The applicant is a Venezuelan national who holds a residence permit in Chile which is valid until 13 January 2025. The applicant’s child was born in Chile and holds Chilean citizenship. The applicant submitted a request for international protection on 14 March 2022, which was examined alongside the request of her child, second applicant, based on the concept of family unity.  On 27 June 2022, the Directorate of Immigration issued a decision in respect to the applicant’s request for international protection. The decision stated that the material substance of the applicant’s claim would not be examined in Iceland and that both applicants would be returned to Chile. In their appeal, the applicant requested the Immigration and Asylum Appeals Board to annul the judgement and order the Directorate of Immigration to examine the content of their claim.  

The Directorate of Immigration highlighted that the applicant had a valid residence permit in Chile and under Article 36(1)(a) of the Act on Foreign Nationals the material substance of their request for international did not have to be examined provided that the applicants’ transfer to Chile would not constitute a violation of Article 42 or Article 36(3) of the Act on Foreign Nationals. The Directorate of Immigration further noted that the applicant did not have any special ties with Iceland. In relation to the second applicant, the Directorate of Immigration noted that they had considered the best interest of the child principle and concluded that they would not be compromised by accompanying their parent to Chile.  

The applicant asserted that the Directorate of Immigration did not follow their investigative duties outlined in Article 10 of the Administrative Procedure Act No 37/1993. The applicant stated that she was informed that the Directorate of Immigration would request medical documents regarding her mental health, but no such request was made. The applicant further stated that her individual circumstances were not taken into consideration, rather the decision was issued based on general information available on Chile.  

The applicant claimed that she fled Chile due to violence. The applicant stated that she was attacked and threatened by their neighbours in Chile who were former Venezuelan soldiers. She stated that she contacted the police in Chile who advised her to internally relocate. The applicant moved to another city with her husband and child but received an unexpected phone call threatening their lives. The applicant contacted the police again who advised them to leave the country. The applicant adds that as a Venezuelan, they face discrimination, including when accessing healthcare, in Chile. This was a concern for the applicant as she had been diagnosed with depression and anxiety and may be in need of additional treatment for cervical cell abnormalities discovered in Iceland.  

The first applicant added that when assessing the second applicants request, the best interest of the child principle was not thoroughly considered. She claimed that the second applicant is at risk of abduction and that she woke up one night to find a stranger in her room holding the second applicant. The first applicant further claimed that as a child of a Venezuelan immigrant, the second applicant was at risk of discrimination.  

The board considered that there were deficiencies in the Directorate of Immigration’s examination of the second applicant’s request. The board concluded that an appropriate assessment relating the Article 37(1) and (2) of the Act on Foreign nationals must be carried out. The board further concluded that the Directorate of Immigration must assess whether the second applicant would qualify for a residence permit on humanitarian grounds pursuant to Article 74 of the Act on Foreign Nationals.  Given the age of the second applicant and the principle of family unity, the board concluded that the first applicant’s request should also be re-examined by the Directorate of Immigration.