NEW LAW STRENGTHENS COSTA RICAN IMMIGRATION

UNCLAS SECTION 01 OF 04 SAN JOSE 000280 SIPDIS DEPT FOR CA/OCS/ACS/WHA; WHA/CEN FOR JMACK; CA/OCS/CI E.O. 12958: N/A TAGS: CASC KFRD CS SUBJECT: NEW LAW STRENGTHENS COSTA RICAN IMMIGRATION AUTHORITY -------------- SUMMARY -------------- ¶1. (SBU) On October 27, 2005 the Legislative Assembly approved a draft law that criminalizes alien smuggling; increases fines on airlines carrying passengers without correct documentation; and fines individuals who aid, abet, harbor, transport, and/or employ illegal migrants. After nearly four years of political debate, the law is expected to reduce illegal immigration. The new legislation will come into effect on August 12, 2006. Human rights organizations have spoken out vigorously about the law's "draconian anti-human rights measures." It remains to be seen whether the General Migration Directorate will receive the resources needed to conduct the patrols and investigations necessary to execute its new authority. END SUMMARY. -------------- New Law In Effect Next August -------------- ¶2. The last legislation on immigration was enacted in 1986 and it continues to serve as the country's migration law. It does not criminalize human smuggling. The rise in smuggling and illegal immigration was a major impetus in the decision to draft new legislation four years ago. The President of Costa Rica heartily supported the bill, emphasizing that it would improve citizen security, reduce exploitation of immigrants, and improve the GOCR's ability to collect social security taxes. In a January 6, 2006 meeting, General Migration Directorate Director Johnny Marin told ConOff that the bill is a watershed in updating the law to reflect the reality of Costa Rica's current migration trends. He pointed out that the new law clearly articulates a comprehensive migration policy that is focused on three issues: public security, integration of foreigners who are already living in Costa Rica, and preventing future waves of immigrants. The full text of the law is available on-line at: http://www.asamblea.go.cr/ ¶3. Marin commented to ConOff that several issues in the new law need to be developed further in future legislation. He noted that the three pillars of the new migration policy are going to be hard to implement. Marin shared that, due to lack of political will, several important issues remain untouched, such as the sections of the law which deal with the amount of monthly income foreigners must show to obtain status as residents in the country and the rules regarding transmission of residency via marriage. He explained that legislators are reluctant to attempt any changes to the bill after the four long years of work it took to pass the current version. ¶4. The new law states that foreigners who wish to obtain legal permanent resident status as a "pensioner" must demonstrate that they receive a minimum monthly pension of USD 600 (Article 77). The law for retirees with no pension seeking such status is contradictory. Article 77 states they must show a "stable and permanent income from abroad" in the amount of USD 1,000. However, Article 79 states that retirees without a pension must demonstrate a "permanent and stable income from abroad" in the amount of USD 2,000. Marin himself pointed out this contradiction to ConOff, and expressed his frustration that the paradox was not resolved before the law was passed. He attributed the fact that the amounts were not increased to efforts made by the Libertarian legislators and an influential retirees association. -------------- -------------- New Smuggling Sanctions May Help U.S. Border Security -------------- -------------- ¶5. The new migration law explicitly criminalizes the "illicit smuggling of people" for the first time in Costa Rica. Marin commented to ConOff that this is one of the strongest planks for getting tough on illegal migration. The new law punishes "the transport of persons" with the "intent to illicitly smuggle" them "into or out of the country" by "evading established migratory controls or utilizing false data or documents" with two to six years of incarceration. The same punishment applies to persons who, "with the intent to illicitly smuggle humans," "house, hide, or conceal foreigners who enter or remain illegally in the country." The punishment is increased by a third when the individual involved is a government employee, or when minors are involved in the smuggling process, whether as accomplices or as victims (Article 245). The new law stipulates that any foreigner who has entered the country without following the proper procedures and is in the country without the necessary legal documents may avoid deportation if the person opts to press charges against those individuals involved in their illegal entry and if they cooperate with local authorities in the ensuing investigation. -------------- -------------- Enhanced Sanctions For Complicity With Illegal Migration -------------- -------------- ¶6. The new Migration Law has stiffer and more detailed penalties for individuals who aid, abet, harbor, transport, and/or employ illegal migrants. Director Marin pointed out to ConOff that the 1986 legislation had only one section that encompassed all regulations regarding "international transport" issues. The new law has expanded this into four sections, dealing with maritime, air, and land transport separately, as well as a section that addresses "general norms." Marin expressed confidence that the new law will provide the Migration Department with expanded oversight and investigative authority that should help cut down significantly on the illegal flow of people and goods, provided that staffing levels and resources are adequately funded. ¶7. International transport companies will now be responsible for presenting travel documents of each passenger and crewmember, along with passenger lists (Article 150). Sea vessels must present this information eight days prior to arriving at a Costa Rican port (Article 157). ¶8. The new law prevents any boat from sailing or any plane from taking off prior to receiving formal approval from the Migration Directorate that all individuals on board comply with migration requirements (Articles 158 and 161). Failure to comply with this rule will result in administrative proceedings being taken against the port's captain or the air traffic controller for "grave error in exercising his duties." The Migration Directorate will also be able to board ships to conduct migratory checks of the passengers either in port or while the boat is in national or international waters. All inspection costs will be covered by the maritime vessel involved (Articles 160 and 161). ¶9. The Migration Directorate will now be able to prevent the entry or exit of any ground transport, national or international, which is carrying individuals who do not comply with migratory requirements. The Directorate will also be able to detain vehicles for the time necessary to ensure that all passengers comply with these requirements. ¶10. Any person representing an international transport company whose vehicle, plane, or boat enters the country with foreigners not in compliance with migration requirements can be fined three to twelve times the base monthly salary established by law. This fine can also be applied to any foreigner who remains in Costa Rica after the departure of the vessel by which he entered the country. Repeat offenders in either of these areas may be subject to administrative proceedings involving formal charges (Articles 168 and 169). These are new sanctions that do not appear in the existing migration legislation. Current law states that international transport companies can be fined $30-$45 for each person who enters the country via their company and who is not in compliance with migration requirement or who remains behind after the departure of the vessel by which they entered the country (Articles 103 and 105 of 1986 legislation). The new law will also hold transport companies financially responsible for all costs involved with foreigners who remain in the country while their status (whether they can stay or must leave the country) is being determined (Article 153). ¶11. The new bill increases the sanctions against individuals who harbor and/or employ illegal migrants (Articles 173 and 178) from two to twelve times the minimum monthly salary. -------------- -------------- New Law Criticized For Alleged Human Rights Infractions -------------- -------------- ¶12. Several entities involved with migration issues have expressed concern about the law. Presidential candidate Oscar Arias unsuccessfully asked the President to veto the bill due to his concerns that it could lead to abuse of illegal immigrants. The Human Rights Ombudsman's office, the Catholic Church, and the U.N. High Commission for Refugees (UNHCR) also expressed strong reservations about the law. The Human Rights Ombudsman's Office (an independent entity within the GOCR) was worried that there is no system of checks and balances in place; the new law gives General Migration Directorate final authority on several matters. Article 220 of the new law states that decisions made by the Migration Department to deny a visa, refuse entry, or deport an individual cannot be appealed. However, Migration Department Director Marin pointed out to ConOff that the law does allow for appeals in some circumstances; Article 219 cites five specific instances in which appeals to the Migration Directorate's decision can be made regarding the status of foreigners who are already legally in the country. ¶13. The Catholic Church was concerned about measures that would mete out jail sentences to individuals assisting undocumented labor migrants. The Church succeeded in getting the language changed such that individuals can provide humanitarian assistance to undocumented migrants without fear of going to jail. The UNHCR is worried that the internationally accepted definition of refugee is not used in the text, and key articles dealing with the treatment and status of refugees (Articles 108 and 113) use definitions created by the Legislative Assembly as opposed to the internationally recognized terms. When asked about the motive for this decision, Migration Department Director Marin explained that one legislator decided it was pointless to repeat definitions that had already been used in the Geneva conventions to which Costa Rica is a party, so he decided to craft his own. (Note: Marin expressed frustration at the many thousands of Colombians in Costa Rica with refugee status. It appeared that he supported the narrower definitions included in the law; he said it is the GOCR's right to establish whatever refugee definitions are appropriate for Costa Rica. End Note.) ¶14. A spokesperson for the International Organization of Migration (IOM) commented in a recent press interview that the law does not adhere to standards set out in the U.N. Protocol to Prevent, Suppress, and Punish Trafficking in Persons. The Public Security Ministry responded that the new legislation "complements international agreements signed, ratified, and in force in Costa Rica." (Note: The U.N. Protocol to Prevent, Suppress, and Punish Trafficking in Persons was ratified by Costa Rica on September 9, 2003 and entered into force on December 25, 2003. End Note.) ¶15. After four years of debate in the legislature, the Constitutional Court also weighed in, providing suggestions to modify an area of the law that, in the Court's view, contained potential Constitutional shortcomings. On July 21, 2005, the Court issued an opinion stating that paragraph one of Article 67, aimed at reducing marriage fraud as a means of obtaining citizenship, was unconstitutional. The law's draft language stated that the Costa Rican citizen in the marriage would have to prove the union's legitimacy by having lived overseas for a year with a foreign spouse. The Court pointed out that the GOCR could not require a citizen to live outside of his country on any grounds. The bill's text was changed to eliminate this constitutional weakness. Marin expressed his frustration to ConOff regarding the new law's inability to outlaw marriages by proxy in which foreigners are able to marry Costa Ricans and be in full compliance with all the current requirements for residency without having ever met their spouse. He explained that Chinese and Cuban citizens widely abuse the current loopholes in the system to gain Costa Rican citizenship. -------------- - Funding Uncertain for New Law's Implementation -------------- - ¶16. Marin declined to comment directly on funding issues, but candidly pointed out that his research indicates he needs at least 300 more staff to carry out the new mandate adequately. He stated that the Migration Directorate will need "international dollars" to implement the new legislation correctly. Marin added that due to payments on the national debt, the Migration Directorate only receives one-third of its allocated budget. He explained that several key border posts lack the most basic tools, such as vehicles, to investigate reported cases of illegal migration and lawyers on staff who know the law and can build a case. He mentioned that in San Jose alone, there are over 500 pending immigration investigations that are not attended to due to lack of resources. Marin explained that some border- crossings close at 4:30p.m., and that anyone who wants to can easily cross over after the officials have gone home for the evening. -------------- COMMENT -------------- ¶17. It appears that the challenge facing the migration law is whether the GOCR has the political will and financial resources to enforce it. It remains to be seen how the implementing legislation, which is scheduled to be presented to the newly elected President this summer, will be received by the new administration. If the GOCR is successful in eking out the required funds from its already cash-strapped budget to fully enforce the new law, Nicaraguans who used to come to Costa Rica looking for work may now start going elsewhere, presumably north. LANGDALE