Philip Peters, Vice President Lexington Institute has written a great summary of the upcoming Cuba emigration law changes titled Migration Policy Reform: Cuba Gets Started, U.S. Should Follow
His introduction follows…
New laws and regulations promulgated in Havana in October 2012 have overhauled and liberalized Cuban policies governing emigration of Cuban citizens, their travel abroad, and their return. While falling short of granting unfettered freedom to travel, the measures promise to eliminate restrictions that affect the vast majority of the Cuban public. The tarjeta blanca, the exit permit that has been a hallmark of communist states’ control over citizen movement, is being abolished, and foreign travel will be permitted for all passport holders.
The new policies, effective next January 14, carry a risk of increasing the loss of trained and skilled personnel through emigration. But they also seem to bet on the idea that Cubans, given the freedom to travel and to return, will indeed return in large numbers and bring important benefits to Cuba’s economy, not to mention to citizens who have long chafed at restrictions on the basic right of movement.
In United States immigration policy, Cubans receive unique and highly favorable treatment in terms of admission criteria, speed of admission, and government benefits extended even to Cubans who arrive with no visa and make no claim of persecution, and who would be treated as illegal immigrants if they came from any other place. Some elements of the policy fulfill U.S. commitments in bilateral agreements that Washington and Havana entered to prevent uncontrolled and dangerous migration. One element, the “wet foot-dry foot” policy, violates those same agreements. Others provide ample opportunity for Cubans to gain admission as refugees. Taken together, it is a patchwork policy that lacks a central organizing concept, and many of its elements are in conflict with U.S. policies governing migration, refugees, fiscal responsibility, and border security. A review and modernization is long overdue.
Cuba’s reform of travel and migration policies The Cuban daily newspaper Granma, the official organ of the Communist Party, was hard to come by in Cuba on October 16, 2012. The Gaceta Oficial, a dry Justice Ministry publication containing texts of new laws and regulations, also sold out in post offices across the country by mid-morning. Both contained big news: a major liberalization of policies governing overseas travel by Cuban citizens. Since assuming Cuba’s presidency in 2008, Raul Castro has been eliminating what he calls “excessive prohibitions” in Cuban law. His actions include permitting Cubans to hold cellular phone accounts, to stay in Cuban hotels, and to buy and sell cars and residential real estate. But the new travel policies were “the most anticipated change,” a clergyman in Cienfuegos commented on that day. Interviews with citizens indicated why: even for those without a plan to travel or the necessary funds, a daunting barrier between them and their relatives overseas was being lifted.
The travel policy reform was contained in Decree-law No. 302, which amends and updates Cuba’s 1976 law on migration. The reform takes effect January 14, 2013. The new law’s preamble says its purpose is “to guarantee that migratory movements continue to be carried out in a legal, orderly, and safe manner.” It notes that it takes into account U.S. policies based on “hostility, subversion, and destabilization” that admit migrants who arrive in U.S. territory without a visa and that offer special immigration privileges to Cubans serving on medical missions in third countries; therefore it provides, “along with measures that relax regulations, certain regulations to limit the effects of the [U.S.] policies, as well as to put in place norms that preserve the country’s skilled work force.”
The new law eliminates the requirement for Cuban citizens to obtain an exit permit, called the tarjeta blanca, for each and every departure from the country for any purpose and for any duration. It also does away with the requirement that Cubans traveling abroad present a letter of invitation from a person or institution that would be responsible for their visit.
In place of the old requirements, there is now only the requirement that a Cuban citizen obtain a passport. With a passport in hand – and a visa from destination countries that require them – a Cuban citizen may now travel abroad. Cubans now holding passports may update them free of charge so as to be able to take advantage of the new norms. Passports are valid for two years, and are renewable.
The new reform does not recognize an inherent right to travel, and it limits foreign travel privileges for some. A new Article 23 in the migration law lists categories of persons residing in Cuba who “may not obtain passports” for reasons that include:
• being subject to a criminal justice proceeding or serving a sentence
• being subject to military service
• reasons of defense and national security and other public interest reasons
• being deemed unfit for travel because of one’s work in the “economic, social, scientific, or technical development of the country, as well as for security and the protection of official information”
• having “obligations with the Cuban state or civil responsibility”
• in the case of minors, lack of full legal authorization from both parents.
It remains to be seen how broadly these exceptions will be invoked. One can speculate that they would be used to prevent travel by persons whose military or intelligence work is deemed sensitive, or by others whose political views or activities have put them in conflict with the government. Only experience will tell, once the law takes effect in January 2013.
A potentially substantial category of Cubans may have their ability to travel restricted because of their importance to the economy. The law describes those who are “involved in activities vital to the economic, social, scientific, and technical development of the country,” those involved in the health care system, athletes and trainers, and those who are in decision-making positions regarding Cuba’s financial and material resources. Within 60 days of the law’s enactment, the Labor Ministry is required to present the Council of Ministers a proposal including the personnel and positions subject to the requirement to seek prior authorization to travel, and the reasons for the inclusion of each. In a recent press conference, Minister of Justice Maria Esther Reus seemed to minimize the number that would be included in this category, saying that only those professionals deemed by their institutions to be in “vital activities” will require a superior’s prior authorization to travel abroad. Again, experience will tell.
The new law also liberalizes the treatment of Cubans who wish to emigrate, who have emigrated and wish to return, or who wish to spend extended periods of time abroad.
• The status of Cubans with permission to reside abroad under current law is not affected by the new law.
• Citizens may depart Cuba for up to 24 months and can apply for a longer period or for an “indefinite” stay abroad for reasons of marriage (“formal or not”) to foreign citizens or for other “family and humanitarian reasons” or for other “justified reasons.”
• Cubans who have emigrated may return to Cuba for 90 days, and those with permission to reside abroad may return for 180 days; both limits may be extended with government permission.
• Cubans who have emigrated may apply to reestablish residency in Cuba. They must explain how they emigrated, why they wish to return, and who will be responsible for their lodging and
support until they are self-sufficient. Applications may be submitted at immigration offices in Cuba or at Cuban consulates outside Cuba. Immigration authorities are required to respond within 90 days.
• The December 1961 law that allows the state “to nationalize through confiscation” the real property and other assets of Cubans who emigrate, is repealed. This was a key feature of the salida definitiva (“definitive departure”) designation for Cubans who departed Cuba and lost an ability to return without government permission.
Also, a further policy change was announced in an October 24 press conference by Homero Acosta, secretary of the Council of State. He explained that Cubans who emigrated illegally (e.g. those who left on boats to the United States or those who traveled with permission and did not return), and those athletes and medical personnel who went abroad for official reasons and did not return, will be permitted to return to Cuba if they wish after eight years have passed.
In the press conference, Acosta elaborated on the government’s reasons for enacting the reform. One reason, he said, was “to improve relations with Cuban emigrants, who with the passage of time have changed considerably from having eminently political motivations in the first years of the Revolution, to having economic motivations.”
Acosta noted that in 2011, 400,000 Cubans who reside abroad visited Cuba, including 300,000 from the United States.
He also noted that since 2001, 99.4 percent of applicants for the tarjeta blanca, the now-abolished exit permit, received a positive response. During that period 941,953 Cubans traveled abroad, of whom 120,275, or 13 percent, did not return to Cuba. Among the travelers were 156,068 university graduates, 11 percent of whom did not return.
These figures may explain why Cuba is taking the calculated risk of liberalizing travel policies, even though increased travel may add to the approximately 40,000 Cubans who are now emigrating annually, resulting in a loss of educated and trained personnel. It is notable that the liberalization was not postponed for a few years on the assumption that, if current and planned economic reforms take hold, the economy will be providing more opportunities for well-paying employment and hence reduced incentives for emigration.
Instead, the government’s bet seems to be that under policies that make travel easier and that include the possibility of extended stays abroad, fewer Cubans will opt to emigrate and some who have emigrated will return.
READ THE REST OF THE STORY HERE from U.S. policy toward legal and illegal immigration from Cuba