Statement From IRCA CASABIERTA and Refugees International Regarding the Recent Executive Decrees 43809-Mgp/43810-Mgp

On behalf of the Institute on LGBTQI Migration and Refuge for Central America (IRCA CASABIERTA) and Refugees International, we express our deep concern at the resurgence of xenophobic, racist, and discriminatory discourse surrounding migrant, asylum seeking and refugee populations in Costa Rica.

We reject the statements issued in previous weeks by the President of the Republic, Rodrigo Chaves, as well as by Foreign Minister Arnoldo André Tinoco, which, in addition harmful rhetoric against human mobility, point to a lack of knowledge of national and international regulations regarding protection.

We condemn the publication of Executive Decree No. 43810 MGP on December 1st, 2022, which modifies the Refugee Regulations (Executive Decree No. 36831-G) and represents a significant setback in human rights in the country. We take issue with the following:

Violations of international and national laws

The decree stipulates that if an asylum seeker passes through another country considered “safe” by the General Directorate of Migration and Aliens before entering Costa Rica and did not request asylum or await a resolution to their case cannot apply for asylum in Costa Rica—their claim will be deemed inadmissible unless they can provide evidence for why they did not apply for asylum in said country.

International Refugee Law does not state that a person must request refuge in a certain country. We are concerned about the possibility that the Chaves Administration could return or deport a person in need of international protection without providing access to the refugee process, which would violate the principle of non-refoulement and limit the right to request asylum.

The decree also restricts, without further justification, the right to work and freedom movement, two fundamental rights protected at the constitutional level.

Because of these restrictions, we believe the new decree violates international human rights law and international refugee laws that Costa Rica is party to, including the Universal Declaration of Human Rights, the 1951 Convention on the status of Refugees and its 1967 Protocol, and the American Convention on Human Rights.

Impeding the right to work

The decree ignores the different needs and socioeconomic realities of populations in need of international protection, especially LGBTIQ+ refugee applicants, who have historically been vulnerable and whose ability to access a dignified life is increasingly difficult.

The Chaves Administration states that to carry out paid work, asylum applicants must apply for a work permit which will be issued three months after the application date. It is important to clarify that the three-month period was already the standard prior to the decree for applicants to receive a provisional work permit. The text of the decrees is misleading; implying that prior to the decree asylum seekers had immediate authorization to work.

The new requirements also stipulate asylum seekers must be signed up in Costa Rica’s social security system—a limiting factor for many. We are also alarmed about the lack of clarity regarding the criteria in the evaluation process that the Administration has put in place for first time applicants wishing to receive a work permit. The implication is that asylum seekers whose work permit is not approved will not be able to work in country or their asylum application could be denied. The fact that this process could put at risk an individual’s ability to receive international protection is very worrying.

These provisions generate an obvious contradiction: on the one hand, they limit the right to work and, on the other, they punish work in precarious conditions, which, unfortunately, persists and is exacerbated with measures like these.

Lack of Clarity for Cubans, Nicaraguans, and Venezuelans

Executive Decree No. 43809 MGP refers to a “temporary special category for nationals of Cuba, Nicaragua and Venezuela, whose applications for recognition of refugee status are pending resolution or have been denied.”

In accordance with Article 71 of the General Law on Migration and Aliens (No. 8764), the Administration has the possibility of establishing special permits for people whose national conditions prevents them from complying with the requirements demanded by current immigration legislation. Similarly, Article 93 dictates that the General Directorate may authorize the entry and stay in the country of foreigners, through special migratory categories, to regulate migratory situations that, by their nature, require different treatment.

The proposed temporary category is presented as a positive option for people of the nationalities included in the above articles. However, the category contains some provisions that are unclear and raises questions about how these provisions will be interpreted in practice. We recognize that it is not possible to verify the outcome of this new category until its implementation in March 2023, but we ask that the Administration provide more clarity on the details of this temporary special category.

We call on civil society organizations, human rights activists, international organizations, and the general population to join us in asking the Chaves Administration to provide information regarding these new changes and coordinate strategic actions that allow us to support the populations affected by these reforms.