Criminal Records as an Obstacle in Colombian Visa Applications: An Analysis of Risks and Consequences.

Q: What is Considered a 'Criminal Record' under Immigration Regulations?

Paragraph 1 of Decree 1067 of 2015 of the President of the Republic clearly defines a criminal record as convictions handed down in a final, enforceable judicial sentence (sentencia judicial ejecutoriada). This implies that only a firm conviction, issued by a court and against which no further appeals are permitted, constitutes a criminal record.

camorenoalzate
Jul 14
7 min read

The visa process is a fundamental pillar of regular and orderly migration in any State. In Colombia, immigration regulations establish a series of requirements and criteria for the admission and stay of foreigners, among which legal standing and the existence of a criminal record play a decisive role. This article aims to analyze how Colombian immigration law utilizes criminal records as an essential criterion to evaluate the risk a foreign national may pose to national security and public order. It addresses the legal definition of a criminal record, specific grounds for inadmissibility and visa denial, and the impact of these records on the discretionary assessment exercised by immigration authorities, providing a guide for foreigners, lawyers, and immigration consultants.

I. General Regulatory Framework on Visas and Criminal Records in Colombia

A. The State's Discretionary Power in Immigration Matters

The Colombian State, in the exercise of its sovereignty, holds the inalienable power to regulate the entry and stay of foreign citizens within its territory. This principle of sovereignty is manifested through the Comprehensive Migration Policy of the Colombian State, established by Law 2136 of 2021 of the Congress of the Republic, which grants the Ministry of Foreign Affairs the authority to issue visas and Migration Colombia (Migración Colombia) the function of immigration control.

These entities have the authority to determine who can enter and under what conditions, with the absence of a criminal record being a central element of this evaluation. Law 2136 of 2021 also empowers the Special Administrative Unit Migration Colombia to access the criminal records, judicial requirements, and legal annotations of both nationals and foreigners, highlighting the importance of this history in the fight against organized crime.

B. What is Considered a 'Criminal Record' under Immigration Regulations?

For the purposes of Colombian immigration regulations, the distinction between a "criminal record" (antecedente penal) and an "annotation" (anotación) is crucial.

Criminal Record: Paragraph 1 of Decree 1067 of 2015 of the President of the Republic clearly defines a criminal record as convictions handed down in a final, enforceable judicial sentence (sentencia judicial ejecutoriada). This implies that only a firm conviction, issued by a court and against which no further appeals are permitted, constitutes a criminal record.
Annotation: On the other hand, the same provision clarifies that an annotation is any record of information and/or intelligence concerning the foreigner held in the archives of security and defense agencies.

This distinction is fundamental, as not every record in security databases equates to a criminal record in the strict sense, although both categories can influence the decisions of the authorities.

C. General Requirement: The Judicial Record Certificate

Providing a judicial record certificate is a cross-cutting requirement for applying for multiple visa categories in Colombia. Resolution 5477 of 2022 of the Ministry of Foreign Affairs explicitly requires this document for visas such as the 'V Holiday and Work' (V Vacaciones y Trabajo), the 'V Rentier' (V Rentista), and the 'M Andean Migrant' (M Migrante Andino).

This certificate must be issued by the competent authority of the country where the applicant has resided during the last three (3) years and must comply with the formalities of apostille or legalization and translation, as established in Article 21 of the aforementioned Resolution. This requirement underscores the importance that the Colombian State places on the applicant's criminal history to guarantee security and public order within its borders.

II. Direct Risks: Grounds for Inadmissibility and Visa Denial

A. Grounds for Inadmissibility to National Territory

Colombian immigration regulations explicitly establish various grounds that prevent foreigners from entering the national territory. Particularly, those related to criminal records or ongoing criminal proceedings present a direct obstacle.

According to the jurisprudence of the Supreme Court of Justice in ruling 27337 of August 23, 2007, it is considered grounds for inadmissibility:

"Having pending proceedings for crimes carrying custodial sentences of two (2) or more years in Colombian or foreign territory, and/or registering conduct or annotations abroad that could compromise State security or endanger social peace."

Additionally, the same ruling mentions as grounds for inadmissibility:

"Having records and/or annotations for migrant smuggling, human trafficking, organ trafficking, child pornography, and/or common crimes."

These provisions are reiterated by more recent regulations, such as Presidential Decree 1727 of 2020, which establishes as grounds for inadmissibility the existence of founded facts or information indicating that the foreigner represents a risk to State security or public coexistence. The evaluation of this risk is a fundamental pillar in the decision-making of immigration authorities.

B. Specific Grounds for the Denial of Visas and Permits

In addition to the general grounds for inadmissibility, there are specific restrictions to access certain regularization mechanisms or visa types where the absence of a criminal record is a strict requirement.

Presidential Decree 216 of 2021, as well as the 2022 handover report from Migration Colombia, establish that to obtain the Temporary Protection Permit (Permiso por Protección Temporal - PPT), the applicant must:

Not have criminal records, annotations, or ongoing administrative sanctioning or judicial proceedings in Colombia or abroad.
Not have convictions for intentional crimes (delitos dolosos).

These requirements are a condition sine qua non, with the sole exception of children and adolescents under the Administrative Process for the Restoration of Rights (Proceso Administrativo de Restablecimiento de Derechos - PARD) or the Adolescent Criminal Responsibility System (Sistema de Responsabilidad Penal Adolescente - SRPA).

Similarly, Resolution 12509 of 2024 of the Ministry of Foreign Affairs explicitly excludes Venezuelan nationals who present judicial, criminal, or police records and/or active immigration measures, or who are deprived of liberty or subject to a deportation or expulsion order, from the 'V - Special Visitor' Visa (Visa 'V - Visitante Especial'). These regulations reflect the Colombian State's policy of maintaining strict control over the criminal history of foreigners seeking to regularize their status in the country.

III. The Assessment of Criminal History by Immigration Authorities

A. The Risk Criterion for National Security and Public Order

Beyond the objective grounds for inadmissibility and visa denial, Colombian immigration authorities enjoy discretionary power to evaluate whether a foreigner constitutes a risk to national security or public coexistence.

Presidential Decree 1067 of 2015, in its Paragraph 1, numeral 15, establishes that inadmissibility may occur:

"For reasons of sovereignty, when there are founded facts or information indicating that they represent a risk to State security or public coexistence."

This discretionary power, also backed by Law 2136 of 2021 of the Congress of the Republic, allows the immigration authority to comprehensively analyze the applicant's criminal history, considering not only the existence of final criminal convictions but also the severity of the offense, its nature, and its potential impact on Colombian society. As noted by the jurisprudence of the Administrative Court of Cundinamarca in ruling 11001-33-34-066-2022-00172-01 of August 3, 2022, compliance with the established requirements does not guarantee the granting of the visa, as the final decision falls within the discretionary and sovereign power of the Colombian State.

B. The Temporal Factor and Rehabilitation

A fundamental aspect in the evaluation of criminal history is the temporal factor and the possibility of rehabilitation. Although Colombian laws provide for the expungement of criminal records after a certain period or upon serving the sentence, the reality in immigration procedures can be more complex.

The jurisprudence of the Constitutional Court in Judgment T-058 of 2015 illustrated the challenges citizens face when the wording on judicial record certificates is ambiguous. This judgment highlights how the phrase "HAS NO PENDING MATTERS WITH JUDICIAL AUTHORITIES" (NO TIENE ASUNTOS PENDIENTES CON LAS AUTORIDADES JUDICIALES), which is used both for individuals with no criminal record and for those whose sentences have expired or been extinguished, has caused:

"...serious harm to Colombians residing abroad, due to the refusal of foreign governments to accept the phrasing... failing to validate the citizen's stay in foreign territory, denying them a visa, residency, or nationality."

This demonstrates that even if a record is considered legally cleared in Colombia, its interpretation by foreign immigration authorities can still create issues.

C. Experiences and Challenges in Practice

The persistence of criminal data and its long-term impact on immigration procedures is a significant challenge. A clear example is found in Judgment STP4507-2023 of the Supreme Court of Justice, which describes a case where an individual, criminally convicted more than twenty years ago and having already served the sentence, continued to face immigration issues.

Although the individual claimed that their criminal and judicial records had been removed from Colombian databases, the United States embassy denied them a visa in 2016 and 2017 due to records with Colombian justice, and in 2022, Panamanian immigration authorities barred them from entering the country for the same reason.

This case illustrates how, in practice, convictions completed decades ago can continue to affect individuals' freedom of movement and right to work, despite being considered cleared at the national level. The ambiguity in the interpretation of record certificates by foreign authorities and the persistence of information in international databases represent a constant barrier to immigration regularization.

Conclusion

A detailed analysis of Colombian immigration regulations reveals that criminal records constitute a significant and multifaceted obstacle for foreigners seeking a visa in Colombia. The State, in the exercise of its sovereignty, establishes a rigorous framework where the absence of a criminal history is a fundamental pillar for the entry and stay of foreign nationals. The precise distinction between a criminal record as an enforceable conviction and an annotation as an intelligence record, combined with the cross-cutting requirement for judicial certificates, underscores the seriousness with which Colombian authorities assess risk.

The grounds for inadmissibility and visa denial are explicit and strictly applied, particularly in the context of pending criminal proceedings, offenses that compromise State security or public coexistence, and special permits such as the Temporary Protection Permit (PPT) or the V-Special Visitor Visa. The discretionary power of immigration authorities to classify a foreigner as "risky" to national security or public order is a decisive criterion that goes beyond formal compliance with requirements. Furthermore, practical challenges arising from ambiguity in background certificates and the persistence of information in databases—even after sentences have been served—demonstrate that the temporal factor and rehabilitation do not always mitigate immigration impact.

Ultimately, Colombian immigration policy seeks to balance national security and public order with respect for migrants' rights. However, for those with a criminal record, the path to regularization in Colombia presents substantial risks, where the evaluation of their criminal history remains a preponderant and often restrictive factor.