During the years I´ve had many inquiries in regards to the situation of residents and non residents in regards to the possibility of working legally here, well today I gladly proceed to give you my point of view on the subject in consultation.
The current immigration legislation distinguishes as migratory categories: Residents (permanent, temporary), Non-Residents and Special Categories (permits and others).
Non-Residents (including tourists, foreigners in medical stay, foreigners in transit and in transit neighborhood), can not definitively work according to article 92 of the General Law of Migration and Foreigners in force (No. 8764 of September 1, 2009 ). As an exception, those who work for international means of transport and goods can work; The special guests of the High Government of the State, or guests of public or private institutions; Business managers provided they do not receive salaries in the country, and media servers with wages abroad.
Based on the fact that the consultation is geared towards foreigners who apply for a migratory category to obtain a permanence authorization, whether permanent, temporary or special, we will define them within the categories of Residents and Special Categories, although when only in process and applied to, they do not obtain the intended immigration status. These foreigners, when starting their regularization procedures, enter into a waiting process or “legal limbo” where many questions arise.
For the labor effects, the immigration law always refers to the qualification “authorized”. This means that even if a foreigner has opened a file and maintains a pending process and expectation of approval, that right as a resident or permittee is uncertain until the Administration gives formal approval to it. But in practice, many foreigners, such as company executives, undertake work as soon as they start the process, being the right procedure to wait until there is a corresponding resolution of approval.
If this notion is disregarded, Article 175 of the aforementioned law, which literally states: “No natural or legal person, public or private, may hire foreign workers who are in the country in an illegal condition or who, even if they have legal status , Are not entitled to carry out such activities. “That is, even if a person has applied to perform a specific job function, in the case of temporary residents or special categories, cannot change that condition and engage in other miscellaneous tasks To the authorized, except with the authorization of the Administration, for which they will be recognized under a specific term.
In this sense, permanent residents free of status (parents of Costa Rican minors for example), temporary residents free of status (foreigners married to nationals for example) and special categories free of status (refugee seekers authorized to work or workers Cross-border, for example), will not be subject to this labor restriction. The qualification “free of condition” will always have a purely working connotation.
But returning to the point of consultation, referring especially to whether foreigners can start work once they have started the application process, I must indicate that the correct thing in principle is to wait until the Administration makes formal authorization, otherwise acting would be like moving ahead in a claim without due permission. The practical problem is that the procedures for residence extend much longer than the three months indicated by law as the maximum period to resolve, once the file is completed.
Thus, national employers should not hire foreigners until their final authorization by the DGME. If they do so early, employers are exposed to fines. Being authorized to stay in the country as long as it applies for a migratory category, it is not equivalent to being authorized to work. In the process of migrating a foreigner and a national employer, rather than a contract of employment, what would be established would be an offer of work or pre-contract, rather than a formal contract, since it could not be a contractual relationship with someone who is not Authorized to do so.
However, in practice, this modality is not always respected, because there are special and exceptional situations that could not go against common sense. We would have the example of the foreign mother of a Costa Rican minor, had to wait until a residency card or DIMEX (Migrant Identity Document for Foreigners) is issued in order to work and support her child.
Companies recognized before the General Directorate of Migration and Immigration (DGME), governed additionally by Decree No. 36576-G-COMEX published in La Gaceta No. 97 of May 20, 2011. Through this procedure there is a privileged treatment for those companies that previously Accredited to the DGME, decide to regularize their workers. I understand that the Costa Rican Social Security Fund (CCSS) is not currently insuring any foreigners until they have received their residency card, however I have also noticed that when companies report To their employees and integrate them to the social insurance by payroll, can incorporate foreigners, although they do not have a category migr I am finally authorized to comment on the arguments concerning the principle of equality between Costa Ricans and foreigners (Articles 19 and 33 of the Constitution), as well as the right to work (Article 56 of the Constitution).
The Constitutional Chamber has pointed out repeated and sufficient criteria in this regard, indicating that in matters where fundamental rights are restricted (a restriction that can not be definitive, but relative), they must be governed by means of reservation of law applying notions of reasonableness and proportionality The limits to the equality of rights between Costa Ricans and foreigners are only regulated by the same Constitution and by the law. In that sense, immigration law No. 8764 states in article 7, paragraphs “1” and “2”, and as migration policy objectives: “1) The search for complementarity between the national and migrant labor, In such a way that there is no displacement of the national workforce by the incorporation of immigrant workers. 2) Respect for the human rights and constitutional guarantees of any foreigner who enters and stays in the country … “From the above, a balance exists between the regulation of national and migrant labor, with the principles of According to some jurisprudential criteria sketched out in this regard: “In the case of the present case, we are interested in Article 56 of the Constitution recognizing the possibility of working in lawful activities, making exceptional cases where the individual does not Is allowed to work. The foregoing obliges to affirm that any measures adopted with the object of restricting the exercise of the right (in this case, freedom) fundamental to the work, necessarily must be done by the competent organ and through the procedure expressly foreseen for it. That is, in accordance with the constitutional principle of reservation of law, these limits can only be imposed by means of a formal law. “(Constitutional vote 2004-09255 in constitutional action with place) In resolution No. 2010-003298 of the Constitutional Chamber , Justice Piza Rocafort wrote: “The principle of equality admits that in all cases, equal treatment must be avoided, regardless of the possible differentiating elements of legal relevance, so that not all inequality constitutes discrimination. Thus, equality is only violated when inequality is devoid of objective and reasonable justification in accordance with constitutional principles and rights.
On many occasions, this Chamber has maintained that this principle seeks to ensure that those who are in the same objective and relevant conditions receive the same legal treatment. Thus, for reasons of justice, it is required that all differential treatment be justified and that any discrimination must be based on real differences and on objective and relevant criteria of sufficient entity to deviate from the rule of equality. After all, any differentiation of treatment is an exception to the principle of equality and as such an exception will only be valid if it is based on fact and valid criteria of differentiation. The Constitution and international human rights instruments reflect the principle and the right to equality, and there is an obligation not to discriminate unless there are objective and relevant elements that allow different treatment. “In Advisory Opinion OC-18 / 03 of September 17, 2003, Series A No. 18, in which the Inter-American Court of Human Rights referred to the Juridical Condition and Rights of Undocumented Migrants, referred to by the same magistrate and in the same text indicated above, It was stated: “169.
Considering that this Opinion applies to questions related to the legal aspects of migration, the Court considers it appropriate to point out that, in the exercise of its power to establish migration policies, it is lawful for States to establish measures concerning income , Permanence or departure of migrants to work as workers in a particular production sector in their State, provided that this is in accordance with measures to protect the human rights of all persons, and in particular the human rights of workers. In order to meet this need, States may take various measures, such as the granting or denial of general work permits or for certain specific tasks, but mechanisms should be in place to ensure that this is done without discrimination, Characteristics of the productive activity and the individual capacity of the people. In this way, a decent life is guaranteed to the migrant worker, protecting him from the situation of vulnerability and insecurity in which he is usually found, and efficiently and adequately organizing the local or national production process … “
Thus, the Constitutional Chamber has stated that the constitutional rule authorizes the legislator to limit the rights of foreigners and to establish exceptions to the general principle, a notion recognized from vote 1282-90 at 3:00 p.m. on October 16, 1990, In which it was stated:
“The phrase” with the exceptions and limitations that this Constitution and the Laws establish “, contained in article 19, allows to make differences between national and foreign, own of the existing logical differences, without it being possible to be interpreted, of course, that the Exceptions contained in the Law, may be such as to imply a deconstitutionalization of the rights, already guaranteed at the constitutional level to foreigners. On this point, the Spanish Constitutional Court has said that Article 13 of the Spanish Constitution, in saying “in the terms established by treaties and law,” does not suppose that it was intended to de-institutionalize the legal possession of aliens, relative to Rights and freedoms. “In principle, it would be necessary to assume, in principle, the equivalence of the exercise of the rights of nationals and aliens, and that any limitations would be exceptional and interpreted restrictively. Consequently, in those rights in respect of which restrictions may be placed on their exercise by aliens, the legislator is not entirely free, such rights remain constitutional, and the essential content of the right in question must be respected. The legal restriction ceases to be constitutionally protected if it converts the proclaimed right into a pure appearance of what it really is, if it deviates it in a way that renders it inapparent, if it denatures it and erases the profiles with which it is characterized “(see sentence No 115/1987). The sovereign power, to which the Procurator’s Office refers, is not then absolute, but has its limits in the Constitution itself, not being the legislator – not the politician – free to do his will. Consequently, in the matter of foreigners, the only possible exceptions to the principle of equality are those expressly permitted by the Political Constitution, as for example, the prohibition of intervention in the political affairs of the country … “
In resolution 2003-10422 (action of unconstitutionality dictated with place) it was indicated:
“In labor matters, the Chamber has declared the unconstitutionality of some rules that in its opinion limited the access and exercise of the right to work of foreigners, when the only reason for such exclusion has been nationality, which in its opinion is contrary to Right of the Constitution; It has also expressed that any exclusion made in that regard must have a reasonable basis.
In the 1440-92 vote of the fifteen hours thirty minutes of June 2, 1992 he said:
“Nor does the rule in question violate the provisions of Article 33 of our Constitution, since what establishes the principle of equality, is the obligation to equate all persons affected by a measure, within the category or group that corresponds to them, avoiding Arbitrary distinctions, which can only be done by applying criteria of reasonableness. In this way, the only unconstitutional inequalities will be those that are arbitrary, that is, lacking in all reasonableness. It is not for judges to judge the correctness or appropriateness of a particular difference contained in a rule, but only to verify whether the criterion of discrimination is reasonable or not, because the judgment about reasonableness is what allows us to decide whether an inequality
Whether or not the Constitution. In the specific case we have that our Constitution allows to make differences between nationals and foreigners when indicating in article 19 …; Of course, that such exceptions must be logical and derived from the very nature of the difference between these two categories, so that differences can not be established that imply the deconstitutionalization of equality, as would be said in a law that Foreigners have no right to life, health, or a fundamental right, as these would be irrational. The only possible ones are, as has been said, those that logically must be made by the natural difference that exists between these conditions (national and foreign) such as, for example, the prohibition to intervene in the country’s political affairs. “Exposed my criteria on this, along with the law and jurisprudence quotes, I hope to have collaborated on something regarding the topic of consultation.” Be Sociable, Share!