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11 December 2019
The Argentine courts recently handed down a number of decisions on the alleged infringement of passenger documentation requirements by airlines (for further details please see "Airlines challenge fines by immigration office").
The Immigration Authority (DNM) repeatedly imposes substantial fines on carriers. Despite the fact that in many cases these fines have been wrongly imposed, airlines must pay any outstanding fines in order to file a judicial complaint against the DNM, so the fines are widely viewed as another cost of operating in Argentina. That said, a number of airlines have recently challenged the DNM's fines and the courts have given a clear sign that, even with the above difficulties, it is worth challenging this legal loophole.
In this sense, on 24 October 2019 Judge Enrique V Lavie Pico of the Contentious and Administrative Court 6 exempted an airline from paying a fine imposed by the DNM concerning the transportation of a deportee (South African Airways (Proprietary) Limited (File 40984/2019)).
Articles 41 and 45 of the Immigration Law (25,871) state that the DNM has the power to order transport companies to provide the free transportation of deportees out of Argentina, an obligation that companies must undertake as a "public burden".
In this context, the DNM repeatedly requests the free transportation of deportees from Argentina to their country of origin regardless of whether they were transported to Argentina by the same carrier. Further, requests by the DNM to transport deportees abroad are made regardless of whether a carrier flies directly to the destination requested. Further, such requests often involve the transportation of more than one deportee and accompanying security guards. The obligations on airlines include not only to provide the free transportation of deportees, but also room and board for security guards.
If an airline fails to adhere to such a request, the DNM considers it an infringement of Article 46 of the Immigration Law, resulting in fines for airlines that have not the complied with their obligations.
In 2012 the DNM asked South African Airways to transport a deportee from Argentina to South Africa. The deportee was an English citizen but had asked the Argentine authorities to deport him to South Africa as he had a residence permit.
After consulting with the South African embassy, the airline rejected the transportation request, as the South African authorities informed it that the deportee would not be allowed to enter South Africa as his residence permit had been cancelled due to the serious crimes which had motivated his expulsion from Argentina.
Nevertheless, after a long administrative procedure, in 2016 the DNM imposed a fine of approximately $10,000 on the airline. The proceeding continued with administrative appeals until mid-2019. The final administrative decision was appealed before the judicial courts.
Under the Argentine legal system, any outstanding fines must be paid in order to request a judicial review of an administrative authority decision. In this case, the airline requested to be relieved of the previous payment due to the fine's manifest illegitimacy. The airline expressly stated that it had been impossible to comply with the transportation request as the South African authorities had officially informed the carrier that its government would not allow the deportee to enter South Africa.
In his 24 October 2019 decision, Judge Enrique V Lavie Pico relieved the airline of the previous payment of the fine, finding that the claim of its alleged illegitimacy had "intense plausibility". The judge also commented on the right of judicial control in punitive matters.
The decision in South African Airways shows that airlines may have a concrete possibility of reversing cases of the DNM's wrongful imposition of fines in court.
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