From Jurisprudential Criteria to Legal Concept

Rootedness as a Limit on the Expulsion of Migrants in Chile

Abstract

This article analyzes the evolution of rootedness from a jurisprudential criterion to its consolidation as a relevant legal concept for limiting the State’s authority to expel migrants in Chile. Drawing on an examination of the case law of the Supreme Court, the Courts of Appeal, and the standards of the Inter-American Human Rights System, it argues that every expulsion decision must be based on an individualized assessment of the particular circumstances of the affected person, in accordance with the requirements of due process. The study identifies the principal categories of rootedness recognized in judicial practice, including family, employment, and social rootedness, as well as ties related to social reintegration and protection needs, assessing their impact on the proportionality and reasonableness of expulsion measures. It also highlights the persistence of divergent judicial approaches regarding the weight that should be accorded to rootedness when balanced against unlawful or otherwise reproachable conduct, creating uncertainty in the application of the law. Finally, the article proposes a unified legal definition of rootedness and underscores the need to establish clear legislative and jurisprudential standards that strengthen the protection of migrants’ human rights and enhance the predictability of administrative and judicial decision-making.