Due administrative process and its violation in the refugee application within the state of exception

Abstract

The refuge arises as a protection measure of an international nature, for all those people who had to migrate due to the disastrous events of the Second World War. This figure was ratified by several signatory countries of the United Nations Charter, generating responsibilities in its application. However, with the passing of time, the realities and needs of migrants seeking refuge were changing, much more so at the Latin American level, that is how Colombia became the signatory State of the Cartagena Convention, a norm that adapted the concept of refuge to the realities of the American continent. Although the refuge was consolidated in the Colombian legal system prior to the constitutional change of 1991, the idea of p rotection of migrants goes hand in hand with the concepts of the new Latin American constitutionalism, ensuring that the pre-constitutional norm does not conflict with the new primary norm and the development of the new constitutional rights. These regulatory changes presented at the Latin American level, have allowed prioritizing certain types of rights, among these those of a higher order, and all those that can be classified in this position (constitutionality block), within which due process can be highlighted, guarantee that seeks within the judicial or administrative action of the State, the sufficient elements for a real materialization of access to said services. One of the points of discussion presented arises when the State, as guarantor of these individual rights, can be affected by external or internal, social, political, economic or ecological factors, for which, from the constitutional norm, it is allowed that the same enter a state of exception, where several of these rights can be limited within a temporary period, in order to return to fully guarantee them. The second point to be discussed arises when the rule that allows the application for refugee status proposes extendable terms without limitations, being a clear violation of the principle of speed and the reasonableness of terms, as part of certain main elements of the administrative due process.