Ministerio del Interior y Seguridad Pública, Servicio Nacional de Migraciones. "Residencia Definitiva." [Accessed 2022-12-21]

Chile. N.d.b. "ClaveÚnica." [Accessed 2023-01-04]

Chile. N.d.c. "Quiénes Somos. English Overview." [Accessed 2023-01-10]

Chile. N.d.d. Servicio de Impuestos Internos (SII). "Diccionario Básico Tributario Contable: Unidad Tributaria Mensual (UTM)." [Accessed 2022-09-14]

CIVICUS. 2021-11-15. CIVICUS interviewing Delio Cubides, Instituto Católico Chileno de Migración (INCAMI) in "CHILE: 'Migration Restrictions Do Not Tackle the Causes of Migration." [Accessed 2022-11-30]

CIVICUS. N.d. "Who We Are." [Date Accessed: 2023-01-31]

Doña-Reveco, Cristián. 2022-05-18. "Chile's Welcoming Approach to Immigrants Cools as Numbers Rise." Migration Policy Institute (MPI). [Accessed 2022-11-30]

Doña-Reveco, Cristián. 2021-05. "Chile's Retooled Migration Law Offers More Restrictions, Less Welcome." Migration Policy Institute (MPI). [Accessed 2022-12-15]

Doña-Reveco, Cristián. N.d. "About Me." [Accessed 2023-02-03]

EDN Abogados. 2022-05-10. Anne Bruggeman. "Relevant Aspects of the New Law No. 21,325 on Migration and Foreigners." [Accessed 2022-11-30]

EDN Abogados. N.d. "Practice Areas." [Accessed 2022-11-30]

Ernst & Young (EY). N.d. "Our Locations." [Accessed 2022-07-21]

Ernst & Young Chile (EY Chile). 2022-02-15. "Publication of the Regulation of the New Immigration Law." [Accessed 2022-07-21]

Fragomen. 2022-02-14. "Chile: Published Regulation Creates Key Changes Through New Immigration Law." [Accessed 2022-07-21]

Fragomen. N.d. "About Fragomen." [Accessed 2022-02-21]

Human Rights Watch (HRW). 2022-03-24. "Haitians Being Returned to a Country in Chaos." [Accessed 2022-12-21]

Immigration Chile. N.d.a. "The Team." [Accessed 2023-01-19]

Immigration Chile. N.d.b. "Residencia Definitiva." [Accessed 2023-01-19]

Ius Laboris. 2022-05-31. "A Guide to the New Chilean Immigration Law." [Accessed 2022-07-21]

Los Angeles Times (LA Times). 2021-10-01. Patrick J. McDonnell and Jorge Poblete. "Haitians in Chile: Rough Going for Many Prompts Large-Scale Migration Toward U.S." [Accessed 2022-11-30]

MercoPress. 2022-01-24. "Migrantes haitianos varados en aeropuerto de Santiago de Chile." [Accessed 2022-11-30]

MercoPress. N.d. "About MercoPress." [Accessed 2023-01-31]

The New York Times. 2021-09-30. Pascale Bonnefoy. "Why Haitians in Chile Keep Heading North to the U.S." [Accessed 2022-11-30]

Research Division, Servicio Jesuita a Migrantes (SJM). 2022-07-15. Correspondence with the Research Directorate.

Reuters. 2021-12-13. Gessika Thomas, Ivan Alvarado, & Daina Beth Solomon. "Cast Out of U.S., Haiti Migrant Drops American Dream for Second Go in Chile." [Accessed 2022-11-30]

Servicio Jesuita a Migrantes (SJM). N.d. "Quiénes somos." [Accessed 2022-07-18]

United Nations (UN). 2021-04-09. Committee on the Protection of the Rights of All Migrant Workers and Members of their Families. "In Dialogue with Chile, Committee on Migrant Workers Welcomes Poositive Developments but Flags Issues Related to Expulsions." [Accessed 2022-12-21]

United States (US). 2021-03-30. Department of State. "Chile." Country Reports on Human Rights Practices for 2020. [Accessed 2022-11-30]

The Wall Street Journal (WSJ). 2021-12-17. Ryan Dube. "Haitians Hoping to Reach U.S. Stranded in Chile, Across Americas." [Accessed 2022-11-30]

Additional Sources Consulted

Oral sources: Caritas Chile; 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; Instituto Católico Chileno de Migración; Plataforma de Coordinación Interagencial para Refugiados y Migrantes; Scalibrini International Migration Network; UN – International Organization for Migration Haiti Country Office.

Internet sites, including: ACAPS; Austrian Red Cross – ecoi.net; BBC; Chile – Instituto Nacional de Derechos Humanos, Ministerio de Relaciones Exteriores Ministerio de Desarrollo Social y Familia, Ministerio del Interior y Seguridad Pública, Ministerio de Relaciones Exteriores; Défenseurs plus; Freedom House; Global Citizenship Observatory; The Guardian; Haïti Progrès; Haitian Times; Immigration Chile; InSight Crime; Institute for Justice and Democracy in Haiti; International Crisis Group; La Nación; La Tercera; LatinAmerican Post; Norwegian Refugee Council; Le Nouvelliste; Observatorio Ciudadano; Organization of American States – Inter-American Commission on Human Rights; PricewaterhouseCoopers; UN – International Organization for Migration, Refworld; University of California Hastings College of the Law – Center for Gender and Refugee Studies; The Washington Post.