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18 September 2019
It is not unusual for immigration authorities in different countries to pursue airlines for infringements of passenger documentation requirements to enter a country.
Argentina is no exception and the Immigration Authority (DNM) has been incentivised to detect passenger documentation infringements and collect fines from air carriers.
However, a number of recent decisions regarding the DNM's imposition of fines in this regard could mark a turning point on this issue.
In 2008 the government imposed an entrance fee on US, Canadian and Australian citizens, as these countries collected a similar fee from Argentine citizens for entrance into their territories. The charge was dubbed the 'reciprocity fee'.(1)
Originally, this fee was paid by the abovementioned foreign nationals at immigration offices in Argentine airports; however, in 2012 the DNM introduced some changes to the process and asked foreign nationals to pay the reciprocity fee online before their arrival in Argentina.(2)
Circumstances determined that almost all of the abovementioned foreign nationals arrived in Argentina without having paid the reciprocity fee and instead had to pay it on arrival.
This would have remained a mere curious fact if the DNM had not spotted an opportunity to collect additional funds through the application of fines on airlines.
The principle of the punitive power of states prescribes that punishment can be applied only if contemplated by the law (nulla poena sine lege). In Argentina, as in other countries, the principle of legality governing criminal law applies only to administrative infringements in a relative way. In this sense, the legislature does not need to define accurately the behaviour that it wants to punish and can therefore make use of general definitions that lead to a wide margin of discretion in the interpretation of the law and the application of administrative penalties.
This explains why under the Immigration Law airlines can be penalised when they transport passengers "in irregular conditions" and why the DNM has so much freedom to determine what those "irregular conditions" are.(3)
In this context, when a foreign national arrives in Argentina without having paid the reciprocity fee, the DNM fines the relevant airlines considering that they have failed in their duty to check the passenger's travel documents. The fine amount depends on the cost of the relevant ticket according to the International Air Transport Association one-year fare, but can be as high as $5,000.
In 2016 and 2017 the government decided to remove the reciprocity fee for US, Canadian and Australian citizens as part of a process of global integration.(4)
However, the DNM continued to chase airlines for outstanding fines even after the government's change of policy. Further, the DNM ignored the airlines' claims that the collection of outstanding fines implied a direct violation of a basic and universally recognised principle that constrains the punitive power of states (ie, the 'most favourable law' principle).
The Argentine legal system has a number of idiosyncrasies which have made it difficult for airlines to challenge the DNM's conduct in court. First, there is the judicial system's natural tendency to validate state decisions. Second, under the existing legal procedures, in order to request a judicial review of an administrative authority decision, the petitioners must pay any outstanding fines thereto (ie, airlines with outstanding DNM fines would need to pay said fines in order to challenge their validity). Third, a series of Supreme Court precedents issued in 2000 created a wide margin of discretion in the interpretation of the law and the application of the immigration penalties.(5)
Despite the abovementioned difficulties, the courts have recently handed down a number of decisions which have challenged the DNM's imposition of fines on airlines.
In Iberia Lineas Aereas de España SA (File 6068/2018) Judge Maria Alejandra Biotti of the Federal Contentious Court 5, with jurisdiction in administrative matters, revoked a fine that the DNM had imposed on an airline for a passenger's non-compliance with the reciprocity fee. The court's main argument was that the government decision to scrap the reciprocity fee had removed the DNM's power to impose fines for non-compliance under the most favourable law principle.
Further, in British Airways PCL (File 6071/18) Judge Macarena Marra Giménez of the Federal Contentious Court 12 of the same jurisdiction revoked another fine imposed in relation to the reciprocity fee. The decision is notable as the judge not only applied the most favourable law principle but also questioned the validity of the reciprocity fee itself under the Constitution's taxation principles.
Although the recent decisions regarding the reciprocity fee may be appealed, these precedents suggest that even if justice is a long and difficult path, the airlines in question may be able to resolve the economic losses that the DNM's fines have created.
(5) On 5 October 1999 the Supreme Court stated that the imposition of fines according to the price of airline tickets did not violate the principle of equality (Supreme Court Case Fallos: 233:2346 – File L92XXXIV, Lufthansa Líneas Aéreas Alemanas c/ Dirección Nacional de Migraciones -disp DNM 4783/96). Second, on 30 May 2001 the Supreme Court stated that the obligation on airlines to check passenger travel documents was clearly prescribed in the regulations on migration matters abrogated by Law 22,439. As a result, the fine imposed for non-compliance was not a violation of the principle of legality (Supreme Court Case Fallos: 324:1714 – File L253XXXVI, Lufthansa Líneas Aéreas Alemanas c/ Dirección Nacional de Migraciones (Disp DNM 4782/96)). Third, on 15 July 2003 the Supreme Court stated that the imposition of the fines according to the International Air Transport Association fare for airline tickets involved in the case was a reasonable interpretation of the previous regulations under the abrogated Law 23,439. As a result, it was not a violation of the principle of legality (Supreme Court Case Fallos: 236:2367 – C614XXXVII, Compagnie Nationale Air France c/DNM –disp 5140/99(expte 205630-5/97).
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