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Constitutional Court Sets Criteria for Deportation of Foreigners Amid Migrant Rights Debate

Published on July 01, 2024

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Ecuador can deport a foreigner, but first it must evaluate “five axes of democracy, such as family ties,” ruled the Constitutional Court.

In 2019, the Constitutional Court analyzed the detention of a Cuban citizen and established jurisprudence on the deportation mechanism. That decision has been revisited in light of the recent expulsion of a Cuban journalist.

The Constitutional Court (CC) has established several rules to protect the rights of mobile foreigners, linking them to the 2008 Constitution which recognizes migrants as guarantors of rights rather than objects of control.

Controversy Over Visa Revocation and Rights of Migrants

Recently, the administration of Daniel Noboa Azín decided to revoke the indefinite visa issued in 2016 to Alondra Santiago Rodríguez, a Cuban national who worked as a broadcaster in Ecuador and is known for her political activism and criticism of the last three governments.

To justify the visa revocation and her expulsion, the Ministry of Foreign Affairs and Human Mobility cited a June 24, 2024, resolution, stating that the Ministry of the Interior had uncovered a classified “secret” report accusing Santiago of actions that “threaten public security and the state structure,” grounds for revocation under the Organic Law on Human Mobility. Santiago was given five days to leave the country, according to local media reports.

Judicial Oversight and Constitutional Protections

The Ministry of Foreign Affairs’ resolution did not reference a Constitutional Court ruling dated November 26, 2019, which emphasizes that while states have the power to determine their immigration policies and conditions for entry, stay, and expulsion of non-nationals, this power is constrained by principles of respect and guarantee of human rights.

It is important to note that the Constitution, the Inter-American Court of Human Rights, and the United Nations have all stressed that deportation should be a last resort measure, and the principle of non-refoulement applies universally to foreigners.

These conclusions stem from an analysis of the actions of the ordinary justice system, state agents, and the National Police, following the detention of a Cuban national in 2011 for being in an “irregular situation.”

Married and expecting a child, he was detained during his work hours and held in detention centers and migrant cells in Quito for several months. Despite seeking answers through the court system, his deportation to Cuba was confirmed in both initial and appellate rulings, though the notification never arrived.

He filed a writ of habeas corpus, which was denied. The case eventually reached the CC and was accepted for review by a panel of former judges, though it was not fully analyzed at that time.

The current Court chose to hear the case due to its novelty and to establish precedent, as the Migration Law had been repealed and the 2008 Constitution introduced a new regulatory framework for migrants.

Deportation Criteria and Legal Framework

The Court mandated that among the guarantees and rights of mobile individuals is the right to be formally informed of charges and reasons for expulsion or deportation; the right to be heard, present arguments, and contest charges; the right to a timely trial; access to consular assistance; and the right to a public defender.

Furthermore, individuals have the right not to be deported under certain conditions, such as demonstrating ties to Ecuadorians through marriage or economic dependency or showing long-term residency in Ecuador.

In Santiago’s case, her mother, Aleida Santiago Rodríguez, is a naturalized Ecuadorian, and Santiago held an indefinite visa due to her second-degree familial relationship with an Ecuadorian citizen.

Article 40 of the Constitution recognizes the right of individuals to migrate, emphasizing that no human being should be considered illegal due to their immigration status.

“This legal recognition represents a paradigm shift. We have moved from a focus on state sovereignty and national security, where individuals were controlled objects, to a rights-based perspective, where the state guarantees those rights,” concluded the constitutional judges.

Amid actions by state agents, Alondra Santiago left Ecuador on June 28, 2024. In a social media post, she alleged her life was in danger due to abuse of power.

The Ministry of Foreign Affairs initiated administrative proceedings shortly after Santiago, on her program, sang the Ecuadorian National Anthem with critical lyrics directed at President Noboa and his wife, Lavinia Valbonesi.


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