RIGHT TO RESIDENCE AND MOVEMENT
A. GENERAL OBSERVATIONS
1. On the right to residence and movement, the American Declaration of the Rights and Duties of man establishes:
Article VIII. Every person has the right to fix his residence within the territory of the State of which he is a national, to move about freely within such territory, and not to leave it except by his own will.
2. It will be noted that the American Declaration does not explicitly establish the right of every person to return to his country; nevertheless, the Commission considers that that right is implicitly recognized in that instrument. Thus, the IACHR has upheld that “The right of every person to live in his own country, to leave and return when he deems fit¼” is a basic right that “is recognized in every international instrument that protects human rights”. Indeed, the Universal Declaration of Human Rights, in Article 13 (2) provides that “every person has the right to leave any country, including his own, and to return to his country”.
3. It should be borne in mind that, in accordance with the above-cited text, the right to residence and movement is clearly related to the right to nationality. The latter is established by the American Declaration in Article XIX, and the Commission has referred to the essential importance of the observance thereof, and has condemned those situations in which the right to nationality is impaired as a consequence of government actions against political adversaries.
4. The Commission considers that the exercise of the right to residence and movement can under no circumstances be ground for the deprivation of nationality, and that such a punishment, if imposed for that reason, would be illegitimate; in this case, then, loss of nationality could not be relied upon by any government to prevent a person from returning, in any capacity, to his country of origin.
5. Given the importance of US/Cuban relations on the right to movement between the two countries, considerable space has been allowed to present the experience of Cubans who have emigrated or traveled to the United States. Cubans travel around the world and Cuba receives official visitors, technicians and tourists from dozens of countries. Nevertheless, the greatest exchange of people has always taken place between Cuba and the United States. For the current Cuban Government, this flow has been the source of very serious problems. Several laws and rules that govern immigration, migration and travel between Cuba and the United States have been subjected to special regulation and their enforcement has been impeded by obstacles not encountered with respect to travel between Cuba and other countries. Both in practice, and to a certain degree in legislation also, Cuban immigration, emigration and travel policies respond to the specific problems of movement between the United States and Cuba.
B. LEGAL FRAMEWORK
6. The laws that control immigration, emigration and travel are contained for the most part in the law on migration and its regulation, and in the law on aliens and its regulations. It should be pointed out that the right to residence and movement is not enshrined in the Constitution of Cuba, an omission that the Commission regrets.
1. Law on Immigration and Law on Aliens
a. Travel outside of Cuba
7. The Cuban Immigration Law covers citizens, foreign residents, temporary residents, visitors, guests and tourists. These provisions regulate travel of Cubans for diplomatic or official reasons, for personal business or family visits, and the entry into national territory for the same purposes of anyone not of Cuban origin. The law on aliens defines aliens and their rights and obligations while in Cuba.
8. Cubans who leave the country temporarily or permanently must have a passport. Passports are issued by request to any person over eighteen years of age. Passport requests, notarized by a notary public, are submitted to the office of the Director of Immigration and Aliens and should be accompanied by due proof of identity and the receipt demonstrating the appropriate payment. Cuban citizens residing outside of Cuba may request passports at certain Cuban diplomatic and consular offices. The passports are valid for two years and may be renewed for two more years on two successive occasions. Cubans with current passports as well as foreigners and persons without citizenship who reside in Cuba for more than ninety days and do not hold an official position, may obtain an exit visa in addition to their passports (Regulation of the Law on Migration, Chapters 1 and 2).
9. Persons who request permission to leave the country should accompany that request with a communication from their place of employment or study in which are listed their characteristics as workers or students, a certificate of criminal record and, if the purpose of travel is to visit family or friends, the invitation extended by them and information on them. In the case of visits or travel for personal reasons, it is also necessary for those of military age to present documents that certify compliance with the provisions of the law on military service; persons who wish to travel to non-socialist countries must deposit the funds or prove that the travel expenses will be covered. Temporary exit visas are valid for specific time periods, although they may be extended. (Regulation of the Law on Migration, Chapter 3). When a permanent exit is issued, the persons who are going to emigrate must submit an inventory of their possessions.
10. Travel abroad of Cubans and foreign residents is regulated by government agencies, through the issue of exit permits. The procedures involve the Ministry of Foreign Affairs, the Ministry of the Interior, and a ministry who jurisdiction covers whatever activities are to be carried out abroad. If there are objections of any kind, issue of the exit permit may be delayed or denied. The Comités de Defensa de la Revolución (Committees for the Defense of the Revolution CDRs) may be consulted to verify addresses or other information submitted for the purpose of travel or family visits. Citizens who are not well regarded by the CDRs may on some occasions have difficulty in obtaining exit permits.
11. Exit permits to visit relatives abroad are issued almost automatically for Cubans over 60 years of age. Younger Cubans may visit their relatives abroad only in emergency situations such as illness or death. Although most professionals eventually obtain temporary exit permits allowing them to travel abroad when they are invited by organizations located abroad, young men generally have to complete their obligatory military service before they can obtain an exit permit.
12. Through the years, the procedure to obtain exit permits has become standardized and less punitive. It is still the case that Cubans who wish to permanently leave the country must give up their property, except for their personal belongings. Once the exit visa permit is issued, the authorities take an inventory of all family belongings, and they must be accounted for at the time the person leaves the country. However, if only one member of a family leaves permanently, their property is left basically intact.
13. Several years ago, when a Cuban declared his intention to leave, he generally lost his employment, if he held a good position, and was forced to perform manual labor or remain unemployed until he left the country. This situation has changed, and it has rarely occurred in recent years. However, once the person declares his intention to permanently leave the country by requesting an exit permit for that purpose, it is quite unlikely that that person will be selected to receive special privileges, such as scholarships, official travel, material incentives, or that he will be considered for promotion in his place of employment.
14. It is difficult at this time to evaluate current Cuban policies and practices with respect to those who wish to emigrate, since few Cubans obtain exit permits for the countries to which they wish to emigrate. A few are still allowed to go to Venezuela; Costa Rica and Spain still, accept Cubans in order to unite them with their families. With respect to the United States, a country that has accepted over 800,000 Cubans since the Revolution, the government now only accepts members of the immediate families of US citizens, by special permit, and a limited number of Cuban requests from third countries. Current US policy resulted from the boat exodus of 1980, in which approximately 125,000 Cubans left through the Port of Mariel.
b. Travel within Cuban territory
15. Travel within Cuban territory is free of restrictions. People who stay for long periods with relatives and friends may be required to make arrangements with respect to their ration cards. Also, Cubans may make reservations at hotels and other establishments through the National Institute of Tourism. Cubans are not legally prohibited from changing their residence. In fact, however, the real possibility of changing one’s place of residence is limited by government control of housing and employment. Cubans who change their place of residence must register with the CDRs in their new location.
c. Cuban exiles
16. It is very difficult for Cubans who have opted for permanent exile to change their minds and return to life in Cuba as resident citizens. A person who states his intention to permanently leave the country generally renounces his home and employment. Government permission to return entails official responsibility to provide housing and assist in obtaining employment. If a Cuban residing abroad as an exile requests permission to return, the decision is transmitted from the Cuban diplomatic or consular office where the request is made to the Ministry of Foreign Relations and the Ministry of the Interior.
17. The outcome of this process depends to a large extent on the circumstances under which the person left the country. For example, a person who leaves in order to marry a citizen of an East European country and to live in that country with his or her spouse usually is not hindered from returning if he wishes to do so. Cubans who emigrated to the United States in the sixties and request permission to return can expect a considerable delay at least in obtaining such permission. The authorities express their fear that Cubans residing in the United States may be used for espionage, and as a result they thorough investigate such requests. However, persons in this last category, particularly if they left the country while still very young or if they are now of an advanced age and have family in Cuba, have been able to recover their Cuban citizenship. The group that has had the most difficulty in returning to Cuba is the most recent group to leave, i.e., those who left in the boat exodus of 1980.
18. Cuban exiles with Cuban citizenship who wish to return to or visit Cuba must request a passport at a consulate or other office designated by the Cuban Government. These requests are considered by the Ministry of Foreign Relations and the Ministry of the Interior on the basis of information on the petitioner and his reasons for wishing to travel to or reside in Cuba. If the stated reason is to visit family members, the pertinent office of immigration and aliens will verify the visit with the indicated family member who is over 18 years of age. If the family does not confirm the visit, the entry permit will probably be denied. If the family in question wishes to invite the visitor to stay in its home, if may do so by formally undertaking to assume responsibility for the food and housing of the visitor during his stay. Cubans residing abroad who request a temporary visa must show their roundtrip tickets or a return ticket to a country outside of Cuba. Temporary permits are generally issued for a period of three months, but they may be extended.
d. Other visitors
19. Persons who travel to Cuba for reasons other than family visits are generally the guests of an official Cuban agency, or travel with an authorized tourist group. In the latter case, the International Travel Agency that organizes the visit works through the National Institute of Tourism to establish a program for the visit. Tourists must follow this program with respect to travel itinerary and lodging, but they may substitute programmed events by other activities, such as visits to friends. As in the case of tourists, official guests of the government or official agencies make specific travel arrangements with those agencies, but they may use their free time as they wish, to the extent allowed by these arrangements and in observance of Cuban law.
20. Foreigners who may visit Cuba include guests and tourists, as well as students, members of the clergy, artists, actors, journalists and businessmen, who have generally been classified as temporary residents. In all cases, they must obtain visas (unless they embark from countries with which Cuba has established a visa exemption agreement) and they must show roundtrip tickets or tickets to other countries (or, as an alternative, the import deposit for the ticket). Cuban authorities retain passports or other documents of these visitors during their stay in Cuba. Only those persons invited by the Cuban Communist Party are exempted from this requirement. (Regulation of the Law on Aliens, chapter 1).
21. Persons who travel to Cuba and request political asylum or who are given the status of refugee by Cuba are also considered temporary residents under the law. The status of refugee and asylee are granted in accordance with the stipulation set forth in Article 13 of the Constitution. The granting of political asylum or the status of refugee in accordance with the regulation, is temporary and those granted such status remain in Cuba after stating their formal intention to return to their country as soon as conditions allow. (Regulation of the Law of migration, Chapter 2). While in Cuba, they are provided housing and they are allowed to work. Refugees and political asylees receive a special document from the ministry of Foreign Relations that certifies their status. (Regulation of the Law on Aliens, Chapter 1).
2. The United States and Cuba and
the Right to Travel
22. Historically, movement of people between the United States and Cuba has been considerable, and even before the Cuban Revolution, it was a controversial political issue. Prior to 1959 many Americans visited the island as tourists and to do business of various kinds. Many Americans also resided in Cuba as owners of large and small urban and rural businesses. A large number of Cubans of upper class or middle-class families were educated fully or to a large extent in the United States, and they frequently established business ties with the United States or with US-owned businesses. Both the owners of property in Cuba and Cubans who had been educated in the United States and established ties of economic dependence regarded the Revolution with some hostility, and in some cases opposed it actively. The Cubans of the latter group constituted the majority of the first wave of exiles from Cuba to the United States.
23. Since the fall of the Batista Government, approximately 10% of the Cuban population has left the country, above all for the purpose of settling in the United States. Although the first to leave were mostly of middle or upper class origin, later emigration came to include groups from all levels of society. Between January 1959 and October 1980, over 800,000 Cubans entered the United States. The years of greatest Cuban migration to the United States were from 1959 up to the latter part of 1962, from 1965 to 1973, and in 1980. The first wave came in regularly scheduled commercial flights, until the missile crisis of October 1962, at which time they were suspended. In this first wave, Cuba lost a substantial part of its best educated and trained professionals. By march 1961, approximately 125,000 Cubans were already in the United States. The second major wave of emigration took place with the massive exodus of Cubans from Camarioca in 1965, an event which in many respects parallels the “boat exodus” from Mariel in 1980. Through the so-called “freedom flights”, US airplanes brought Cubans directly to the United States between 1965 and 1973, with the permission of the Cuban government. Again, a large number of the better educated and trained members of Cuban society took advantage of this opportunity to leave the country.
24. In the period following termination of the “freedom flights” up until 1980, relatively few Cubans emigrated to the United States. A number of Cubans who were immediate family members of US citizens who had not been able to obtain visas previously were allowed to leave. In addition some 4,000 political prisoners were released and allowed to go into exile. This was a period during which relations between Cuba and the United States had improved somewhat and during which the two governments signed an agreement on aviation hijacking (1973), established limited diplomatic relations through interest sections established in the capitals of the two countries (1977), and for the first time undertook a process to establish orderly immigration procedures in order to facilitate reunification of families.
25. During this seven-year period, a group of Cuban residents in the United States also initiated a direct dialogue with the Cuban Government. The most significant outcome of this dialogue was an agreement by the Cuban Government to allow entry to almost all exiled residents in the United States in order to visit the island and visit their families, as well as to considerably relax restrictions on Cubans visiting their families in the United States. These visits by relatives benefited Cuba in that they diminished the tensions caused by the separation of families and at the same time contributed considerable foreign exchange to the Cuban economy.
26. The limited détente achieved between the Unite States and Cuba came to an end in the latter part of 1978, when Cuban military participation in Africa led US Government authorities to reject any further measures to improve relations. Nevertheless, approximately 100,000 Cuban Americans visited Cuba in 1979, and for most it was the first time since they had left the island.
27. In December, 1978, the plan to release political prisoners was announced as one of the achievements of the dialogue between Cuban American exiles and the Cuban Government. Under this agreement, a number of political prisoners were released to allow them to leave the island and go to the United States. The Government of the latter, however, did not process or admit those political prisoners to the extent it had promised.
28. Contact between Cuban exiles and those living in Cuba rose as Cuban restrictions on travel to the country and outside of it were relaxed. The regulations on immigration facilitated visits of relatives for most Cubans, but at the same time were designed to ensure: (1) that certain Cubans whose loyalty was questionable could not use the temporary exit permits granted to them to remain outside the country; (2) that exiled Cubans considered to be a risk to national security would not be allowed to return to the island; (3) that Cuban citizens who wished to leave the island permanently would not remove such property as the Cuban government considered should become the property of the state; and (4) that Cubans whose labor services wee considered to be of particular importance for national development could not leave permanently without first meeting certain obligations.
3. The Special Case of the Boat Exodus form Mariel
29. The boat exodus of Mariel began with the movement of 10,000 Cubans requesting political asylum in the Embassy of Peru building between April 18, and 21, 1980. The Cuban Government withdrew from the Embassy the police forces that normally prevented entry into foreign embassies, supplied additional food and water to the Peruvian Embassy, and announced that those who had entered it were free to leave the country and travel to any nation that would legally accept them. Over the next two weeks, and while the international community negotiated the resettlement commitments that they would undertake, most of the Cubans in the Embassy of Peru accepted the safe conduct offered by the Cuban Government and returned to their homes to await emigration. Eventually the United States agreed to accept 3,500 Cubans; Peru would accept 1,000, Spain 500, Costa Rica 300, Canada 300, Ecuador 200, and Belgium 150.
30. In very strongly worded public statements, the Cuban government condemned both the occupants of the Peruvian Embassy and the governments that accepted them in the capacity of political exiles. According to Prime Minister Fidel Castro, these Cubans had no valid grounds to claim political asylum: they had not been accused of political crimes in revolutionary tribunals nor sought by the security agencies of the state. He affirmed that many of them had police records and that they were nothing more than common criminals and “lumpen”.
31. Initially, these Cubans were taken by airplane to San José, Costa Rica, which served as country of first asylum and concentration point from which the Cubans embarked toward other destinations. The Cuban Government, however, interrupted the evacuation by air after only two days, having taken exception to the publicity with which the airplanes that arrived in Costa Rica were received. Two days later, the Cuban Government announced that the Cuban exiles could come to the Port of Mariel and collect those who had been in the Embassy, as well as other Cubans who wished to leave the island.
32. The Cuban-American community responded immediately and launched a maritime shuttle with the initial support of US Government officials who spoke in terms of a “freedom flotilla.” However, shortly thereafter, the Government (but too late) declared that the boat exodus was illegal. Many more Cubans arrived than had been expected, including many considered undesirable by US authorities, as well as by the Cuban-American community, and it soon became clear that the United States was not in a position to manage and absorb the influx.
33. While the boat exodus was in full swing, on May 2, 450 former Cuban political prisoners entered the Interest Section of the United States in Havana. The Chief of the Interest Section had been informed by US officials that he could authorize their emigration to the United States at that time. Many had been waiting for more than a year for visas that had been promised to them previously. They remained in the Interest Section rather than go to the United States in the boat exodus, in order to be able to legally enter that country. All of them had previously obtained their permanent exit permits from the Cuban Government.
34. Instead of immediately processing the requests of those who had forcibly entered the Cuban Interest Section, the Government immediately ordered first that the Interest Section receive protection against future undesirable entries, and while special barriers were under construction, the Interest Section was closed. After considerable delay, the request of those persons were processed. Approximately 2,000 people from that group traveled legally to the United States. A certain number of former political prisoners—approximately 1,500—remained behind in Cuba, in the belief that their emigration requests would be processed. However, due to the reaction of US officials to the Mariel boat exodus, neither they nor the political prisoners who had previously been accepted to emigrate to the united States as part of the exchange of prisoners received visas.
35. The negative US reaction to the Mariel boat exodus stemmed in the first place from the fact that among those who came to the United States in the boats were criminals who had been released from Cuban prisons and people released from mental institutions; secondly from the fact that the Cuban Government had refused to permit most of those leaving from Mariel to return to the island. The United States had accused the Cuban government of sending criminals and people with serious mental disturbances in the boats in order to pressure the US Government and to force Cuban-Americans, who ha come to take their relatives to the united States, to also take these undesirable elements.
36. The Cuban Government placed these people in the boats against the will, or at least contrary to the intention of the owners of the boats, but this was certainly not done against the will of the prisoners or any of the others considered to be “undesirable”. Given the choice of leaving the country in the boat exodus or continuing to serve their sentences, a good number opted for the latter. Cuban authorities regarded the boat exodus as a vehicle for ridding itself of the maladjusted or the discontent.
37. While it is true that the Cubans were told they were free to emigrate, they were also told that unlike other Cubans who had gone into exile previously, they would not be allowed to return, and what is more serious, that they would lose their nationality. The port was opened for the exit of whoever wished to leave, but Cuban officials strongly encouraged some Cubans to do so, and the Government also reiterated that to embark on one of the boats from Mariel constituted illegal exit and was an irrevocable decision. A special regulation was enacted which proscribed their return. Public opinion in Cuba ran strongly against those who wished to leave, and many were subjected to verbal and even physical abuse. In official language and in public demonstrations, Cubans who joined the boat exodus were vilified as the dregs of society and unpatriotic.
38. Several months later, approximately 20,000 of those who had arrived in the boat exodus from Mariel remained in detention centers awaiting sponsors; many had serious difficulties in adapting and a small but visible number of the recent arrivals rant into trouble with US laws. Approximately 1,000 Cubans had been kept in prison without trial ain a federal prison of Atlanta for having committed crimes in Cuba, despite the fact that an Atlanta judge recently ordered that most of them should be released. Other Cubans remained in local prisons.
39. The Cuban Government has declared that it is not intransigent with respect to accepting some of the Mariel emigrants, including those who are in jail, but it insists that the United States discuss the issue of the Mariel exiles in the context of general problems of immigration, including for example, the refusal of the United States to return to Cuba persons condemned as war criminals for crimes committed during the Batista Regime.
40. The chief victims of the present situation are, in the first place, the large number of Cubans who have obtained exit permits from their government and have been informed by the Government of the United States that they will not be processed for entry into the United States, and secondly, the “Marielitos”, i.e., those who acted impulsively or under pressure and are not homesick, as well as those who simply exchanged a Cuban jail or mental institution for its counterpart in the United States. In the first group, the situation of former political prisoners is particularly sad. Their applications had already been denied at that time of the boat exodus and in some cases they had left their places of employment because they expected to leave soon. In the second group, the “Marielitos”, many have tried to take measures on their own. The Cuban Interest Section in Washington has received hundreds of requests for return from people from this group. Officials review these requests individually. In most cases, they are denied. Only a few of them, as in the case of people who did not wish to leave and were taken as part of families and where there are solid humanitarian reasons for accepting their return, do Cuban officials issue the return permit. Others, apparently desperate, have hijacked airplanes or boats to Cuba. Those who arrive in Cuba by this means are immediately taken to prison; sentences initially varied from two to three years, but some recent sentences have been as high as fifteen to twenty years. According to the United States State Department, of all the airplanes hijacked to Cuba, three-fourths are presumed to have been hijacked by “Marielitos”.
41. In view of the above, the Commission considers that the Government of Cuba continues to closely limit and control travel and in particular the emigration of its citizens. The right to residence and movement is not established in the Constitution, which is an anomaly that should be remedied. Although most of the Cubans who are invited to leave the country by relatives or by international organizations generally obtain exit permits, there are, have been, and continue to be some notable exceptions. Over the years, many Cubans regarded as critics of Cuban policies have been denied exit permits. Decisions in their regard are also arbitrary and dependent of political power.
42. Not all Cubans have the right to leave and return to their country. The right to leave has been limited by formal and informal regulations against the exit of persons from certain groups; the right to return has been denied to the majority of those who left Cuba through the Mariel boat exodus and apparently they have lost their Cuban nationality by virtue of that act alone. This is a serious violation of the right to residence and movement and the right to nationality, which the Commission emphatically condemns.
43. With respect to the right to leave the country, young men of military age who have not completed their obligatory service are prohibited from leaving, and cases have been reported of young people who have completed their obligatory military service and who have been denied permission to leave solely because they were of military age. Emigration has been extremely difficult, when not formally prohibited, for doctors and certain other categories of technicians, unless they are of advanced age and have few years of productive activity remaining. The fact that anyone who wishes to leave must abandon their property and renounce their employment even further restricts the possibility of emigration.
44. Apart from the restrictions described above, there are other factors that limit the possibility for nationals to emigrate. More important, the migration process is influenced by the willingness of host countries to accept Cubans as immigrants or refugees. Since 1978, the Cuban government has facilitated the departure of former political prisoners through the plan for release of prisoners, which allows these people to travel to the United States as refugees. However, this plan has been suspended.
 IACHR, Ten Years ¼ op. Cit., p. 325.
 Ibid, p. 332.