Reforms to the Migratory Law: The Good, the Bad and the Ugly

Costa Rica’s draconian Migratory Law has been in effect for almost a year and there are already moves to fill in its gaps and rectify some of its more negative aspects. The new text softens the legal texture, but so far doesn’t make the final flavor much less bitter than the original. A lot is still to be done.

Karina Fonseca Vindas

Called a repressive, draconian law by Costa Rica’s President himself, the new Migration and Alien Affairs Law will be a year old as of August. In that time it has been shown to have enormous gaps and be open to diverse interpretations, which is a major concern for thousands of migrants who are hoping for substantial changes. A bill to reform the law was recently submitted to the legislature with all the pomp and circumstance befitting a document enjoying the consensus of many sectors of society. But is that in fact true?

Powerless undocumented migrants

Let’s talk about migrants in Costa Rica. Not European and North American tourists, or real estate investors or people who settle on some idyllic beach along the southern Pacific shores to peacefully enjoy their retirement. Let’s talk about the irremediably poor, Nicaraguans who have either crossed the border post at Peñas Blancas or made dangerous “non-official” crossings in a desperate search for job opportunities to assure their own well-being and, above all, subsistence for the family they left behind.

There are an estimated 400-450,000 Nicaraguan migrants in Costa Rica, almost a third of whom are undocumented. They either don’t have the economic means to apply for a residency card and work permit—which cost a minimum of $350-$400—or simply don’t meet the legal requirements for any of the existing modalities for remaining in the country legally.

Setting aside the many other hobbles resulting from this undocumented status, at least 150,000 foreigners live from day
to day in this country with the anxiety of walking the deportation tightrope and powerless to file any labor claim, make a bank transfer, use the health services or enroll their children in Costa Rican primary schools, all of which require a document showing that their migratory status is in order.

Notable gaps in the law

The Law of Migration and Alien Affairs No. 8487 went into effect on August 12, 2006. Despite having been in force for nearly a year, this law still lacks the regulatory legislation providing an operational framework to make its implementation more feasible and less contradictory. The authorities have thus opted to issue internal decrees or directives that allow the General Migration and Alien Affairs Division (DGME) to respond to and regulate particular situations in the light of the new legislation.

The absence of a definitive regulatory law could be considered partially positive, since rigorous application of the law would be pernicious for many migrants. On the other hand, the notable gaps and diverse interpretations in applying the existing legislation has created an atmosphere of uncertainty given the varied—and often capricious—ways of processing migratory procedures.

In a sea of uncertainties

We know of cases in which an attempt is made to follow the current law, but by dipping into considerations included in the previous one, often leaving decisions fundamental to migrants requesting services at the discretion, mood and sensitibilities of the official on duty. There is also no clarity regarding the responsibilities of the different bodies linked to the DGME. For example, although the current law indicates that the procedures for job permits for domestic workers must be applied for in Managua through the Costa Rican Consulate, the officials there are operating with many contradictions, which puts anyone who wants to initiate this procedure in a very difficult situation.

Last year, the Costa Rican government made efforts through the Security Ministry to prevent Law 8487 from going into effect, arguing that there was no budget to provide the DGME the roughly $13 million needed to finance the police force, improve the infrastructure and make the administrative reforms established in the new law. Regrettably, criminal acts involving Nicaraguan migrants in Costa Rica undermined this effort. It is a shame that the argument made to halt the law was based on lack of economic resources rather than its criminalizing and discriminatory contents.

Criminalizing migrants

To repair these and other deficiencies in the legislation, the executive branch submitted a bill to reform the existing law in October of last year, only two months after it was finally promulgated. It was a rather unusual move, since it effectively discredits a piece of legislation approved in the Legislative Assembly less than two years earlier. The most publicized justification is that the law makes it impossible for Costa Rica to assume a more proactive role in the fight against corruption and criminality in migratory affairs. Little is mentioned about the enormous vicissitudes faced by the migrant populations in the country, or of the urgency of having a comprehensive law that respects the basic human rights of foreigners.

In this context, the recurring references to migrant-related criminality and the obligation to combat it to preserve the idyllic self-image of a peaceful people have found a breeding ground in the national news, which displays a clear empathy with the DGME and its current head, Mario Zamora, as a key figure in busting the criminal hotbeds associated with migration.

It would be nearly impossible to argue that illicit human trafficking, the commercial sexual exploitation of minors and the risky maneuvers perpetrated by “coyotes” should be ignored. But the ample media coverage of such practices almost entirely conceals other salient aspects of the migratory dynamic. These include the pathetic living conditions of many migrants and the near-nonexistent support and accompaniment of the receiving countries regarding the protection and defense of their rights.

Never mentioned

In recent months Costa Rica’s population has learned about the operations of Jamaican and Colombian bands in the country, about boats full of Asians and South Americans abandoned by coyotes in Costa Rican waters, and about corrupt lawyers who have organized marriages of convenience between foreigners and nationals for miserable sums of money. In contrast, little public mention is made of the calamities suffered by Nicaraguans who try to get a tourist visa in the Costa Rican Consulate in Managua to enter Costa Rica “legally,” the months of waiting to get an appointment in the DGME to request residency, or the numerous cases of files going missing in that agency, leaving utterly defenseless those who trusted that their procedure would be processed in under a year.

Why is nothing ever said about the Costa Rican-born children of Nicaraguan parents whose extreme poverty qualifies them for student grants from the Costa Rican state, but who never see this aid because their parents don’t have the basic identity documents to open a bank account where the monthly allotment can be deposited?

Yet another episode in a seemingly interminable history of tragedies is that for the past three months or so migrants who wish to obtain a residency card in Costa Rica or conduct other transactions are being obliged to leave the country and return with a valid tourist visa as a precondition for any such procedure. Arguments concerning a mother of eight who would have to be separated from her children for nearly a week in order to go to Managua, or a father who would lose his job if he didn’t get permission to travel or a 12-year-old girl who hadn’t left Costa Rica since she was 2 have no weight. And this doesn’t even include the considerable risks people run of being ripped off or rejected at the border post, even when they show the $20 visa obtained with much sweat in the Costa Rican Consulate.

Reforms with no consensus

The government’s bill to reform the current migratory law was analyzed in work sessions with public officials, international agencies, civil society collectives, academics, parliamentary advisers, business people, etc., who offered their comments and recommendations in the hope they would be incorporated into the final text, which was presented to the legislative body in March 2007.

One positive aspect was the migratory officials’ initiative of circulating the draft bill in order to discuss any proposals that might come from the different groups consulted and incorporate those deemed “pertinent.” The active role in this work played by the migrant and pro-migrant organizations grouped together in the National Network of Civil Organizations for Migrations must be recognized.

The less positive aspect of this consultation is that while it involved diverse representatives of society, such “democratic deference” in no way amounts to overall consensus. There was no consensus on various aspects of great concern that must be reviewed and rethought. Yet the prevailing discourse from Public Security Minister Fernando Berrocal is that we now have a reform bill that has been agreed to and blessed by broad social sectors.

The preeminence on the legislative agenda of the approval or rejection of the Central American Free Trade Agreement (CAFTA) with the United States, and the historic call to a referendum on this issue in September render rather uncertain the parliamentary schedule and the importance that will be placed on discussing and voting on the reforms to the migration law. Nonetheless, the executive branch has insisted that this has to take place as soon as possible. The less optimistic think that at best the project will not be debated before the last quarter of the year. This puts a lot of pressure on the DGME, since if the reforms are approved, it would have to present a budget proposal to cover them in December for inclusion in the 2008 national budget.

A more positive approach

The fact that the reform bill has come from the executive branch is somewhat encouraging because it suggests the government’s interest in approaching migration from a less limited perspective. The most notable improvement to the bill is in the language of the articles, which now incorporates some viewpoints of social sectors concerned about the human drama that undeniably reaches way beyond the simple legal discussion of migratory control. For example, article 7, point a) of the existing law states that any migratory policy must include “non-displacement of the national work force by the incorporation of immigrant workers.” In the reform bill this language is replaced by this less discriminatory twist: “The search for complementarity between the national and migrant work force so that there is no displacement of the national work force by the incorporation of immigrant workers.”

The reforms also add the relationship between migration and development, in lieu of the insistent reference to “national security” in the current law, a concept that reduces migrations to aspects linked to criminal activity. By the same token, the 272 articles of the reform bill are peppered with components related to respect for diversity and different customs (article 7, point d), recognition of the country’s multicultural wealth and the development of the potentialities of all people (point j). All of these are positive images.

Well-founded doubts
alongside positive aspects

The DGME’s functions include concepts such as promoting the inclusion of migrants and recognition of human rights legislation (points bb. and cc. of article 13). It also explicitly allows academic entities and bodies representing migrants or related to the migratory issue to express their criteria and make proposals—although not binding ones—regarding what a comprehensive migratory policy should contain (article 8, points h and j).

Also notable is the idea included in article 8 that for purposes of planning immigration, the migratory policy will take into account national, regional or sectoral development plans, and reports from the Labor, Public Security and Housing Ministries and the Costa Rican Social Security Agency, among others. It is interesting that point j adds migrant organizations or those involved in the migratory phenomenon to the list of participants in such planning efforts.

Despite all these advances, however, special care will have to be taken with this reform bill not to succumb to the seductive use of more inclusive language and the incorporation of notions such as inter-culturalness and human rights. Such “conciliatory” language might not lead to a practical implementation of the prospective reforms in a real framework of respect for and vindication of the migrant populations. Doubt persists as to whether this law has simply brushed up its outward appearance without adequately distancing itself from the practical actions defined in the current legislation. The softer texture of the new text is no guarantee that the final flavor will be any less bitter.

On everyone’s agenda

Having said this, it is worth pointing out additional considerations that must be valued as favorable changes. These include the declaration that the migratory issue must be of priority public interest for development of the country and its institutions, as well as for the nation’s public security. This suggests that each public institution must establish programs and strategies so that the public migratory policy defined by the executive branch can be implemented to responsibly integrate the migratory flows into the country’s socioeconomic reality (article 2).

This suggests we are on the verge of providing an elemental legal framework for migrations with respect to their recognition in the Costa Rican state apparatus, since it proposes some degree of obligation to incorporate the issue into the state entities’ institutional agendas and operational plans. The great challenge will be to ensure a human approach aimed at sensitizing Costa Ricans—particularly public officials—and thus favor the integration and validation of migrants’ needs within the general institutionality of the Costa Rican state.

More favorable reforms

Another favorable aspect is that the new proposal reverses the impossibility of migrants in Costa Rica getting work and study permits through the DGME. Under the current law foreigners have to initiate these procedures in their countries of origin, through the Costa Rican Consulates, which means they must return home at considerable expense and at the risk of not being allowed to return legally to Costa Rica. This also makes it nearly impossible to follow up adequately on the procedure before returning to Costa Rica.

An apparently transitory directive has recently been approved that allows Nicaraguan migrant women and employers to apply for work permits for domestic workers in San José. But this measure is threatened by a legal dispute, as it seems to contradict the existing law. If the reform bill is approved, however, all procedures for attaining this work permit could be done within Costa Rica.

Finally, based on article 246 of the reform bill, all aspects related to the illicit traffic in individuals have been expanded to include relevant considerations for those affected. As a result, protective measures and assistance are included for foreigners deemed by the relevant authorities to have been either victims of, harmed by or witnesses to the trade. This is an important change, in that the new text stipulates treating foreigners as victims rather than only accomplices to an anomalous or criminal act.

The hardest bone to chew

For all that, the new bill still contains regulations of concern to the migrant populations living in Costa Rica and the organizations working for the protection and defense of their rights. These could significantly affect the most vulnerable migrants. The most sensitive proposal is unquestionably the one of charging an annual migratory fee for foreign adults applying for legal residence in Costa or those who have to renew that status.

Point l of the motives for this article mentions: “The implementation of a new concept termed Migratory Fee, which permits the collection of resources to be earmarked to social services that affect the migrant population in particular and would imply strengthening the system of solidarity contributions operating in the country, is a distinctive demonstration of our institutionality.”

Throughout the consultation and meetings with DGME authorities, euphemistic phrases referring to the migratory fee abounded, referring to it as a “joint liability contribution,” and a “symbolic contribution to social security.” But it was never openly stated that it is, in fact, yet another tax, specifically targeted at migrants who want to and are able to remain legally in the country. The final destination of the resources and exactly what the migrants will receive in return for paying this fee is extremely ambiguous.

According to point t of article 13, the migratory fee will contribute to “the sustainability of the services mainly used by the migrant population, such as education, health, housing and justice.” Further on, article 26 notes that migrants must pay a migratory fee “as one of the measures considered in the current law to allow their social integration through solidarity.” The same article goes on to say that “immigrants and the user population of migratory services must pay an [annual] amount of $25 as a migratory fee, which is a contributive obligation based on the principle of solidarity, for the purpose of helping ensure the sustainability of the public services of the social and democratic rule of law. The category of non-residents and the special categories will pay the equivalent of $5.”

Joint liability contribution
or just another tax?

The migrant population, which is mainly Nicaraguan, will have to scale a new wall: annual payment of the migratory fee. The destination of the amount collected in this category has still to be specified in the event that the money is indeed transferred to the public institutions “directly impacted” by the migratory population living in Costa Rica, as the migration authorities claim. It is thus indispensable to know whether the migratory fee will really be earmarked to support the sustainability of the national public health system, the education system, the housing system, public security and the modernization of the DGME (article 25, point f; and article 26 point f, among others), as well as financing the mechanisms that will be used to put this regulation into operation.

The migratory fee could be yet another factor that encourages people not to get their papers in order, since it would represent one more large sum of money for people attempting to regularize their migratory situation, and this one will continue to be charged in the coming years. In this same regard, the reciprocity involved in the obligatory payment of the fee is not evident, since there is only mention of a “joint liability contribution” by migrants to the country’s services. The bill does not lay out the compensatory forms of this contribution, especially regarding migrants’ effective access to the public services they will be supporting through this new tax.

It should be remembered that many legally resident migrants are already registered with the Social Security System, pay their taxes, contribute fees and investments to the primary schools their children attend, pay their municipal taxes, and pay for their electricity, water and telephone services. A broader discussion is needed about whether the migratory fee is a discriminatory tax, a way of blaming migrants for the deterioration of public services, so we don’t just let ourselves be convinced that this fee is part of a “principle of solidarity.”

It appears a bit paradoxical that the article in the reform bill preceding the new regulation on the migratory fee indicates that “individuals of a foreign nationality found in the country will be subject to payment of the same tax or social security contributions as Costa Ricans, according to the legal norms applicable in this regard” (article 26), when the addition of the fee (in the new article 26) seems to reverse or contradict this notion of equality.

On de facto unions and marriages

In the past decade, Costa Rica has made great strides in legally recognizing de facto unions, benefiting many women, who tend to have more responsibility for their children. This legal recognition has made it possible to enforce paternal duties regarding maintenance and, in case of separation, that goods obtained during the time they lived together are recognized as joint possessions.

Nonetheless, it wasn’t possible for such precedence to extend to legal recognition in the reform bill of migrants living together out of wedlock, even though the pro-migrant organizations in Costa Rica insisted on the need to accept this link as a mechanism for obtaining permanent residency in the country. We also argued that if one member of a couple is a foreigner, this should allow him or her to apply for a residency card on the grounds of the bond with the Costa Rican partner.

Article 69 of the reform bill, however, did not modify this aspect, leaving the existing law unchanged: “De facto union does not have any legal migratory effect and cannot therefore be alleged for purposes of eluding implementation of a deportation order or to attempt authorization of legal permanence as a resident” (article 70).

In addition, it toughened up the requisites for accessing permanent residency in Costa Rica through marriage. If approved as is, the reform bill adds a new requisite for foreigners married to nationals. It is no longer enough for the marriage to be duly recorded in Costa Rica’s Civil Registry; the foreign partner may only apply for permanent residence after being married for at least two years (article 68).

Both de facto unions and marriages between foreigners and Costa Ricans are “risky” links in the migratory controls, since cases of fraudulent liaisons have been detected. Nonetheless, the refusal to recognize matrimony and de facto union between Costa Ricans and foreigners as legitimate relationships that should permit the foreigner to remain legally in the same country as his or her partner could be interpreted as a violation of individual liberty. It also seems to ignore the existence and denunciation of corruption in the recording of false marriages and the legal steps associated with that process.

Beyond justifications based on probable frauds, the entry of “undesirable” foreigners via marriage and the legitimacy that should or should not be granted to de facto unions for migratory purposes, there is an urgent need to evaluate verification methods with the proper authorities and prioritize the follow-up and analysis of residency requests based on these links. It is unfair for the only solution to be limiting the individual freedoms of people to join together with whomever they desire under whatever conditions they freely decide.

Apprehensions and detentions

Another issue with both positive and negative aspects in the reforms has to do with the attributions of the migratory police and the length of detention defined for foreigners. The current law indicates that “foreigners who cannot demonstrate that they are authorized to remain legally in the country can be preventively apprehended for as long as it takes to determine their migratory situation and implement the pertinent sanctions, when appropriate” (article 18, point 1). No distinction is made between preventive apprehension and administrative detention, which in human rights circles are recognized as separate concepts with different specifications.

The reform bill does differentiate between the two measures. In the first place, it mentions the possibility of “preventive apprehension, for a maximum of 24 hours, to verify the person’s migratory condition while an attempt is made to corroborate the administrative infraction. Once that period is over, the corresponding migratory process should be initiated, or else the person’s immediate release must be ordered. This period could be extended in qualified situations through a resolution duly justified by the General Director.”

Preventive apprehension is a measure imposed on a migrant who entered Costa Rica legally but during a police sweep or other operation cannot demonstrate possession of legal residency in the country. This person does, however, have the legal possibility of demonstrating his status, be it a child born in Costa Rica, marriage to a national or application for a work permit in progress. In this case the authorities grant the person five working days to file for regularization. This pressures such people to resolve their migratory situation in a given period of time and the police are obliged either to offer them this possibility within 24 hours of capture or immediately release them.

This change could be viewed as a step forward, as it at least stipulates defined periods for this type of restriction to freedom of movement. But the category of administrative detention is still worrying, as it remained established for a maximum of 30 days in the reform bill (article 25). This measure is applied when a person has no options for attaining documentation in Costa Rica so must be deported. This detention period is still excessive, despite the efforts of the civil society organizations, which insisted it be no longer than 15 days.

An important precedent

Moreover, there has been little discussion of which state entities are responsible for protecting the rights of apprehended or detained migrants. The same is true for the verification of conditions and financing of the detention centers, training of the police force to provide dignified and respectful treatment and the legitimacy of police operations in public or private places.

In this regard, it should not be forgotten that in 2004, three months after an operation conducted at 6 pm to verify the migratory status of foreigners in the La Carpio community in San José, the Constitutional Bench ruled that the Costa Rican state must pay damages and damages to 65 Nicaraguans who it agreed had been harmed by the operation. This was in response to a writ of habeas corpus filed by a citizen of Nicaraguan origin, in representation of 65 compatriots. The justices argued that the operation was conducted on the public street and without previous indications that the foreigners were committing any crime. Furthermore, it violated article 5 of the Declaration of Individual Human Rights, which prohibits the arbitrary arrest of foreigners. But concern persists regarding police powers related to the migratory issue and the possible violation of some basic rights of detainees who are “illegally” in Costa Rica.

A pending agenda

The migratory issue has unarguably become vitally important in Costa Rica. The past decade, characterized by the massive arrival of Nicaraguans seeking labor opportunities, has opened many channels of discussion. The need to bring about deep and lasting transformations in the ways Costa Ricans coexist with the migrant populations is still a pending challenge.

The migratory law is presented as the solution to “the problems” caused by the migrations. A limited approach clearly still exists, which is typical of governments that impose stiffer penalties and more restrictive laws in an attempt to find a solution to the national problems of economic deterioration and to a human drama that frequently merits a different treatment that the authorities would prefer to hide.

Costa Rica’s current Migration Law and its reform bill have put the discussion about migrants’ human rights on the table. It is essential for the law currently in effect to be replaced quickly. The proposed reforms represent an initial effort to detail the migratory issue more finely, but much more remains to be done. This first outline still displays the persistence of aspects that have not been sufficiently addressed.

The Nicaraguan
diplomats’ great debt

They are insufficient because they offer no solutions or alternatives to undocumented people who find no possibilities in either the existing law or the reforms of changing their condition of “illegality” on Costa Rican soil. They are insufficient because they don’t propose any greater flexibility in the requisites and costs of applying for residency cards and temporary work permits.

They are insufficient because we don’t seem to be on the verge of a possible amnesty, even though the recently named Nicaraguan ambassador in Costa Rica, Harold Rivas, has publicly stated that he will fight for one. His remarks immediately triggered a hardly encouraging reaction from the DGME and Foreign Ministry authorities, who stated that the government is not considering any such possibility.

They are insufficient because of the minimum responsibilities that Nicaragua’s diplomatic corps in Costa Rica seem to have assumed around this issue. The inefficiency of the consular officials has been shameful to say the least when greater belligerence, improved services and new policies were required to appropriately respond to the needs of their Nicaraguan brothers and sisters. The clamor of an entire people living in Costa Rica has been too weak for their diplomatic ears. Some of the most common complaints are long lines, mistreatment, the impossibility of moving procedures along and a scant presence and lobbying effort in response to Costa Rica’s migratory policy.

Providing identity cards for Nicaraguans on Costa Rican soil, registering children not recorded in their country of origin without the parents having to make the complicated and costly trip back to their native municipality, effective and timely attention to special cases and the active defense and protection of the human rights of Nicaraguan emigrants are only some of the failed challenges that have been racking up over the years against the Nicaraguan diplomats and governments that so vehemently claim to represent their compatriots abroad and rhetorically promise to support them.

And finally, the reforms are insufficient because Nicaraguans on Costa Rican soil are afraid; they hide; they don’t know what to do or whom to turn to. Uncertainty dominates many spheres of their life and inhibits their limited freedoms. They worry about being deported, separated from their Costa Rican-born children or the ridiculous deadlines for “legalizing themselves” determined by law, if they even have such a possibility. But these situations are little valued and barely mentioned by the media, the relevant authorities and the collectives created to help migrants deal with their situation.

They don’t miss either
Rubén Darío or vigorón

In this regard, the sub-world of consultants, NGOs and their extremely active fundraising from international agencies negatively affect the migrants who are crying out for effective support. They need support that goes beyond the promises, verbiage and insipid training workshops implemented as part of the activities for this year’s financed project.

Migrants don’t need digital photos, vigorón [a typical Nicaraguan dish], to sign an attendance sheet or the inevitable workshop evaluation—often after the vigorón. What they need is a genuine transfer of capacities and resources to help the most unprotected groups take their own alternate routes to improve their living standard, fostering increasingly appropriate relations with the state entities, their employers and their neighbors.

But unfortunately it is increasingly common for NGO representatives to indulge in false representativity, showing off by dabbing on some essence of nacatamal [another typical Nicaraguan food], quoting Rubén Darío even in their briefest public statements and draping the Nicaraguan flag over their shoulders in each march or folkloric cultural act.

What Nicaraguan migrants really need

Migrant and pro-migrant organizations should provide genuine leadership, as opposed to what amounts to a modus vivendi for middle-class professionals. Many of the work experiences of various collectives committed to migration are worthy of recognition, but many others are only worthy of serious questioning.

Moving beyond the laws, combining efforts, listening to and acting in harmony with what the migrants in Costa Rica have to say, and never flagging in their defense of the contribution these populations make to the country’s development, are just some of the challenges that reach beyond criticism, counter-proposals or opposition to given articles of a migratory law.

Good political will that attempts to recognize the needs and capacities of migrants cannot be exclusively set out in a law, no mater how many appendices on human rights, solidarity and respect are tagged on. What is needed is good practical will, actions, directives, decrees, official positions and a public posture to help improve the living conditions of these groups of people so beaten down by the reality of the country they left and so longing for job stability, well-being for their family and, above all, definitive eradication of the label “illegal.”

Karina Fonseca is the director of the Jesuit Service for Migrants in Costa Rica.

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