translated from Spanish: Return Plan: Supreme confirms ruling that declared it illegal to demand foreigners not return to Chile

The Supreme Court upheld the judgment that upheld the appeal filed on behalf of 26 foreign nationals and provided that the Ministry of the Interior may not require the submission of a declaration committing not to re-enter Chile for the period of 9 years, if they are covered by a humanitarian return to country of origin plan. In unanimous ruling, the Second Chamber of the highest court – composed of ministers Carlos Konsem-ller, Manuel Antonio Valderrama, Jorge Dahm, Leopoldo Llanos and the lawyer (i) María Cristina Gajardo – upheld in all its parts the judgment challenged, delivered by the Court of Appeals of Santiago on 3 July last, which accepted the appeal.” The appeal of three July of two thousand twenty, delivered by the Court of Appeals of Santiago, in The Court Of Appeal No. 1402-2020″ is uphold, as the judgment of the highest court. In the judgment of origin, the Fifth Chamber of the high court – composed of Ministers Javier Moya, Mireya López and Alejandra Rivera – established that the requirement imposed does not find sustenment in national and international legislation on the matter.” (…) the rationale given by the authority for this requirement is that it is in line with international legislation, which is a way of ensuring effective compliance with the return programme, of giving seriousness to the commitment made by these individuals taking into account the State cost to subsidize the trip, which is consistent with the proper administration of public resources , those who should not be wasted in vain and, if this would not do so, would be absurd that this Humanitarian Plan would become an instrument to send free of charge and without consideration to all foreigners in the situation described in Resolution No. 5744 which is not possible for national security reasons national interest and the nation’s budgetary availability,” the failure of first instance raised. For the Court of Santiago: “none of the arguments described above justify within the legal system the requirement made to the appellants to benefit from the so-called ‘Humanitarian Return Plan'(…). Indeed, and as is well known, in public law can only be done that which the law allows, so that within the context of a person’s ambulatory freedom, recognized as a fundamental right in the Political Constitution of the Republic, its restriction can only be based on the law.” Thus, he continues, the requirement not to return to the country within nine years does not comply with any legal norm, nor is it, that a humanitarian measure requires to access it of a certain consideration as understood by the authority, simply forgetting its adjective of ‘humanitarian’. In the facts, there are 26 people who are in a precarious situation, even living on the street so the demand that is made to them, in those conditions, can hardly be regarded as ‘voluntary’.”

Original source in Spanish