The Department of Immigration of Costa Rica passed a new directive that came into effect on July 1, 2024. The directive, RESOLUCIÓN Nº D. JUR-220-05-2024-JM-ABM was aimed at streamlining the online and physical filing requirements for applications related to several different type of immigration categories filed before the Department of Immigration. This also includes the most common categories applied for by expats in Costa Rica which are Pensionado, Rentista and Inversionista.
Clearing up the Case Backlog
Immigration has been under pressure with accumulated files due to a surge of demand for residency, refugee and wok applications to stay in Costa Rica. Now based on the application of this new directive that we have seen it is clear that they are using it to clear up a large backlog of cases that have been pending resolution before the Department of Immigration. It seems that the quickest way for them to clear the backlog was to deny and close out as many applications that they could.
What Are the most Common Grounds for Rejection
The Department of Immigration is rejecting files by nit picking little details in the supporting documents of the applications and indicating that they do not comply with the requirements. The most common issues that you should take into consideration if you are applying for residency in Costa Rica are the following:
The apostille
The original document that you are presenting must be apostilled and the apostille must be of the signature of the government official that signed the certificate. In the past they were accepting documents that were certified by a Notary Public and the signature of the Notary was apostilled. They have rejected documents with this type of Apostille so be aware of that.
The married spouse name difference
In North America is it custom for the spouse to adopt the last name of the other. In this situation the last name on the passport will not match the last name (maiden name) in the birth certificate. In those situations, it is recommended that you present a sworn affidavit with your application in order to ensure that you explain the name differences between your birth certificate, passport and marriage certificate.
Any type of criminal charge on the FBI report
If you any type of charge or incident on your background criminal report then you will need to explain in more details to immigration the circumstances around it. If your criminal incident was from a local state then you will be required to obtain a copy of the final case disposition from that state.
For Investor status the property documentation
Those that are applying for investor status should ensure that the attach a property title certification showing the property is in their personal name. In addition, you will need to provide the local government property tax certification showing the value of your property. This also must show up in the name of the person applying as investor. If you are using your Costa Rica company to apply for residency then ensure that you comply with all the rules and regulations that require the company to be tax and economically active.
Irrational and Unflexible Positions
I have been working processing immigration applications for over 20 years in Costa Rica and in all that time the last few months have been the worst that I have seen it as far as inconsistencies and arbitrary resolutions. Even the Costa Rican Bar Association (Colegio de Abogados) Immigration Practice section has gotten involved and filed claims against Immigration for some of the arbitrary resolutions they have issued. Many of these are being litigated so we will know in the next few months how this will ultimately develop.
The Legal Justification for Their Actions
The Department of Immigration has justified their actions by citing the Costa Rica Supreme Court decision number 02333-2010 which states: “This Court has consistently maintained that immigration policy is part of a nation’s sovereignty and includes the regulation of the entry and stay, temporary or permanent, of foreigners within its territory, with the possibility of exceptions and limitations to their rights by legal means……. Foreigners who intend to enter our country must meet the requirements established by domestic law and comply with the legal norms that determine the legality of their stay and its consequences. The Court has recognized this as the exercise of a discretionary power in line with the legal framework in force, exclusively assigned to the Executive Branch, to decide on the stay of a foreigner when it finds it harmful or compromising to public order or when special circumstances advise it.”
They also cite Supreme Court Ruling 2005-4679, where the Supreme Court stated: “(…) as it has been said, an application that does not meet the legally established requirements is not on equal footing with other applications submitted by individuals who have fulfilled all the legal requirements.” This principle was upheld in ruling number 2006-2671, where the Court noted: “There is no doubt that such an evaluation regarding the appropriateness of the requirements for granting such migratory status is a matter of legality that cannot be discussed or analyzed in this forum. Therefore, the Court does not consider that this situation infringes upon the applicant’s rights, and the appeal must be dismissed.”
Spare me the Legalize and Give me the Summary
If I can cut through the legalize their position is we (Deprtment of Immigration) have full discretion as to sovereignty and admission of foreigners and it is their obligation (immigration applicant) to submit to us complete applications with documents that satisfy our requirements. If you don’t, we will reject your application.
From my perspective there is no dispute regarding the discretion at immigration. The issue lies that in the past they would notify the applicant that they had a defect or error in their documents and then provided the applicant with at least 10 days to correct it. This latest stance by the Department of Immigration is to eliminate the prior notice requirement and go straight to full rejection of the application.
Your Application is IRRELEVANT OR IMPROPER
The legal basis that the Department of Immigration is using to reject files outright are Article 193 of Law 8764, which states: “ARTICLE 193.- The General Directorate will outright reject any late, irrelevant, or clearly improper application.” Then when they reject the application on grounds that it is IRRELEVANT OR IMPROPER then they apply Article 221 of the Immigration Law which limits your right to appeal. The only appeal you have is before the internal Immigration Department Appeals Section. As a
As a result of the actions taken by the Department of Immigration they have flooded the Appeals section.
What Can You Do ?
My advice to those applying for residency is to ensure that all your documents meet the current standard imposed by the Department of Immigration in their latest directive. If they reject your application, you only have two options – File an appeal which is time consuming or correct any defect they pointed out and compile all your original documents again and refile a new application. Of course this second option is not ideal since you have to start the process all over again. However it is probably the most practical and quickest way to continue to move the application forward.
Recent Supreme Court Decisions on the Issue
I am attaching for you two actual cases from the Costa Rica Supreme Court related to the rejection of applications. In the first case the court sided with the applicant whose file was rejected outright without the right to correct for having omitted to attach the $50 application fee. In the second the Supreme Court sided with the Department of Immigration indicating that Immigration was correct in rejecting the application and the applicant could just refile it.
Elias David Espinoza Vs. Department of Immigration
Elías David Espinoza Cortés, a foreign student residing in Costa Rica, was granted a student visa in April 2022, valid until April 2024. In July 2023, his mother requested a change in his immigration status from student to permanent resident, based on his family ties to Costa Rican citizens (his siblings). Despite repeated inquiries, the authorities at the Department of Immigration delayed their decision. During this time, Elías turned 18 and secured a job offer. However, due to the unresolved status of his immigration change, he was unable to accept employment.
In June 2024, the DGME denied the application for residency, citing the failure to submit a required $50 fee. Elías and his legal representatives argued that the Department of Immigration did not provide an adequate warning (right to cure the defect) for this missing fee, which caused undue harm as it required restarting the entire process, involving additional costs that his family could not easily afford.
Application of the Law:
The court examined the application of Article 255 of the General Law of Immigration and Foreign Nationals, which mandates a $50 fee for legal residency applications. The DGME’s decision to reject the application based on the missing payment was deemed lawful but questioned regarding the administrative procedure of not providing prior notice or an opportunity to correct the error (known as “PREVENCION”).
The court also referred to constitutional precedents, asserting that administrative authorities must provide petitioners with the opportunity to correct minor deficiencies (such as missing documents or fees), particularly when the applicants are from vulnerable populations, like minors or students.
Pascal Maurice Rey vs. Department of Immigration
In this case Mr. Rey had submitted a request for temporary residency on November 27, 2023, based on his marriage to a Costa Rican citizen. On July 8, 2024, the Department of Immigration rejected his application on the grounds of being incomplete, citing the new immigration directive (Resolution DJUR-220-05-2024-JM-AMB. This directive required that applications be complete both in form and substance, and allowed for rejection without the opportunity to rectify or appeal the decision.
Rey’s appeal claimed that applying this resolution retroactively was unfair, as his original application had been submitted before the new rule came into effect. He also pointed out that the DGME never gave him a chance to correct the deficiencies in his application, despite the eight months that passed before his request was denied. Furthermore, the resolution left Rey without the right to appeal, violating his fundamental rights to defense, petition, and due process.
Application of the Law:
The court examined the case and considered whether fundamental rights had been violated. It concluded that the rejection of Rey’s residency application was a matter of legal procedure rather than a direct violation of constitutional rights. The court emphasized that its role is not to oversee or re-evaluate the legality of administrative decisions unless they directly infringe upon constitutional rights. Since Rey was given the option to reapply and submit the missing documents, the court determined that his right to petition had not been violated.
The court also clarified that it does not serve as a mediator between individuals and public authorities to grant the desired outcomes in legal procedures, particularly when the issue involves procedural legalities rather than constitutional matters.
Elías David Espinoza Cortés, a foreign student residing in Costa Rica, was granted a student visa in April 2022, valid until April 2024. In July 2023, his mother requested a change in his immigration status from student to permanent resident, based on his family ties to Costa Rican citizens (his siblings). Despite repeated inquiries, the authorities at the Department of Immigration delayed their decision. During this time, Elías turned 18 and secured a job offer. However, due to the unresolved status of his immigration change, he was unable to accept employment.
In this case Mr. Rey had submitted a request for temporary residency on November 27, 2023, based on his marriage to a Costa Rican citizen. On July 8, 2024, the Department of Immigration rejected his application on the grounds of being incomplete, citing the new immigration directive (Resolution DJUR-220-05-2024-JM-AMB. This directive required that applications be complete both in form and substance, and allowed for rejection without the opportunity to rectify or appeal the decision.
