Cuba: The Habilitación visa and permit, including differences between the two documents, as well as requirements and procedures to obtain the documents; consequences for violating the terms of the Habilitación; whether Law 989 is still in effect; requirements and procedures for émigrés to return to Cuba permanently

1. Habilitación

In a telephone interview with the Research Directorate, the Executive Director of the Center for Latin American and Caribbean Initiatives (CLACI) at Miami Dade College indicated that

an "habilitación de pasaporte" is a "multiple entry visa" that allows a Cuban émigré to enter Cuba, and in the case of those living in the island, the "pasaporte habilitado" is the equivalent to a "multiple exit permit." It is still under the new regulations a prerogative of the State to extend or deny the "habilitación" in any of the two cases, preventing the citizen from exercising its right to the freedom of movement. (25 July 2013)

Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

1.1 Habilitación for Émigrés

Article 44 of Decree 305 of 2012 indicates that "[t]o enter the national territory, Cuban citizens must possess a valid Cuban passport issued in their name or an equivalent document. Émigrés must submit their duly authorized [habilitado] passport" (Cuba 2012a).

According to the Executive Director, an habilitación allows the person to "start travelling as a tourist to his country of birth for trips not exceeding a one month stay that can be extended to up to three months on each occasion" (25 July 2013). The website of the Cuban embassy in Ottawa indicates that an habilitación is a permit that allows Cuban émigrés to visit Cuba for 90 days (Cuba n.d.). The initial 90 day period can be [translation] "exceptionally" extended within Cuba at the Immigration and Foreign Aliens Branch (Dirección de Inmigración y Extranjería) (ibid.).

The website of the Cuban embassy indicates that an application for an habilitación to enter Cuba must be submitted by the nearest Cuban consulate where the applicant is registered to the Immigration and Foreign Aliens Branch (ibid.). The application can be made only once, and when it is approved, it is valid [translation] "indefinitely" unless it is revoked (ibid.). Diario de Cuba, a digital news source based in Spain, cites an official from the Interests Section of Cuba in Washington as saying during a meeting with a group of Cubans in Miami that [translation] "'the habilitación is approved only once and it continues to be valid unless you do something very strong against our country ... Usually, once the habilitación is stamped in the passport, when the passport is renewed the habilitación continues to be valid and it allows you to stay three months in Cuba'" (10 July 2013). The habilitación must be stamped in the Cuban passport in order to allow entry to Cuba and the holder must show a document that evidences legal residence in another country (Cuba n.d.).

1.2 Habilitación for Professionals

Decree 306 of 2012 says the following regarding the treatment of those who require authorization to travel outside Cuba:

[translation]

Article 1. The provisions in this Decree apply to persons in the following categories:

senior managers and managers in central offices of national bodies, organizations and institutions, or administrative boards and senior business-management organizations, as well as managers and executives who perform vital roles in the economic, social and technical development of Cuba, and who hold decision-making positions involving financial and material resources;

graduates with advanced degrees who perform vital roles in the economic, social and technical development of Cuba in strategic programs, research projects, and health services;

specialized intermediate-level technicians who perform vital roles to maintain health services, and technical/scientific activities;

high-performance athletes, coaches, and trainers essential to the Cuban sports movement.

Article 2. The subjects mentioned in the previous article will be treated as follows:

The persons in paragraphs a), b), and d) may be authorized, on a case-by-case basis, to travel abroad for personal matters. Applications for foreign residence will be approved for periods not exceeding five calendar years as of the date of the application. Training relevant to vital function in question will be carried out during this period, if appropriate.

The persons in paragraph c) will receive a treatment similar to that described in the previous paragraph.

Applications for foreign residence are approved for periods not exceeding three calendar years as of the date of the application.

For the subjects in Article 1, absence from the workplace does not constitute an exemption from adhering to the prescribed time limits for which applications for foreign residence are authorized.

When the authorized administrators consider that there are sufficient humanitarian grounds, they may permit travel abroad for the subjects under this Decree, including under past regulations, without abiding by the established terms. In the case of managers, the specific procedures for this purpose will be carried out expeditiously. (ibid. 2012b)

Sources indicated that a Cuban who violates the terms and conditions of an habilitación will be considered an émigré by Cuban immigration authorities (Executive Director 25 July 2013; Director 17 July 2013). According to the CLACI Executive Director, "after changing the status for that of an émigré, the person would have to apply for an habilitación to enter the country" (25 July 2013). In correspondence with the Research Directorate, the Director of the Institute for Cuban and Cuban-American Studies at the University of Miami indicated that in order to return to Cuba after violating the terms and conditions of an habilitación, the person has to submit an application to return to Cuba at a consular office abroad (17 July 2013). Additional information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

2. Returning to Cuba

Resolution 44 of 2012, which outlines the procedures in place to deal with applications made by Cubans who are considered as émigrés to take up residence in the country, indicates the following:

[translation]

ONE: The purpose of this resolution is to establish the procedure whereby Cuban citizens who have emigrated submit applications for residence in the national territory.

TWO: Cuban émigrés requesting residence in the country at Cuban consulates abroad or at the applicable Ministry of the Interior Processing Office, must meet the following requirements:

Submit the application.

Submit their current passport.

Inform the reference person [government employee] that they commit to ensuring their accommodation and upkeep as appropriate in Cuba, until such time as they have their own income and housing.

Pay the consular tax or fee, as applicable, in accordance with current legislation.

THREE: Applications by the persons referred to in the previous section must provide information on the means used to emigrate and the reasons for requesting residence once again in Cuba, as well as identifying information and valid passports for minors or disabled persons accompanying them.

FOUR: Rulings on applications for residence in Cuba submitted by Cuban citizens who have emigrated are made by the Directorate of Immigration and Foreigners' Affairs within 90 days, and notification thereof is provided by the Cuban consulate or Ministry of the Interior Processing Office to which the application was submitted.

FIVE: Where Cuban citizens who have emigrated receive notification of the approval of their residency in the national territory, they will also be provided with a document for submission to the corresponding Ministry of the Interior Administration Office for purposes of their registration and updating of their identification in the country.

SIX: Persons serving prison sentences under the migration classification of émigré may appoint a relative to represent them in the proceedings referred to in this resolution.

FINAL PROVISION

SOLE: This resolution enters into force on January 14, 2013. (Cuba 2012c)

According to the Executive Director, it is "still very unusual" that Cuban authorities approve residence permits to Cuban émigrés (25 July 2013). Corroborating or additional information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

3. Law 989

The Fourth [translation] "final provision" of Decree-Law 302 published in the official gazette (Gaceta Oficial) of 16 October 2012 indicates the following:

[translation]

Law No. 989 dated December 5, 1961, which provides for nationalization through confiscation by the Cuban state of the assets, rights and shares of persons leaving the country on a permanent basis, and such other legal provisions as are in violation of this Decree-Law, are hereby repealed. (Cuba 2012d)

The preamble to the set of decrees issued on 16 October 2012 indicates the following:

[translation]

Whereas: The recent measures approved by the Government concerning the possibility of giving away one's property for those leaving the country on a permanent basis, and the need for new concepts adjusted to the current scenario, the repeal of Law No. 989 of 5 December 1961 is advised, which law provides for nationalization through confiscation by the Cuban state of the assets, rights and shares of those leaving the country permanently, given that its regulations are incorporated into the relevant special legislation. (ibid. 2012e)

The second part of Article 9 of Decree-Law 302 indicates that

[translation]

Cuban citizens are considered to have emigrated when they travel abroad for personal matters and reside abroad continuously for a period of over 24 months without proper authorization, or when they take up residence abroad without complying with the immigration regulations in force. (ibid. 2012d)

Additional information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim for refugee protection. Please find below the list of sources consulted in researching this Information Request.

References

Cuba. 2012a. Decreto No. 305. [Accessed 17 July 2013]

_____. 2012b. Decreto No. 306. [Accessed 17 July 2013]

_____. 2012c. Resolución No. 44. [Accessed 17 July 2013]

_____. 2012d. Decreto Ley No. 302. [Accessed 17 July 2013]

_____. 2012e. Gaceta Oficial de la República de Cuba, Consejo de Estado. [Accessed 17 July 2013]

_____. N.d. Embajada de Cuba en Canadá. "Servicios consulares." [Accessed 24 July 2013]

Diario de Cuba. 10 July 2013. "Cónsul cubano se reúne con procastristas residentes en Miami." [Accessed 18 July 2013]

Director, Institute for Cuban and Cuban-American Studies at the University of Miami. 17 July 2013. Correspondence with the Research Directorate.

Executive Director, Center for Latin American and Caribbean Initiatives (CLACI) at Miami Dade College. 25 July 2013. Telephone interview.

Additional Sources Consulted

Oral sources: Attempts to contact researchers at the School of Communication and the School of Law at the University of Miami and an independent researcher were unsuccessful.

Internet sites, including: ABC [Madrid]; Amnesty International; Andina, Agencia Peruana de Noticias; Asylum Research Consultancy; Australia - Migration Review Tribunal; The Australian; Cartas desde Cuba; Cuba - Consultoría Jurídica Internacional, Granma, Nación y Emigración; Cuba Debate; Cuba Encuentro; Cubainformación; La Cubanada; Cubanet; ecoi.net; Freedom House; Havana Times; Hoy Digital; Human Rights Watch; Institute for War and Peace Reporting; International Crisis Group; International Federation for Human Rights; Juventud Rebelde; Martín Noticias; National Public Radio; Norway - Immigration Authorities; NTN 24; El País; Primavera Digital; Radio Ciudad del Mar; Radio Free Europe/Radio Liberty; Radio Martí; La Segunda; TeleSur; United Kingdom - Home Office; United Nations - Refworld, ReliefWeb, UN High Commissioner for Refugees; United States - Department of Homeland Security, Department of State; Univisión; Washington Office on Latin America.