- Published on Wednesday, 24 October 2012 20:22
By Jesús Arboleya Cervera
HAVANA – Although a prestigious jurist friend of mine cautioned me that to interpret the law God had invented lawyers, I dare to share some opinions on the impact that the immigration reforms might have on Cuba’s relationship with Cubans who live abroad.
The new law upholds the establishment of diverse categories of migrants.
• Cuban citizens residing in Cuba who travel “for private reasons.” These can remain outside the country up to 24 months, twice the period allowed previously, and renew their stay abroad by visiting the Cuban consulates abroad and paying a monthly fee.
Under this status, the “temporariness” of their stay abroad can be extended for an indefinite period. Within this category we find minors who in the past could not leave the country on a temporary basis but now can do it with the authorization of their parents or tutors. The departure of minors can be arranged while his/her parents are abroad.
Those who travel under these conditions retain all their rights and properties in Cuba, even their jobs during the time stipulated by law, or their pensions if they are retired. They can travel to Cuba freely, remaining on the island without time limitations, or can even return permanently, if they so wish.
Also, by visiting the Cuban consulates abroad, they can modify that status and become “residents abroad.” The advantage is that they won’t have to pay monthly fees, and their right to stay abroad, which until now was 90 days, can be extended to six months.
• The so-called “residents abroad” are those who decided to settle outside Cuba indefinitely, basically to enter into marriage with foreign individuals. It is a more flexible variant of the old “Permit for Residence Abroad” (PRE), because it does not demand that the marriage be legally formalized. I suppose the emigrant needs only to declare his intention in order to be granted that status.
People in this category do not lose their basic rights in Cuba, including access to social services, properties, or their pensions in the event they are retirees. If they cannot collect their pensions, the money will be saved in bank accounts. These people can return permanently if they wish or may visit Cuba whenever they wish, although they can only remain on the island for 180 days, a length of time that can be extended through paperwork and additional payment.
I understand that a person can adopt this status at the time he decides to emigrate, but is not obligated so to do, in which case he can wait the standard period: 24 months.
• The third category is called “émigré.” The law says: “A Cuban citizen is considered to have emigrated when he travels abroad for private reasons and remains abroad uninterruptedly for more than 24 months without the corresponding authorization, as well as when he sets up domicile abroad without observing the existing emigration regulations.” This, I presume, includes Cubans who abandon missions abroad that were sponsored by the State.
The term is not exact, because all are viewed as “émigrés,” but in the future it will include those who break their formal ties with the Cuban State, although this category also includes most of the Cubans currently residing abroad, especially in the United States.
Nevertheless, as I interpret the law and look to the future, this is a transcendental change from the past.
First, because this status carries the legal subtlety of not including the concept of “definitive,” which opens the possibility of a modification (hypothetically, at least) and second, because from now on nobody leaves the country as a “definitive emigrant,” as in the past. That status can only be assumed through a personal decision, when someone decides not to obey the established regulations.
Those who decide to assume this status will lose some of the rights granted to other Cuban citizens, as happens with most of the current émigrés. Although their property will not be seized (a provision of the new law), they will not retain its ownership. However, they may sell it or transfer it. Their relatives can claim the property if the emigrants leave the country without specifying the final disposition of said property.
Because the emigrants have no recognized residence in Cuba, they may not exercise their political rights, such as voting in elections, and may not enjoy the free social services that the country gives its citizens.
However, the law says that the émigrés can visit Cuba as often as they wish, so long as they have up-to-date passaports. They may remain in Cuba up to 90 days and renew their stay by appealing to the competent authorities.
It is not clear (at least to me) if this opening includes persons who, because of their migratory condition, were not granted “Entry Permits” in the past, such as doctors who abandoned their missions or emigrated illegally after 1994.
Although my lawyer friend says that “where the law doesn’t distinguish, it is not up to us to distinguish,” and because no prohibitions for these cases are specified, one of the reasons to deny someone entry to Cuba is “noncompliance with the regulations of the Migration Act, its rules and complementary regulations for entry to the country.” Therefore, we’ll have to wait and see if the application of this article retains the old limitations or not.
For those who emigrate beginning now, the possibility of return is incorporated in the 24-month period, as well as in the renewals or the status of Residents Abroad. Therefore, they may remain abroad for an indefinite period without losing the possibility of returning.
But even for the “émigrés” the State has adopted dispositions that broaden and facilitate this process, inasmuch as the law establishes the steps necessary to request it, as well as specific periods and expeditious paperwork to deal with these cases.
Evidently, there have been changes in the pattern for the evaluation of these applications, because – while previously there was a humanitarian criterion to grant them only to needy persons or unprotected minors – the law now includes people who can earn their living by themselves and become independent from the relatives who initially house them. Some may have enough resources to eventually set up their own businesses.
Another question that the law doesn’t answer is if those currently classified as “émigrés” (almost all the emigrants living in the U.S. and more than 80 percent of the total figure) may request to change their status to “Resident Abroad,” a category that might allow them to assume their rights and duties regarding Cuba.
In any case, the new émigrés are already presenting a challenge to U.S. laws – also to Cuban laws, though I expect the government has already foreseen this – because these people can take advantage of the Cuban Adjustment Act while retaining their residence in Cuba.
No doubt, many questions remain unanswered and others will pop up when the measures that complement the current ones are announced. What’s more important, however, is that we are now raising issues that were unthinkable in the past – and that’s what change is all about.
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