Performing, contesting, and resisting internal bordering of refugee rights in Costa Rica

Abstract

While Costa Rica has witnessed an increase in refugee claimants, its policy responses have not been sufficiently studied. This article begins to fill this gap by documenting and analyzing the treatment of displaced people in search of protection in this country. Based on the fieldwork conducted in 2023 with refugee claimants and representatives from NGOs and international organizations, combined with the analysis of media coverage, reports, and available official statistics, the article analyzes the impact of Costa Rica’s internal bordering measures and practices on asylum seekers. As documented in the article, refugee claimants find themselves in an ‘eternal’ wait, lacking access to jobs and social protections, and pressured to abandon their claims. The article also highlights the dynamics of resistance and negotiation among various actors and nonperformance of internal bordering practices by state officials. We conclude that internal refugee bordering is a complex, inconsistent, and contradictory process reflective of tensions between hospitality and hostility toward displaced people in search of protection.

1. Introduction

To deter refugee claimants from reaching their territories, many countries have fortified their borders, externalized migration controls to transit countries, and implemented remote control strategies aimed at managing and restricting the movement of individuals (Gammeltoft-Hansen and Tan 2017; FitzGerald 2019; Ghezelbash and Tan 2020; Mountz 2020; Candiz and Basok 2021). In addition to these external bordering practices, internal bordering measures have been implemented to create barriers to protection. The discourses used to justify the restrictions resonate with the dominant vilification of refugee claimants as ‘bogus refugees’ and a ‘drain on resources’ (Cordero Parra 2022). Manipulating public perceptions of unfolding events and amplifying the sense of unease and insecurity, politicians and public officials have employed the language of ‘crisis’ to justify legal reforms, adopt administrative measures, and introduce new procedures to make it more difficult to present refugee claims (Menjivar et al. 2019; Côté-Boucher et al. 2023). Furthermore, many rights, such as work permits and health coverage extended to refugee claimants in the past, have been curtailed (e.g. Gammeltoft-Hansen and Tan 2017; Schultz 2020; Garvik and Valenta 2021). To dilute the protection regime even further, in many countries, temporary protection has replaced permanent residency for refugees (e.g. Buxton 2023; Ilcan et al. 2023; Saraçoğlu and Bélanger 2019).

Costa Rica is one of the world’s countries that has witnessed an increase in the number of displaced people in need of protection. Yet, research on this population is scarce, particularly in comparison to a more robust body of research on its labor migrants (Weitzman et al. 2024). This article begins to fill this gap by focusing on the impact of Costa Rica’s reception policies and procedures on the lived experiences of its refugee claimants (solicitantes de condición de refugiado, a legal term used in Costa Rica for what is known as asylum seekers elsewhere in the world).

As we discuss below, Costa Rica, a country known in the past for its humanitarianism and generous reception of Central American and Colombian refugees, has been adopting more restrictive measures toward displaced people in search of protection since 2018. We illustrate that two administrative measures adopted in 2022, Decree 43809-MGP and Decree 43810-MGP, were particularly harmful to refugee claimants. We contend that these two decrees constitute an administrative bordering measure that, in conjunction with two other internal bordering practices, procedural and micro-level, eroded refugee claimants’ access to jobs, social protections, and secure status.

We also discuss how these restrictive external and internal bordering measures have been challenged and subverted by the actions of some asylum seekers, human rights organizations, grassroots supporters, and other activists. Furthermore, we illustrate that street-level bureaucracies did not always ‘perform’ these bordering practices and thus disrupted (or at the very least slowed down) the erosive impact of the newly minted reforms. We therefore conclude that refugee bordering is best understood as a complex process that contains contradictions and inconsistencies. We situate contradictions inconsistencies within tensions between hospitality and hostility (Derrida 2001) toward refugee claimants, arguing that just as hostility erodes the hospitality to which these individuals are entitled, to a certain extent, the ‘moral economy’ (Fassin 2005) of hospitality keeps in check hostile actions.

In the first section, we contextualize our study theoretically in the field of critical migration and border studies. We review the scholarship that redefines the notion of borders by drawing attention to internal bordering practices (administrative, procedural, and micro-level) that undermine refugee rights. Furthermore, we tie in the internal bordering scholarship with the perspective on borders as sites of conflicts and negotiations between various actors. In the section that follows, labeled ‘Fieldwork in Costa Rica’, we explain how we recruited our study participants, list our interview questions, and provide some characteristics of the migrants who participated in our study. The next four sections present our findings. First, we present an overview of Costa Rica’s policies toward displaced people seeking protection and explain the rationale advanced by the policymakers for two reforms adopted in 2022, Decree 43809 MGP and Decree 43810 MGP that we portray as administrative bordering practices. In the section that follows we elucidate how the two administrative bordering practices were accompanied by procedural and micro-level bordering practices and the formidable challenges these posed for refugee claimants, exacerbating their economic hardships and feelings of uncertainty and insecurity. In the ensuing section, we discuss opposition to the new provisions by refugee rights advocates and resistance from claimants. Furthermore, in the same section, we illustrate how state bureaucrats did not ‘perform’ some of the proposed reforms, at least in the first year after their introduction. In the Discussion, we relate our findings to the perspective on borders as comprised of various internal bordering practices, comprised of administrative measures, and procedural and micro-level expressions, while also underscoring the need to see bordering as conflicts and negotiations producing various, at times, inconsistent and seemingly contradictory outcomes. We then explain these somewhat inconsistent and contradictory outcomes, illustrated by the case study of Costa Rica’s treatment of refugee claimants, by drawing attention to ambivalence between universal moral and humanitarian principles, on the one hand, and the perceived need to control, surveil and restrain populations determined to be underserving of protection.

2. Internal bordering or refugee rights: global perspective

In this study, we employ a critical border studies perspective that understands borders not merely as geographic places of exclusion at the territorial edges, but also as ‘the operation of migration governance as a complex and multilayer system, extending its tentacles to potentially all over society’ (Könönen 2018: 144). While this expanded notion of borders has been employed to analyze the bordering of rights of all migrants (e.g. Mezzadra and Neilson 2013), in this article, we apply it to the analysis of the erosion of the rights of people seeking protection, such as asylum seekers or refugee claimants, as they are called in some countries, including Costa Rica. Since the 1990s, many governments have relied on internal bordering practices, such as legal and administrative measures, to deny or curtail refugee protection in their countries (Tervonen et al. 2018). Internal bordering practices fall under one or more of the following three categories: administrative bordering practices (e.g. legislative changes and decrees employed to dissuade migrants from seeking asylum), procedural bordering practices (e.g. established procedures required to attain status and benefits), and everyday or micro-level bordering practices (e.g. actions by street-level bureaucrats, employers, ordinary citizens, and authority figures denying asylum seekers’ membership, status, and benefits through discretionary interpretations and exclusionary everyday actions).

The granting of temporary protection status to displaced individuals exemplifies an administrative bordering practice, as temporary protection typically affords fewer rights to the ‘protected’ individuals compared to those outlined in the 1951 UNHCR Convention and the 1967 Protocol (Gammeltoft-Hansen and Tan 2017; Saraçoğlu and Bélanger 2019; Schultz 2020; Baban et al. 2021; Garvik and Valenta 2021; Buxton 2023). Other administrative bordering practices include third safe country agreements that disqualify some refugee claimants from making a claim (Atak et al. 2021), mandatory detention, and other policies that restrict mobility (Gammeltoft-Hansen and Tan 2017; Ilcan et al. 2023) and force both refugee claimants and recognized refugees to reside in specific municipalities and types of accommodation (El-Kayed and Hamann 2018), limitations on family reunification (Gammeltoft-Hansen and Tan 2017), and retraction or denial of social benefits (Gammeltoft-Hansen and Tan 2017; Tervonen and Enache 2017).

Procedural bordering practices employed to deter asylum seekers from making claims include long and ambiguous processing times (Schultz 2020) and high asylum rejection rates based on narrowly interpreted eligibility criteria that reify the artificial binary between refugees that ‘deserve’ protection and ‘undeserving’ economic migrants (Zetter 2007; Garvik and Valenta 2021). Procedural bordering may also be present when refugee claimants and recognized refugees pursue ordinary tasks, such as requesting formal registrations in national taxation systems, opening bank accounts, procurement of proof of address, or signing a rental contract (Manolova 2022). Manolova (2022: 3691) uses the concept of ‘bureaucratic bordering’ to refer to the imposition of hard-to-meet documentational requirements, confusing procedural steps, and extended delays in accessing housing and employment among migrants in the European Union. Drawing on critical race theory, May (2021) documents many procedural bordering practices asylum seekers in France encounter when they try to access universal healthcare, including excessive requirements for documents and procedures that fail to account for asylum seekers’ precarity.

Finally, critical border studies scholars identify everyday or micro-level internal bordering practices instituted by street-level bureaucrats, employers, and authority figures that work in conjunction with exclusionary policies to prevent racialized displaced people (including asylum seekers and migrants in irregular conditions) from accessing rights and protection. These bordering practices are expressed as hostilities and harassment by the police and other authorities (e.g. the case of Roma people in Helsinki, see Tervenon and Enache 2017) and differential treatment enacted by employers and housing companies (El-Kayed and Hamann 2018). Tervonen et al. (2018) illustrate the proliferation of internal everyday (or micro-scale) bordering practices by street-level bureaucrats employed in healthcare financial institutions, homeless shelters, workplaces, schools, and local police stations. State-imposed sanctions, such as fines and prosecution, turn ordinary citizens, including landlords, employers, college administrators, and medical professionals, into de facto border guards (Tervonen et al. 2018: 140; Yuval-Davis et al. 2018).

The discretionary interpretation of legislative criteria by street-level bureaucrats is another example of micro-level bordering that deprives non-citizens of entitlements. Könönen (2018) elucidates the power of individual actors in bureaucratic institutions, such as local registry offices, embassies, social services, or banks, to invent or reinterpret bureaucratic procedures¹ for accessing residence permits and services. Similarly, Artero and Fontanari (2021) examine discretionary decisions by police immigration offices in Italy to arbitrarily deny some displaced people the right to make an asylum claim or renew their refugee documents, and thus apply more restrictive rules than those provided by the law. As Borrelli (2021) suggests, the tendency to deny access to rights to refugee claimants and other non-citizens by street-level bureaucrats may result from the training they receive, particularly when this training shapes and legitimizes their discriminating views. In other cases, denial of access to services and benefits results from a lack of knowledge of refugee rights (May 2021).

In our analysis of internal bordering practices in Costa Rica, we also draw on the critical border scholarship that views borders as sites of performed expressions of conflict and negotiations, involving a diverse spectrum of actors, such as state authorities, border security agents, migrant, migrant advocates, and international organizations, among others (Mezzadra and Neilson 2013; Hess and Kasparek 2017; Ataç et al.2017; Candiz and Basok 2021).

3. Fieldwork in Costa Rica

This article is based on an analysis of media coverage, gray literature, official statistics, and in-depth interviews conducted in 2023 with twenty-one refugee claimants (including four couples interviewed together), two UNHCR officials, a representative of the Permanent Forum for Migrants and Refugees within the Ombudsman’s office, four representatives of non-governmental organizations (NGOs) funded by the UNHCR to provide legal advice and other forms of assistance to refugee claimants in Costa Rica,² and one representative of another non-governmental organization that provides information and support for refugee claimants with which we had established contact in 2020, at a preliminary stage of this research project.

In their review of scarce research on migrants in need of international protection in Costa Rica, Weitzman et al. (2024) highlight several methodological obstacles researchers encounter when they try to recruit study participants among these individuals, including difficulties in making contact, mistrust of strangers, and economic imperatives to engage in income-generating activities that leave little time for participation in studies. Furthermore, given the lack of reliable statistics, representative samples are particularly hard to attain (Weitzman et al. 2024). Given these obstacles, we relied on the help of two NGOs that generously agreed to reach out to a random list of their clients and invite them, on our behalf, to participate in the study. We reviewed research ethics guidelines with the NGO representatives to ensure that they communicated the study objectives clearly to their clients and that refugee claimants did not feel pressured or unduly influenced to participate. All interviews were conducted in person in the offices of these two NGOs. We covered the travel expenses of the study participants and offered them monetary compensation for their time. Prior to conducting the interviews, we once again reviewed interview procedures with the participants and obtained their informed consent. The interviews conducted in Spanish with refugee claimants included questions related to the reasons for their departure from their home countries, journeys to Costa Rica, experiences of having solicited refugee status, employment conditions, and access to healthcare in Costa Rica. We also asked whether those eligible had considered withdrawing refugee claims in exchange for work visas. Interviews varied in length between 40 minutes to 2 hours. The interviews with UNHCR, the Ombudsman office representatives, and NGO workers, also conducted in Spanish, four in person and the rest on Zoom, focused on Costa Rica’s historic patterns of responding to refugee arrivals, the services these organizations provided to refugee claimants, evaluations of recent changes, and advocacy activities. They lasted between 1 hour and 90 minutes.

Of the twenty-one refugee claimants interviewed, nine were men and twelve were women. Eleven individuals were from Nicaragua. The over-representation of Nicaraguans in our sample is hardly surprising given the composition of the refugee population in Costa Rica (discussed below). Among the remaining study participants, two were from Honduras, two from Cuba, two from El Salvador, three from Venezuela, and one from Colombia. Among them, two refugee claimants had been turned down, seventeen were still awaiting decisions, one had abandoned his refugee claim, and one person, having been turned down at the eligibility interview, nevertheless received a document stating that he was a ‘potential’ refugee claimant (pro-aspirante a refugio), an uncommon legal category that illustrates the discretionary power of bureaucrats employed in refugee offices. Their ages ranged from 18 to 74 years old.

Among the refugee claimants we interviewed, seventeen individuals presented their claims at an appointment (i.e. the first stages of the refugee determination process) prior to the introduction of the 2022 reforms. Seven arrived and made a refugee claim in Costa Rica in 2018, one in 2019, two in 2021, and the rest in 2022. Of the eight who presented a refugee claim in 2018 and 2019, seven individuals had their refugee status eligibility interview (the second stage of the refugee determination process) completed, having waited between 7 months and 3 years after having made a claim. None of the participants had received a decision on their claims at the time of the interview. For those eight who arrived in 2021 and 2022, three had an eligibility interview scheduled for 2029, 2032, and 2033, respectively, one had been turned down, one granted a ‘prospective refugee claimant’ card, one had had an interview, but it was unclear whether it was an eligibility interview, and one was still waiting for the eligibility interview to be scheduled. All the names used below are pseudonyms.

4. Refugee reception: from human rights protections to administrative bordering

A country with an international reputation for being peaceful, democratic, respectful of international human rights, and having a more robust socio-economic safety net system than most of its regional neighbors, Costa Rica has been a destination for migrants and refugees from different countries. As civil wars, political repression, and civil unrest unraveled in El Salvador, Guatemala, and Nicaragua in the mid-1980s, Costa Rica provided haven to refugees fleeing violence or persecution (Basok 1990, 1993; Larson 1993). In the first and second decades of the twenty-first century, close to 30,000 Colombian refugees received a welcome and UNHCR assistance in this country (Polo Alvis et al. 2018; Chaves-González and Mora 2021: 9).

In 2018, the number of people seeking protection increased rapidly. Political repression in Venezuela was partially responsible for this increase. IOM (2022) estimated that by the end of May 2022, there were 30,615 Venezuelans in Costa Rica, most of whom were refugee claimants. However, the 2018 assault on political dissent in Nicaragua was largely responsible for the surge in the number of people seeking protection in Costa Rica (Ripley 2023). In 2017, only sixty-seven Nicaraguans applied for refugee status in Costa Rica; by 2018, the number skyrocketed to 23,000 and continued to rise. As of June 2022, Costa Rica hosted 205,000 refugee claimants, 89% of which were from Nicaragua (Ripley 2023).

While the number of refugee claims climbed in Costa Rica, its refugee protection infrastructure remained considerably under-resourced. The Refugee Unit (or the Refugee Subcommittee, as it is known officially), responsible for receiving refugee claims and issuing recommendations to the Visas and Refugee Commission [Comisión de Visas Restringidas y Refugio (CVRR)], was understaffed and lacked the training, knowledge, and institutional capacity to efficiently process the claims (Chaves-González and Mora 2021: 24; Voorend et al. 2021). Furthermore, the high turnover among Refugee Unit employees resulted in a constant loss of institutional knowledge and caused delays in claims processing (Chaves-González and Mora 2021: 24). Finally, overburdened with additional responsibilities such as visa issuance, CVRR was incapable of reviewing refugee claims in a timely manner (Chaves-González and Mora 2021: 13). As a result, the refugee adjudication process became extremely lengthy, particularly in the years preceding reforms. Between 2018 and August 2021, 106,906 people applied for refugee status, but by May 2021, only approximately 5,000 applicants had been approved (Chaves-González and Mora 2021: 14). By the end of 2022, the UNHCR characterized the backlog of unresolved cases as alarming (UNHCR 2023:8).

Criticizing international organizations, including the International Organization for Migration (IOM) and the United National High Commissioner for Refugees (UNHCR), and the US administration for their failure to ‘share the burden’ for addressing the needs of 200,000 refugee claimants (Martinez 2022; Divergentes 2022) and asserting that most Costa Rica’s refugee claimants were economic migrants (DW 2022), on 16 November 2022, Costa Rican President Rodrigo Chaves Robles announced changes in administrative procedures for refugee claimants that we consider to be illustrations of administrative bordering. Decree No 43810 MGP, announced on 16 November 2022, redefined eligibility to claim asylum and reduced refugee rights (President of the Republic and the Minister of Governance and Police 2022). First, asylum claims were to be made within 30 days of arrival; otherwise, they were disqualified. Second, anyone who had traveled through what was understood as a ‘safe third country’ was deemed ineligible for asylum. Noteworthy, within the region, only Nicaragua was considered unsafe. In the past, Venezuelans were able to travel from Venezuela directly to Costa Rica by air. As many as 16,462 Venezuelans applied for asylum between 2016 and June 2022, and all but 1,612 were recognized as refugees by 2023 (Gandini and Selee 2023). To curtail this flow, the Costa Rican government introduced a visa requirement in 2022 for all Venezuelans (McManus and Irazábal 2023), forcing people without visas to undertake a journey by land via Colombia, the treacherous Darien Gap jungle, and Panama. Under the new rules, they would no longer be eligible to present refugee claims, because they were forced to travel through other countries before reaching Costa Rica.

Third, new refugee claimants were no longer eligible to receive an open work permit free of charge, and the pre-2022 refugee claimants, who were already in possession of 1-year work permits, could no longer renew them. Instead, all refugee claimants were encouraged to request a 2-year permit to work with a specific employer following the procedures discussed below. According to Decree No 43810 of the MGP, refugee claimants who were found to work without authorization were subject to deportation. Finally, under this decree, refugee claimants who left Costa Rica to visit other countries while awaiting a decision on their refugee claim lost their right to seek protection as refugees.³

Furthermore, to reduce the backlog of refugee claims, President Chaves signed Decree 43809 MGP to establish a Temporary Special Category for citizens of Cuba, Venezuela, and Nicaragua who had applied for refugee status between 1 January 2010, and 30 September 2022. Under this decree, those with unresolved refugee claims were invited to withdraw them and instead request a 2-year renewable work permit (DGME 2022b). Decree 43809 MGP represents a global trend away from the permanent protection of refugees toward diverse temporary protection statuses (Buxton 2023). As Schultz (2020: 9) points out, ‘temporary policies now infiltrate the mainstream practice of refugee law’. Arguably, by comparison to refugee status, temporary protection status offers no more than provisional safety and it is therefore precarious. Thus, these two administrative measures can be seen as internal bordering measures that were detrimental to refugee claimants. As outlined in the next section, they were accompanied by procedural and micro-level bordering practices.

5. Producing ‘bordered’ lives through procedural and micro-level bordering

Prior to the 2022 reforms, displaced people in search of protection encountered several procedural and micro-level bordering practices in Costa Rica. Many found it hard to schedule their first appointment. Cristina comments:

It was difficult to get an appointment. I wasted about 3 calling cards. At times they would answer the call, and sometimes, they wouldn’t. They would put you on hold but never come back. Then you must call again. I tried five times.

For many refugee claimants interviewed in our study, the prohibitive costs were at times unsurmountable. One interviewed married couple told us that initially they could cover the costs of an appointment for one family member only. Other family members were forced to wait for an appointment until more funds were procured.

After submitting their claim at the first interview, refugee claimants were expected to present their case at the eligibility interview followed by a consideration of their case and a final decision. The main procedural obstacle that asylum seekers who had presented their claims prior to November 2022 experienced was the excessive delays in obtaining a resolution, particularly for those who presented their claims in 2021 and 2022. The NGO representatives interviewed in our study confirmed that the waiting period for the eligibility interview was up to ten years for those arriving in 2022. Olivia, a refugee claimant from Venezuela in her forties who had come to Costa Rica along with her children and partner in 2018, found this prolonged waiting period unbearable.

We went right away to migration to apply for refugee status, and we have been waiting for five years. I’d like to obtain permanent residency, but they would not let me because I still have legal status [as a refugee claimant], according to people in Migration… We have a work permit, but we cannot ask for any other status. We have nothing; we just drift. It’s an eternal wait.

While awaiting decisions on their refugee applications, refugee claimants were at times denied access to certain benefits and protections because public officials and bureaucrats were not aware of their entitlements or as a result of widespread xenophobia toward migrants in Costa Rica who are often portrayed as morally inferior, a drain on Costa Rican’s hospitality and its social security system, such as healthcare, and individuals undeserving of access to universal healthcare and other rights and protections (Goldade 2009; Dos Santos 2015; Fouratt and Voorend 2018; Fouratt and Castillo‐Monterrosa 2022). Flores who works at the Ombudsperson’s office told us that that some street-level bureaucrats employed in CCSS offices did not recognize valid identity documents issued to refugee claimants and treated them differentially:

So, there is a lack of information among public functionaries, and at times, they are denied access to services not because of xenophobia, but we believe it’s because of the lack of knowledge. And lack of information results in the denial of services. But later it may also lead to a xenophobic action, when people try to assert their rights, and the functionaries keep insisting that they don’t have any.

After the 2022 reforms were introduced, new procedural bordering practices were put in place, accompanied by micro-level bordering. On 30 November 2022, Costa Rica President announced that the Refugee Unit would accept only fifty applications daily, and all appointments were to be made in person at the Refugee Unit. To secure an appointment, many would-be refugee claimants were forced to camp outside the Refugee Unit, enduring hardship. Antonieta, a Nicaraguan woman, told us that she found it humiliating to sleep on a piece of cardboard for three nights before being granted an appointment: ‘you have to stay there all the time, without going to the bathroom or taking a shower, without eating, and just to be pushed back, without even having the opportunity to explain why you were seeking protection’.

On 16 February 2023, the Department of Migration [Dirección General de Migración y Extranjería de Costa Rica (DGME)] announced that the procedures were to change once again to allow requests to be made either by phone (fifty per day) or online (twenty per day) (Estrada Téllez 2023a). However, an interviewed UNHCR representative estimated that Costa Rica received some 16,000 claimants monthly, and therefore, this daily quota was far from what was needed to address the growing demand. Furthermore, many refugee claimants experienced significant delays in obtaining appointments, causing immense anguish among those who had been told that they had only 30 days to submit a claim. Lucho, a Nicaraguan man, commented on the difficulties in scheduling appointments:

You have only 30 days to make a claim, and the time runs quickly. Days go by, and you keep on dialing the numbers. You dial 150 times per day, from three different phones, and the call never gets through. Some people told me that they had been dialing for a week with no luck. It is impossible to access a webpage.

For Lucho, one way to get through was to pay for help. ‘Unfortunately, there is corruption in everything, and I would say that 80% of the people who obtain appointments have paid someone to help them’. For many refugee claimants who could not afford it, appointments were virtually unattainable.

While scheduling the first interview was the first roadblock to overcome, the interview was another bordering practice. Street-level bureaucrats in the Refugee Unit have discretionary power to decide after a few preliminary questions who are eligible to proceed to the next level, as several interviewed NGO workers told us. For instance, Ricardo stated, ‘We have seen some cases of individuals trying to present their refugee claims, at least at the southern border, just a few cases at this point, but we have heard from some people that they were not allowed to make a refugee claim. And that is clearly illegal’. Emilia cited the example of a refugee claimant who had come to Costa Rica in 2018 and was scheduled for an interview in 2022. However, in the first interview, this claimant was subjected to post-2022 rules that were disqualified on the basis that he had taken longer than 30 days to present a claim. Alicia, an international organization representative, described how at the interview, some asylum seekers who admitted their interest in working in Costa Rica were deemed ‘economic migrants’ and thus ineligible to proceed.

Emilia comments on how the rules and their applications changed constantly:

From one day to the next, there was no continuity. One day, the administration told you to do one thing, and the next day, they asked you to do something else. With this uncertainty, not only do they play with the lives of refugee claimants, but they also make it difficult for social agencies that assist refugees to do our job.

In her view, NGOs lost the ability to properly monitor the situation.

Since January of this year, the administration has closed the doors to social agencies to engage in monitoring and provide information to refugee claimants. This has affected not only persons who require information and assistance, but also us as the third sector. We can no longer monitor the type of information or treatment they receive.

The new procedures for obtaining work permits represent another example of bordering practices for refugee claimants. According to several NGO representatives, these procedures are complex. Alongside a notarized job offer, requirements include notarized evidence of the company’s contributions to social security (Caja Costarricense the Seguro Social, CCSS, or Caja, as it is commonly called), a financial statement notarized by a public accountant, an insurance policy, and evidence of tax payments (DGME 2022a). Isabella, a member of a Costa Rican non-profit organization specializing in informing and raising awareness on migration and refugee issues, elaborates on the challenges faced by refugee claimants, including those whose claims were accepted under the previous procedures: ‘When they need to renew their work permit, it is no longer free; now they have to pay approximately $60 U.S. [30,000 colones], and they must fulfill 11 prerequisites’. Martina, a member of a non-governmental organization (NGO) that assists refugee claimants compared to the pre-2022 and post-2022 rules:

Previously, a refugee claimant received a work permit three months after filing a refugee claim. A permit was granted to them free of charge. They could work in any job. It is not like this anymore… They need to have an employer who is willing to provide certain documentation, such as a contract or income statement, which are limitations, right? The employers do not want to bother with all these requirements… Also, they cannot work in any job, but only in jobs approved by the Ministry of Labour and Social Security.

Other procedural requirements amplified the internal border refugee claimants faced in Costa Rica. Under the new rules, all refugee claimants were required to obtain private health insurance policy with the CCSS. This requirement was of concern to several migrant rights advocates interviewed, not only because of their high costs but also because of procedural irregularities in acquiring it. For instance, Alicia, a UNHCR worker, recognizes the discretionary power among street-level bureaucrats employed at the CCSS and their lack of knowledge of refugee claimants.

With a new decree, everyone is required to be insured by CCSS. In addition to the paper requirements that are difficult to meet, we encountered additional requirements established by some offices. When refugee claimants attempt to obtain insurance, they are told that they need a sponsor, that there is evidence of residency in Costa Rica, or that there are other invented requirements. Each office comes up with its additional requirements … So, it is very complicated because there are paper requirements and there are various additional requirements that are just made up.

Fouratt (2016: 152) similarly illustrates inconsistencies, arbitrariness, lack of coordination between government agencies, and xenophobia toward migrants attempting to regularize their status in Costa Rica, thus concluding ‘As each step in the process required migrants to have fulfilled other requirements, the lack of coordination among banks, the Caja, and immigration offices created unresolvable conflicts’. By tightening the refugee eligibility criteria and introducing other bordering practices, both at the procedural and micro-level, the Costa Rican government attempted to deter and prevent displaced people from making refugee claims.

6. Challenging, negotiating and (non)performing internal bordering

All the NGO representatives interviewed were critical of the November 2022 reforms. As members of the Forum for Migration and Refugees situated in the Office of the Ombudsman, several Costa Rican NGOs and the Ombudsman’s office challenged the constitutionality of certain provisions of Decree No 43810. These arguments were heard by the Constitutional Court of the Supreme Court of Costa Rica. Commonly called the Fourth Court, the Constitutional Court oversees the protection of fundamental rights enshrined in the constitution and international law instruments ratified by Costa Rica.⁴ The first legal victory was attained on 14 February 2023, when the Constitutional Court pronounced the restriction on travel by refugee claimants outside of Costa Rica as unconstitutional because it violated Articles 22 and 28 of the Costa Rican Constitution and Articles 26, 27, and 28 of the Refugee Convention and article 22.2 and 22.3 of the American Convention of Human Rights. The Supreme Court requested that this restriction be removed from the Decree (Rigidor 2023; Madrigal 2023). The second challenge concerned the provision of Decree No 43809 MGP, which required that refugee claims be withdrawn by those wishing to obtain Special Temporary Status.

While awaiting a decision on this legal challenge, NGO workers concerned about the limitations of the Special Temporary Status cautioned their clients about the risks. As Martina told us, she clarified to her clients that this category was merely temporary and did not guarantee permanent residence in Costa Rica. Similarly, Ricardo, another NGO representative, was concerned about the potential for this temporary status to be revoked. He elaborated: ‘A lot of things can happen, a change of government. It’s all unpredictable’. He also advised his clients that if they had a reasonable refugee claim, it would be in their best interests to await a decision.

As outlined by the decree, refugee claimants whose temporary special status application was denied could resume their asylum claims. However, some NGO workers were concerned about the impact of an application for a special category on their refugee claims. As Isabella explained, the process of applying for temporary status had the potential to undermine the refugee claim:

Sometimes, a person decides to switch to a special category out of desperation because their claim has not yet been resolved. However, as soon as it is completed, the refugee claims process is ruined. They are required to present an apostille birth certificate; they can make a notarized declaration, but for their criminal records, they need an apostille document. And so many people go to the consulate to request it, and as soon as they approach the consulate, their claim that they had been persecuted in their country loses validity.

While the Costa Rican government counted on refugee claimants worn down by prolonged waiting and subjected to new restrictions introduced in 2022 to seek what appeared to be a more secure status, many refugee claimants recognized the uncertain and limited nature of this status and refused to be lured by its illusory appeal. Elena, a 28-year-old Nicaraguan woman, was among those who remained skeptical about the special category status and did not wish to renounce her refugee claim. She shared her concerns regarding the insecurity of this status.

If a new government decides to remove this category at any point, what is going to happen to all the people who have requested this status? So, in my case, if they approved this status for me, then what? What if a new government says, ‘We are taking it away’, and all these people are left with nothing? However, with the refugee claim, you go through the process until they turn you down, but in the meantime, you are still legally in the country.

Carlos, a Venezuelan refugee claimant in his 40s, told us that he received legal advice to keep their refugee claims active until a decision was made.

Notably, on 30 August 2023, the Constitutional Court ruled that the provision of Decree 43809 that required the withdrawal of the refugee claim to be in violation of the international commitments assumed by Costa Rica toward the protection of refugees, stating:

Although opting for this special migration category is voluntary, continuing with the refugee claim is not, since the contested rule requires the renunciation of the process if one wants to opt for temporary legal status. Therefore, we consider that the provisions of Article 4, paragraph f) of Executive Decree 43809 are unconstitutional and must be annulled. (Estrada Téllez 2023b)

NGOs, the Ombudsman’s office, and international organizations were also critical of the provisions of Decree 43810, such as the requirement that the refugee claim be made within the first 30 days, that the total number of applications be limited to fifty made by phone and twenty online, and that those traveling via safe third countries be disqualified. Notably, while these new rules created much anxiety among refugee claimants and NGO workers, at least in the first year, bureaucrats in the Refugee Unit did not adhere strictly to these restrictions. Alicia from the UNHCR told us that the Refugee Unit never strictly enforced the provision requiring that claims be made in the first 30 days. Thus, while the discretionary power of the street-level bureaucrats can reinforce bordering by imposing additional obstacles to accessing status and benefits, as discussed earlier, it can, as in the case of Costa Rica officials, weaken some restrictive measures merely through non-compliance with the established regulations.

DGME statistics for refugee claims accepted in 2023 (DGME 2024) reveal that, to a certain degree, restrictive refugee eligibility procedures were not ‘performed’ in the first year and beyond. For instance, in the first 11 months of 2023, 33,334 refugee claims (or an average of slightly more than 3,000 claims per month) were accepted by the Refugee Unit. This number was double the established ceiling on appointments made by phone. Moreover, among the refugee claims received during the 11 months in 2023, 1,754 were from Venezuelans, 994 from Colombians, and 2,730 from Cubans (DGME 2024). Some refugee claimants (particularly Cubans) might have arrived in Costa Rica via Nicaragua, a country that has lax visa requirements (Sherman 2023). However, many others must have arrived in Costa Rica via ‘safe third countries’. In 2024, Nicaragua dominated the flow, while Cuba, Colombia, and Venezuela remained the major countries of origin for refugee claimants. Additionally, forced migrants from other countries, including Ukraine, Ecuador, China, and Jamaica, who must have crossed ‘safe third countries’, could still submit their claims (DGME 2024). While the Costa Rican government did manage to reduce the number of refugee claimants (DGME 2024), it took almost a year for the Refugee Unit to impose the cap, and the ‘third safe country’ rule continued to be unevenly applied.

7. Discussion

In this article, we contextualized our analysis of two 2022 refugee-related reforms within the body of literature that views borders not merely as physical demarcations of sovereign territories but as encompassing various measures and practices within nation-states (Könönen 2018; Tervonen et al. 2018). This literature focuses on internal bordering practices and their impact on the lives of refugee claimants (Ilcan et al. 2023; Manolova 2022). We documented how these two administrative reforms—characterized as administrative bordering measures—along with procedural and micro-level bordering practices, have worsened conditions for many refugee claimants. These reforms reduced their eligibility to claim status, made it more difficult and costly to submit refugee claims, denied them the right to unconditional work visas, limited their access to healthcare, and encouraged them to abandon their refugee claims.

We examined the challenges faced by NGOs and human rights organizations defending refugee rights, while also highlighting the resistance of some refugee claimants to certain changes. In doing so, we contributed empirical examples to critical border studies, which depict borders as ongoing arenas of conflict between various actors—state authorities, border security agents, migrants, migrant advocates, service providers within the ‘migration industry’, international organizations, and others (Hess and Kasparek 2017; Candiz and Basok 2021). Additionally, drawing on critical border studies that emphasize the performative nature of ‘border games’ (Hess and Kasparek 2017; Candiz and Basok 2021), we demonstrated that certain bordering measures, such as the imposition of the ‘third safe country’ rule, were not enforced by Costa Rican authorities during the first couple of years. In other words, while these internal bordering practices eroded refugee rights and limited claimants’ access to jobs and protections, they often produced inconsistent and contradictory outcomes. This is partly due to resistance and challenges by some actors, as well as internal conflicts among those responsible for implementing bordering measures. To make sense of these inconsistencies and contradictions, we now turn to Derrida’s discussion of the tensions between hospitality and hostility toward strangers.

For Jacques Derrida, in its purest form, hospitality requires opening homes to the absolute, unknown, anonymous other and letting them stay without expecting reciprocity or even asking their names (Derrida 2000: 25; 2001), as illustrated by the action of some volunteers toward migrants rescued at sea or in other inhospitable environments (Doty 2006; Friese 2010). For nation-states, however, the hospitality extended to migrants is always conditional: states set eligibility restrictions and rules for entry and conduct. Even when inspired by the ethos of unconditional hospitality, this type of hospitality is premised on the sovereignty of the host to decide not only who is to enjoy it, but also for how long and under what circumstances. It is premised on the sovereignty of oneself over one’s home and is expressed through ‘filtering, choosing, and thus by excluding and doing violence’ (Derrida, 2000: 55). And therefore, for Derrida, injustice toward strangers (such as migrants) begins at the very threshold of hospitality (Derrida 2000: 55) and is endemic to its practice.

Hospitality and migration control are therefore not necessarily discrete approaches to migration management but may be two sides of the same coin (Fassin 2005; Dawson 2014). In fact, seeds of suspicion and hostility may be planted deeply in the very notions and practices of hospitality (Derrida 2001; Dawson 2014; Kakoliris 2015), and it is not unusual for repressive measures, such as deportation, to coincide with displays of hospitality (Williams 2015). In Costa Rica, tensions between the principles of universal healthcare, compassion, and respect for human rights, on the one hand, and the systematic denial of services to migrants deemed ‘immoral’, ‘irrational’, ‘a drain on resources’, and therefore ‘undeserving’ of care, on the other, have been well documented (Goldade 2009; Dos Santos 2015; Fouratt and Voorand 2018; Fouratt and Castillo‐Monterrosa 2022). Our research findings align with these observations. However, we also argue that just as hostility imposes limits on the extension of hospitality, the ‘moral economy’ of hospitality (Fassin 2005), as reflected in Costa Rica’s history of providing protection to refugees and respecting human rights, serves to moderate, at least to a certain degree, expressions of hostility. The fact that the state, bound by legal obligations, accepted certain challenges raised by refugee advocates and refrained from implementing some proposed changes suggests there are limits to the hostility toward refugee claimants.

8. Concluding remarks

As pointed out by Weitzman et al. (2024), research on refugees in Costa Rica is sparse. We attempted to fill this gap by focusing on the Costa Rica’s refugee determination policies and procedures and their impact on refugee claimants’ lives. We illustrated administrative, procedural, and micro-level bordering practices that deprived many displaced people in search of protection of such rights as access to secure status, open work permits, access to healthcare, and other benefits. Weitzman et al. (2024) identify many other aspects of refugee lives in Costa Rica that require attention, such as the long-term effects of forced international migration on individuals' identity formation, aspirations, and behavior patterns, the impact of this migration on Costa Rica’s social dynamics, the psychological costs or trauma experienced by refugee claimants on their well-being and community cohesion, and the comparison of experiences between officially recognized refugees and refugee claimants awaiting decision on their applications. At the same time, as the US is attempting to externalize its borders to southern countries, many new geographic locations throughout the American have recently become arenas of intensified border conflicts. We encourage more research on displaced people seeking protection not only in Costa Rica, but in such places as Colombia, Honduras, and Ecuador.

Footnotes

1

Both Könönen (2018) and Artero and Fontanari (2021) use the concept of administrative bordering to capture negotiations and processes linked to immigrations policies. Unlike them, we categorize these practices as procedural or micro-level.

2

UNHCR affiliated organizations that receive funding from UNHCR to provide legal assistance and other forms of support for refugee claimants in Costa Rica include Jesuit Migrant Services, Legal Consultants LaSalle, HIAS, Cenderos, DNI, World Vision, Foundation Women and Foundation Omar Dingo, RET, Costa Rican Red Cross. See https://help.unhcr.org/costarica/acerca-del-acnur-en-costa-rica

3

The Supreme Court of Costa Rica found this provision unconstitutional (Rigidor 2023; interviews with NGO representatives; Madrigal 2023).

4

See https://salaconstitucional.poder-judicial.go.cr/

Acknowledgements

We are extremely grateful to the refugee claimants and representatives of international and non-governmental organizations who shared their stories, knowledge, and insight with us. We are indebted to Jesuit Refugee Service Costa Rica and VenCR Alliance who put us in touch with refugee claimants and permitted us to use their offices for interviews. This article benefited from the judicious comments and helpful recommendations provided by two anonymous reviewers. Finally, this project would not have been possible without the generous funding provided by the Social Sciences and Humanities Research Council of Canada.

Conflict of interest. None declared.

Funding

This study was supported by Government of Canada, Social Sciences and Humanities Research Council of Canada (insight grant 435-2017-0065).